MUHAMMAD HASSAN SINDHER, J.- A short reference to the proceedings at the trials in two Sessions cases leading to these three appeals and the allied Reference under section 374, Criminal Procedure Code for confirmation of sentences of death imposed on the accused in both cases (Criminal Appeals Nos. 236-238/78 , Murder Reference No. 86)78, Criminal Appeal No. 306/79, Murder Reference No. 85/78) should since for the purposes of this order which d Is with and disposes of the question of the scope of curative provisions of ion 537, Criminal Procedure Code which had cropped up during hearing on its in one of the appeals.
The first incident in Joint f time was that of murder of Arif deceased and attempted murder of Sadaqat a witness in the case which took place in village Budha Goraya within the area of Police.Station Satrah, District Sialkot at deegerwela (late afternoon) on -9-1975. The report indicating Noor and ):,al appellants, both sorts of Chiragh and residents of the same village was lodged at the Police Station by Khan Muhammad fattier of the deceased at 10.00 p. m. Same night.
The after, these two appellants had along with their cousin in relation namedMuhammad Bashir (appellant in Crl. A. 236/78) allegedly killed Munawar and Latif Ahmad same day at 5-30 p. m. At a place which is at a distance of about 3 miles from the said village and fell within the area of Police Station, Daska, in the said District. Case in respect of this offence was registered against the three accused at the said Police Station at 6-45 p. m. On the report of Noor Ahmad real brother of Latif Ahmad deceased. Trials in both cases commenced on 7-2-1978 before Mr. Muhammad Rafiq the then learned Additional Sessions Judge, Sialkot. A few dates in the trials in both cases were common to which reference will be made presently. Noor Muhammad and Lal both were held guilty in the case registered at Police Station Satrah, and they both were condemned to death for the murder of Muhammad Arif deceased under section 302/34, P. P. C. The further charge of attempt to murder Sadaqat under sec--petition 307/34, P. P. C. Was also answered against them with award of sentence of rigorous imprisonment for seven years each. The sentence for this offence was ordered to take effect if sentences of death of the appellants under section 302/34, P.
P. C. Were not confirmed, without indicating if in that eventuality the sentences of imprisonment were to run simultaneously. The accused have appealed and learned Additional Sessions Judge has also referred their sentences for confirmation by the High Court (Criminal Appeal No. 306/79, Murder Reference No. 85/78). All the three accused were also convicted in the next case of double murder of Munawar and Latif Ahmad and each of them was sentenced to death. Muhammad Bashir has filed separate appeal to challenge his conviction and sentence (Criminal Appeal No. 236 of 1978), and the remaining two accused have appealed jointly (Criminal Appeal No. 238 of 1978). Reference in this , case for confirmation of death sentences has been registered as Murder Reference No. 86 of 1978.
2. After counsel for the appellants in Criminal Appeal No. 306 of 1979, had concluded their address, Mr. S. M. Anwer, learned State counsel called our attention to the fact that evidence of some witnesses in one case was substantially copied in the other case. The point was picked up by learned counsel for the appellants in both cases and pressed with the contention that the procedure, rather the device adopted by-learned Additional Sessions Judge constituted serious infringement of. Authorised mode of trials and had vitiated incurably proceedings in both cases.
Convictions and sentences of the appellants were liable to be set aside as section 537, Cr. P. C. Did not cure such a gross irregularity and applied only to irregularities of technical nature which may occur by accident or oversight. Learned Adirocate-General had also on our desire addressed us on the point.
3. We have perused record of the cases and found that portions of statements of a few witnesses, in both cases, were merely copied and imported from the record of one case to that of other. Dr. Muhammad Nawaz Chaudbary was examined as first witness on the side of prosecution in both cases on 7-2-1980. A few lines ill the statement of the witness which he had made in the case against Noor Ahmad and Lal appellants only (Criminal Appeal No. 306 of 1979, Lines 20 to 25 of page 7 of the Paper Book and Lines 21 to 23 of page 8 of the Paper Book) were reproduced verbatim in the other case (Lines 13 to 17, 36, 37, 39, 40 of page 9 of the Paper Book). Mohammad Azam (P. W.
