' RAO NAEEM HASHIM KHAN, J.--- Jabbar Anwar son of Muhammad Anwar caste Pathan resident of Pandoriyan, Police Station Mautra, Sialkot was convicted under section 13 of Arms Ordinance XX of 1965 and sentenced to five years' R.I. With a fine of Rs,20,000 or in default whereof to suffer further R.I. For six months, vide judgment, dated 25-4-1994 passed by the learned Judge Special Court (Suppression of Terrorist Activities), Gujranwala, for possessing unlicensed Kalashnikov along with magazine. Feeling aggrieved, the appellant filed this appeal.
2. Shortly, the prosecution case is that Muhammad Ashraf, A.S.I., Police Station Kotwali, Sialkot (complainant) along with Muhammad Akram, A.S.I. And other police officials were on patrol duty and present at Chowk of Daira Arraian, Sialkot. At about 3-00 a.m. Two persons, later on recognized as Jabbar Anwar (appellant) and Karamat Ali arrived there while driving motor bike Honda No,RIJ5162 from the side of Abbott Road. After having seen the police party, they tried to make their escape good and when tried to turn back, their motor bike slipped and both of them fell down.
Jabbar Anwar appellant was overpowered by the complainant with the help of other police official while Karamat Ali was captured by Muhammad Akram, A.S.I. With the help of remaining police officials. When the appellant was subject to personal search, he was found concealing a klashnikov (Exh.P.A.) wrapped in a cloth under his left armpit.
3. The prosecution in order to prove/establish its case produced P.W.1 Ijaz Ahmad Khan, Fire-arms Expert, P.W.2 Abdul Majeed Constable, P.W.3 Muhammad Ashraf, A.S.I. And P.W.4 Muhathmad Aslam, A.S.I. Ijaz Ahmad Khan. P.W.1 Fire-arm Expert, Forensic Laboratory, deposed that the recovered weapon was an automatic rifle of 7.62 mm bore commonly known as klashnikov. Abdul Majeed Constable No,775 deposed that he was the member of the police party headed by Muhammad Ashraf, A.S.I. (P.W.3) and were present at Chowk Daira Arraian on patrol duty. At about 3-00 a.m.
The appellant along with Karamat Ali appeared there while riding a motor bike and tried to run back after having seen the police but when they turned back their motor bike slipped and they fell down. By that the police party cordoned them off. A Kalashnikov Exh.P.A. Was recovered from Jabbar Anwar. The said motor bike was also taken into custody and the same was also of robbed one. P.W.3 Muhammad Ashraf, A.S.I./complainant and Investigating Officer of the case deposed in his statement that at about 3-30 a.m. On 14-2-1992 he along with Abdul Majeed Constable, Muhammad Ishfaq and Maqsood Ahmad, Head Constable etc. Were on patrol duty and put a barricade in the area of Dera Araian Chowk. Meanwhile the appellant and Karamat Ali (P.O.) arrived there on a motor bike. On seeing the police party they tried to make their escape good and wanted to drive back. In the same process their motor bike slipped and they fell down. He apprehended the appellant whereas Muhammad Akram A.S.I. Captured Karamat Ali. At that time the appellant was holding a Kalashnikov (P.1) which he recovered and seized vide memo. Exh.P.A., because the appellant had no license for the same. He also recovered motor bike No,RIJ-5162 (P.2)
(robbed one) from the possession of the appellant and Karamat Ali which was taken into custody.
A separate case vide F.I.R. No,45/92 dated 14-2-1992 was registered in this regard. He prepared a rough sketch of place of recovery (Exh.P.C.). After completion of investigation he submitted the challan against the appellant. P.W.4 Muhammad Aslam, A.S.I. Recorded the formal F.I.R. Exh.P.B./1 on receipt of the complaint (Exh.P.B.).
4. At the conclusion of the trial the appellant was examined under section 342, Cr.P.C. Wherein he denied the charges leveled against him and pleaded innocence. He stated that in fact he was arrested by Muhammad Ashraf, A.S.I., C.I.A. Staff, Daska from Daska Town and was handed over to C.I.A. Staff, Sialkot who in connivance with Nazir Ahmad, S.I. And S.H.O. Police Station, Kotwali planted a klashnikov on him. He further added that the matter was also thoroughly investigated by the then A.D.I.-G., Gujranwala Range (Mr. Iftikhar Hussain Jafferi) who declared him innocent and recommended the case for discharge on 13-5-1992. He, however, neither appeared on oath as envisaged under section 340(2), Cr.P.C. Nor produced any defense evidence.
5. At the very outset of the arguments, learned counsel for the appellant vehemently raised objection on the procedure adopted by the Judge, Special Court for examination of witnesses in the instant case. Added, that two separate challans were submitted against the appellant, one vide F.I.R. No,45/92, dated 14-2-1992 under section 392, P.P.C. And second vide F.I.R. No,46/92, dated 14-2-1992 under section 13 of Arms Ordinance XX of 1965. Trial in both these cases were held separately but the evidence was recorded only in the former case .And statements of all the P.Ws.
