Find a Lawyer

Criminal Revisions Nos. 113 and 114 of 1984, decided on 12th July, 1984.

-- S. 537 - Two different cases arising out of same F. I. R. Separate trials held-No witness was produced in defence nor any Court witness was recorded in one of the two cases - Both cases disposed of by trial Court by one judgment on ground of having arisen out of same F. I. R., relating to same facts and evidence recorded in one case having bearing upon the other -- Held, fact that both cases arose out of one F. I. R. could not justify one judgment in two separate and independent trials-Grounds taken by trial Court for disposing two cases with one judgment was illegal and clearly against law and resulting in grave miscarriage of justice-Acquittal of accused in both cases was, therefore, not based on legal evidence recorded in each case independently Illegality/irregularity being not curable under S. 537, Cr. P. C. vitiated trial-Cases remanded back to trial Court with direction that any additional prosecution or defence evidence, if so desired to be produced by parties, would be recorded while existing evidence to remain on record of two separate cases.

Wazid Moral alias Wazid Ali and 13 others v. The State and another 1970 S C M R 256 and Muhammad Gulzar v. Muhammad Ashraf and 3 others 1981 S C M R 435 rel.

Noor Elahi v. The State P L D 1966 S C 708 distinguished.

Muhammad Ashraf and 2 others v. The State 1980 P Cr. L J 1062 ; Emperor v. Anandya S. Mahir A I R 1940 Lab, 466 ; Pahlwan v. The State P L D-1975 Kar. 84 ; A 1 R 1927 P C 28 ;AIR 1928 Lab. 34 and AIR 1938 Lab. 249 ref.

M. Khalid Iqbal Kazi for Petitioner.

M. Masood Mirza for Respondents.

M. Habib Ansari for the State.

Date of hearing: 12th July, 1984.

This judgment will dispose of Criminal Revision No. 113 of 1984 and Criminal Revision No. 114 of 1984 as common question of law is involved in both these cases.

2. The facts of the case are that one Rehmat Khan had three sons named Shah Muhammad, Ali Muhammad and Hussain Bakhsh. Out of these, Shah Muhammad and Ali Muhammad had no issue while Hussain Bakhsh had a son named Din Muhammad. Abdul Haq present petitioner is a son of this Din Muhammad and grandson of Hussain Bakhsh. It is alleged that Ali Muhammad owned 34 Kanals 7 Marlas of land in village Chak No. 337/G. B. Tehsil Gojra, District Toba Tek Singh. He was residing with one Nabi Bakhsh and allegedly died on 13th June, 1977. It is stated that on 28th June, 1977 Muhammad Ashraf accused-respon dent got the entire above-mentioned land transferred in his favour through registered sale-deed and thereafter got recorded an entry in the Union Council that Ali Muhammad had died on 4th July, 1977 instead of 13th June, 1977. Again on 3rd January, 1978 Muhammad Ashraf gifted Kanals 7 Marlas of land mentioned above in favour of his wife Mst. Nargis Begum with the assistance of his own brother Muhammad Latif. Abdul Haq complainant on coming to know of this fraud lodged F. 1. R. No. 74 on 18th April, 1978 narrating the above facts and alleging therein that the accused got transferred the above land in favour of Muhammad Ashraf by fraud. As there were two transactions; one dated 28th June, 1977 in favour of Muhammad Ashraf accused and the other, dated 3rd January, 1978 in favour of Mst. Nargis Begum, two separate challans were filed in Court which were registered as Criminal Cases Nos. 532/17 and 536/17, both under section 419/420/468/471/109. P. P. C. read with section 5(2) of the Prevention of Corruption Act. In the former challan, the prosecution examined 10 witnesses and in the latter challan, 15 witnesses were examined. In the former challan, there were three accused named Muhammad Ashraf, Habib and Ishaq Lambardar while in the latter challan, there were five accused namely. Mst. Nargis Begum, Muhammad Latif and the three mentioned above. The learned Special Judge Anti ---Corruption who tried both the cases separately and recorded evidence in all these cases separately decided to dispose of both the matters by one judgment which is now impugned in this revision petition. The accused in both cases were acquitted.

3. It is contended by the learned counsel for the petitioner that there were two separate trials. In one case, there were only three accused and in the second case there were five accused persons. In one case, 10 witnesses were examined and in the second case, 15 witnesses were recorded. It is, therefore, relying on Noor Elahi v. The State (P L D 1966 S C 708), argued that the impugned judgments in both these cases are illegal and have been passed with material irregularity not curable under section 537, Cr. P. C.

