(1) Muhammad Ashraf, (2) Muhammad Aslam, (3) Bashir Abroad, (4) Nisar Ahmad, (5) Asghar A.I,
(6) Akbar, and (7) Nazir were tried along with Hayat Muhammad and Altaf Hussain for offences under sections 148, 302/ 149 and 307/149, P. P. C. For having formed an unlawful assembly, armed themselves with deadly weapons and made a murderous assault on Rehmat A.I, Siddiq son of Rehmat A.I and Siddiq son of Sardar in prosecution of the common object of the said unlawful assembly. Rehmat A.I died as a result of the attack while Siddiq son of Rehmat A.I and Siddiq son of Sardar were injured. They were found guilty by Muhammad Mian Qureshi, Additional Sessions Judge, Lyallpur, vide his judgment dated 23-12-1969. He acquitted Hayat Muhammad and Altaf Hussain accused but convicted the rest for offences under sections 148, 302/307/325/323/149, P. P.
C. They were sentenced as follows:--
(1) Under section 302/149, P. P. C. To transportation for life each.
(2) Under section 307/ 149, P. P. C. To four years' R. I. Each.
(3) Under section 325/149, P. P. C. To two years' R.I. Each.
(4) Under section 323/149, P. P. C. To one year's R. I. Each.
(5) Under section 148, P. P. C. Also to one year's R. I. Each.
They filed an appeal against the above-noted judgment on 19-1-1970 which has come up for hearing now.
2. The learned counsel for the appellants contended straightaway that the trial stood vitiated because a part of the evidence was recorded by Mr. Gulbaz Khan, Sessions Judge, Lyallpur and a part of it was recorded by Muhammad Mian Qureshi, Additional Sessions Judge, Lyallpur who finally delivered the judgment. In support of this contention he cited Manzur v. State (1969 P Cr. L J 371) wherein it had been held that section 350, A Cr. P. C. Is not applicable to the trial before the Court of Sessions and that where a Sessions Judge proceeded with the trial from the stage at which his predecessor had left it the trial stood vitiated because the provisions of Chapter XXIII do not empower the Sessions Judge to take into consideration the evidence recorded by his predecessor.
It was further held in that case that this defect is not curable by section 537 Cr. P. C. The case was, therefore, remanded for fresh trial. The same view was taken in the following cases:---
(1) Buta Singh v. The Empress I P R 1890.
(2) Bashir v. Crown PLD 1950 Lah. 244.
(3) Hakam Khan v. State PLD 1959 Pesh. 20 The learned State counsel conceded that a part of the evidence was recorded by Mr. Gulbaz Khan, Session Judge, Lyallpur while the rest was recorded by Muhammad Mian Qureshi, Additional Sessions Judge Lyallpur. He also conceded that the learned Additional Sessions Judge could not, cinder the law, act on the evidence recorded by his predecessor and that the trial therefore stood vitiated.
3. The appeal is accepted on this short point and the case is remanded for fresh trial to the Court of the learned Sessions, Judge, Lyallpur.
4. Before parting with the case, however, it may be mentioned that the occurrence took place as gar back as 26-9-1967. The accused were arrested shortly afterwards. Only three out of them namely, Asghar A.I, Akbar and Nazir were allowed bail while the rest remained in custody. Tile trial Court slivered the judgment on 23--12-1969 and from then onward the appellants have been serving their sentences. In other words, some of them have been in jail for more than five years.
Had the learned trial Judge not committed the illegality which has vitiated the trial, the appellants may have already served out either all or more of their sentences, keeping in view of the remission to which they are entitled under the rule. Moreover, there may have been a likelihood of their having benefits by the amnesty declared on the assumption of office by the present President of Pakistan. These factors would be worth keeping in mind in case they are again found to be guilty by learned sessions judge who holds the fresh trial.