' SYED YAHYA ZAHID GILANI, J.--- Criminal Appeal No,91 of 2007, Criminal Appeal No,84 of 2007 and Criminal Revision No,19 of 2007 arise from single judgment of Mr. Asad Hameed Khan Bangash, Additional Sessions Judge-I, Lakki Marwat dated 18-7-2007, in Sessions Trial No,28 of 2007. We propose to decide them through this single judgment.
2. The complainant Sibghatullah (P.W.9), along with his paternal-uncle Naimatullah (P. W.10), maternal-uncle Kabir Khan (deceased) and Naeemullah (abandoned P.W.) were sitting on the rooftop of "Kabir Khan Market" situated in Naurang Bazaar in the limits of Police Station Naurang, District Lakki Marwat, on 7-3-2004, at 7-45 a.m., when the absconding accused Rashid Khan, acquitted accused Sadiq Khan and convicted accused Lal Khan allegedly arrived, duly armed with firearms. They questioned that why the complainant party took over the site of their market and started firing at the complainant party. Kabir Khan got hit and died on the spot. The complainant Sibghatullah, P. Ws. Naimatullah and Naeemullah remained unhurt. The accused decamped and the report was lodged on the ground floor of Kabir Khan Market by Sibghatullah complainant, which was recorded by Gul Nawaz S.H.O. Police Station Naurang (P.W.8) who arrived on the spot on getting information about the incident when he was standing near police station, at a distance of about two furlongs from the place of occurrence. Consequently, the case was registered vide F.I.R.
No,95 at Police Station Naurang, District Lakki Marwat under sections 302/324/34, P. P .0 .
3. It is pertinent to mention here that admittedly there was a counter F.I.R. No,96 of the even date registered in the same police station under section 324/34, P.P.C., about another occurrence taken place in the same Kabir Khan Market, wherein Sibghatullah complainant of the above mentioned case was charged as one of the six accused nominated therein.
4. The present case registered vide F.I.R. No,95 was tried vide the Sessions Trial No,4 of 2005 and the second case F.I.R. No,96 was tried vide the Sessions Trial No,2 of 2005, in one and the same Court of learned Sessions Judge, Lakki Marwat. Although the trials were held separately but both the cases were disposed of by a single consolidated judgment, dated 29-5-2006. This judgment could not sustain and this Court, while disposing of Criminal Appeal No,62 of 2006, Criminal Appeal No,69 of 2006 and Criminal Revision No,16 of 2006, set it aside and the case was remanded for delivering separate judgment, on the basis of respective evidence recorded in each case.
5. Thereafter, the case in hand registered vide F.I.R. No,95 (supra), was redecided by Additional Sessions Judge-I, Lakki Marwat vide judgment, dated 18-7-2007, whereby the accused Rashid Khan has been declared absconder, accused Sadiq Khan has been acquitted and accused Lal Khan has been convicted for life imprisonment. Hence, Criminal Appeal No,91 of 2007 has been filed by the convict-appellant Lal Khan to challenge his conviction, Criminal Revision No,19 of 2007 has been filed by Sibghatullah complainant for enhancement of the sentence of Lal Khan convict-appellant and Criminal Appeal No,84 of 2007 has been filed by Sibghatullah complainant against acquittal of Sadiq Khan accused.
6. We have listened arguments of Mr. Anwar-ul-Haq, Advocate for the convict-appellant Lal Khan and acquitted accused Sadiq Khan. Mr. Sultan Shehryar Khan Marwat, Advocate has been heard for complainant Sibghatullah. Mr. Farooq Akhtar, Advocate has argued the case for State. Record has been gone through.
7. At the outset, instead of expressing any observation pertaining to the merits of the case, we have to point it out that the impugned judgment of learned trial Court is not in consonance with the direction of this Court given in the remand order, dated 14-2-2007 that the cases be disposed of on the basis of respective evidence led by the parties. We have found that the trial Court has drawn conclusion on crucial points by referring documents of the other case registered vide F.I.R. No,96 without there being copies of the relevant record exhibited in the evidence of this case. Before reference to those conclusions and the relevant portions of the impugned judgment, we would like to have a short resume of the case-law delivered during the period of previous more than three fourth of century, touching the point that in criminal cases the Court has to be confined to the evidence recorded in the case under decision and conclusion cannot be drawn by reference to record of a "cross-case", "counter-case" or "relevant case", unless copies of relevant record are duly exhibited according to law to become part of the evidence of the case under decision.
