' Through this consolidated judgment, I intend to dispose of the above-mentioned six appeals arising out of one judgment, dated 31-5-1993 passed by the learned Special Judge, Anti-Corruption (Provincial), Hyderabad in six different cases viz., Special Cases Nos.54 of 1990 to 59 of 1990.
2. The brief facts of these appeals are that on 24-3-1990, six F.I.Rs, were lodged by one Moula Bux Khaskheli, Circle Officer, Anti-Corruption Establishment, Hyderabad District, bearing Nos.3 of 1990 to 9 of 1990 alleging therein that the appellant Munshi Ghulam Hussain had misappropriated different amounts of Ushr Kharif and Rabi and had not deposited the same in the account of Local Zakat Ushr Committee of Tapo Sekhat. Accordingly all six F.I.Rs, were lodged under section 409, P.P.C.
Read with section 5(2) of the Prevention of Corruption Act, 1947. In these circumstances, six different charge sheets were filed by the prosecution in the Court of Special Judge, Anti-Corruption (Provincial), Hyderabad who after complying other legal formalities framed six charges separately, all marked (Exh.2) under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The charge was read over and explained to the appellant who pleaded not guilty.
Language used and offences alleged in all the six charges were similar and identical. I, therefore, would like to reproduce contents of only one charge framed in Appeal No,186 of 1993 (Special Case No,54 of 1990) as follows:-- "That in the year, 1988-89 while you were posted as Taper Tapo Sekhat Taluka Matiari, by abuse of your official position as such public servant, you committed the following act of criminal misconduct, criminal misappropriation and criminal breach of trust.
' That when on 30-11-1989 you were transferred from Tapo Sekhat, you did not hand over to your successor Piyaro Khan, Tapedar the record pertaining to the recovery of Usher money of Deh Sekhat Tapo Sekhat. That later on, when the relevant receipt books were secured from you, it transpired that during a period from 3-6-1989 to 12-11-1989, you recovered a sum of Rs,53,046 from various Khatedar of Deh Sekhat Tapa Sekhat but you instead of Rs,53,046 intentionally and fraudulently deposited into the bank up 12-7-1989 a sum of Rs,34,732 and misappropriated the remaining amount of Rs,18,314. That it was only after the report made to A.D.C.I, Hyderabad by the Mukhtiarkar Taluka Matiari, that you deposited into the bank on 22-3-1990 only Rs,14,657 out of Rs,18,314 and criminally misappropriated the remaining amount of Rs,3,657. And you thereby committed temporary criminal misappropriation/criminal of trust, punishable under section 409, P.P.C. Read section 5(2) of the Prevention of Corruption Act II of 1947 within the cognizance of this Court."
' The prosecution has examined four (4) witnesses in all the six cases in support of the above said charge, namely, P.W.1 Piano Khan, P.W.2 Yar Muhammad, P.W.3 Muhammad Suleman and P.W.4 Moula Bux. On 24-5-1993, the appellant Ghulam Husain was examined under section 342, Cr.P.C.
3. On 31-5-1993 vide impugned judgment, the learned trial Court convicted the appellant/convict under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to suffer imprisonment till rising of the Court in each case and to pay separate amount of fine in each case. The details are as follows:--
(1) Special Case No,54 of 1990 ' Fine of Rs,2,000 (Rupees two thousand, or in default of payment of fine to undergo R.I. For 8 (eight) months.
(2) Special Case No,55 of 1995 ' Fine of Rs,2,000 (Rupees two thousand), or in default of payment of fine to undergo R.I. For 8 (eight) months.
(3) Special Case No,56 of 1990 ' Fine of Rs,400 (Rs, four hundred), or in default of payment of fine to undergo R.I. For 2 (two) months.
(4) Special Case No,57 of 1990 ' Fine of Rs,2,000 (Rs, two thousand), or in default of payment of fine to undergo.R.I. For 8 (eight) months.
(5) Special Case N0.58 of 1990 ' Fine of Rs,1,000 (one thousand) or in default of payment of fine to undergo R.I. For 4 (four) months.
(6)Special Case No,59 of 1990 ' Fine of Rs,200 (Rs, two hundred) or in default of payment of fine to undergo R.I. For 1 (one) month."
4. I have heard Mr. Shoukat Hussain Zubedi, Advocate for the appellant /and Mr. M.M. Vassu, Advocate for the State. I have also perused all the six case files of the trial Court. Besides arguing all these appeals on merits, Mr. Zubedi has raised several legal objections on the manner the trial was conducted before the Special Court. His first objection is that evidence of all the prosecution witnesses were recorded in one case i,e, Special Case No,54 of 1990 and was verbatim copied in all the other five cases. Learned counsel for the appellant has vehemently contended that such practice by the trial Court is not only an irregularity but it amount to illegal practice and the trial is vitiated due to this illegality. According to the learned counsel, this illegality is not curable under section 537, Cr.P.C. He has relied upon the cases of Muhammad Younis v. The Crown PLD 1953 Lah.
