' Appellant Zahoor was tried alongwith absconding accused Hamid Hussain by VIIth Additional Sessions Judge (South) Karachi, for the offence under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, who found him guilty for the offence under section 328, P.P.C., and vide judgment dated 30-8-1990 sentenced him to suffer R.I. For seven years. By this appeal filed under section 410, Cr.P.C. The appellant has challenged his conviction and sentence.
2. On 3-7-1982 complainant Mir Bahadur lodged F.I.R. At Defence P.S. (Crime No,117 of 1982), under section 328, P.P.C., read with section 14 of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, alleging therein that on 30-6-1982 during the month of Ramazan he was returning to his house at about sunset time after having purchased articles for Iftari, when the appellant alongwith co-accused Hamid Hussain (since absconding) met him and they inquired about one Rehman. Since it was Iftari time the complainant invited both the accused persons to his house for dinner and promised to locate the said Rehman after Iftari. It is alleged that taking the advantage of the situation the appellant and co-accused Hamid Hussain administered some intoxicating drug in the tea offered to complainant Mir Bahadur who was alone in the house, and he lost senses immediately after taking tea. The appellant and co-accused Hamid Hussain (since absconding) then ransacked the house of complainant Mir Bahadur and deprived him of his valuables including cash. At Sehri time Muhammad Shafa, a neighbour of Mir Bahadur came to him and found him lying unconscious. Mir Bahadur was taken to hospital where he regained senses and on 3-7-1982 lodged F.I.R. At Defence P.S. During the course of investigation the appellant and absconding accused Hamid Hussain were arrested and stolen articles were recovered from their possession.
After usual investigation the case was challaned in the Court of A.C.M. No,1 (South) Karachi, for the offence under section 328, P.P.C. Read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. On 19-12-1982 charge for the said offence, which was exclusively triable by the Court of Session was framed against the accused by the learned Magistrate who recorded the evidence of complainant Mir Bahadur (P.W.1), Malik Ali Ahmed (P.W.2), and Muhammad Shafa (P.W.3), and it was at this stage that the A.C.M., sent the R & P of the case to the Court of Session for want of jurisdiction. The case was then transferred to VIIth Additional Sessions Judge (South) Karachi, for disposal. During the pendency of trial accused Hamid Hussain absconded and an order under section 512, Cr.P.C. Was passed against him. The case then proceeded against the appellant who was charged for the offence under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, only. At the trial the prosecution examined Muhammad Wadi A.S.I. (P.W.1), only. It was at this stage that the learned A.P.P. Attached to the Court of Additional Sessions Judge made an application under Article 47 of the Qanun-e- Shahadat, 1984 (Exh.10), with the following prayer:- "It is prayed that the depositions of P.Ws. Mir Bahadur and Malik Ali Ahmed recorded during judicial trial may be included in the proceedings as the case being of 1986 the P.Ws. Are not traceable. The prayer is in the interest of justice."
' This application was allowed by the learned Additional Sessions Judge on the same day in the following words:- "Evidence above recorded is brought for consideration under Article 47 of Qanun-e-Shahadat, 1984, as witnesses are not traceable. Allowed."
' However, the learned Additional Sessions Judge not only brought the evidence of complainant Mir Bahadur and P.W. Malik All Ahmed on record but he also transferred the evidence of Muhammad Shafa to the record of this case, for whom no prayer was made by the A.P.P. The side of the prosecution was then closed and after recording the statement of the appellant under section 342, Cr.P.C., the case was decided and the appellant was awarded a deterrent punishment with no benefit of section 382-B, Cr.P.C. It is in these circumstances that the present appeal has been filed.
3. I have heard Mr. Shahadat Awan, learned counsel for the appellant and Mr. Vakeel Ahmed Qureshi, learned counsel for the State. The latter has not supported the impugned judgment.
4. The question that has been raised in this appeal relates to the interpretation of Article 47 of the Qanun-e-Shahadat, 1984, corresponding to section 33 of the Evidence Act, 1872 (since repealed).
This Article pertains to relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated. If we analyse and break up the provisions of Article 47 of the Qanun-e- Shahadat, 1984, it will be clear that structurally it is divisible into six parts, namely.
(i) The evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states;
(ii) Such evidence shall be relevant when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable;
(iii) Where such proceeding was between the same parties or their representatives-in-interest;
(iv) Where the adverse party in the first proceeding had the right and opportunity to cross- examine;
(v) Where the questions in issue were substantially the same in the first as in the second proceeding; and
(vi) A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Article.