8. It was laid down by the Full Bench of Honourable Madras High Court in the case reported in AIR 1933 Mad. 367 that:--- "No hard and fast rule and be laid down as regards the procedure in the trial of case and counter- case. There can be nothing irregular in a Judge trying each case to a conclusion before different assessors and afterwards pronouncing judgment in both so long as he tries the one quite independently of the facts in the other. But it is necessary (1) that the trial must be separate, i.e., before different assessors and separate judgments delivered; (2) that the conclusions in each must be founded on, and only on, the evidence in each case."
9. The aforementioned judgment has been relied upon by the Honourable Lahore High Court in the case Khair Muhammad, Pir Wali Muhammad and others v. Emperor AIR 1940 Lah. 466, in delivering the following decision:--- "In the present case the defect lies in the fact that the learned Sessions Judge tried both cases before the same set of assessors and has imported the evidence given in one case as the basis for the decision of the other case. For these reasons, we hold that the trial of these two cross-cases has been irregular and that the irregularity has in fact prejudiced the accused. We must, therefore, accept the appeal, set aside the convictions and sentences and direct that the two cases be retried by the learned Sessions Judge in accordance with the directions given."
10. The following observation handed down in para.21 of the judgment of Honourable West Pakistan High Court (Karachi Bench) delivered in the case titled The State v. Bashir Ahmad and another PLD 1963 (W.P.) Kar. 242 is also relevant for perusal:--- "In criminal cases findings of one case cannot be transposed and applied to the facts involved in the case under consideration. Each case has to depend on the circumstances that arise in it."
11. In the case titled Syed Rahim Bakhsh Shah v. Ghaus Bakhsh Shah and 22 others PLD 1967 Lah. 932, an S.B. Of Honourable Lahore High Court has opined as under:--- "In disposing of a case, which happens to be one of two cross-cases, irrelevant references by the trial Court to some facts which have not been brought on the record of the case in hand, do not per se vitiate the entire judgment which otherwise fulfils all the legal requirements contained in section 367 of the Criminal Procedure Code and the effect of such irrelevant considerations on the final outcome of the case has to be kept in view. If in the circumstances of a particular case, the irrelevant consideration of extraneous and inadmissible evidence forms the basis of an order of acquittal or conviction as the case may be, then certainly the entire judgment is vitiated. If, however, on the other hand, complete exclusion of such extraneous considerations which are only of a minor and unimportant nature does not affect the result of the case, it would not be proper to stretch its vitiative effect so as to render the judgment unsustainable."
' The underlining is ours and agreeing with this opinion, we believe that in the case now before us, the trial Court has imposed extraneous consideration from the record of the counter-case which will be discussed ahead.
12. In another case titled Pehlwan and 4 others v. The State PLD 1975 Kar. 84, a Division Bench has held as under:--- "No doubt the purpose of trying counter-cases together is to ensure that inconsistent findings are not given but each case must be decided on the basis of the legal evidence given in that case."
13. Honourable apex Court in the judgment handed down in the case Muhammad Gulzar v.
Muhammad Ashraf and 3 others 1981 SCMR 435 has approved the ratio of above referred judgments in the following words:--- "In short the learned trial Judge has decided the present case on the basis of the testimony appearing in the cross-case which action was not only entirely illegal but not permissible under the law. If any authority is required for this view Pehlwan v. The State PLD 1975 Kar. 84 and Emperor v.
Aumdya S. Mahir AIR 1940 Lah. 466 may be referred with advantage. This action has prejudiced the appellant. In fact, the illegality committed by the learned trial Judge is not curable under section 537, Cr.P.C. "In these circumstances there cannot be any doubt that the judgment stands vitiated by illegality and the conviction and sentences of the appellants must be set aside."
14. Now reverting to the impugned judgment delivered in this case, we have noted that the edifice of the findings of acquittal of respondent-accused Sadiq and conviction of convict-appellant Lal Khan has foundation in determining the veracity of the testimony of eye-witnesses and particularly in declaring their deposition to be partially acceptable, as per the following observations of the trial Court at the end of para.35 of the impugned judgment.
