ZULFIQAR ALI SANGI J. These appeals are directed against the judgment dated 02.10.2015, passed by 1st Additional Sessions Judge, Badin in Sessions Case No.13 of 2012 and Sessions Case No. 13/A of 2013 arising out of Crime No.357/2012 of PS Badin under sections 302, 201, 34, P.P.C., whereby the appellants were convicted and sentenced under Section 302(b) read with section 34, P.P.C. to R.I. for life and were directed to pay compensation amounting to Rs.200,000/ each to the Legal heirs of the deceased Allah Bux and in default thereof were further to undergo S.I. for two years. They were also convicted and sentenced under Section 201 read with section 34. P.P.C. to R.I. for five years and to pay a fine of Rs.50,000/- each and in default thereof were further to undergo R.I. for 06 months.
2. The brief facts of the prosecution case are that on the night of 20.12.2012, at 9:00 P.M., an unknown person called the complainant, Khuda Bux, outside his house. In response, Khuda Bux, along with Niaz Muhammad Jamali, Ghulam Rasool Jamali, and Allah Bux Jamali, went outside. There, they saw the appellants/accused, Ali Gul Chandio. Allahdino Soomro, and an unknown individual (whom the complainant could identify if seen again standing by a motorcycle. The accused asked Allah Bux to bring his motorcycle and accompany them. Allah Bux took out a motorcycle from the house. Ali Gul Chandio and Allah Bux boarded one motorcycle, while Allahdino Soomro and the unknown individual boarded the second motorcycle. They then left the scene together. Later that night, Allah Box did not return home. The following morning, Khuda Bux and his companions searched for him but were unsuccessful. Subsequently, Khuda Bux, along with Luqman Jamali and Liaquat Ali Jamali, went to confront Ali Gul Chandio and Allahdino Soomro. At this meeting, Ali Gul confessed that he had murdered Allah Bux by shooting him near a nursery close to Mirwah and had disposed of the body in Mirwah. Upon hearing this confession, Khuda Bux, along with Luqman Jamali, Niaz Muhammad Jamali, Liaquat Ali Jamali, and others, went to the nursery located on the eastern bank of Mirwah. There, they found bloodstains and, after searching the water, discovered the dead body of Allah Bux a short distance away. He had sustained a bullet wound on the right side of his head, behind the ear. The body was then taken to Civil Hospital Badin, after which they proceeded to Police Station Badin to lodge an FIR on 22.12.2012 at 1640 hours. The FIR stated that the accused, Ali Gul Chandio, Allahdino Soomro, and the unknown individual, acting under a plan devised by Ahsan Bhurgri, took Allah Bux, murdered him with a firearm, and concealed the body in Mirwah.
3. On the conclusion of the usual investigation, the challan was submitted against the appellants and another for offence under sections 302, 201 and 34, P.P.C.
4. After completing legal formalities, the trial Court framed the charge against the appellants/accused to which they pleaded not guilty and claimed to be tried.
5. In order to prove the accusation against the appellants/accused, the prosecution has examined all 07 witnesses, and they have produced certain documents and items in support of their evidence. Thereafter, the side of the prosecution was closed.
6. The appellants/accused were examined under section 342, Cr.P.C., wherein they had denied the allegations levelled against them and pleaded their innocence. After hearing the parties and assessm ent of the evidence against the appellants/accused, the trial Court convicted and sentenced the appellants/accused as stated above and against the said conviction they preferred this appeal.
7. Learned counsel for the appellants contended that the appellants are innocent and have been falsely implicated in the instant case; that the learned trial court has not considered the admitted position which has come on record during course of evidence even the P.Ws. Nos.1 and 7 themselves have made the contradictions in their statements regarding the alleged offence; that complainant himself has admitted that main accused Ali Gul had confessed the guilt before him but he has not stated any single word about the appellant Allahdino; mere recovery of the motorcycle from the appellants did not connect them with the alleged offence; that the entire case is suffering from material contradiction and unbelievable from any corner; that all the witnesses are relatives and friends of the complainant; that the entire prosecution case is dependent upon the documentary evidence but the prosecution failed to produce cogent/material evidence which connect the appellants with the commission of offence; that section 302, P.P.C. is misapplied in this case; that there is material difference in the ocular and medical evidence and the injury has not been corroborated with the final and provisional medical certificates; that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt. Lastly, they prayed for the acquittal of the appellants.
8. On the other hand, learned Assistant P.G. assisted by the complainant fully supported the impugned judgment and contended that the prosecution proved the case against the appellants beyond a reasonable doubt; hence the appeals of the appellants may be dismissed.
9. I have heard learned Counsel for the appellants; A.P.G. for the State assisted by the complainant in person and have examined the record carefully with their able assistance.
