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Criminal Appeals Nos. 993 to 999 of 1979, decided on 11th July, 1984.

---S. 3(2)(b)--Special Judge, effect of irregular appointment of--Before joining as Special Judge Anti-Corruption incumbent compulsorily retired from service--Held: Not a fit person to be appointed as Special Judge, Anti-Corruption terms of clause (b) of subsection (2) of S. 3, Criminal Law Amendment Act, 1958--Proceedings set aside and re-trial ordered in circumstances.

---S. 537--Penal Code (XLV of 1860), S. 409--Evidence, legality of- Statements of all prosecution witnesses recorded in a single case and verbatim copy thereof placed on record of remaining six cases, pending against accused--Procedure adopted by trial Court, held, illegal and not a curable irregularity in circumstance.

Faiz Muhammad Khan Khosa for Appellant.

Altaf Muhammad Khan for the State.

Date of hearing: 11th July, 1984.

These seven criminal appeals (Criminal Appeals Nos. 993 to 999 of 1979) arise from the judgment of Sh. Anwar Lateef, Additional Special Judge, Anti-Corruption, Lahore, whereby he on 29-9-1979 convicted Manzoor Hussain, appellant in seven cases under section 409, P.P.C. read with section 5 of the Prevention of Corruption Act and sentenced him to various terms of imprisonment and fine in all cases. Since after hearing learned counsel for the parties I feel inclined to remand the cases on the ground of lack of qualification of the trial Judge to be appointed as Special Judge, Anti-Corruption and the illegal procedure adopted by him for the examination of the witnesses, therefore, I need not set out the facts in detail and enter into merits of the cases.

2. From the notifications shown me by the learned counsel today it is very much obvious that Sh. Anwer Lateef was compulsorily retired in 1973 and as such under section 3(2)(b) of the Criminal Law Amendment A Act, 1958 was not a fit person to be appointed as a Special Judge. I also find that in all the seven cases the statements of the prosecution witnesses particularly of P.W.1, P.W.4 and P.W.5 are verbatim. This gives rise to irresistible conclusion that when these witnesses entered witness-box their statements were recorded in one case and a verbatim B copy thereof was placed on the record of all other six cases. Strangely enough, the cross-examination is also verbatim. The procedure adopted by the trial Court being highly illegal is not a curable irregularity.

3. Learned counsel requested that because of the aforesaid legal flaws the appellant be acquitted. I have not been able to persuade myself to agree with him. The request appears to be misconceived because there being no legal evidence recorded by a Court of competent jurisdiction the question of acquittal of the appellant does not arise and as such there is no option but to send back the cases for fresh trial.

4. Let the seven cases be sent to learned Special Judge, Anti- Corruption, for fresh trial according to law. The appellant shall appear before him on 23-8-1984.

S. G. D. Cases remanded.

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