3) who figured third witness of prosecution in both cases was also examined same day on 9-2- 1978. Examination-in-chief of this witness in one case is a reproduction in the other case. Qurban A.I Sub-Inspector (P. W. 12) was also witness in both cases and he was also examined same day. A substantial portion of cross-examination of the witness concerning recoveries extending over more than one page (page 30-31) of the Paper Book in Reference No. 85/78) was copied verbatim in the next case (Page 32 of the Paper Book in Murder Reference No. 86/78). Iftikhar Ahmad a witness of recovery in both cases was examined on 12-2-1978 in the case concerning double murder of Munawwar and Latif Ahmad (Criminal Appeal No. 236-238/78) and his statement in the other case (Criminal Appeal. No.306/79) was recorded three days later viz. On 15-2-1979. The entire cross- examination of the witness excepting only the number of exhibit of crime weapon (chhurri) is the same in both cases (Page 30-31 of the Paper Book in Murder Reference No. 85 of 1978, and page 26-27 of the Paper Book in Murder Reference No. 86 of 1978), which further manifests a conscious effort of disobedience of an imperative provision of procedure for conduct of trials.
Perusal of the order sheets in the two cases does not help in arriving at a definite conclusion in which case Dr. Muhammad Nawaz Chaudhary was examined first. However, it appears that Muhammad Azam (P. W. 3) was first examined in the case in Criminal Appeal No. 306 of 1979 (Murder Reference No. 85/78) and examination-in-chief of the witness was reproduced mechanically in the next case. A comparative study of the interim orders in both files tends to show that Qurban A.I Sub-Inspector was first examined in the case in Criminal Appeals 236-238/78 and a portion of his cross---examination was copied in the other case (Criminal Appeal No. 306 of 1979).
There is no manner of doubt that cross-examination of Iftikhar Ahmad in the case leading to Criminal Appeal No. 306/79 (Murder Reference No. 85 of 1978), was copied verbatim from the record of proceedings in the case subject matter of Criminal Appeals Nos. 236 and 238 of 1978, Murder Reference No. 86/78). Proceedings in both cases had thus become streaked with illegality.
4. The question that falls for decision is :whether this objectionable mode of trials against the procedure authorised by the Statute was a mere error or irregularity curable under the provisions of section 537, Cr. P. C. Or it was an illegality which had vitiated the proceedings incurably and called for summary, quashment of convictions 'of the appellants with the order for their re-trial in accordance with law.
5. Mode of taking and recording evidence in inquiries and trials has been outlined in Chapter XXV of Criminal Procedure Code. Sub-- section (1) of section 356 in the said chapter which is relevant here is expressed in mandatory terms and lays down that in trials before Courts of Sessions and in inquiries under Chapter XII, evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions Judge, or in his presence and hearing. And under his personal direction and sup erintendence and shall be signed by the Magistrate or Sessions Judge.
It is clear from the language of the section that taking down evidence means taking down the statement of witness in full. The record of the deposition of each witness in the Sessions Court mast be a faithful record of what a witness states in the case before the Court. Copying of a statement of a witness or a portion thereof from the other case should constitute a serious infringe--ment of these provisions.
Section 537, Criminal Procedure Code covers errors, irregularities in the proceedings so that the persons, who committed offences should not escape punishment on technical grounds which did not affect the merits and substantial justice in the case. The section is reproduced below: "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered under Chapter XXVII, or on appeal or revision on account;
(a) of any error, omission or irregularity in the complaint, report by Police Officer under section 173, summons, warrant, charge, proclama--petition order, judgment or other proceedings before or during trial in any inquiry or other proceedings under tbis' Code or,
(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless such error, omission or irregularity has in fact occasioned a failure of justice."- Explanation.-In determining whether any error, omission or irregularity m any proceedings under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could not have been raised at an earlier stage in the proceedings.
7. In order to bring the case within this section, the following conditions must be satisfied:
(a) The finding, sentence or order under review is one pasted by a Court of competent jurisdiction.
(b) The error or irregularity is not one which renders .The proceedings void under the provisions of the Code contained before section 537 of the Code.
(c) The error or irregularity complained of was committed in proceedings under the Code before or during the trial, and
(d) The error or irregularity complained of has not in fact occasioned a failure of justice.
Learned Advocate-General was of the view, that if there has been a substantial compliance with the procedure an infringement of a provision which provides even mandatorily a matter relating to the conduct of trial cannot always deemed to be an illegality necessarily vitiating the proceedings if there had been no prejudice to the accused. The crucial test to be applied is whether the accused had a fair trial in spite of transgression of the prescribed rule of procedure. Even if there is an illegality due to breach of a mandatory provision in law High Court will not interfere except in case of failure of justice.