321 and Noor Muhammad and another v. The State PLD 1981 Lah.
60. There are several other reported cases which I would like to examine hereunder, case-wise:--
5. (i) Allu and others v. The Crown ILR 4 Lah.
376. In this case, the parties have lodged two counter-cases which were tried jointly by the trial Court. It was suggested by one of the accused in the said case that he wanted deposition of the prosecution witnesses in the cross-case be treated as defence witnesses in his case. This act was also followed by the other accused. The arguments were heard and both the cases were disposed of by one consolidated judgment by the trial Court. The matter went in the appeal before the Lahore High Court. A Division Bench of the Lahore High Court held that the procedure adopted by the trial Court was a serious departure from the usual and proper course and that the consent of the counsel appearing for the accused could not give a legal sanction to such illegal practice It was further held by the Division Bench of the Lahore High Court that such defect amounts to infringement of a statutory requirement and is not curable under section 537, Cr. P. C .
6. (ii) John Thomas Lyme v. The Crown AIR 1924 Lah.
17. In this case, a learned Single Judge followed the similar view. In this case, some seven witnesses were examined by a Magistrate and when the accused claimed to be tried by Jury the procedure adopted was that when these seven witnesses came not the witness-box, the previously recorded statements were read over to them. Few further questions were put to the witnesses. Some witnesses were not even sworn. It was held by the Lahore High Court that the method adopted by the trial Court was entirely irregular and the defect was not curable under section 537, Cr.P.C.
Appeal was allowed.
7. (iii) Muhammad Younis v. The Crown PLD 1953 Lah.
321. In this case, appellant Muhammad Younis was tried along with other persons in three different cases by a Special Judge and was convicted under sections 409, 420, 467, 109, P.P.C. In all the three cases there were few common witnesses. The trial Court recorded evidence in one case and then a verbatim copy of the statement recorded was placed on the records of other two cases. All the three cases were disposed of by one consolidated judgment. One of the objections on behalf of the appellant was that the procedure adopted by the trial Court for the examination of witnesses was illegal and had vitiated the trials. A learned Division Bench of the Lahore High Court followed the rule laid down in the cases of Allu and John Thomas. It was further held by the D.B. Of, Lahore High Court as follows:-- "... It is conceded that the three transactions which formed the subject-matter of the three cases could not have formed the basis of a joint single trial of all the accused persons involved. The procedure adopted, in effect amounted to a single joint trial, in contravention of the provisions of Cr.P.C. (section 353 et seq) and the Evidence Act, sections 137 and 138). We are, therefore, constrained to hold that the procedure adopted by the learned Special Judge vitiated the trials."
8. (iv) Nur Elahi v. The State and others PLD 1966 SC 708. In this case, it was held by Mr. B.Z. Kakas, J.
(as he then was) that every criminal proceeding is to be decided on the material available on record of that particular proceedings and that the record of another case nor any finding recorded therein should effect the decision of the trial Court.
9. (v) Noor Muhammad and others v. The State PLD 1981 Lah.
60. Again in this case, a learned Division Bench of Lahore High Court followed the rule laid down in the cases of Allu and Muhammad Younis. In this case, two different Sessions cases were involved.
Evidence of some of the witnesses in one case was substantially copied in other case. The High Court examined the record of trial Court and found that the portions of statement of few witnesses, in both the cases, were merely copied and imported from the record of one case to that of another.
In these circumstances, the Lahore High Court quashed conviction and sentences of the appellants in the following words:-- "(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 not material to determine if this serious breach of a mandatory provision of law had worked injustice to the appellants, and the provisions in section 537, 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 retrial in both cases before Sessions Judge, Sialkot in accordance with law."
10. (vi) Nurman Shah v. The State PLD 1967 Pesh.
191. In this case, two separate charge-sheets were filed against the appellant; one for the offence arising out of West Pakistan Arms Ordinance and the other arising out of Sea Customs Act. One witness was examined in one of the two cases and a carbon copy of the same was placed in the file of other case. Accused was also examined in one case and copy of his statement was placed on the file of other case. Accused was convicted on a plea of guilty in both the cases. It was held by the Peshawar High Court that the procedure adopted by the Magistrate vitiated the trial and that provisions of section 537, Cr.P.C. Do not apply to infringement of statutory requirements. Rule laid down in Muhammad Younis's case was consistently followed by the Peshawar High Court.
