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Criminal Revision Nos. 25 and 26 of 1966, decided on 25th January, 1968.

Ss. 233 & 239 and Evidence Act (I of 1872), S. 43 read with Ss. 47 & 60‑Handwriting expert common witness in two cases‑Original deposition of such witness obtained in one case placed on record of other case through a carbon copy of recorded evidence‑Procedure, held, wrong and not in accordance 'with law‑Carbon copy of evidence without appearance of witness in Court‑Does not constitute legal evidence.

Nur Elahi v, The State P L D 1966 S C 708; Muhammad Yunus v The Crown P L D 1953 Lah. 321; Siddiq Ali and another v. Rex A I R 1950 All. 119 and Bani Madho and another v. Emperor A I R 1941 Oudh 19 rel.

S. 439‑Appellate Court dealing with six appeals and arriving at one omnibus judgment hearing of appeals, held, vitiated by manner adopted case remanded for rehearing and decision by separate judgments on evidence in each case.

Muhammad Yunus v. The Crown P L D 1953 Lah. 321 rel.

M. A. Hamid for Applicant.

Abdul Karim Lakhan for the State.

Date of hearing: 25th January 1968.

These two revision applications are directed against a common judgment dated the 1st of December 1965, pronounced by the additional District judge, Karachi Mr. Mehdi Ali Siddiqui, in six criminal appeals, namely, Criminal Appeals Nos. 524 of 1964, 526 of 1964, 525 of 1964, 525 of 1964, 533 of 1964 and 534 of 1964, involving the applicant Abdul Waheed and two others, namely, Syed Akhlaq Ali and Syed Qasim Raza Rizvi. The applicant with two of his co‑accused, had been convicted in two separate cases, Cases Nos. 14 and 15 of 1964, in which these three were charged with offences punishable under section 409/34, and in which each of them had been sentenced to R. 1. for 2 years, in addition to a fine of Rs. 1,000, in default further R. I. for six months in each case.

2. The result of the appeal before the learned Additional Sessions Judge was that the convictions of Akhlaq Ali and Qasim Raza Rizvi were set aside, the appeal of Abdul Waheed, the present applicant, was dismissed and his convictions maintained but the sentence of rigorous imprisonment was modified to one of simple imprisonment, the learned Sessions Judge stating "because of age of appellant Waheed."

3. As earlier stated, there were two criminal cases against the applicant and his companions, Criminal Case No. 14/64 arose out of a complaint dated 29‑9‑1961 lodged by one Afzal Ali, alleging offences punishable under sections 406 and 40'9/34 and Criminal Case No. 15/64 out of a complaint lodged by Yahya Siddiqi under the same sections, the complaint being dated 21st September 1961. The case of the complainants in both these cases, was that the applicant and Akhlaq Ali and Qasim Raza Rizvi had persuaded Mst. Jannat‑un‑Nisa, mother of the complainant Afzal Ali and Yahya Siddiqi, to make over to them their verified compensation books with a power of attorney in the name of the applicant Abdul Waheed for purposes of settlement of their claim, or for sale of the deferred amounts. Also that when this had been done, applicant Waheed and Qasim Raza. Rizvi left for Bannu; where evacuee property was available, and the value of the deferred payment was high. The contention further was that the claim book of the complainant was disposed of by Waheed, the money had been misappropriated by Waheed and his companions who had formed themselves into a partnership for the purpose of getting verified claims of refugee claimants sold, assuring maximum benefit to the sellers.

The complainants also alleged that in spite of notices and demands thereafter, neither of them received any monies, that they approached the police,. and finally filed their complaints, which after trial by the learned A. C. M. Karachi were disposed of under section 409/34, P. P. C., as already stated.

4. In a long and detailed Judgment, the learned Additional Sessions Judge has discussed the case against applicant Abdul Waheed, Akhlaq Ali and Qasim Raza Rizvi, and come to the conclusion that the case of the conversion of the entrusted money had been proved only against Abdul Waheed, and since it had been proved that a trust of the amounts involved as a result of the sale of the property had been made to him, and there was ample evidence to show that the compensation books were entrusted to this applicant with the express condition that the proceeds would be paid to the respective complainants. The circumstance that Waheed held the power of attorney in respect of the sale of the properties belonging to the complainant, was also taken into account against him.

5. When these two appeals were taken up for hearing today, Mr. M. A. Hamid appeared for the applicant, and Mr. Abdul, Karim for the State, the preliminary objection that was raised, and which has been set out in the grounds of revision and on which great emphasis has been laid, is that the learned Additional Sessions Judge by this one Omnibus Judgment in these six appeals, had arrived at a decision on the basis of the evidence in case No. 14/64 in the other appeal arising out of case No. 15, 64, that in fact he bad mixed the evidence of both the cases in considering the case against the present applicant, thus causing prejudice to his case, and resulting in a miscarriage of justice. It has also been stated, for instance, that the learned Sessions Judge bad compared the body of the writing of receipt Exh. D/I in Case No.. 14/64 with that of the receipt Exb. D/1 of Case No. 15/64, and had drawn his own conclusions after a comparison of these exhibits in two different cases. It was, therefore, contended that he had thus travelled beyond his jurisdic tion in assessing evidence of one case to influence him in his finding in the other case, that he had wrongly disbelieved the evidence of the two complainants AfzaL Ali and Muhammad Yahya that the receipt Exh. D/6 bore the signature of Akhlaq to evolve a case inconsistent with the complainant's evidence.