8. The proposition put forward by learned Advocate-General is subject to the qualification that if the irregularity is so grave prejudice will necessarily be implied and section 537 will not cure it. The procedure adopted by learned Additional Sessions Judge in copying evidence of witnesses from the file of one case to that of the other was a serious departure from usual and proper course of trial and was not only an irregularity but grossly illegal. Recording of evidence faithfully in a criminal trial is a matter of fundamental character. Strict adherence to the procedure prescribed for the purpose is necessary to ensure proper conduct of trial and a fair decision in the case on the basis of evidence brought on record in accordance with law. When a trial is contrary to law it is no trial at all, and disobedience to an express provision of law as to the mode of trial is not therefore, an irregularity which can be cured by this section but ' is an illegality which vitiates the whole trial.
Section 537 has not the effect of curing material irregularities and absolute illegalities. The errors which can be cured by this section are irregularities of a formal and technical nature which may occur by accident or oversight and do not include a substantial and willful departure from the course of conduct of trial laid down by law. The whole proceedings are vitiated if the trial is conducted in disregard of the fundamental and imperative provisions of law. others v. Emperor ((1924) 25 Cr. L J 67two cross-cases, arising out of the same occurrence were separately tried by a Sessions Judge. The evidence of the prosecution witnesses in each case which included deposition of the accused in the cross-case were at the request of the accused treated as defence evidence in the cross-case. It was held that the procedure adopted in these cases was a serious departure from the usual and proper course. The fact that the prisoners and their counsel have consented to this course being adopted cannot give it a legal sanction for it is well-established principle of criminal law that a prisoner can consent to nothing which is not authorised by law nor can the consent of counsel for an accused person validate a course of procedure which the law does not authorise. Section 537 of the Code applied to errors, omissions or irregularities of a formal nature and does not cover a substantial departure from the mode of conducting criminal trials laid down by law. In all penal matters, utmost strictness in the procedure must be observed. Where the mode in which a criminal trial is to be conducted, is regulated by Statute, a departure from the authorised procedure can itself only be sanctioned by a statutory provisions. Another case cited as Lyme v. Emperor in which also question of examination of evidence in a manner which was violative of the provisions of law was involved can be seen at page 377 of the report. This case incidentally came up before the same learned Judge who had delivered opinion of the Court in Allu's case on behalf of the Division Bench. In this case, the accused was brought before the District Magistrate upon a charge under section 376, Penal Code.
Public Prosecutor closed his case after having examined seven witnesses and their cross- examination was reserved. The accused claimed that as a European British Subject he was to be tried by a jury. This claim was acceded to and the trial started afresh before jury. However, when each witness came into box the recorded statement of the witness given by him to the first hearing was read out to him, a few further questions were then put to the witness and be was tendered for cross-examination. The accused was eventually held guilty of an attempt to commit the offence with for which he ;was charged and was sentenced to a term of six months' rigorous imprisonment.
The contention put forth on behalf of the accused in appeal before High Court that the manner in which trial was conducted was illegal was upheld with the finding that the method of presenting evidence was not only irregular but entirely illegal. It was wholly unauthorised variation from the ordinary and proper procedure. The argument that this departure from the ordinary procedure was an irregularity covered by section 537 of the Lade of Criminal Procedure which enacts that no finding or sentence etc. Passed by a Court of competent jurisdiction shall be reversed on account inter alia of any error, omission or irregularity in the proceedings before or during trial unless such error has in fact occasioned a failure of justice was brushed aside with the observations that the procedure being illegal it is not material to determine whether or not it has occasioned a failure of justice. In many cases, where the authorised mode of trying a criminal offence has been departed, it is impossible to say whether it has or has not occasioned a failure of justice. It is otherwise when the irregularity is one of form and not of substance. A mere slip or oversight in the manner in which evidence is recorded for instance, can rarely prejudice the person who is being tried. But a substantial departure from authorised procedure in the mode in which evidence of witness is presented to a jury may very seriously affect the prisoner's chances. The case of Muhammad Khan v. Emperor ((1928) (29) Cr. L J 521bears complete similarity to the instant case. In that case the accused was charged with two offences, namely, under section 307 of the Penal Code and under section 20 of the Arms Act and the witnesses in the two cases being more or less the same, the evidence of witnesses was recorded by trial Magistrate in the case under section 307 and copies of their statements were placed on the record of the case under the Arms Act. It was held that general rule of law that there should be separate trial with respect to each distinct offence is not achieved but defeated by placing on record mere copies of evidence recorded during the course of a trial relating to another case. The trial was vitiated by illegality of procedure. The view expressed in Allu's case that section 537 of the Code only applied to errors, omissions or irregularities of a technical nature and does not cover substantial departure from the mode of conducting criminal trials laid down by law was followed. Precisely, this point also came up for decision in Muhammad Yunus v. Crown (PLD 1953 Lab. 321to which reference was initially made by learned State counsel while pointing out to us the defect in the proceedings. In that case, the accused were tried separately in three cases. Certain witnesses were common to all those cases.
