1. ' This judgment will dispose of Criminal Appeal No,59 of 1988 and Criminal Appeal No,60 of 1988 as both,have been filed by same appellant against the same judgment and common questions of law and facts are involved in both these cases.
2. ' The facts of the case are that one Sher Khan son .Of Muhammad Amir lodged the FIR.. With the Tando Jam Police Station on 5-2-1986 under sections 392/307/34, P.F.C. And section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance 1979 alleging that he along with P.W.
3. Rchmatullah does the cloth business by hawking and that on the date of occurrence when both of them were returning toward Tando Jam after selling cloth at Manghan Jo Tar at about 2-00 p.m.
4. And 'when they reached on the bridge of Tando Qaiser Minor near village Rahim Dino, -they found 3 persons, out of whom one was armed with country-made pistol, the other with magazine pistol and the third was empty handed. The three culprits 'are then said to haye robbed them of their cycle, cloth and cash and to have run away toward(k the University: The complainant and P.W.
5. Rehmatullah raised cries which attracted the people mentioned in the F.I.R. To whom they narrated the incident and all of them alongwith Ghazi Khan who had a rifle belonging to his father chased the culprits and when they reached near them, they were fired upon by the culprits and in reply Ghazi Khan also fired at them which hit one of the culprits who fell down. The culprit having Magazine Pistol fired at the complainant party but he was encircled and overpowered. He gave his name as Muhammad Rafiq son of Muhammad Hussain Narejo. The culprit who had fallen down was found dead and the .12 bore pistol was lying by his side while the third culprit made good his escape. His name was disclosed to be Jamal Lashari and the name of deceased culprit was given as Hayat All son of Khawand Dino. The culprit was given in police custody and F.I.R. Was lodged. The police after completing the investigation sent the accused/appellant and co-accused Jamal to stand trial under section 392/307/34, P.P.C. Being Sessions Case No,73 of 1986.
6. ' On the same date another F.I.R. Was lodged at the same police station by A.S.I. Muhamlnad Hussain of Tando Jam P.S. Under section 13-D Arms Ordinance and after completing the investigation the present accused/appellant was also sent up to stand trial under section 13-D Arms Ordinance being Sessions Case No,74 of 1986.
7. ' A formal charge under section 392 read with section 34 and section 307, P.P.C. Was framed against both the accused in Sessions Case No,73/1986 while a separate charge under section 13-D Arms Ordinance was framed only against the present appellant in Sessions Case No,74 of 1986.
8. ' The trial Court amalgamated the case under section 13 Arms Ordinance with the under section 307/392/34, P.P.C. During the pendency of trial accused Jamal was murdered and the case proceeded only against the present appellant. The trial Court after recording the evidence convicted the appellant in two cases by a common judgment whereby he was sentenced to undergo R.I. For 5 years' under section 392, P.P.C., R.I. For one year under section 307, P.P.C. And R.I.
9. For 6 months under section 13-D of Arms Ordinance.
10. ' I have heard Mr. Naimatullah Qureshi, the 4earned counsel for the appellant and Mr. Shaukat Hussain Zubedi, the learned. A.A.-G. For the State. The first point taken by the learned counsel for the appellant is that there are 2 separate F.I.Rs, registered under different sections of different enactments and 2 separate charges were framed but the trial Court ordered to amalgamate the 2 cases and common evidence was recorded in both the cases and the appellant was convicted in both the cases by the common judgment. This according to the learned counsel is material irregularity which has vitiated the trial and the judgment. He has further, contended that this irregularity is not curable under section 537, Cr.P.C. I have given anxious thought to the above contention of the learned counsel.
11. ' In the case of Nur Elahi v. The State and others PLD 1966 SC 708 the Hon'ble Supreme Court has held:- "The question then is what should be the procedure to be adopted by the learned trial Judge in disposing of these two cases. It has been conceded by the learned Advocate .General as well as by Ch. Nazir Ahmed Khan who appeared for the three accused persons in the complaint case, that paragraph 8 of the judgment of the learned Single Judge, in so far as it directed that witnesses should be examined only once and their statements read out as evidence in the other case, is not supportable in law. To that extent, the appeal is well-founded and must succeed on this point."
