| Citation(s) |
|---|
| 1950 SLG 54 1950 SLD 54 = 1950 PLD 134 |
Lahore High Court
Criminal Appeal No. 809 of 1949, decided on 3rd February,1950 from the order of Additional Sessions Judge,Rawalpindi, dated the 8th August, 1949, convicting theappellant
MUHAMMAD, JAN AND M. R. KAYANI, JJ
Abdur Rahman, for Appellant. K. B. Mushtaq Hussain, for the Advocate-General, for
Respondent
Criminal Appeal No. 809 of 1949, decided on 3rd February,1950 from the order of Additional Sessions Judge,Rawalpindi, dated the 8th August, 1949, convicting theappellant
MUHAMMAD, JAN AND M. R. KAYANI, JJ
Abdur Rahman, for Appellant. K. B. Mushtaq Hussain, for the Advocate-General, for
Respondent
MUHAMMAD AZIZvsTHE CROWN
Law: Punjab Public Safety Act, (II of 1947)
Section: 35
Law: Pakistan Penal Code, 1860
Section: 302,307,436,355,356,358,356(1),356(3)
(a) Punjab Public Safety Act (II of 1947),S. 35--Does not relate to mode of recording evidence but to procedure to be adopted in trial.While the Punjab Public Safety Act (II of 1947) was in force, the Sessions judge had recorded evidence not as required by section 355, but as prescribed by section 356 of the Code of Criminal Procedure.Held, section 35 of the Punjab Public Safety Act, 1947, does not say how the evidence should be recorded but merely states that "in all cases the procedure prescribed for the trial of summons-cases by Chapter XX of the Code shall be adopted", and since Chapter XXV in which sections 355 and 356 occur deals with the mode of taking and recording evidence, not with the procedure prescribed by Chapter XX for the trial of summons cases, the objection, viz., that the evidence was not recorded in accordance with section 355, Criminal Procedure Code is without force. Section 355 prescribes the mode of taking and recording evidence "in summons-cases tried before a Magistrate", not in such cases when tried before a Sessions Judge.(b) Criminal Procedure Code (V of 1898),S. 356 (3) and S. 537-Failure to make memorandum of evidence, curable.The trial Court had failed to make a memorandum of evi�dence as required by section 356 (3), Criminal Procedure Code.Held, that this was a curable irregularity. But Magis�trates and judges recording evidence, where they do not record it themselves, should in accordance with the express provisions of sub-section (3) of section 356 make their notes of the sub�stance of -what each witness deposes.I. L. R. 5 Rangoon 53; A. I. R. 1934 Cal. 636 relied on. A. I. R. 1937 Oudh 126 distinguished.JUDGMENT Muhammad Aziz son of Attar Khan (aged 35 years), resident of Numbromal in Murree Police Station, was tried by the learned Additional Sessions Judge of Rawalpindi for charges under sections 302, 307 and 436 Indian Penal Code for causing seven murders by hand grenades and rifle shots, for attempting three more murders likewise and for setting fire to four houses. He was convicted on all charges and sentenced to death under section 302 Indian Penal Code. Under each of the other two sections, 307 and 436 Indian…