' The petitioner through this petition under section 435 read with section 439, Cr.P.C. Seeks that the order passed by the learned Additional Sessions Judge, Gujranwala dated 23-4-1995 be set aside and de novo trial be ordered after recording fresh evidence of the prosecution witnesses.
2. Briefly, the facts of the case are that the petitioner accused involved in case under section 303/304, Qisas and Diyat Ordinance; the challan was sent up by the Magistrate to the Court of Session, which was further entrusted to the learned Additional Sessions Judge, Gujranwala, who delivered the copies to the petitioner under section 265-C, Cr.P.C. On 1-12-1992 and the next date for framing of charge was fixed as 17-1-1993. In the meantime, the case was transferred to the Special Judge for Speedy Trials, Gujranwala vide Notification No,F-1 (216)/92 MIC dated 16-12-1992 issued by the Ministry of Law. The learned Special Court of Speedy Trials framed the charge on 11- 11994, the accused did not plead guilty to the charge and claimed to be tried. The prosecution evidence was produced on different dates and ultimately was completed on 6-4-1994. On the repeal of the Special Courts for Speedy Trials Act, 1992 vide Special Court for Speedy Trial (Repeal)
Ordinance XLII of 1994, the instant case like other cases, was transferred and entrusted to the Court of learned Additional Sessions Judge, Gujranwala. The complainant moved the learned Court of Additional Sessions Judge that the evidence already recorded by the Speedy Trial Court Gujranwala be acted upon and the remaining trial be concluded.
3. The petitioner accused resisted the application and submitted that there should be trial de novo.
4. The learned Additional Sessions Judge after hearing the arguments of the learned counsel ordered that the trial would not be conducted de novo but would be completed in accordance with law; hence this application.
5. Learned counsel for the petitioner vehemently contended that according to the language used in section 2(2)(a) of Special Courts (Repealed Act), 1994 evidence recorded by the Special Court for Speedy Trials has not been saved as in the said saving clause the only order, decision or judgment passed by the said Courts have been saved. Further contended that the provisions of section 350, Cr.P.C. Were inapplicable to the proceedings conducted by the said Courts as only the Courts of "Sessions Judge" or "Magistrate" have been mentioned in the section and lastly that the procedure specified in Chapter XXII of Cr.P.C. Was not applicable to the Speedy Trial Courts in stricto senso; further contended that the Court of Session is not the successor of Special Trial Court as mentioned in section 350, Cr.P.C. As both the Courts are not the Courts of concurrent jurisdiction and the case was transferred to the Court of learned Sessions Judge under section 340(3), Cr.P.C.
6. Learned counsel for the State assisted by the learned counsel for the complainant conversely controverted the arguments of the learned counsel by contending that the "Evidence recorded" is covered by section 2(2) of the Special Courts (Repealed Act) XLII of 1994; the Court of Session is the successor of defunct Speedy Special Court being equal Court and the instant case along with others was transferred to the Court of Session as a matter of policy of Legislatures; further contended that the Criminal Procedure Code was applicable to the said Courts; the only difference was that trial period was fixed for the Speedy Trial Courts and appeal was to be filed directly against the order of the said Court to the Supreme Court.
7. I have heard the learned counsel for the parties and have perused the relevant record with their able assistance. It would be appropriate for proper appreciation of the issue to refer the relevant portion of section 350, Cr.P.C. Which reads as under: "(1) Whenever any Sessions Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge or Magistrate, who has and who exercises such jurisdiction, the Sessions Judge or Magistrate, so succeeding, may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself or he may re-examine the witnesses and recommence the inquiry or trial."
