P L D 1971 Peshawar 119 (PLP)

SHAH ZAMAN BABAR, J.‑

Qalandar accused was a ledger Clerk in the Frontier Co‑operative Bank Ltd., at Abbottabad Branch, during the period from 1951 to January 1958. Qalandar was then transferred to Haripur Branch of the Bank. Saif Ali Shah Bokhari was then the General Manager of the Frontier Co‑operative Bank, Head Office at Peshawar. Some time during the year 1958, Saif Ali Shah Bokhari, when he checked the returns from the Abbottabad Brancb, found that the balance of the Abbottabad Branch did not tally with the account. Saif Ali Shah, therefore, personally inspected the accounts of the Abbottabad Branch and found discrepancies in the accounts. He, therefore; instructed the then Manager Of the Branch 'to check the accounts and submit his report. The said report was sent to Saif Ali Shah. From the report, Saif Ali Shah came to the conclusion that the defalcation had taken place with respect to an amount of Rs. 60,

500. Saif Ali Shah, therefore, sent a report Exh. P. A/1 to the Superin tendent of Police Hazara, Abbottabad for the registration of the case against Qalandar Khan accused and its investigation. A case was registered vide F. I. R. Exh. P. A. on 15‑10‑1958 at Police Station Cantt. Abbottabad. The case was investi gated by the then S. I. Mohabbat Hussain. On a further scrutiny of the record during the investigation, it transpired that a sum of Rs. 1,72,705 was misappropriated. The police after completion of the investigation put in the Court 13 separate challans. All the 13 cages against Qalandar accused were tried by Khanzada Abdus Salam Khan, A. D. M., Hazara with powers under section 30, Cr. P. C. The trial Magistrate recorded conviction under section 477‑A, P. P. C. in all the cases on 28‑8‑

62. Qalandar convict challenged the convictions and sentences in respect of cases by separate appeals before the Sessions Judge, Hazara. The Sessions Judge, Hazara by his judgment doted 31‑10‑62, observed that the trial Magistrate while recording the statement of the accused did not fully comply with the provisions of section 342, Cr. P. C., resulting in serious prejudice to the accused. He, therefore, accepted the appeals, set aside the conviction under section 477‑A, P. P. C. and remanded the cases for trial afresh from the stage of examination of the accused under section 342, Cr. P. C. Mr. Mohibur Rehman Kayani, Magistrate Ist Class, with powers under section 30, Cr. P. C., Abbottabad, Hazara, examined the accused in detail under section 342, Cr. P. C. in compliance with the order of the appellate Court. Charges were framed against the accuses to which the accused, in each case, pleaded not guilty. Some prosecution witnesses were recalled by the defence for cross‑examination. Mr. Kayani recorded his Single Judgment in all the 13 cases on 30‑3‑63 and acquitted the accused. The State lodged appeals under section 417; Cr. P. C. in all the cases. A Division Bench of this Court heard the appeals and by judgment dated 4th April 1968, observed that the trial Magistrate disposed of the cases giving rise to Criminal Appeals Nos. 212 to 223 of 1963, without writing a judgment and without giving reasons in violation of the requirement of section 367, Cr. P. C. The appeals were, therefore, accepted. The conviction and sentence of the respondent were set aside and the cases were remitted to the District Magistrate, Hazara, who was directed to allot them to a Magistrate other than Mr. Mohibur Rehman Kayani, as he had already expressed his opinion. It was ordered that the Magistrate will announce the judgments after hearing the arguments addressed by the prosecution and the defence. The cases were entrusted to Mr. Bahadur Sher Khan, Magistrate Ist Class, with powers under section 30, Cr. P. C., who by his judgment dated 29‑12‑69, found that the prosecution had miserably failed to prove the case against the accused beyond all reasonable doubts, and as such giving him the benefit of doubt, acquitted the accused under section 258, Cr. P. C. The State has come up on appeals under section 417, Cr. P. C. against the acquittal bf the accused. Cr. A. No. 111/70 (original case rel-numbered 28/2 of 1969).

2. The charge against Qalandar accused in this case is that while in service of the Co‑operative Bank, Abbottabad, he falsified the account at page 271 of the Ledger Book of the year' 1955‑56 and defrauded the Bank. He is also charged for forging cheque Exh. P. 1 for Rs. 5,000 and for causing wrongful loss to the Bank of the same amount.

