1969 P Cr (PLP)

5. When these two appeals were taken up for hearing today Mr. M. A. Hamid appeared for the applicant, and Mr. Abdul Karim for the State, the preliminary objection that wit's raised, and which has been set out in the grounds of revision and on which great emphasis has been laid, is that the learned Additional Sessions Judge by this one omnibus judgment in these six appeals, had arrived at a decision on the basis of the evidence in Case No. 14/64 in the other appeal arising out of Case No. 15/64, that in fact he had mixed the evidence of both the cases in considering the case against the present applicant, the causing prejudice to his case, and resulting in a miscarriage of justice. It has also been stated, for instance, that the learned Sessions Judge had compared the body of the writing of receipt Exh.D/1 in Case No. 14/64 with that of the receipt Exh. D/1 of Case No. 15/64, and had drawn his own conclusions after a comparison of those exhibits in two different cases. It was, therefore, contended that lie had thus travelled beyond his jurisdiction in assessing evidence of one case to influence him in his finding in the other case, that he had wrongly disbelieved the evidence of the two complainants Afzal Ali and Mohd. Yahya that the receipt Exh. D/6 bore the signature of Akhlaq to evolve a case inconsistent with the complainant's evidence.

6. The important circumstance urged, and I feel with justification is that the evidence of the Handwriting Expert, Mr. Hassan Beg Chughtai, who is a common witness in both the cases, but whose original deposition was obtained as D. W. 8 in Case No. 15 of 1964, was placed on the record of Case No. 14 of 1964 though a carbon copy of his recorded evidence, and it was there fore urged that this proceeding was wrong, not in accordance with the law and that a carbon copy of the evidence, when the witness had not appeared as such, does not constitute legal evidence, and that there was thus contravention of the provisions of the Evidence Act and the Criminal Procedure Code. It was also urged that the learned Judge had misinterpreted and overlooked the admissions of the handwriting expert. Having heard counsel on either side it appears to me, without going into the facts and merits of the two appeals, that there is substance in the arguments urged that the hearing of the case of this applicant has been vitiated by the manner in which the learned Additional Session Judge has dealt with the six appeals and arrived at one omnibus judgment in respect of them. The points are: (1) with regard to the Handwriting Expert Mr. Hassan Beg Chughtai, and (2) with regard to the composite judgment.

7. Mr. Hamid for the applicant, has referred to the case of Nur Elahi v. The State (P L D 1966 S C 708) in urging that a Court is debarred from reading evidence recorded in another case as evidence in the case in hand, and that the violation of a rule thus vitiates the judgment in that case. The observations of their Lordships on this particular aspect are that‑ "The law is that every criminal 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 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."

8. The other point which also must be sustained is in regard to the consideration of the evidence of Mr. Chughtai, and reliance has been placed on Mohd. Yunus v. The Crown (P L D 1953 Lah. 321), where the procedure adopted by the Special Judge as certain witnesses were common to all the three cases, and a verbatim copy of the statement of one witness was placed on the record of the other two cases with the addition of such matter brought out in cross‑examination for the specific purpose of that case, was held to be illegal, their Lordships' observations being: "The question arises whether this procedure, which was not sanctioned by the Code of Criminal Procedure, imported a mere irregularity or an illegality into the trials. We are disposed to hold that the procedure adopted was illegal and not merely irregular."

9. A similar view was held in the case of Siddiq Ali and another v. Rex (A I R 1950 All. 119) and in the case of Bani Madho and another v. Emperor (A I R 1941 Oudh 19). A Single Judge in the former case observed in the case of three Sessions trials, where there were common witnesses, and where the evidence in one case was copied verbatim and used in another case, that the trial was vitiated, the law enjoining that each witness had to be examined separately in each case. It was observed: "The Court in different Sessions cases is differently constituted. A Sessions Court consists of the Judge with the aid of his assessors. The assessors being different in different cases, the constitution of the Court changes from case to case. Each witness has, therefore, to be separately examined in each Sessions case. Evidence recorded before one Sessions Court, if copied and taken verbatim in another Sessions Court, completely vitiates the trial as the assessors of only one of the two cases would have the benefit of seeing the actual examination of each witness and his conduct in the witness -box. In the other case, the assessors would be deprived of the opportunity because the statements are copied out." As a result the appeals in that case were allowed, and the convictions and sentences set aside and the cases remanded for a fresh trial.

10. In Muhammad Younis v. The Crown, the point of a composite judgment was also considered and their Lordships observed that‑ "It was not proper on the part of the learned trial Judge to write only one composite judgment in the three cases. For the purposes of each case, he had to confine his attention to the evidence appearing on the record of that case. Although the learned Judge has observed in the course of his judgment that some of the witnesses were common to the three eases, he has failed to note that the period of time pertaining to each case was different, and, therefore, the evidence of the witnesses, had to be assessed separately in relation to the relevant time for each case."

11. For these reasons the preliminary objections raised must prevail in consequence of which the application of Abdul Waheed is allowed and his appeal remanded to the Sessions Court Karachi to be reheard and decided by separate judgments in each case on the evidence in each case against him. This will not affect the case of acquitted accused Akhlaq Ali and Qasim Raza Rizvi as there has been no appeal by the State against their acquittal. In view of the fact that the complaints were filed as far back as 1961 and 1962, these appeals must be heard and disposed of within the next three months, with intimation to this Court. In the meantime, the applicant will continue to remain on bail on the same terms and conditions as given by my learned brother, Faruqui, J. on 18‑2‑1966, namely, in the sum of Rs. 10,000 with one surety.

12. In these terms, both these revision applications are disposed of. Petition allowed.