"Therefore, the ocular version so rendered by the witnesses being interested to some extent cannot be accepted in its entirety but however, it is backed by the scenario observed promptly of the occurrence by the Investigating Officer, the ocular version can be accepted partially."
' This conclusion has been arrived at by extensive reference to F.I.R. No,96 of the counter-case, and facts and circumstances of that case. For ready reference, the following paragraph from para.35 of the impugned judgment is quoted below:--- "At this juncture, I would like to comment that on the same day another incident on the same spot also took place, which episode was later on given documentary shape vide case F.I.R. No,96, dated 7-3-2004 under sections 324/148/149, P.P.C. Lodged by one Irfanullah complainant complaining that he made a visit to Kabir Plaza along with his companion Rashid Khan, absconding accused and Ali Akbar to lodge protest over a disputed plot occupied by the deceased Kabir Khan forcibly but instead listening to the complainant Irfanullah, the other party put them to assault by making firing upon them, resulting injury to complainant Irfanullah while his companion escaped unhurt. In the scenario of this development, it can be safely presumed that prosecution in the instant case intentionally omitted the presence of Irfanullah and one Akbar Ali, the reason is quite obvious for such dropping out of Irfanullah from the net and that is to secure the complainant party to furnish account for such injury to Irfanullah. Therefore, it can be held with certitude that ocular version with regard to presence of all the accused named in the F.I.R. Is not accurate and it has to be sorted out that who were the actual culprit and who were substituted or falsely implicated."
15. In addition thereto, a plea of cross-cases was raised in the trial Court for the benefit of under- trial accused which was discarded with the following words:--- "The episode in the instant case and that alleged in the aforementioned criminal case" vide F.I.R.
No,96 of the even date occurred at quite intervals, the site of occurrence is quite different and there was no sudden provocation. The case in hand thus cannot be termed as a cross-case to aforementioned case F.I.R. No,96 of 7-3-2004."
' Such conclusion could not be safely and correctly drawn unless the copies of F.I.R. No,96, the site plan prepared in that case and other relevant documents were duly pro'ved and exhibited on this record in the shape of admissible evidence for study in juxtaposition with record of present case to determine that whether the date, time and venue of the occurrence as well as the parties were the same or not. The conclusion so drawn is not based on admissible evidence available on the present record and it being erroneous cannot be adverted over because this conclusion has been drawn on the basis of record of another case.
16. We conclude that the decision of the trial Court about the plea of accused regarding cross- cases and determination of veracity of eyewitnesses is illegal being based on reference to the record of another case and it has prejudiced the accused because these are decisions on crucial points directly concerning the conviction and acquittal of accused. Therefore, the judgment stands vitiated. We have, therefore, concluded to direct retrial of the accused because the parties may avail opportunity of exhibiting on this record the copies of relevant documents from the record of counter-case registered vide F.I.R. No,96 (supra), to avail any legal benefit thereof. It would further facilitate the trial Court to arrive at apt conclusions keeping in view the prevailing scenario at the time of occurrence as well as the subsequent events entrenched in the counter-case for judicious disposal of the case based on appropriate determination of all controversial points agitated by rival parties involved herein.
17. Consequently, Criminal Appeal No,91 of 2007 and Criminal Appeal No,84 of 2007 are accepted, the impugned judgment, conviction of Lal Khan accused and acquittal of Sadiq Kan accused are set aside and the case is remanded to trial Court for retrial of both the accused strictly according to law, above referred judgments of the superior Courts, coupled with the observations of this Court and to decide it on merits, on the basis of admissible evidence in shortest possible time. Criminal Revision No,19 of 2007 for enhancement of sentence of Lal Khan accused has become infructuous and dismissed.
18. The accused-appellant Lal Khan shall be henceforth deemed to be under-trial prisoner and produced before the trial Court on 2-4-2009.
19. The respondent-accused Sadiq shall remain on bail during trial, on the basis of bail bonds already submitted by him in compliance with the order of this Court, dated 14-2-2007 passed in Criminal Appeal No,62 of 2006 . Copies of the bail bonds be sent to trial Court. He is directed to appear in the trial Court on the date fixed.