' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of the Criminal Appeals Nos.1 of 2003 and 2 of 2003 as common questions of facts and law are involved.
2. The facts giving rise to the present appeals are that on 9-7-1998 at 10-00 a.m. On the National Highway near Saleemabad District Khair Pur, the complainant S.H.O. Muhammad Aslam alongwith his subordinate staff intercepted a car in which the appellants were sitting. The appellant Azad Khan was driving the car whereas the appellant Maula Bux was sitting on its rear seat. The police secured 45 kilograms of opium from the car, which were lying on its rear seat. Police took samples from the opium. The samples and remaining property were sealed separately. The appellants were arrested. A common Mashirnama of arrest and recovery was prepared. The appellants and the property were brought to the police station where a common F.I.R. Was lodged against them.
3. After usual investigation both the appellants were challaned separately in the Court of law where they were tried separately but convicted through a common judgment under section 9(c), Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life and fine of Rs,100,000 each or in default thereof to suffer R.I. For 6 months with benefit of section 382-B, Cr.P.C.
The appellants were dissatisfied with the said judgment; therefore, they have preferred the present appeal.
4. We have heard the Advocate for the appellants, State counsel and perused the record of this case very carefully. Learned Advocate for the appellants has stated that the procedure adopted by the trial Court in the trial of both the cases was against the provision of law as after recording the statement of witnesses in one case the copies of the said statements were placed on the record of another case, which is not permissible under the law as such, the appellants have been prejudiced, therefore, he has prayed that the cases may be remanded to the trial Court for retrial.
5. Learned State counsel after going through the depositions of witnesses in both the cases has conceded the above position and has further added that the trial Court has committed illegality in placing the copies of the depositions of witnesses recorded in one case, in the file of second case and that the said illegality ig not curable under section 537, Cr.P.C.
6. We have given due consideration to the arguments and have minutely examined the statements of three witnesses recorded in both the cases. They are P.W.1, A.S.-I. Mehar Ali Shah, Mashir, P.W.2, S.H.O. Muhammad Aslam, complainant, and P.W.3 Line. Officer Muneer Ahmed, Investigating Officer. We find that the said three witnesses are common in both the cases. Their statements were recorded on the one and same date in both the cases. The examination of the statements reveals that examination-in-chief, cross-examination, paragraphs, sentences, construction and placement of each sentences and words of each sentence are same, (except opening sentence and one word in 15th line of the deposition of P.W.2) which is not possible when the statements of same witnesses are recorded on the same date but at different times. Therefore, it is clear that after recording the statements of witnesses in one case, the copies of the depositions of the said witnesses were prepared and placed in the record of other case. The said procedure is in violation of provisions of section 353, Cr.P.C. Au.: Articles 70 and 71 of the Qanun-e- Shahadat Order, 1984. From the said procedure, the trial Court, in fact has read the evidence of one case in other case which is not permissible under the law. The said procedure is highly objectionable and has no sanctity of law.
7. In view of the above circumstances, the submissions made by the learned advocate for the appellants have great force, as such; the mode adopted by the trial Court in conducting these cases is illegal, which has vitiated the trials.
8. In the case of Noor Muhammad v. State PLD 1981 Lahore 60, where some portion of the statements of witnesses were copied from one case and placed on the record of another case then in such situation it was held that the trials of both the cases were illegal and the said defect was not curable under section 537, Cr.P.C., therefore, the Court ordered for the retrial of both the cases.
9. In the case of Alam Sher v. State 1977 PCr.LJ 1078 in the similar situation the Court ordered for the retrial of the cases and at page 1085 observed as follows:-- ' In all the above five cases, the evidence consists of the statements of Khan . Mir, P.W.1 and Ch. Ahmad Ali, S.H.O. P.W.2 and recoveries. The evidence has been recorded in a mechanical fashion. It appears that the entire evidence was recorded once and five copies were prepared and filed in different cases. The judgments have also been written in that mechanical fashion.
' In case of Muhammad Younis v. State PLD 1953 Lahore 321, it is reported that if there are common judgments and evidence is copied, the trial was said to be illegal, viz. In violation of mandatory provisions of section 353, Cr.P.C. And sections 137 and 138 of the Evidence Act. Similarly, in Nur Illahi v. State PLD 1966 SC 708 the Supreme Court disapproved the procedure whereby the evidence of common witnesses was recorded once only and their statements were read out in the other cases.
Similarly, in Abdul Waheed v. State 1968 PCr.LJ 776 where the evidence of Handwriting Expert, who was common in two cases, and whose original deposition was placed on the record of the other case through a carbon copy; the procedure adopted had invalidated the trial, and retrial was ordered. In case of Qalandar Khan v. State PLD 1971 Peshawar 119 the statement of common witnesses were recorded only in one case and the carbon copies thereof were placed on the record of the other cases. It was held that the procedure adopted was illegal."
10. We agree with the above proposition of law. Consequently, we set aside the convictions and sentences awarded to the appellants, without touching the merits of the case and remand both the cases for retrial from the stage of recording of the evidence. The appeals are allowed in the above terms.
11. Above are the reasons of our short order dated 19-9-2003, by which we had allowed both the appeals, in the following manner:-- "This order will dispose of both the above-cited appeals as they arise out of the same question and common judgment.
' Mr. Muhammad Ashraf Kazi, for the appellants and Mr. Jawed Akhtar, for the State, have completed their arguments. We have perused the evidence on record with their assistance and given our full consideration to the contentions raised on both sides. For reasons to be recorded separately, we set aside the conviction and sentence and remand the case for retrial from the stage of recording of evidence i.e. After the charge. We have noted that the appellants have already remained in custody for a period of about five years. Accordingly, we direct that the trial Court on receipt of this order shall complete the trial within a period of four months, provided that there be no delay on behalf of the appellants.
' The criminal appeals stand disposed of in the above manner. The appellants would be at liberty to move the trial Court for bail, if they are so advised."