1988 PLP 167 (MLD)

4. We feel that the details of the allegations levelled against the appellants, parts allegedly played by them and the evidence collected during investigation need not be jotted down, as only limited question of legality or otherwise of the trial is being adjudicated upon.

5. The necessary reference to the manner of trial, the procedure adopted by the learned trial Judge and the statements of the witnesses, legality of which as being admissible in evidence, has been challenged, is being referred to.

6. F.I.R. in this case was lodged by Muhammad Anwar at Police Station Daska, District Sialkot at 1 p.m. against 23 persons, for having committed an occurrence on 2-7-1985 at 8-30 a.m. in the area of village Sukkar Nehr (Mitranwali), as a result of which four persons lost their lives and Anwar complainant suffered injuries. The police on investigation declared nine of them as innocent and placed their names m column No. 2 of the challan. Some other persons not named in the F.I.R. as accused were also arrested by the police on coming to the conclusion that they had also participated in the occurrence. The challan was submitted to Court against 23 persons, other than those declared innocent, including the persons arrested during investigation, although not named in the F.I.R. The learned trial Judge after formally framing the charge against the accused challaned by the police set the case for evidence. Statements of Dr. Mumtaz Ahmad Bhatti (P.W.1), who had medically examined Ghulam Rasul (who later died) during his lifetime; Dr. Gul Niwaz (P.W.2), who had performed autopsies on the dead bodies of Ghulam Rasul, Muhammad Sharif, Muhammad Rafiq and Khan Muhammad, and Bashir Ahmad Patwari (P.W.3), were recorded on 12-12-1987. Statements of Nabi Ahmad, H.C. (P.W. 4), Rashid Ahmad F.C. (P.W. 5), Zulfiqar Ali (P.W. 6), Allah Ditta, A.S.I. (P.W. 7) and Abdul Ghafoor (P.W. 8) were recorded in full on 13-12-1987. Examination-in-chief of Muhammad Yaqub son of Allah Ditta (P.W. 9), real brother of Muhammad Rafiq and Ghulam Rasul deceased, cousin of Muhammad Sharif deceased and a relative of Khan Muhammad deceased was also recorded on the same date. He had deposed the ocular account. On the conclusion of the examination-in-chief of Muhammad Yaqub, an application was moved on behalf of the complainant for summoning the nine persons named in the F.I.R., who were not challaned by the police and whose names had been placed in column No. 2 of the challan. The learned trial Judge after hearing the arguments

summoned them to face trial in this case vide order dated 14-12-1987. Copies of the statements recorded by the police under section 161, Cr. P.C. and copies of other documents were distributed to them and they were charge-sheeted and the trial was started afresh. The learned trial Judge delivered the judgment on 30th of December, 1987, after recording the statements of sixteen P.Ws. and the statements of the accused.

7. Learned counsel for the convicted appellants contended that the statements of Dr. Mumtaz Ahmad Bhatti (P.W. 1), Dr. Gul Niwaz (P.W.2), Bashir Ahmad Patwari (P.W.3), Nabi Ahmad, H.C. (P.W. 4), Zulfiqar Ali (P.W. 5), Allah Ditta A.S.I. (P.W. 6) and-examination-in-chief of Muhammad Yaqub son of Allah Ditta (P.W. 7), recorded on 26th December, 1987, were not recorded on their depositions in the presence of the accused during trial. Learned counsel carried us through the statements of these witnesses for comparison with their statements recorded earlier on 12th of December, 1987 and 13th of December, 1987, in order to canvass the point that they were verbatim copies of the statements recorded earlier, i.e. 12th and 13th of December, 1987. Learned counsel while reading for comparison pointed out that commas and full stops in their statements also commensurated with each other. It was argued by them that comparative study of these statements unequivocally proves that the statements said to have been recorded on 26th December, 1987 appear to have been noted down from the previous record instead of being recorded on depositions made by the witnesses. Mr. M.B. Zaman, learned counsel for the appellants in Criminal Appeal No. 28 of 1988 pointed out that statements of nine witnesses, which were recorded in two days sitting earlier could physically also not have been recorded on one day, i.e. 26th of December, 1987. Learned counsel argued that the violation of the procedure adopted by the trial Judge for recording the evidence, vitiated the trial and so the judgment, dated 30th of December, 1987 is liable to be set aside on that account alone. A number of authorities were cited by them in support of their arguments.

8. Learned Advocate-General, who had appeared on call, argued that no procedure appears to have been violated. According to him, presumption of truth is attached to the judicial proceedings and so the very contention that the statements recorded on 26th December, 1987 were not recorded on the depositions of the witnesses in the presence of accused and were, in fact, copied or noted from the previous record, is without any legal basis. In this regard learned Advocate-General referred to Article 150 of the 1973 Constitution. It was contended by him that the point raised by him finds support from the fact that no objection was raised about this alleged illegality during the trial either by the accused or their counsel.