11. (vii) Ijlees Ahmad and another v. The State 1988 MLD 167. In this case, appellants were convicted by Punjab Special Court for Speedy Trial No,X, Gujranwala. At the appeal stage, a preliminary objection was raised that the trial was not conducted in accordance with the law inasmuch as statements of some of the witnesses were recorded in one case and were copied in the other which has vitiated the trial. A Division Bench of the Lahore High Court followed the rule laid down in the case of Allu and Muhammad Younis and came to the conclusion that the procedure adopted by the trial Court was in direct contravention of the provisions of the Cr.P.C. It was further held that utmost strictness in procedure must be observed in all judicial matters. All the conviction orders/judgments passed by the trial Court were set aside on this ground.
12. (viii) Hassan Gul v. The State 1975 PCr.LJ 437. In This case, a learned Single Judge of this Court Mr. Khuda Bakhsh Marri, J. (as he then was) followed the case-law of Muhammad Younis and held that since the procedure adopted by the trial Court by recording statements in one case and to be treated the same as evidence in the other case amounts to patent illegality. Appeal was allowed on this ground.
13. (ix) The State v. Calendar Khan PLD 1971 Pesh.
119. The facts of this case are that the respondent was tried for falsification of accounts under section 477-A and some 13 different challahs were submitted. All the 13 cases were disposed of by a common judgment and the accused/respondent was acquitted. The matter was remanded by the appellate Court to the trial Court who again decided the case on consideration of evidence and material on the record of other cases, and again the respondent/accused was acquitted. A Division Bench of the Peshawar High Court followed the view as held in the cases of Muhammad Younis and Nur Elahi that the procedure adopted by the trial Magistrate was illegal and has vitiated the trial. The case was remanded to the trial Court for recalling and re-examination of the witnesses in accordance with law.
14. (x) Khawaja Muhammad. Anwar v. The State 1983 PCr.LJ 2070. In this case, appellant was convicted by the first Additional Sessions Judge, Karachi in eight different cases arising out of Foreign Currency Regulations Act, 1947. One of the grounds in the appeals before this Court was that the statements of prosecution witnesses recorded in one case were copied and transferred to the remaining seven cases. A learned Single Judge, Mr. Z.C. Valiani, J. (as he then was) followed the rule laid down in the cases of Muhammad Younis and Nur Elahi. All the appeals were allowed.
15. (xi) Siddiq Ali and another v. Rex AIR 1950 All.
119. In this case, appellants were convicted by the Additional Sessions Judge of Sitapur under sections 409 and 109, I.P.C. And were sentenced to rigorous imprisonment for three years and fine of Rs,200. During hearing of appeal before the Allahabad High Court, it was argued that the trial Court has copied the statement of witnesses recorded in one case into the other case instead of examining witnesses afresh in each case. It was held by a learned Single Judge of Allahabad High Court that such copying of statements of prosecution witnesses clearly vitiates the trial. It was further held that each witness has to be separately examined in each Sessions case and that the conviction based on such commission of illegality is liable to be quashed. Retrial of the appellants were ordered.
16. (xii) Syed Abdul Waheed v. The State 1968 PCr.LJ 776. In this case, a learned Single Judge of this Court Mr. Feroze Nana Ghulamally, J. (as he then was) held that by placing deposition of handwriting expert who was common witness in two separate cases, recorded in one case and transferred on the record of other case through a carbon copy amounts to illegality. It was held that without appearance of witness in Court such statement does not constitute legal evidence.
This Court followed the rule laid down in the cases of Nur Elahi, Muhammad Younis and Siddiq Ali.
17. (xiii) Mazhar Hussain Shah v. The State 1990 PCr.LJ 868. In this case, appellant was convicted by the Special Court (Offences in Banks) Sindh under sections 468, 471, P.P.C. In three cases. Appeal was heard by a Division Bench of this Court. It was argued by the counsel of the appellant that the evidence was recorded in one case whereas carbon copies were kept on the record of other two cases which practice was illegal in view of the case of The State v. Qalandar Khan PLD 1971 Push.
119. It was held that the learned Presiding Officer of the Special Court (Offences in Banks) Sindh has applied his mind independently to the facts and circumstances of each case and although all the three cases have been disposed of by one judgment, no miscarriage of justice was resulted. The other case-laws as cited in pares. (i) to (xii) were not cited by the appellant before the learned Division Bench. In the instant case, after going through the record of , the trial Court, it appears that the learned Special Judge, Anti-Corruption has not applied his mind independently to the facts and circumstances of each case.
18. 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.