6. The important circumstance urged, and I feel with justification is that the evidence of the Handwriting Expert, Mr. Haseen Beg Chugtai, who is a common witness in both the cases, but whose original deposition was obtained as D. W. 8 in Case No. 15 of 1964, was placed on the record of Case No. 14 of 1964 through a carbon copy of his recorded evidence, and it was therefore, urged that this proceeding was wrong, not in accordance A with the law and that a carbon copy of the evidence, when the witness bad not appeared as such, does not constitute legal evidence, and that there was thus contravention of the provisions of the Evidence Act and the Criminal Procedure Code. It was also urged that the learned Judge had misinterpreted and over looked the admissions of the handwriting expert. Having heart counsel on either side, it appears to me, without going into the facts and merits of the two appeals, that there is substance in the arguments urged that the hearing of the case of this applicant has been vitiated by the manner in which the learned Additional Sessions Judge has dealt with the six appeals and arrived at one Omnibus Judgment in respect of them. The points are:

(1) With regard to the hand‑writing expert Mr. Haseen Beg Chugtai, and

(2) With regard to the composite judgment.

7. Mr. Hamid for the applicant, has referred to the case of Nur Elahi v. The State (P L D 1966 S C 708) in urging that a Court is debarred from reading evidence recorded in another case as evidence in the case in hand, and that the violation of a rule thus vitiates the judgment in that case. The observations of their Lordships on this particular aspect are that‑

"The law is that every criminal proceeding and in fact every civil proceeding is to be decided on the material on record of that proceeding and neither the record of another case nor any finding recorded therein should effect the decision. If the Court takes into consideration evidence recorded in another case of a finding recorded therein, the judgment is vitiated. A finding recorded in a criminal case is not legal evidence in another criminal proceeding. In fact there is an express provision in the Evidence Act, that is, section 43, which debars the Court from taking it into consideration. It makes no difference that the finding is recorded by a High Court or the Supreme Court. It remains irrelevant. The Court which is to determine a matter must determine the matter itself unaffected, by opinion expressed in other cases."

8. The other point which also must be sustained is in regard to the consideration of the evidence of Mr. Chugtai, and reliance has been placed on Muhammad Yunus v. The Crown (P L D 1953 Lab. 321) where the procedure adopted by the Special Judge as certain witnesses were common to all the three cases, and a verbatim copy of the state ment of one witness was placed on the record of the other two cases with the addition of such matter brought out in cross‑examination for the specific purpose of that case, was held to be illegal, their Lordships observations being:

"The question arises whether this procedure, which was not sanctioned by the Code of Criminal Procedure, imported a mere irregularity or an illegality into the trials. We are dis posed to hold that the procedure adopted was illegal and not merely irregular."

9. A similar view was held in the case of Siddiq Ali and another v. Rex (A I R 1950 All. 119) and in the case of Bani Madho and another v. Emperor (A I R 1941 Oudh 19). A Single Judge in the former case observed in the case of three Sessions trials, where there were common witnesses, and where the evidence in one case was copied verbatim and used in another case, that the trial was vitiated, the law enjoining that each witness had to be examined separately in each case. It was observed:

"The Court in different Sessions Cases is differently constituted. A Sessions Court consists of the Judge acting with the aid of his assessors. The assessors being different in different cases, the constitution of the Court changes from case to case. Each witness has, therefore to be separately examined in each Sessions case. Evidence recorded before one Sessions Court, if copied and taken verbatim in another Sessions Court, completely vitiates the trial as the assessors of only one of the two cases would have the benefit of seeing the actual examina tion of each witness and his conduct in the witness box.

In the other case, the assessors would be deprived of the opportunity because the statements are copied out," As a result the appeals in that case were allowed, and the convictions and sentences set aside and the cases remanded for a fresh trial.

10. In Muhammad 1'untts v. The Crown the point of a composite judgment was also considered and their Lordships observed that:

"It was not proper on the part of the learned trial Judge to write only one composite judgment in the three cases. For the purposes of each case, he had to confine his attention to the evidence appearing on the record of that case. Although the learned Judge has observed in the course of his judgment that some of the witnesses were common to the three cases, he has failed to note that the period of time pertaining to each case was different, and, therefore, the evidence of the witnesses, had to be assessed separately in relation to the relevant time for each case".

11. For these reasons the preliminary objections raised must prevail in consequence of which the appeal of Abdul Waheed is allowed and his appeal remanded to the Sessions Court, Karachi to be reheard and decided by separate judgments in each case on the evidence in each case against him. This will no affect the case of acquitted accused Akhlaq Ali and Qasim Raza Rizvi as there has been no appeal by the State against their acquittal. In view of the fact that the complaints were filed as far back as 1961 and 1962, these appeals must be heard and disposed of within the next three months, with intimation to this Court. In the meantime, the applicant will continue to remain on bail on the same terms and conditions as given by my learned brother, Faruqui, J. on 18‑2‑1966, namely in the sum of Rs. 10,000 with one surety.

12. In these terms, both these revision applications are disposed of.

Order accordingly.

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