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Criminal Revision No. 252 of 1957, decided on 6th', December 1957.
(a) Punjab Control of Goondas Act (XIV of 1951),
S. 6 (1) (c) (g) read with S. 18‑Examination of witnesses in camera‑Illegal‑Fresh trial ordered.
Where witnesses were examined in camera behind the back of persons complained against and their counsel, and the record of their statements was kept secret from them
Held, that the procedure was wholly illegal and orders passed upon inadmissible evidence were also illegal.
Further, that the only direction which could be deemed "sufficient" (within meaning of section 18 of the Act) for the rectification of the error in these cases would be that there should be a fresh trial and not merely examining the witnesses again according to law.
Bazal Ahmad Ayyubi v. The West Pakistan Province P L D 1957 Lah. 388 ref.
Nasim Hasan Shah for Petitioner.
K. B. Abdul Qayyum for Respondent.
Date of hearing: 6th December 1957.
Both these revision petitions have been filed against the orders of the District Tribunal, Lyallpur, declaring the petitioners dangerous goondas under section 13 (2) of the Punjab Control of Goondas Act, 1951. Criminal Revision No. 252 of 1957 is against the order against Waryan and Criminal Revision No. 253 of 1957 against the order against his brother Malla.
It is not denied on behalf of the State that seven witnesses in the proceedings against Waryam and eight in the pro ceedings against Malla were examined in camera behind the back of the petitioners and their counsel and the record of their statement was kept secret from the petitioners. This procedure, in view of the ruling of this Court in Bazal Ahmad Ayyubi v. The West Pakistan Province (P L D 1958 (W. P.) Lahore 153), was wholly illegal; and, therefore the orders which were passed upon the inadmissible evidence of these fifteen witnesses must also be held to be illegal, I, therefore, set aside both the orders.
The question, however, arises whether the cases should be remanded to the Tribunal only for recording the statements of the fifteen witnesses afresh in accordance with law or for a de novo trial, Section 18 of the Punjab Control of Goondas Act of 1951 lays down:‑‑
" . . if the Tribunal appears . . . . to have acted in the exercise of its jurisdiction illegally, the High Court may make such direction as it may deem sufficient for the rectification of the error or omission and the Tribunal shall conduct itself accordingly."
Can it be said in these cases that the "error" can be rectified by only examining the fifteen witnesses again in Accordance with law To my mind the answer to that question is clearly in the negative. The petitioners being unaware of the statements of the fifteen witnesses were obviously not able to cross‑examine the other witnesses as they right have done if they had known that such and such other witnesses were also to depose against them or the contents of their statements. They might have also produced some other evidence in defence. The illegality has affected, ill one way or the other, the entire proceedings; or such a large part of them that the whole of them must be deemed to be vitiated. The only direction which can be deemed "sufficient" for the rectification of the error in these cases would be that there should be a fresh trial. I, therefore, quash the proceedings in both the cases and direct the Tribunal to hold the proceed ings de novo, should it be considered to be necessary or proper by the authorities concerned.
Z.A.S./A.H. Fresh trial ordered.
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