19. I have compared evidence of the prosecution witnesses in all the six cases. The amount of alleged misappropriation is different in all the other cases, otherwise contents of the examination- in-chief and cross-examination are verbatim (copied). This supports the contention of the learned counsel for the appellant that the evidence recorded in one case was later on copied in other cases and that no separate examination-in-chief and cross-examinations of prosecution witnesses were conducted in the remaining five cases. It is also pertinent to note that after production of the documents by the witnesses the Exhibits number were kept blank in the deposition sheets which were filled in later on in handwriting. This also suggests that the deposition of witnesses were not recorded separately and in the presence of the witness in witness-box. It is the duty of the trial Court to give separate numbers to all the documents exhibited during the recording of evidence. In view of the these facts, I am constrained to observe that the learned trial Court should have recorded evidence of each witness separately in all the other cases. Non- compliance of this established procedure of criminal trial has vitiated the trial. Conviction order based on such trial is not entitled in law to be maintained.
20. Mr. Shoukat Hussain Zubedi has also objected on the disposal of six cases by one judgment by the learned trial Court. This argument of Mr. Zubedi in not without force. There is no provision in the Code of Criminal Procedure, 1898 whereby the trial Courts are entitled to dispose of more than one case by one consolidated or by one common judgment. Perusal of sections 366 and 367, Cr.P.C.
Suggests that each criminal case has to be disposed of by a separate judgment. It is pertinent to note that it is the mandatory requirement of the law that the judgment, must be written by the Judge, Presiding Officer or Officer of the Court or from the dictation of such Presiding Officer. All such judgments should contain the point or points for determination, the decision thereon and the reasons for the decision. In the instant case, all these particulars are missing. I am fortified in my view by the case of Muhammad Younis v. The Crown. It was held in this case that the action of the learned Judge in writing one composite judgment without taking the precaution of discussing the evidence pertaining to each case separately have caused prejudice to the accused and, therefore, such judgment cannot stand. Therefore, it was not proper for the learned trial Judge to write only one composite judgment in all the six cases. He has not discussed evidence of each case separately. A trial Court has to separately assess evidence of each witness in relation to the charge and to the defense, if any, and particularly in reference to the point for determination. On this ground also, the impugned judgment is not sustainable in law.
21. On the merits of the case, one of the pleas raised by the learned counsel for the appellant is that admittedly all the amounts of alleged isappropriation were deposited in the account of Zakat Committee as such it is not a case of misappropriation. These appeals are being disposed of on legal grounds and are being remanded to the trial Court, as such I will restrain myself to pass any remarks on the merits of the case as it may prejudice the case of the either side. However, I would like to observe that there are instances where the Honorable Supreme Court of Pakistan upheld the conviction in the case of "temporary misappropriation". In the case of Nadir Shah v. The State 1980 SCMR 402 it was held by the Supreme Court as follows:-- "It is necessary condition for proof through evidence, of criminal breach of trust that the misappropriation, conversion or disposal of the amount should have been done 'dishonestly' which terms as defined in section 24 of the Pakistan Penal Code, would necessarily import an intention to cause wrongful gain to one person or wrongful loss to another person. 'Thus, the question of intention is of paramount importance in so far as the offence charged against the accused is concerned. Although the appellant could be convicted for temporary misappropriation even with regard to the amounts which, in the circumstances of the case, were alleged to have been deposited by him, if the temporary retention thereof by him was with the a fore noted intention...."
' For further reference see the cases of Jabanuddin Choudhury v. The State 1971 SCMR 57 and the State v. Abdu Raza PLD 1959 SC 309.
22. There is another angle to look at this case. The appellant was examined under section 342, Cr.P.C. In one case and the same was copied in the remaining five cases which fact is apparent after perusal of all the case files.- All IE these case files of the trial Courts are in so much so identical that nearly all the 342, Cr.P.C. Statements of the appellant appeared at page 65. In the case of Muhammad Rafiq v. The State 1985 PCr.LJ 1985, it was held by Mr. Muhammad Muneer Khan, J. (as he then was) that where a full and true account of accused statement is not recorded it amounts to violation of the mandatory provisions of section 342, Cr.P.C. It was further held F that where the law provides a particular procedure for doing a thing in a particular manner then that thing should be done in prescribed manner and not in G any other way.
23. Mr. M.M. Vassu, Advocate appearing, for the State has conceded the above said legal position but has prayed that the cases be remanded to the Special Judge for retrial. In several cases as quoted hereinabove, the High Courts after setting aside conviction orders have referred the matter to the trial Court for retrial. In the present case, I do not see any reason for not remanding this case for retrial to the Special Court. Accordingly, all these six appeals are allowed, conviction and sentence of the appellant are set aside with the direction to the trial Court for a fresh trial according to law.