IJAZ ANWAR, J.---By this single judgment, we propose to dispose of the instant appeal as well as connected Criminal Appeal No. 368-P/2015 and Writ Petition No. 2414-P/ 2015 as all of them have been filed against the consolidated judgment dated 25.4.2015, passed by the learned Judge Special Court (CNS), Khyber Pakhtunkhwa, Peshawar passed in cases Nos. 61 and 79 of 2014.
2. In this case, there were two separate incidents in which FIR No. 35 dated 15.4.2014 under section 9(b) CNSA was registered against respondents and on the next day, another FIR wherein two separate quantities of narcotics were recovered was registered against the respondents accused vide No. 36 dated 16.4.2014 under section 9(c), CNSA Police Station ANF, Peshawar. These two cases were separately tried, separate evidence was recorded even statement of accused was recorded separately, however, vide the impugned judgment, through consolidated order, both the accused respondents were acquitted.
3. Arguments of learned counsel for the parties heard and record perused.
4. To start with, we may refer to the case of "Nur Elahi v. The State" PLD 1966 SC 708 wherein a larger Bench of the Apex Court held that: "The law is that every criminal proceeding is to be decided on the material on record of that proceeding and neither the record of another case nor any finding recorded therein should affect the decision. If the Court takes into consideration evidence recorded in another case of a finding recorded therein the judgment is vitiated. A finding recorded in a criminal case is not legal evidence in another criminal proceeding."
5. In the instant case, while rendering a consolidated judgment; the learned trial court observed that: "Accused facing trial in both the cases having inter connected references and evidence. Proper analysis of the evidence in one case without reference to the evidence of other case or its fact is not feasible."
6. When confronted with this situation, learned counsel for respondents accused referred to Sections 233, 234, 235 and 236 and 239, Cr.P.C. and stated that joint trial can be conducted. In view of the above referred sections, he further contended that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences can be tried at one trial.
This question has also since been settled by the Division Bench of this Court in case of "Ahmad Khan v.
Commissioner Rawalpindi Division" PLD 1965 (W.P.) Peshawar 65 holding that: "sections 234 to 239 are merely permissive and not mandatory, i.e., it is for the prosecution to try the accused on different offences in one trial as provided by those sections, but in case the prosecution decides to split the charges and try him separately on those charges the accused cannot insist on joinder of charges."
A Division Bench of this Court in the case of "Muhammad Naeem v. Muhammad Ismail and another" 1997 PCr.LJ 1446 disapproved such practice of consolidated judgment in separate trials holding that: "We cannot avoid expressing our complete disapproval of the manner in which the witnesses are taken for granted, the manner in which the evidence of two separate criminal trials is referred into each other, through writing a single judgment, which is an illegality. The learned Judge has effortlessly mentioned the evidence of one case in the other and has also drawn the conclusions accordingly. The accused of both the cases have suffered by the whimsical approach of the learned trial Judge. We propose to remand both the cases for rehearing the arguments and thereafter giving decision in accordance with law."
Similar view was also taken by this Court in case titled "State v. Qalandar Khan" PLD 1971 Peshawar 119 holding that the procedure adopted by the trial Magistrate was illegal and has vitiated the trial. The same view was also delivered by the Division Bench of Lahore High Court in case of "Muhammad Yasin v. The State" PLD 2011 Lahore 583.
7. The crux of our above discussion and conclusion is that by writing consolidated judgment by the trial court in two separate trials was not a material irregularity which could have vitiated the whole trial, as such, the same can be cured by re-writing two separate judgments in the said trials because the trials were independently held.
8. Consequently, this and the connected Appeal No. 368-P/2015 are allowed. The order of acquittal of respondents is set aside and the matter is remanded back to the learned trial court with direction to re-write separate judgments of each trial in accordance with law after hearing the parties while relying upon the same charge sheets, evidence of the parties in each trial and on the same statement of accused under section 342 Cr.P.C. We further direct that respondents shall remain on bail and they shall submit surety bond to the tune of Rs.200,000/- each, with two sureties before the trial Court.
9. The Writ Petition No. 2414-P of 2015 having become infructuous stands dismissed accordingly.