1. ' The petitioner was convicted under section 411, Pakistan Penal Code and sentenced to suffer R.I.
2. For one year.
3. ' The prosecution story is that complainant Misri lodged with S.H.O. Pangrio Police Station on 28-5- 1982 at 18-30 hours alleging therein that on 27-5-1982 at about 2 p.m. He came in his Otaq situated in Deh Chhar Taluka Tando Bago and kept his gun and two cartridges on a cot under the head and he slept on another cot. It is alleged that about 5 p.m. He woke up and found his gun missing. He then enquired from his sons namely Ilmar and Khan but they replied that they had not taken the gun. He then went to. Nekmards Qurban All Khoso and Muhammad Malook Jat and informed them about the incident on the next morning.
4. ' The complainant then went to Saman Sarkar where he came to know that the police had secured the gun and cartridges from Piryaro. On coming to know this fact, he went to the Police Station and lodged his F.I.R. On 28-5-1982.
5. ' The petitioner was challaned under section 379/411, P.P.C. In the Court of Civil Judge and F.C.M., Tando Bago. The prosecution during the trial examined complainant Misri, P.Ws. Khan, Qurban Ali, S.H.O. Adam Khan, Mashir Haji and Dino and closed its side.
6. ' The petitioner in his statement under section 342, Cr.P.C. Denied the allegations of the prosecution and claimed enmity with Syed Ali Bukhsh Shah. He examined Khan Muhammad and Khair Muhammad in defence.
7. ' The learned trial Court after taking into consideration the evidence adduced before it, convicted and sentenced the petitioner abovenamed, as hereinbefore mentioned and consequently the petitioner filed appeal before Sessions Court, Badin under section 408, Cr.P.C. Which resulted in dismissal by judgment, dated 22-10-1983.
8. ' The petitioner has filed the above revision application on the facts and grounds mentioned in the memo. Of above petition.
9. ' Mr. Syed Madad All Shah the learned counsel for the applicant urged that the trial Court has acted illegally and without jurisdiction in placing carbon copy of the deposition of Mashir Haji recorded in the connected case under section 13-D, Arms Ordinance on the file of the theft case which has also vitiated the entire trial and prejudiced the case of the applicant. In support of this contention the learned counsel for the applicant relied upon case reported in PLD 1966 SC 708 and 1984 P Cr. L J
605. The learned counsel appearing for the State on the hand has fairly conceded that the trial Court has committed illegality and cannot be cured by the provisions of section 537, Cr.P,Code.
10. ' I have carefully considered the above submissions made by the learned counsel before me and have gone through the RCP, of this case as well as the connected case and also persued the impugned judgments of the trial Court as well as the learned Sessions Judge, ' The perusal of the record of Case No,43 of 1982 under section 13-D, Arms Ordinance would show that deposition of S.H.O. Adam Khan and Mashir Haji recorded in this case i,e, Case No,33/1982 an the evidence of these two P.Ws. Therein was then copied in verbatum in Case No,49 of 1982 under sections 379 and 411, P.P.C. The evidence so recorded shows that the prosecution witnesses made depositions on 7-11-1982. The depositions of these two witnesses were only recorded in Case No, 43 of 1982. The practice of putting copies in other cases of evidence recorded in one case, has never been approved by the superior Courts. On the contrary this practice has been looked with disfavour. This practice tentamounts to depriving the accused of effective cross-examination in those cases in which copies of such evidence are attracted. The dictum laid down in the case of Noor Illahi v. The State and others reported in PLD 1966 SC 708 is applicable to the facts of this case. Their Lordships of the Hon'ble Supreme Court had held that "it has been conceded by the learned Advocate-General as well as by Ch. Nazis Ahmed Khan who appeared for the three accused persons in the complaint case, that paragraph 8 of the judgment of the learned Single Judge, in so far as it directed witnesses should be examined only once and their statements read that as evidence in the other case, is not supportable in law. The dictum laid down in the above- mentioned judgment was followed in other cases PLD 1981 Lah.
60. 1 am of the opinion that every criminal proceeding is to be decided on the material on record of that proceeding. Neither record of the other proceeding nor any finding recorded therein should affect the decision. Copying of depositions from one case for record of another case is an absolute illegality and vitiates trial and imports prejudice to the petitioners. This is a breach of mandatory provisions of section 101 of the Evidence Act and cannot be cured by the provisions of section 537, Cr.P.Code.
11. ' Therefore, I allow the Revision Application No, 67 of 1983 and set aside the conviction and sentence of the applicant awarded to him and acquit him and discharge the bail bond executed by the applicant.