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Criminal Revision Application Nos. 120 and 121 of 1972, decided on 3rdSeptember 1974.
‑‑ S. 354 read with Evidence Act (I of 1872), S 138‑Evidence, mode of recording‑Statements recorded in one case treated evidence in other case‑Trial of both cases, held, illegal‑Cases remanded for fresh trial according to law.
Recording of statements of witnesses in one case and treating the same as evidence in another case was illegal and in clear violation of the procedure and rules laid down in the Evidence Act, 1872.
Muhammad Younis v. The Crown P L D 1953 Lah. 321 and State v. Kalandar Khan P L D 1971 Pesh. 119 rel.
Manzoor Hussain for Applicant.
Nooruddin Sarki for the State.
Date of hearing : 3rd September 1971.
These two Revision Applications Nos. 120 and 121 of 1972 will be disposed of by this single judgment because the applicant in both the casts is the same. The applicant was tried and convicted under section 43 (3) of Abkari Act and sentenced to 2 years' R. I. and a fine of Rs. 200 or in default to suffer 2 months' R. I. He was also convicted under sec tion 13 (D), Arms Act and sentenced to two years' R. I. and a fine of Rs. 200 or in default to suffer 2 months' R. I. The sentences were directed to run concurrently by learned Assistant Commissioner and S. D. M. Harbour (Mr. Shafiq Ahmad Khan) on 17thSeptember, 1971. In appeal the learned Sessions Judge, Karachi reduced the sentence of imprisonment under Abkari Act from 2 years to 12 months and a fine to Rs. 200 instead of Rs. 1,000 because this was maximum sentence which could be awarded by the trial Court. He, however, maintained the sentence under section 13 (D), Arms Act.
2. Mr. Manzoor Hussain learned counsel for the applicant raised a legal objection to the effect, that the lower Court could not hold joint trial of two different offences under two different Statutes and he could not under the Jaw bring the statements of the witnesses in one case as evidence in the other as has been done here which prejudiced the applicant, and the trial therefore, is illegal. He further pointed out that all statements of prosecution witnesses were recorded only once and in one case but were made available for the other in verbatim for preparation of this appellate record and such procedure could not be adopted. He therefore, submitted that impugned judgments be quashed and the case be remanded for a fresh trial according to law. In support of his contention he relied on Muhammad Younis v. The Crown (P L D 1953 Lah. 321), wherein it was held that the evidence of one case simply copied out in the other, violates provision of section 33 of Evidence Act, the trial was held illegal. He next relied on The State v. Qalandar Khan (P L D 1971 Posh. 119), wherein the above principle was adopted and it was held "that statements recorded in one case only and carbon copies of depositions placed on records of other cases, the procedure adopted by the Court is illegal and that the Court should apply mind independently to facts and circumstances of each case and record separate judgments".
3. Learned counsel for the State Mr. Nooruddin Sarki has conceded the patent illegality of the trial due to recording of statements of witnesses in one case and treating the same evidence in another case. He, therefore, did not oppose the submission made by the counsel for the applicant.
4. For the reasons given above I set aside the impugned judgment and hold that the trial in both the cases was illegal and in clear violation of e the procedure and rules laid down in the Evidence Act. The cases, therefore are remanded to the Magistrate concerned with the direction for a fresh trial according to law. These applications, therefore, stand disposed of.
Petition accepted. Case remanded.
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