Muhammad Alam Khan, J.--This is an appeal against conviction filed under Section 410 Cr.P.C. by the appellant Sahibzada Sibghatullah against the judgment dated 18/7/2007 passed by the learned Additional Sessions Judge-I Lakki Marwat in case FIR No, 96 dated 7/3/2004 of Police Station Naurang registered under Sections 324/148/149 PPC, whereby he has been convicted under Section 324 PPC and sentenced to five years R.I. with payment of fine amounting to Rs, 25,000/-, in default to undergo one year simple imprisonment. He has been further convicted under Section 324 read with Section 337-F(v) PPC and sentenced to two years R.I. with payment of Daman amounting to Rs, 50,000/-. Benefit under Section 382-B Cr.P.C. has, however, been extended to him.
2. Irfanullah complainant is also aggrieved from the same judgment of the learned trial Judge and has questioned it through Criminal Revision No, 21/2007 praying for adequate enhancement of the sentences so awarded to the convict/appellant Sal 'bzada Sibghatullah. Since both the appeal and revision have arisen out of the same occurrence and common judgment of the learned trial Judge, therefore, we propose to dispose off both these matters through this single judgment.
3. The prosecution story as narrated by the complainant Irfanullah in his first information report lodged on 7/3/2004 at 0820 hours in the emergency room of Civil hospital Serai Naurang is to the effect that on the eventual day he had come to the Video Market, Kabir Plaza where he found some wood dumped by Kabir Khan in the disputed portion contiguous to the said Plaza. As a protest, the complainant party approached to the said Kabir Khan who was sitting in the upper portion of the Plaza for removing the said wood. Meanwhile at about 0800 hours, Rashid Khan, Sibghatullah, Naeemullah, Naimatullah, Attaullah, Hikmatullah, Hgbibullah and Saleem already present there duly armed with Kalashnikovs started firing at the complainant party and as a result of firing of accused Sibghatullah, the complainant Irfanullah sustained injury due to which he fell to the ground, whereafter he was taken to the hospital for medical examination/treatment. Abdur Rashid and Ali Akbar sons of Ashiq Ali present on the spot at the time of occurrence with the complainant were cited as eye-witnesses of the case. No previous enmity was disclosed but the dumping of the wood at the disputed place was rendered motive for the commission of the offence.
4. After their arrest and completion of investigation, complete challan was put against the accused in Court where they were summoned but they refuted the allegations levelled against them and claimed trial. Thus, the prosecution in order to prove its case against them produced and examined nine witnesses, whereafter statement of the accused under Section 342 Cr.P.C. were recorded wherein they pleaded innocence, false charge but neither opted to be examined on oath under Section 340(2) Cr.P.C. nor produced any defence evidence. The learned trial Judge on evaluating the evidence brought on record and hearing arguments pro and contra found the appellant Sahibzada Sibghatullah guilty of the offence charged with and thus, on conviction sentenced him as mentioned above, while his other co-accused were acquitted vide judgment impugned herein by both the convict/appellant and complainant Irfanullah.
5. We have heard Mr.Anwarul Haq, advocate for the convict/appellant, Sultan Shehryar Khan advocate for the complainant and Farooq Akhtar advocate for State and with their able assistance examined entire record of the case.