3. The case was first dealt with by Khanzada Abdus Salam Khan, A. D. M. Hazara, with powers under section 30, Cr. P. C. He examined P. W. 1 Saif Ali Shah Bokhari; General Manager, Frontier Co‑operative Bank, Head Office, Peshawar on 15‑6‑61, P. W. 2 Qazi Mohabbat Hussain, S.I., who investi gated the case, on 27‑7‑61, P. W. Mian Muhammad Yaqub Shah, then Manager F. C. Bank, Abbottabad on 9‑8‑61, P. W. 4 Muhammad Humayun, Accountant, of the Bank, on 9‑8‑61, P. W. 5 Jalil Ahmad Niazi, Handwriting Expert, on 19‑4‑62 and on 16‑6‑

62. P. W. 6 Taimur Jan S. I. was examined on 26‑6‑62 while P. W. 7 Pir Hussain Jan Special E. A. C., Abbottabad was examined on 16-7‑

62. The accused was examined on 27-8‑62 and a charge under section 477‑A, P. P. C. was framed against him on the same day. D. W. I Shah Alain was examined on 27‑8‑

62. The learned trial Magistrate convicted the accused under section 477‑A, P. P. C. and sentenced him to three years' R. I. and a fine of Rs. 5,000, or in default to undergo further one year's R. I. On appeal by the accused, the Sessions Judge, Hazara, by his judgment dated 31‑10‑1962, remanded the case for a com prehensive compliance with the provisions of section 342, Cr. P. C. from the stage of the examination of the accused. The case was then entrusted to Mr. Mohibur Rehman Kayani, Magistrate 1st Class, with powers under Section 30, Cr. P. C., Abbottabad. He examined the accused on 30‑1‑63 and framed a charge under section 420, P. P. C. on 12‑2‑

63. The accused wished to recall P. Ws. Muhammad Humayun, Qazi Mohabbat Hussain and Mian Muhammad Yaqub Shah for further cross‑examination with record. P. W. Mian Muham mad Yaqub Shah was present in Court on 28‑2‑63 but the accused did not wish to cross‑examine him. Qazi Mohabbat Hussain and Muhammad Humayun were both cross‑examined on 12‑3‑

63. The original record of the case shows that the statement on recall of Qazi Mohabbat Hussain is a carbon copy of his statement in Case No. 24/2 of 1969, relating to Criminal Appeal No. 109 of 1970, while the statement of Muhammad Humayun is a carbon copy of Case No. 29/2 of 1969 out of which Appeal No. 107 of 1970 arises. The learned Magistrate wrote a composite judgment dated 30‑3‑63 for all the 13 cases, wherein he recorded a judgment of acquittal of the accused. He, however, placed a carbon copy of a brief, but incompre hensive judgment dated 30‑3‑63 on this file wherein he ex pressed that he had fully discussed the facts of the case in his judgment in Case No. 176/2. The State lodged appeals in all the cases under sec tion 417, Cr. P. C. A Division Bench of this Court heard the appeals and by judgment dated 4th April 1968, while finding the judgment in this and 11 other cases violating the requirements of section ‑367, Cr. P. C., accepted the appeals and remitted the cases for re‑hearing the arguments of the prosecution and defence and announcing the judgments. This time the case was heard by Mr. Bahadar Sher Khan, Magistrate 1st Class, with powers under section 30, Cr. P. C. This Magistrate by his judgment dated 29‑12‑69 acquitted the accused. The learned Magistrate while delivering his judgment had considered the two carbon copies of the depositions of Qazi Mohabbat Hussain and Muhammad Humayun. In conclusion he acquitted the accused on more or less the same grounds as formulated by Mr. Mohibur Rehman Kayani in the case out of which Appeal No. 211 of 1963 arises. The State has come up on appeal under section 417, Cr. P. C.

4. Mr. Bahadur Sher Khan has decided the case on con sideration of evidence and material on the record of other cases, of which has been placed carbon copies of the evidence of Qazi Mohabbat Hussain and Muhammad Humayun, on recall. He has thus committed illegality which vitiates the trial. In Muhammad Younas v. The Crown (P L D 1953 Lah. 321) certain witnesses were common to all the three cases, when one of these witnesses appeared in the box, his statement was recorded in one case and then a verbatim copy of his statement was placed on the records of the other two cases, with the addition of such matter brought out in cross‑examination for the purpose of that particular case. The witness was thus not examined in full in each case. It was held that the procedure adopted was illegal and not merely irregular, with the result that the cases were ordered to be retried. In Nur Elahi v. The State and 2 others (P L D 1966 S C 708) it has been observed at page 713:‑ "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 that 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." In Syed Abdul Waheed v. The State (1968 P Cr. L J 776) the original deposition of handwriting expert was obtained in one case and was placed on record of the other case through a carbon copy of recorded evidence. It was held that the carbon copy of evidence, without appearance of the witness in Court, does not constitute legal evidence, and as such the procedure adopted was wrong and not in accordance with law. In view of the proposition of law pronounced in the quoted authorities, we are of the view that the procedure adopted by the trial Magistrate from the stage on recall of the witnesses is illegal, which vitiates the trial. While accepting the State appeal, we set aside the judgment of acquittal by Mr. Bahadur Sher Khan Magistrate, and remit the case to the District Magistrate, Hazara, at Abbottabad who may entrust the case to a competent Magistrate, other than Mr. Mohibur Rehman Kayani and Mr. Bahadur Sher Khan. The trial Magistrate will examine the prosecution witnesses on recall for cross‑examination, and then proceed in accordance with law. He should apply his mind independently to the facts and circumstances of each case and record separate judgments in each case. K. B. A. Order accordingly.