Ch. MUHAMMAD ASLAM vs STATE

1. Through this criminal revision applicant has called in question the order dated 17.6.2008 passed by VIth Additional Sessions Judge, Karachi South on an application filed by the complainant under Section 47 of the Qanoon-e-Shahadat Order, 1984 whereby the learned trial Court allowed the above application to the extent that statement of P.W. Syed Sarwat Hussain. Zaidi recorded in another case be kept on this file for consideration to the extent of period of 6.3.1991 to 10.7.1991 provided that the same should be relevant fact of the case. Briefly, the facts of the case are that on 25.7.1992 Complainant Azam Jamil lodged F.I.R No, 176/92 under Sections 408, 468, 471-A, 477 and 34 PPC at P.S. Mithadar (CIA) Karachi against the Applicant and others. After usual investigation police submitted the charge sheet against the applicant and others before the concerned Court. Subsequently the case was entrusted to the learned Vlth Additional Sessions Judge, Karachi South.

2. On 28.4.1994 a formal charge was framed against the applicant and others to which they pleaded not guilty, thereafter the prosecution examined six witnesses and closed its side, On 24.3.2008 an application under Section 47 of the Qanoon-e-Shahadat Order, 1984 was moved on behalf of the complainant and after hearing the parties, the trial Court passed the impugned order.

3. It is, inter alia, contended by Mr. Mahmood A. Qureshi, learned counsel for the applicant that the order dated 17.6.2008 passed by the trial Court is illegal, improper and incorrect, as such the same is liable to set aside. Per learned counsel, the statement of Syed Sarwat Hussain Zaidi was recorded in Case No, 393/2003 arising out of F.I.R. No, 228/91 being an independent case, thus the impugned order is patently illegal. He further contended that both the cases are independent and there are separate proceedings arising out of Crime No, 176/92 and Crime No, 228/91. He lastly contended that when both the cases are independent and separate, therefore it is settled law that carbon/certified copy of evidence of a witness recorded in one case cannot be placed on record of another case and it is also settled law that no protection under Section 537 Cr.P.C. can be extended to a trial wherein such methods are adopted. He concluded his arguments by submitting that the trial Court in each case has to separately assess the evidence of each witness. There are two separate charge sheets and different charges were framed in each case against the accused, as such the statement of a witness in independent/separate proceeding if brought on record of other proceeding, it would amount to patent illegality and utter violation of Article 47 of the Qanoon-e- Shahadat Order, 1984.

4. Mr. Shahzado Saleem Nahiyoon, learned A.P.G. appearing for the State very frankly conceded to the above contentions.

5. Heard learned counsel for the parties and perused the impugned order.

6. In the case of Ghulam Hussain and others vs. The State reported in 1996 P.Cr.LJ. 514 this Court held as under: From the resume of the abovesaid cases, the law appears to be well-settled that where the evidence in one case is carbon copied and placed on the record of other case or if the evidence of one witness is adopted from one case into the file of other case without appearance of the witness and without examination and cross-examination of the witness, it amounts to causing serious prejudice to the defence and also amounts to illegality. In such circumstances the trial is vitiated. It is also now well-settled that no protection under Section 537 Cr.P.C. can be extended to a trial wherein such methods are adopted by the trial Courts when accused is facing more than one trial."

7. In the case of Noor Elahi reported in PLD 1967 S.C. 708, one of the members of the Bench, B.Z.

8. Kaikaus, J. (as he then was) observed as under:-- "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 a finding recorded therein the judgment is vitiated."

9. In the light of dictum laid down by Honourable Supreme Court and keeping in view that there are two separate/independent proceedings arising out of different F.I.Rs, I am of the considered view that the evidence of a witness recorded in one case cannot be taken into consideration in another independent/separate case. Even Article 47 of the Qanoon-e-Shahadat Order, 1984 provides that the evidence given by the witness in a judicial proceeding is relevant for the purpose of proving in the subsequent judicial proceeding, or in later stage of the same judicial proceeding, but I am unable to find that same evidence is relevant for the purpose of proving in a separate and independent proceedings.

10. For the foregoing reasons, Cr. Revision Application was allowed vide short order dated 6.5.2010.