8. The word "ceases to exercise jurisdiction therein" used in section 350, Cr.P.C. Needs interpretation to solve the issue. The word "cease" was defined by Jeerge Grable in his book titled "English Synonyms" to "mean" to "discontinue", similarly in "Black's Law Dictionary" has been defined to mean "discontinuance or suspension". In case Qudrat Ullah v. Emperor (13 Cr.Law Journal 218), Division Bench of Calcutta High Court interpreted in words cease to exercise jurisdiction to emply cease to exercise jurisdiction in the inquiry or trial and not in a particular post; meaning thereby "discontinuance of work". The Special Court for Speedy Trials was creation of amendment in Article 212 of the Constitution and had ceased to work by virtue of Presidential Order in the shape of Special Courts for Speedy Trials (Repealed) Ordinance XLII of 1994. The learned Sessions Judge by the act of legislature through the said Ordinance is the transferee Court and has the jurisdiction to proceed with the matter on existing record. As pointed out by the learned counsel for the petitioner that witnesses were exhaustingly cross-examined and even P.W.5 Munawar Hussain was cross- examined by the learned Judge of the Speedy Trial Court himself. A similar question was before the Supreme Court in Jail Petition No,7/Q/1992 wherein the case was transferred from the Speedy Trial Court to the Court of Session. Their lordships after referring the section 350(1) Cr.P.C. Supra observed as under: "No doubt previously on transfer of case the transferee Court was to record fresh evidence but through amendment brought about in the section by Law Reforms Ordinance, 1972 it is now permissible for the succeeding Court to rely on the evidence partly or wholly recorded at the trial by his predecessor. No such objection can be raised unless it is proved that the accused has been prejudiced thereby. The succeeding Court in the instant case is also presided by a Sessions Judge.
No objection was raised at the relevant time nor any prejudice was shown to have been caused to the petitioner. The objections as such cannot be entertained at this stage. Leave to appeal is, therefore, refused and ."
9. The contention of the learned counsel that the learned Judge of Speedy Trial Court has cross- examined the injured P.W.5 at length had the opportunity to look to the manner of witnesses, their agitation, their doubts, their variations of language, and their confidence and had noted about the demeanour of the witnesses; in the circumstances if the evidence already recorded is acted upon and de novo trial is not made; the petitioner's case would be prejudiced is ill-founded as the learned defunct trial Judge was required under section 363, Cr.P.C. To make a note on the same on the record at the end of evidence; if any note had been made to that effect; the learned Additional Sessions Judge who proceeds with the case will certainly have to give proper appreciation to the said notice recorded by his predecessor. In case Liaqat All and 3 others v. State 1992 PCr.LJ 998, Federal Shariat Court observed that "a Court is competent to act on evidence already recorded by its predecessor".
10. The principle of law that the Judicial Officer by whom evidence has been recorded and who has thus seen the demeanour of the witness is the only person capable of valuing the evidence correctly has been settled by the Supreme Court in case Professor Muhammad Hanif Tahir v. State PLD 1981 SC 106 wherein their Lordships observed:-- "There is no principle of law that a person who has taken down the evidence alone is competent to hear the case. Any way the provisions of section 350, Cr.P.C. Are to the contrary. In any case if it were to be assumed for the sake of arguments that there is such an opportunity the same has been revoked by permitting the successor who has not taken down the evidence, to proceed with the case without recording fresh evidence. Once it has been so revoked, it makes none the difference whether the immediate successor or the successor of the immediate howl whoever disposes of that case."
11. True, prior to the amendment brought in section 350, Cr.P.C. Through the Law Reforms Ordinance, 1972, the transferee Court was bound to record fresh evidence; after the amendment it is now permissible for the succeeding Court to rely on the evidence recorded at the trial by his predecessor unless it is proved that the accused has been prejudiced thereby. In the instant case, the learned defunct Judge of the Speedy Trial Court did not sit as silent spectator rather put Court questions to the P.W.5 which are spread over a page which are part of the evidence recorded and the petitioner cannot claim that their case by questions has been prejudiced rather the prosecution could have claimed it.
12. In view of the above discussion, being without any merits stands dismissed. The learned Additional Sessions Judge, Gujranwala is directed to dispose of the case without any further loss of time.
Revision .