10. It is observed that the appellant Allahdino along with the acquitted accused Ahsan was tried in Sessions Case No. 13 of 2012 whereas the appellant Ali Gul being a juvenile was tried separately in Sessions Case No.13-A of 2013. In both the cases, evidence from the prosecution witnesses was recorded separately and they were also crossed-examined separately. The impugned judgment reveals that in both cases single judgment was passed and only evidence of Sessions Case No.13 of 2012 was appreciated/discussed in the judgment and the evidence recorded in Sessions Case No. 13-A of 2013 (Juvenile) was not discussed and the appellant Ali Gul was convicted on the basis of evidence which was not recorded in his case. From a perusal of the impugned judgment it reveals that the trial Court in the judgment observed that "Since both the above cases arise out of one and same crime bearing same facts and evidence, therefore, they are decided together by one and single judgment." It further reveals from the impugned judgment that the trial Court observed that "At the trial, in both Sessions Cases the prosecution examined similar witnesses and produced similar documents, thereafter in order to avoid repetition of Exhibits numbers and evidence, the witnesses examined and exhibited allotted in main Sessions Case No. 13 of 2012 are referred '
11. It is settled principle of law that the evidence recorded in one case cannot be used in another case for awarding the conviction. The Supreme Court of India in the case of A .T. Mydeen and another v. The Assistant Commissioner, Customs Department, along with other Appeals (Criminal Appeal No. 1306 of 2021. Special Leave Petition (crl) No. 374 of 2020 along with other Appeals has observed as under---
37. Now, merely because the seven witnesses produced by the prosecution were the same in both the cases would not mean that the evidence was identical and similar because in the oral testimony, not only the examination-in-chief but also the cross-examination is equally important and relevant, if not more. Even if the examination-in-chief of all the seven witnesses in both the cases, although examined in different sequence, was the same, there could have been an element of some benefit accruing to the accused in each case depending upon the cross- examination which could have been conducted may be by the same counsel or a different counsel. The role of each accused cannot be said to be the same. The same witnesses could have deposed differently in different trials against different accused differently depending upon the complicity on and culpability of such accused. All these aspects were to be examined and scrutinised by the Appellate Court while dealing with both the appeals separately and the evidence recorded in the respective trials giving rise to the appeals.
38. We cannot proceed on presumption and assume that everything was identical word to word.
We are therefore, not inclined to accept the submission of Mr. Banerjee and in fact both the judgments relied upon by Mr. Banerjee having similar facts as the present case lay down the same proposition of law that evidence of one trial can be read only for the purposes of the accused tried in that trial and cannot be used for any accused tried in a separate trial. The view, taken by the Calcutta High Court in 1928, expressed by Rankin, C.J., has been appropriately followed and accepted and is the correct view.
39. The provisions of law and the essence of case-laws, as discussed above, give a clear impression that in the matter of a criminal trial against any accused, the distinctiveness of evidence is paramount in light of accused's right to fair trial, which encompasses two important facets along with others i.e., firstly, the recording of evidence in the presence of accused or his pleader and secondly, the right of accused to cross-examine the witnesses. These facts are, of course, subject to exceptions provided under law. In other words, the culpability of any accused cannot be decided on the basis of any evidence, which was not recorded in his presence or his pleader's presence and for which he did not get an opportunity of cross-examination, unless the case falls under exceptions of law, as noted above.
40. The essence of the above synthesis is that evidence recorded in a criminal trial against any accused is confined to the culpability of that accused only and it does not have any bearing upon a co-accused, who has been tried on the basis of evidence recorded in a separate trial, though for the commission of the same offence.
12. Further the Supreme Court of Pakistan in the case of Khalid Mehmood alias Khaloo v. The State (2022 SCMR 1148), has held as under:- This Court in the case of Nur Elahi v. Ikram ul Haq and State (PLD 1966 SC 708) has categorically held that "witnesses should be examined only once and their statements read our as evidence in the other case is not supportable in law". It was further held 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 and if the court takes into consideration evidence recorded in another case or a finding recorded therein the judgment is vitiated." The judgment in Nur Elahl supra case was further reiterated by this Court in Muhammad Sarwar v. Khushi Muhammad (2008 SCMR 350) wherein it has been held that "the evidence recorded in one case may not hold good for the other case."
13. The practice adopted by the trial Court in the case in hand is illegal and against the law. It reveals that the appellant Ali Gul was convicted and sentenced to imprisonment of life based on evidence which was not recorded in his case and the practice so adopted by the trial Court is in violation of section 353, Cr.P.C. and the evidence used for convicting the appellant Ali Gul was not recorded in his presence as he is tried in Sessions Case No. 13-A of 2013 and the evidence recorded in Sessions case No. 13 of 2012 was used against him while convicting. Thus based on the above facts and the circumstances the impugned judgment is not sustainable in the law and the same is set aside. The case is remanded to the trial court only for re-writing the judgment and to decide both the cases Session Case No. 13 of 2012 and Sessions Case No. 13-A of 2013 separately by discussing the evidence of each case separately. It is further observed that accused Ahsan was ,acquitted by the trial court through the impugned judgment and no acquittal appeal was filed by the complainant or the State therefore the same attained finality and therefore his acquittal cannot be interfered.
14. In view of the above the appeals are disposed of.