9. Learned counsel appearing for the petitioner in the revision petition while adopting the arguments advanced by the learned Advocate-General added that even if it be conceded for the sake of arguments that the statements of the referred witnesses were not recorded on the actual depositions made by them, it cannot be termed as illegality and that at the best it was an error or irregularity, which stands corrected by the provisions of section 537, Cr. P.C., as no bias or prejudice has been caused to the accused. Learned counsel submitted that six out of the seven witnesses had been cross-examined earlier and the 7th i.e. Muhammad Yaqub, whose examination-in-chief only had been recorded earlier, was thoroughly cross-examined on behalf of all the accused, convicted as well as acquitted. Nether learned Advocate-General nor counsel appearing for the petitioner in the revision petition referred to any citation.

9. Learned counsel appearing in Criminal Appeals Nos. 81- and 94 of 1988, filed by the State against the acquitted respondents named therein contended that in case the impugned judgment is set aside on the ground of illegality in the trial, the order of acquittal of the respondents be also set aside and they may be directed to be tried alongwith other accused. He submitted that the judgment of acquittal is not maintainable even on merits.

10. Section 353 of Chapter XXV of the Code of Criminal Procedure, which relates to the mode of taking and recording of evidence in the inquiries and trials, reads as follows:-- "Evidence to be taken in presence of accused--Except as otherwise expressly provided, all evidence taken under Chapters XX, XXI, XXII and XXII-A shall be taken in the presence of the accused, or when his personal attendance is dispensed with, in the presence of his pleader."

11. A bare reading of the section clearly brings out the fact that evidence has to be recorded in the presence of the accused or in the presence of his pleader in case attendance of accused has been dispensed with for any reason. The evidence not taken down in the presence of the accused or his pleader. (in case of dispensation of attendance) cannot, therefore, be accepted or used against the accused. Such matters have been coming up before the Superior Courts and the trials held in violation of the procedure laid down in section 353, Cr. P.C. have always been set aside as being illegal. Some of the judgments cited and the one's we have been able to lay hands are being quoted:-- In the case reported at page 17 of A I R 1924 Lahore, statements of seven prosecution witnesses were recorded against the accused, who was tried under section 376, P.P.C. Cross-examination was reserved for the adjourned date. On the adjourned date, the prisoner claimed as a European British subject to be tried by a jury under the provisions of section 451 of the Code of Criminal Procedure. The proceedings were stayed to enable proper steps to be taken in compliance with the section. When the accused was produced on the next date fixed for trial, the Magistrate formally charged him in the presence of the jury. The witnesses, who had earlier been examined and whose cross-examination had been reserved, were called one by one for examination. Each one of them on appearance was read over the statement earlier made by him. Some further questions were also allowed to be put to the witnesses and they were then tendered for cross-examination. The proceedings ended in conviction. Objection was taken during appeal that the trial had been held in an illegal manner. Apart from the procedure of recording of evidence noted above, some other objections were also taken, but learned Judge set aside the order of conviction on this ground alone and directed retrial. The consideration of the remaining grounds upon which the trial was sought to be impeached was considered unnecessary. The observations of his Lordship are worth noting. It was observed, "Now, it is quite obvious that this method of presenting the evidence for the prosecution is irregular, and not only irregular but entirely illegal. It is wholly unauthorized variation from the ordinary and proper procedure". In the case reported at page 104 of A I R 1924 Lahore (Allu etc. v. Emperor), the appeals filed by the convicts of the cross cases were remanded for retrial. What happened, was, that the accused of one case made statements that the statements of the witnesses recorded in the cross-case (in which they were complainant party) be read as defence evidence, while the accused of the cross case made statement that the statements of three P.Ws. recorded in the cross case be read as defence evidence. (in the cross-case in which they were complainant party). Without observing the formalities of re-recording the statements of the witnesses as defence witnesses in the opposite cases, their statements recorded in both the cases as P.Ws. were read and considered as defence evidence. It was observed by their Lordships that the procedure adopted in the cases was wholly unauthorised by law. The impugned judgments were set aside paying no heed and giving no importance to the consenting statements, rather prayers made by the convicts-accused in the cross-cases. The convictions of the appellant arising out of three cases by Special Judge were set aside on the ground of the mode of recording of evidence against the provisions of the Criminal Procedure Code, in Muhammad Younis v. Crown P L D 1953 Lah.

321. What seems to have happened in that case was that certain witnesses were common to all the three cases, for which the appellant was being tried. When one of those 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 special purpose of that particular case. A comparison of the records in the three cases led to the conclusion that the complaint made at the appeal that the statements of the witnesses were not recorded individually on depositions in each of the cases was well founded. The impugned judgments in all the appeals were set aside and retrial was directed observing, that there had been no legal trial. The Bench consisted of their Lordships SA. Rehman and Shabbir Ahmad, JJ. The convictions and sentences of the appellants in all the three appeals were set aside and retrial ordered in the case reported as Noor Muhammad etc. v. State P L D 1981 Lah.