Were copied verbatumly in the latter case except the statement of P.W.1 Fire-Arms Expert, which is quite illegal and against the provisions of Code of Criminal Procedure. The second contention of the learned counsel for the appellant was that the appellant was acquitted of the charge under section 392, P.P.C. As no one came forward in support of this F.I.R.'or to claim the allegedly stolen motor-cycle. Thirdly he submitted that the instant case against the appellant was also thoroughly probed and investigated by the then A.D.I.-G., Gujranwala Range who declared the appellant innocent and recommended for the discharge of the appellant in both the cases (F.I.R. No,45/92 under section 392, P.P.C. And instant case F.I.R. No,46/92 under section 13/20/65 and submitted that investigation conducted by an higher Officer should be given more weight and credence to that of the junior Officer Muhammad Ashraf, A.S.I. Lastly, he reiterated that trial in the instant case stands vitiated on the sole ground that legally no evidence has been recorded in the case.
6. Learned Assistant Advocate-General, Punjab opposed the contentions raised by the learned counsel for the appellant and submitted that if there has been a substantial compliance with the procedure, an infringement of a provision a matter relating to the conduct of trial cannot always deemed to be an illegality necessarily vitiating the proceedings of the same have no prejudice to the accused. He was of the view that main point to be considered was that whether the accused/appellant had faced a fair trial despite transgression of the prescribed rule of procedure and even if there is an illegality due to breach of mandatory provisions, this Court will not interfere except in case of failure of justice.
7. We have heard the arguments advanced by both the sides and have perused the records carefully and found that statements of all witnesses in this case except one were merely copied and imported from the record of another case. Only one statement of P.W.1 Fire-Arms Expert was recorded in the instant case independently and in respect of the statements serial numbers were changed accordingly. Abdul Majeed (P.W.2) and Muhammad Ashraf P.W.3 who figured as P . W .1 and P.W.2 respectively in case F.I.R. No,45/92 under section 392, P.P.C. Were examined on 17-2-1994 in both cases. Similarly Muhammad Aslam P.W.4 who appeared as P.W.3 in case F.I.R. No,45/92 was also examined on the same day in the instant case on 6-3-1994. Examination-in-chief in one case is a reproduction in the instant case. In the instant case serial number of P.Ws. Were changed as statement of Fire-Arms Expert was an additional evidence in the case. Corrections are also the same in both the cases. The crucial point for consideration was that whether the mode of trial adopted by the trial Judge was a mere error or irregularity curable under the provisions of section 537, Cr.P.C. Or it was such a grave irregularity which had vitiated the proceedings incurably and quashment of conviction of the appellant. Liefore discussing the point, let us see the relevant provisions of law. Mode of taking and recording evidence in inquiries and trial has been given in Chapter XXV of Criminal Procedure Code. Subsection (1) of section 356 is relevant here, which is reproduced below:--- "In the trials before Court of Sessions and in inquiries under Chapter XII, the 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 superintendence and shall be signed by the Magistrate or Sessions Judge."
It is crystal clear from the words and language of the above-quoted section that taking down evidence means taking down statement of witness in full in each case. As such the record of the deposition of each witness in the trial Court must be a faithful of what a witness states in the each case before the Court. Copying of statement of a witness from the other case in any manner should constitute a serious and grave infringement of the provisions supra. Now we come to the proposition raised by the learned Assistant Advocate-General. Section 537 of the Criminal Procedure Code, covers, irregularities in the proceedings so that the person who committed an offence should not escape from punishment merely on technical grounds which did not affect the merits of the case and substantial justice. Section 537, Cr.P.C. Is reproduced hereunder:-- "Subject to the provisions hereinbefore, contained, no finding, sentence 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, proclamations, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this 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 omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
Answer to the prosecution put forward by the learned Assistant Advocate-General is that the procedure adopted by the learned Judge, Special Court in copying evidence of witnesses from the file of one case to that of the other case a serious departure from the usual and proper course of trial and was not only an omission, irregularity but grave and gross illegality. Recording of evidence in criminal trials is a matter of basic and fundamental character and strict adherence and compliance to the procedure prescribed for the purpose is necessary to ensure proper conduct of trial and a fair decision and administration of justice in the case on the basis of evidence brought on record in each case. If a trial is c contrary to law how it can be termed as fair trial, rather it is no trial at all in the eyes of law and disobedience to an express and mandatory provisions of law as to the mode of trial is not therefore, an irregularity which can be cured under the provisions of section 537, Cr.P.C. But is such an illegality which vitiates the whole trial. Section 537, Cr.P.C. Do not have any scope of curing the material irregularity or illegality. The omission, error or irregularity which can be cured by this section are of formal, minor and technical nature, which may occur due E to oversight but do not include a substantial or willful departure from the proper course of the conduct of trial as laid down by the law.
8. For the reasons given above, we feel no hesitation in accepting of appeal and setting aside the judgment and conviction. The appellant shall be released immediately if not required in any other case.
9. The appellant was arrested on 14-2-1992 and was bailed out on 3-7-1993. He was taken into custody after his conviction on 25-5-1994 and since then he is undergoing rigorous imprisonment.
In these circumstances it is not a fit case for retrial. Order accordingly. The above are the detailed reasons in continuation of our short order passed on 10-12-1995.