Verbatim copies of the statements of witnesses recorded in one case were placed on the record of the other two cases with the addition of such matter brought out in cross-examination for the purposes of that particular case. The witnesses were thus not examined in full in each case.
Proceedings ending in conviction of the accused were set aside with the finding that the procedure adopted by learned trial Judge had vitiated the trials. Allu's case was noticed with approval and regarded as authority apt in the circumstances of that case. Lyme's case was held to be somewhat distinguishable on the reason that in that case jury had obviously no chance of noting demeanour of seven witnesses who had already been examined before the Jurors were called. The decision in a comparatively recent case cited as Nurman Shah's case (PLD 1967 Posh, 171) was also identical. In that case separate charges under section 13, the West Pakistan Arms Ordinance and section 167/81 of Sea Customs Act were filed against the accused in Court. A single witness was examined in one of the two cases and a carbon copy of his statement was placed in the other file. Similarly, the accused was examined in one of the files and a carbon copy of his statement was placed on the other file and that it could not be ascertained from both the cases that while examining the accused and the witness against him which case was taken first and which was completed later by placing duplicate copies only. The accused was convicted on a plea of guilty in both cases. The contention on behalf of the accused that procedure adopted by learned trial Magistrate vitiated the trial and was not curable under section 537, Criminal Procedure Code was accepted and judgment in Muhammad Yunus's case was relied upon. It was held that the provisions of section 537 do not apply to infringement of statutory requirement, but it applied to errors, omissions and irregularities of a technical nature which may occur by accident or oversight in the course of proceedings conducted in the mode prescribed by law. Lastly, reference be made to the judgment of High Court Dacca in Anwar Ullah Meah v. Muhammad Nabi Chowdhury (P L, D 1967 Dacca 542in support of the view that breach of rule of procedure regulating examination of evidence was not an irregularity which could be cured under the enabling provisions of section 537, Criminal Procedure Code. In that case learned trial Magistrate had recorded in the form of memorandum evidence of witnesses on the side of one of the parties to the proceedings under section 145, Criminal Procedure Code (Chapter 12 of the Code) which constituted breach of the provisions under section 356, Criminal Procedure Code. The conten--petition that the procedure adopted by the Magistrate was an irregularity which could be cured under section 537, Criminal Procedure Code, there being no prejudice to the party who had lost the case before the Magistrate was turned down.
10. Learned Advocate-General had relied on a couple of judgments of Privy Council in V. M. Abdul Rahman v. The Emperor ((1927) 100 1 C 117and Pulukhurie Kottaya and others v. The Emperor (AIR 1947 P C 677and a judgment of Division Bench of High Court, Dacca in Abdul Subhan and others v.
The State (1968 P Cr. L J 263) in justification of his view point noticed in the earlier part of this judgment. Learned Advocate-General had at a later stage agreed that gravity of irregu--larity or illegality during the course of trial should be considered in the circumstances of a given case so as to decide if the question of failure of justice or prejudice to the accused will be material or not. A short reference to these authorities will, therefore, be sufficient which in the circumstances of the case otherwise also did not really lend full support to the contention of learned Advocate-General.