60. The accused of two murder cases had been convicted and sentenced under section 302, P.P.C. etc. It came to light during hearing of appeals that portions of the statements of a few witnesses, in both cases, were merely copied and imported from the record of one case to that of the other. It was observed, "copying of substantial portions of statements of witnesses from one case for record of another case was an absolute illegality which had vitiated the trials and had in itself imported prejudice to the appellants, it was not material to determine if this serious breach of a mandatory provision of law had worked injustice to appellants. It was held that the provisions in section 537, Criminal Procedure Code did not apply to an infringement of a statutory requirement and applied only to errors, omissions or irregularities arising out of inadvertence. In Khawaja Muhammad Anwar v. State 1983 P Cr. L J 2070, the manner of recording of evidence in eight cases, for which the appellant was tried, was held illegal. In the said case, the appellant alongwith others was tried for eight cases. The statements of P.Ws. recorded in one case were copied and transferred to the remaining seven cases by substituting figures of the bonus vouchers sought and the relevant information in connection therewith. It was held that the procedure adopted in recording the evidence vitiated the trial. The convictions and sentences of the appellant in six cases on appeal were set aside and retrial was ordered in Muhammad Rafiq v. State 1985 P Cr. L J 1985, wherein it was found that the statements of the witnesses recorded in one case were copied verbatim in the other five cases. The procedure adopted by the trial Court was held to be highly illegal and not curable irregularity under section 537, Cr. P.C.

12. The factual side of the contention of the learned counsel for the convicted appellants that the statements of seven P.Ws. recorded at the trial resulting in conviction of the appellants vide the impugned judgment, are verbatim copies of the statements of the witnesses recorded earlier on 12th and 13th of December, 1987 when some of the accused, who ultimately faced trial, had not been arraigned as accused before the trial Court, on comparison has been found to be correct and true. Neither learned Advocate-General nor counsel appearing for the petitioner in the revision petition has been able to say anything about that. Learned Advocate-General, however, repeated the contention that the presumption of truth was attached to the proceedings under Article 150 of the Constitution of Islamic Republic of Pakistan.

13. The presumptions, however strong, are always open to rebuttal. Anything obvious and apparent can easily rebut a presumption. In the case in hand, the verbatim copies of the statements with no alterations in full stops and commas, leaves no ground to believe that the statements really had not been copied and had been recorded on fresh depositions. This contention of the learned Advocate -General, therefore, does not carry him anywhere.

14. The contention of the learned counsel for the petitioner in the revision petition that it was at the best an irregularity, which was curable under section 537, Cr. P.C., has not impressed us. It is not a case of mere irregularity. It is a case of violation of the procedure laid down for recording evidence. The course h adopted herein was in direct contravention of the provisions of the Criminal Procedure Code. The utmost strictness in procedure must be observed in all judicial matters. Where the mode of criminal trial is regulated by a statute, a departure from that cannot be termed a mere irregularity.

15. The anxiety of speedy disposal of cases should not be allowed to surpass the safe and equitable administration of justice. No system of dispensation of justice can work without a procedure. The breakaway from the procedure, we are afraid, can lead to inroads to injustice. Section 537, Cr. P.C. cannot and should not be pressed into service for bypassing or overlooking the illegalities. It is meant for curing honest mistakes and genuine lapses. Wilful departure from procedure should not be pressed for rectification, pressing into service section 537, Cr.P.C. The break away from the procedure and the illegalities found in recording of evidence has been held not to be curable even by way of consent of the parties. In this regard reference has already been made to A I R 1924 Lah. 104.

16. The contention raised by the learned Advocate-General that as no objection was raised or taken by the accused-appellants during the trial, nor by their counsel, so the objection cannot be pressed into service in appeal, in our view, stands answered, in view of the authorities cited above and the conclusions arrived at by us.

17. The final conclusion we have arrived at is that the mode of trial followed in this case was against the procedure laid down and so was illegal. The impugned judgment is, therefore, set aside. The appeals (Criminal Appeals Nos. 6, 28 and 95 of 1988) of the convicted appellants, and appeals (Criminal Appeals Nos. 81 and 94 of 1988) filed by the State are allowed. The learned trial Judge shall re- F record the statements of Dr. Mumtaz Ahmad Bhatti (P.W.1), Dr. Gul Niwaz (P.W. 2), Bashir Ahmad Patwari (P.W. 3), Nabi Ahmad, H.C. (P.W. 4), Zulfiqar Ali constable (P.W. 5), Allah Ditta, A.S.I. (P.W. 6) and Muhammad Yaqub (P.W. 7) in the presence of the accused giving them full opportunity of cross -examination. He shall also afford them opportunity to produce further defence, if any. Since the State appeals filed against the respondents in the revisional petition (Criminal Revision No. 39 of 1988) have been allowed, the impugned judgment has been set aside and retrial has been directed, the revision petition is I also disposed of accordingly. M.Y.H./I-81/L Retrial ordered.