4. The learned counsel for the accused-respondents in both the petitions has controverted the above arguments of the learned counsel for the petitioner and has argued that no prejudice has been caused to the complainant by the impugned judgments because the matter is of civil nature and the evidence in both these cases was identical. It was further submitted by the learned counsel that no offence could be said to have been made out regarding the gift, dated 3rd January, 1978 by Muhammad Ashraf in favour of his own wife. It was, therefore, argued that the judgments be maintained. The learned counsel for the State has supported the contentions of learned counsel for the accused-respondents.

5. I have considered the arguments of the learned counsel for the parties. The opening paragraph of the judgment, dated 12th November, 1983 reads as follows: -

"This judgment will also dispose of the connected Case No. 536/17 titled State v. Muhammad Habib and 2 others, as both of them arise out of the same F. I. R. and relate to the same facts. It will, therefore, be just and convenient to take up both the cases together for disposal as the evidence recorded in one case has also bearing upon the other connected case i.e. Case No. 536/17."

I have noted that in challan No. 532/17 of 1981, there were three accused namely Muhammad Ashraf. Habib and Ishaq Lambardar. In this case only 10prosecution witnesses were examined. One witness was examined by the accused in defence and another witness was examined as C. W. In the second Case No. 536/17 of 1981, there were five accused namely, Muhammad Ashraf, Habib, Ishaq Lambardar, Mst. Nargis Begum and Muhammad Latif. In this case, the prosecution examined 15 witnesses. No witness was produced in defence nor any Court witness was recorded in this case. These were two different challans and separate trials were held by the learned trial Judge but surprisingly be disposed of both these cases by one judgment. It is correct that both these cases arose out of one F. I. R. but that fact could not justify one judgment in two separate and independent trials. The finding of the learned Special Judge that would be just and convenient to take up both these cases together for disposal as the evidence recorded in one case also bearing upon the other connected case is illegal and clearly against law, and has resulted in grave miscarriage of justice. Thus, the acquittal in both the cases was no: based on local evidence recorded in each case independently. This vitiates the trial as this illegality/irregularity is not curable under section 537, Cr. P. C. In support of this view, reliance is placed on Wazid Moral alias Wazid Ali and 13 others v. The State and another (1970 S C M R 256) where it was held that "this can hardly be considered to be a satisfactory manner of disposing of a criminal appeal on facts. It is a well-established rule that each criminal case has to be decided upon the basis of the evidence led in that case".

In another case cited as Muhammad Gulzar v. Muhammad Ashraf and 3 others (1981 S C M R 435), the trial Judge had decided the case on the basis of the testimony appearing in the cross-case which was found to be not only entirely illegal but not permissible under law. It was held that the illegality thus committed by the learned trial Judge was not curable under section 537, Cr. P. C. and in the circumstances it was held that the judgment stood vitiated by the illgality. I respectfully rely on these two judgments of the Supreme Court of Pakistan. Reference may also be made to Muhammad Ashraf and 2 others v. The State (1980 P Cr. L J 1062), Emperor v. Anandya S. Mahir (A I R 1940 Lab. 466) and Pahlwan v. The State (P L D 1975 Kar. 84), A I R 1927 P C 28, A I R 1928 Lab. 34 and A I R 1938 Lab. 249.

6. The case of Noor Elahi relied upon by the learned counsel for the petitioner is distinguishable from the facts of the present case. In Noor Elahi's case three accused had been named as the murderers of one Muzafrar Paracha. The police, however, prosecuted one Ch. Ikram and Banaras as the culprits after investigation and placed the accused mentioned in the F. I. R. in column No. 2 of the challan. Noor Elahi complainant filed a private complaint giving his own version of the incident as earlier set forth in the First Information Report. At the time of the commencement of trial, a question arose as to how the complaint case and challan case were to be dealt with. The majority view in Noor Elahi's case came to the conclusion that the complaint case should be tried earlier than the challan case. Mr. Justice B. Z. Kaikaus dissented from this view and observed 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 affect the decision. If the Court takes into consideration evidence recorded in another case or a finding recorded therein the judgment is vitiated." This was an observation made while dealing with the provisions of section 43, Evidence Act. In this view of the matter, Noor Elahi's case is not appplicable to the facts and circum stances of this case.

7. In view of the above discussion, the acquittal of accused dated 12th November, 1983 in both the Cases 532/17 of 1981 and 536/17 of 1981 are set aside. The revision petitions are accepted and the two cases are remanded back to the learned Special Judge, Anti-Corruption, Faisalabad Division with Headquarters at Sargodha for fresh decision.

8. The learned counsel for petitioner Abdul Haq as well as the learned counsel for the accused-respondents have submitted that the parties should be given an opportunity to produce any further evidence if they so desire during the fresh trial. As a result of the above, the existing evidence will remain on record of the two separate cases. Any c additional prosecution or defence evidence, if so desired to be produced by the parties, will be recorded by the learned trial Judge who will dispose of the two cases independently according to law.

M. Z. M, Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.