In Abdul Rahman's case objection against legality of the proceedings at the trial raised before their Lordships was that the procedure laid down under sections 360 and 361 for reading over etc. Of statements to the witnesses was violated by trial Court. The contention that the proceedings had been vitiated was rejected and it was ruled by their Lordships that the bare fact of an omission to comply strictly with the above said provisions of the Code unaccompanied by any probable suggestion of failure of justice having been thereby occasioned is not enough to warrant the quashing of a conviction which may be supported by the curative provisions of section 535 or 537 of the Code. In the next case from Privy Council question of violation of provisions in section 162, Criminal Procedure Code was raised in justification of the argument that the trial was vitiated. The facts material upon the point were that a police Sub-Inspector had held inquest on the body of one of the deceased persons and had examined some witnesses also and wrote down their statements in his note book. Further investigation was held by the Circle Inspector who had also examined all the alleged witnesses and others including these witnesses who had been examined earlier by the Sub-Inspector. Request of the accused twice at different stages of the proceedings for the supply of copies of statements recorded by the Sub. Inspector was met with the reply on behalf of the prosecution that except what was recorded in the inquest statement itself no other statement was recorded by the Sub-Inspector. However, the Sub-Inspector produced statements of the witnesses he had examined at the inquest when he gave evidence in Court of Session. There were some discrepancies between statements made to the Sub-Inspector and the statements made in Court but it was not suggested that such discrepancies were of a vital nature. The contention that the trial had been invalidated due to breach of section 162, Cr. P. C. Which conferred a valuable right on the accused to the supply of copies of statements of the witnesses before the police was rejected. It was held that in case where statements under section 162, Cr. P. C.
Were never masse available to the accused an inference should almost irresistibly arise of prejudice to the accused. In this case the statements of the witnesses were made available though too late to be effective and their contents were known. The trial was valid notwithstanding the breach of section 162. When a trial is conducted in a manner different from that prescribed by the Code, the trial is bad and no question of curing an irregularity arises but if the trial is conducted substantially in the manner prescribed by the Code, and some irregularity occurs in the course of such conduct the irregularity can be cured under section 537. This authority rather supports our view.
In Abdul Subhan's case charge framed against the accused under section 302/149, P: P. C. Was found to be not happily worded and far from satisfactory. The precise question before the Court was whether conviction of the accused was illegal and unsustainable due to defective nature of the charge or error in drawing a proper charge was curable under section 537, Cr. P. C. The Court laid down inter alia that infringement of a positive enactment that in the course of trial certain detailed procedure should be followed merely amounts to an error, omission or irregularity and was curable if the accused had' a fair trial in spite of the transgression of the prescribed rule of procedure. Even if there is an illegality, High Court will not interfere except in cast/ of failure of justice. This view which should be construed confined to the point in issue before the Court was formulated on the basis of several judgments including judgement of Supreme Court in Hazrat Jamal and others v. State (PLD 1958 SC (Pak.) 383which all pertained to defective charges and the ultimate effect thereof on the final outcome of trial. Defect in the charge is an error of form, and not of substance and would ordinarily be attributable to oversight and not to a conscious disregard of the relevant rule of procedure. The question of prejudice to the accused in such cases or failure of justice will therefore, be material. In the instant case we are confronted with a grave illegality committed by learned Additional Sessions Judge which did not arise out of inadvertence or accidental slip but was a deliberate departure from the procedure and mode of examination of evidence laid down by law. The question of prejudice to the accused or failure of justice will not therefore, be relevant. Reference be made to the judgment of Supreme Court in Md. Asosaddar Haque and another v. State (PLD 1958 SC (Pak.) 131In that case two accused were charged for having accepted bribe punishable under section 161, Pakistan Pynal Code read with section 5(2) of Prevention of Corruption Act of 1947, held guilty and awarded sentence of different amounts of fine.
It was held by the Supreme Court that joint trial of the two accused was illegal and no question as to prejudice was caused or not nsed be considered as illegality had resulted from adopting a mode of trial not prescribed by the Code could not be, therefore, cured under section 537, Criminal Procedure Code.
11. In the result, our conclusions are 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 n of material to determine if this serious breach of a mandatory provision o f law had worked injustice to the appellants, and the provisions in section 53 7, Criminal Procedure Code did not apply to an infringement of a statutory requirement and only apply to errors, omissions or irregularities arising out of inadvertence. We feel constrained to quash conviction and sentences of the appellants regardless of merits of the judgments and order re-trial in both cases before Sessions Judge, Sialkot in accordance with law.
12. Before , parting with the judgment we express our extreme dis--approval of irresponsible manner of conduct of trials by learned Additional Sessions Judge so gravely illegal and detrimental to the solemnity of important proceedings in Sessions trials.