5. The principle which sanctions the admissibility of depositions and former testimony is the simple principle of necessity, that is, the want of any other means of utilizing the knowledge of the witness (see Wigmore's Evidence, 1905 Edition). One of the prerequisite to the admissiblity of such evidence is that the same was given in a judicial proceeding. Addmittedly the offence under section 328, P.P.C. Is exclusively triable by a Court of Session and the learned A.C.M. Who indicted the accused and recorded the statements of complainant Mir Bahadur (P.W.1), Malik All Ahmed (P.W.2), and Muhammad Shafa (P.W.3) had absolutely no jurisdiction to try them. The proceedings before the learned A.C.M. Were, therefore, not judicial proceedings. The depositions taken by a Magistrate who was incompetent to do so, could not have been transferred under the provisions of Article 47 of the Qanun-e-Shahadat, 1984.
6. Again the requirements of Article 47 of the Qanun-e-Shahadat, 1984, must be proved in letter and spirit before the depositions of the witnesses are transferred to the file of Sessions Court. In Nja Chit Tin and others v. The King, reported in A.I.R. 1939 Rangoon 225, it was held that where there is nothing on record to show that such evidence comes within the terms of section 33 of the Evidence Act, 1872 (now Article 47 of the Qanun-e-Shahadat, 1984), the bare statement that the deposition is admitted under section 33 is not sufficient to bring such evidence within the terms of section 33 of the Evidence Act, 1872. This view was followed in the case of Kala s/o Nek Muhammad and another v. Emperor, reported in A.I.R. 1944 Lahore 206, wherein it was observed:- "In the first place the learned Sessions Judge should not have admitted in evidence on the Sessions record by transfer the statement of Hassu Khan whether at the request of the Public Prosecutor or of the defence counsel without proof that Hassu Khan was in fact ill and that his presence could not be obtained without unnecessary inconvenience, expense and delay as laid down in section 33, Evidence Act. The requirements of section 33 must be carefully proved before the statement of a witness can be transferred to the Sessions record, under the section. As laid down in AIR 1930 Lah.
1041, a judgment by Sir Shadi Lal, C.J. And Agha Haider, J., unless there requirements are observed, the procedure is contrary to law and wholly irregular and the deposition of a witness thus brought on record cannot be treated as evidence."
7. The case of Muhammad Hussain alias Mulla v. The State, reported in 1986 P Cr. L J 337, is also clear on this subject, wherein it was observed:- "Section 33 must be strictly applied and the circumstances mentioned therein must be strictly proved before depositions can be accepted as evidence against the accused. We are not satisfied that the conditions mentioned in section 33 of Evidence Act have been proved to have existed in this case in order to justify the admission of Waris and Muhammad Ajmal's depositions as evidence against the appellant. The learned Judge did not record any reason to show that he was satisfied that their presence could not be procured without undue expense or delay. In our opinion, he ought to have recorded the reasons if he was so satisfied so that the appellate Court could see whether the section was properly applied. We do not propose to rely on the statements of P.Ws.
Waris and Ajmal.".
8. The perusal of the record shows that no sincere effort was made to secure the attendance of complainant Mir Bahadur (P.W.1), Malik All Ahmed (P.W.2) and Muhammad Shafa (P.W.3) before the trial Court. The only fact that they had retired from service was not sufficient to hold that they were not traceable or their presence could not have been secured without unnecessary inconvenience, delay and expense. They are retired employees of the Government and their addresses could be easily available in their office. The learned Additional Sessions Judge did not take pains to examine the process-server in this behalf and he relied upon a sweeping statement made by Muhammad Wadi, A.S.I. (P.W.1) who had investigated the case in the year 1982 and was posted as S.I.P. At Gizri P.S. On 28-2-1990 when his statement was recorded. In his anxiety to transfer the depositions of complainant Mir Bahadur (P.W.1), Malik All Ahmed (P.W.2), and Muhammad Shafa (P.W.3) to his file under Article 47 of the Qanun-e-Shahadat, 1984, the learned Additional Sessions Judge also lost sight of the fact that in his application (Exh.10), the learned A.P.P. Has prayed for the transfer of evidence of two witnesses only, namely, Mir Bahadur and Malik Ali Ahmed.
9. One of the essential requirements for application under Article 47 of the Qanun-e-Shahadat, 1984, is also that the adverse party in a proceeding should have the right and opportunity to cross- examine. The perusal of the record shows that no opportunity to cross-examine Malik Ali Ahmed (P.W.2) was afforded to the appellant and consequently his deposition could not have been used in later proceedings before Additional Sessions Judge.
10. On all the above scores the depositions of complainant Mir Bahadur (P.W.1), Malik Ali Ahmed (P.W.2) and Muhammad Shafa (P.W.3) brought on the record of Sessions Court under Article 47 of the Qanun-e-Shahadat, 1984, cannot be treated as evidence. After discarding this evidence there remains no evidence against the appellant and consequently he is entitled to an acquittal.
11. In the result the impugned judgment is set aside and the appeal is accepted. The appellant is acquitted from the charge. He is in custody and be released forthwith, if not required in any other case. The re-trial of the appellant is not ordered for the simple reason that he has already remained in custody for such a long time and in fact suffered the punishment which in ordinary course could have been awarded to him.