The following two connected cases were tried by Mr. Farrukh Amin, Additional Sessions Judge, Sialkot.
1. Sessions Case No, 5 of 1982 Sessions Trial No, 3 of 1982.
State V. Gul Muhammad etc. Charges under section 302/307/325/148/149/109, P. P. C.
Police Station, Shakargarh.
1. Sessions Case No, 4 of 1982: Sessions Trial No, 4 of 1982. State v. Nazeer Ahmad etc. Charge under section 307/34, P. P. C. Police Station Shakargarh.
When the cases were ripe for announcement of judgments the learned Additional Sessions Judge referred them to the learned Sessions Judge, Sialkot with the request for the withdrawal of the cases from his Court as for some personal reasons he did not want to decide them. The learned Sessions Judge referred the matter to the High Court soliciting the orders for the withdrawal of the cases from the said Court and entrustment to a Court of competent jurisdiction. Mr. Justice Mazharul-Haq was pleased to transfer the cases from the Court of Mr. Farrukh Amin, learned Additional Sessions Judge to the Court of learned Sessions Judge for trial on 23rd December, 1982.
The accused of the case under section 302, P. P. C. Made a statement before the learned Sessions Judge that they wanted the decision of the case on the basis of the evidence already recorded by Mr. Farrukh Amin, learned Additional Sessions Judge, Sialkot. Subsequently, the learned Defence Counsel and the Public Prosecutor brought material irregularities and illegalities to the notice of the learned Sessions Judge committed by Mr. Farrukh Amin, learned Additional Sessions Judge, in the proceedings of the case under section 302, P. P. C. The detail of which is as under :-
(a) The various pages of the depositions sheets in English as well as in Urdu did not bear the signatures of the learned Additional Sessions Judge in token of their authenticity. Moreover, the various cuttings and interpolations also do got bear the initials or signatures of the learned Additional Sessions Judge.
(h) A close and comparative scrutiny of the evidence shows that there is a lot of difference between the two versions of the depositions and prosecution witnesses. The statement of Farman Ali son of Khair Din P. W. Was recorded twice once incomplete and the other complete.
(c) The statements of the accused under section 342, Cr. P. C. We're not at all recorded in Urdu.
Even the statements of the accused typed in English did not bear their thumb-impressions or signatures or the certificate of the Court evidencing the fact that these statements were made by them and read out and explained to them. The learned Additional Sessions Judge did not put his signatures on various pages of these statements.
(d) After the conclusion of the defence evidence on 5th September, 1982, a supplementary statement of Dr. Mubarak Ali Shah was recorded but thereafter the accused persons were not re- examined in light of the statement under section 342, Cr. P. C.
3. In view of the above circumstances, the learned Sessions Judge, Sialkot has again referred the matter to this Court for necessary orders.
4. Learned counsel for the parties are unanimous on the point that no noticeable material irregularity or error exists in the case titled The State v. Naseer Ahmad etc. Under sections 307, 326, 109/34, P. P. C.
5. I have perused the report of the learned Sessions Judge and record of the trial under section 302, P. P. .C. And am of the view that the learned Additional Sessions Judge has not conducted the trial keeping in view the legal formalities and instructions issued by the High Court for the trial of criminal cases. The learned Sessions Judge was required to read over the depositions to each witness and to correct any apparent discrepancy between the vernacular and English record.
Furthermore, the learned Additional Sessions Judge was required to examine the accused after the close of the prosecution because (i,e, after the examination and cross-examination, of prosecution witnesses and their further examination, if any) so as to give them any opportunity to explain any points which were not included in the questions put to them at the earlier stages. The failure to examine the accused at the close of the prosecution has been held to be an illegality vitiating the trial. The instructions issued to.Criminal Courts as contained in Rules and Orders of the Lahore High Court Volume III require that the examination of the accused should be recorded in the language in which he is examined and it must be read over to the accused and made conformable to what he declares to be the truth. The trial Judge is further required to certify under his own hand that the examination was taken down in his presence and hearing and that the record contains a full and true account of what was stated.
6. Mode of taking and recording evidence in inquiries and trials has been set-forth in Chapter XXV of Cr. P. C. Subsection (1) of section 356 which is relevant here lays down that in trials before the Court of Sessions evidence of each witness shall be taken down in writing in the language of the Court in his presence and hearing and under the personal direction and superintendence of the Magistrate or the Sessions Judge as the case may be and shall also be signed by him. It is clear from the language of the section that taking down evidence means taking down the statement of the witness in full. The record of the deposition of each witness must be faithful record of what a witness states before the Court. Recording of evidence faithfully in a criminal trial is a matter of fundamental character. Strict adherence to the procedure prescribed for the purposes is essential to ensure proper conduct of trial and a fair decision on the basis of evidence brought on record in accordance with the law. When a trial is contrary to law it is no trial at all and disobedience to an expressed provisions of law as to the mode of trial is not, therefore, an irregularity which can be cured under section 537, Cr. P. C. But is an illegality which vitiates the whole trial. Section 537, Cr. P.
C. Has not the effect of curing material irregularity and absolute illegalities. The errors which cane be cured by this section are irregularities of a formal and technical nature which may occur by accident or oversight and do not include substantial and wilful departure from the course of conduct of trial laid down by law. Whole proceedings are vitiated if the trial is conducted in disregard of the 'fundamental and imperative provisions of law. In Anwar Ullah Meah v.
Muhammad Nabi Choudhri it was held that breach of rule of procedure regulating examination of evidence was not an irregularity which can be cured under the enabling provisions of section 537, Cr. P. C.
7. In the present case, gross illegalities have been committed by the learned Additional Sessions Judge which do not arise due to inadvertence but is a deliberate departure from the procedure and the mode of examination of evidence as laid down by law. The question of prejudice to the accused or failure of justice will not, therefore, be relevant.
8. Keeping in view the above circumstances, I order re-trial of the case titled Gul Muhammad etc. v.
The State under sections 148, 302, 307, 325/109/149, P. P. C. As sufficient delay has already taken place the learned Sessions Judge is directed to give this case preference over others and conclude the trial within the shortest possible time. The learned Sessions Judge shall himself try the case and decide it, simultaneously with the case titled State v. Naseer Ahmad etc. Under sections 307, 326, 109/34, P. P. C. It will be open to the learned Sessions Judge to act on the evidence duly recorded by Mr. Farrukh Amin, Additional Sessions Judge, or to re-examine any or more of the witnesses as deemed fit by him. P L D1967 Dacca 542