6. The present case vide FIR No, 96 dated 7/3/2004 of Police Station Naurang, Tehsil and District Lakki Marwat was tried as Sessions Case No, 2/2005 and decided on 29/5/2006 alongwith another case bearing FIR No, 95 as Sessions Case No, 4/2005 by the same learned Sessions Judge Lakki Marwat. Although the trial was concluded separately, but both the cases were disposed off by a consolidated judgment dated 29/5/2006 and no separate judgment was delivered in the instant case. Despite the fact that the case was earlier remanded by this Court with the direction to the trial Court to record independent findings, the findings in the instant case have been based on the evidence recorded in the other case and certain observations in the judgment with respect to FIR No, 96 have been passed in paragraph No, 26 and 33 which are reproduced as under:-- PARAGRAPH-26 It is true that the presence of PW-7 i,e, Irfanullah cannot be doubted while keeping in view the stamp of injury on his person. Similarly, the presence of PWs Akbar Ali and Rashid Khan at the relevant time at the place of occurrence has not been contradicted by the other side. Needless to mention that Rashid Khan brother of PW Akbar Ali has been charged directly for the murder of deceased Kabir Khan in another criminal case vide FIR No, 95 of 7/3/2004. So far as the presence of accused Sibghatullah is concerned, it is not denied on eventful day in the said Kabir Plaze at the relevant time. I would further place my reliance on the fact that accused Sibghatullah is the complainant of the aforestated FIR wherein he charged three accused for the murder of Kabir Khan. Now the question would be that whether injured complainant Irfanallah Khan could see and identify the other assailant who had allegedly participated in the alleged episode. For resolution of this query, I have to recourse to the statement of the injured complainant and eye-witness Akbar PARAGRAPH-33 "Absence of non-securing of empty by the I.O. on the site of occurrence on the eventful day cannot cast shadow of doubt on prosecution case. The occurrence took place in a private premises belonging to accused party and there is every possibility that it might have removed by the accused party in due course of time. The occurrence was altogether a different episode as compared to the other episode alleged vide case FIR. No, 95 of same date. There was interval between the two incidents and both the parties came with different version of the episode. This case has its own salient features and it cannot be looked into the scenario of another criminal case. It is an admitted position before me that injured complainant after sustaining injury was initially given treatment at Civil Hospital Serai Naurang which is apparent vide Ex.PW.9/4 and then he was referred to DHQ Hospital Bannu from where he was given some more treatment and thereafter he was referred to Khyber Teaching Hospital Peshawar as is evident from Ex.PW.9/3. This aspect would lead to conclusion that injured complainant went through certain phases for his medical treatment and surely paid for his medical charges so incurred on- his treatment coupled with his mental and physical trauma. No doubt there is no calculated amount of such expenses borne by injured complainant on his medical treatment on the record but it can be assessed on the basis of peculiar circumstances of case as well as principles enshrined in Section 337-Y of PPC".
7. Although the FIR, site plan and other relevant documents of FIR No, 95 were not brought on record of this case but inspite of that were considered by the learned trial Court which was not warranted under the law. Though there is no bar on joint trial with respect to two connected cases, but when the documents in one case are to be used as evidence in the other case, their copies must be brought on the file of the other case and proved, which is lacking in the case in hand in view of the dicta handed down in the case reported in AIR 1933 Madras page 367, Khair Muhammad, Pir Wali Muhammad and others Vs. Emperor (AIR 1940 Lahore 466), The State Vs. Bashir Ahmad and another (PLD 1963 (W.P) Karachi 242) and Syed Rahim Bakhsh Shah Vs. Ghaus Bakhsh Shah and 22 others (PLD 1967 Lahore 932), Pehlwan and 4 others Vs. The State (PLD . 1975 Karachi 84) and Muhammad Gulzar Vs. , Muhammad Ashraf and 3 others (PLJ 1981 Supreme Court 521).
8. Perusal of record has revealed that in the above quoted paragraphs of the impugned judgment of the trial Court, conclusions have been drawn from the evidence, facts and circumstances of the connected case FIR No, 95 without exhibiting copies on the record. These are not mere casual references but substantial conclusions on which the conviction of Sibghatullah is based which is illegal in view of the above mentioned case law.
9. Needless to mention that Rashid Khan, Naeemullah, Hikmatullah, Attaullah, Habibullah, Naimatullah and Saleem son of Pappu Khan were acquitted through the impugned judgment, but no appeal has been filed against their acquittal and the same has thus, attained finality.
10. Consequently, we accept this appeal, set aside the impugned judgment to the extent of conviction of Sibghatullah and remand the case to the learned trial Judge for trial denovo in the light of case law cited above. Parties are directed to appear before the leaned trial Judge on 2/4/2009.
11. As the appeal has been accepted and the case has been remanded to the trial Court for trial denovo, the Criminal Revision No, ' 21/2007 filed by the complainant Irfanullah has become infructuous and stands dismissed accordingly.