12. ' The law is that every criminal proceeding (and in fact every civil 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 or a finding recorded therein the judgment is vitiated. A finding recorded in a criminal case is not legal evidence in another criminal proceeding. In fact there is an express provision in the Evidence Act, that is, section 43, which debars the Court from taking it into consideration. It makes no difference that the finding is recorded by a High Court or the Supreme Court. It remains irrelevant. The Court which is to determine a matter must determine the matter itself unaffected by opinion expressed in other cases."
13. ' The Humble Supreme Court has also held as under in the case of Muhammad Gulzar v.
14. Muhammad Ashraf and 3 others 1981 SCM R 435:- "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.
15. Anandya 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 the 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.
16. ' The learned Single Judge in the High Court also considered the question of directing retrial but for good reasons mentioned in para.8 of the impugned judgment, declined to do so.
17. ' The reason which prevailed with the learned Single Judge in the High Court for setting aside the Judgment of the learned trial Court, it cannot be doubted, is unexceptionable. And in the circumstances of the case, keeping in view the part played by both the sides in the occurrence which resulted in injuries to both the sides, we do not find any error in the impugned judgment of the High Court in so far as the refusal to direct the re-trial is concerned. It is not a fit case for grant of leave. We have dismissed the leave petition in the cross-case. This petition is also dismissed."
18. ' In this Supreme Court case reference was also made to a D.B. Decision of this Court given in the case of Pahlwan and 4 others v. The State PLD 1975 Kar. 84 wherein their Lordships have observed 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."
19. ' Learned AA.-G. Appearing for the State has candidly conceded the above-said legal position and has also referred to the case of Abdul Haq v. Muhammad Habib etc. 1984 P Cr. L J 3102 wherein Q.S. Ikram, J. Of the Lahore High Court has observed as under:- "These were two different challans and separate trials were held by the learned trial Judge but surprisingly he disposed of both these cases by one judgment. It is correct that both these cases arose out of one F.I.R. But that fact could not justify one judgment in two separate and independent trials. The finding of the learned special Judge that it would be just and convenient to take up both these cases together for disposal as the evidence recorded in one case has also bearing upon the other connected case is illegal and clearly against law, and has resulted in grave miscarriage of justice. Thus, the acquittal in both the cases was not based on legal evidence recorded in each case independently. This vitiates the trial as this illegality/irregularity is not curable under section 537, Cr.P.C."
20. I am inclined to follow the principles laid down in the cited case. In the present case two separate F.I.Rs, are registered and two separate charges are framed. The two cases are under different enactments. The amalgamation of the two cases by the trial Court and the conviction of the appellant in the two cases by a common judgment on the basis of evidence of the same set of witnesses is a material irregularity which is not curable under section 537, Cr.P.C. And has vitiated the trial and judgment. In the result both the appeals are accepted and the conviction is set aside.
21. ' The question then arose as to whether the cases should be remanded for retrial. The appellant is sentenced to undergo R.I. For 6 months in the case under Section 13-D Arms Ordinance while he has already been in jail for about 9 months from the date of judgment (21-9-1988). In the other case sentence awarded is 5 years' R.I. The appellant has suffered the rigour of trial for about 3-1/2 years.
22. ' Mr. Naimatullah Qureshi, learned counsel for the appellant has further contended that in the present case there are mitigating circumstances such as the fact that one of the said culprits was killed by P.W. Ghazi with a rifle for which he had no licence and the Investigation Agency did not register any F.I.R. To this effect and also that no empty cartridges were recovered from the place of occurrence to support the case of the prosecution. He has also contended that the alleged pistol was not recovered from the person of the present appellant. He has placed reliance on the case of Salik and another v. The State 1986 P Cr. L J 1642 wherein it has been held:- "The question is whether the case should be remanded to the trial Court for re-trial. The applicants were sentenced to 12 months' R.I. Each out of which they have already suffered 6 months' detention during trial and after conviction. The case pertains to the year 1977. They were challenged in January, 1977 and Were convicted by the trial Court on 29-6-1982 i,e, after a protracted trial lasting for 5 years. Their appeal before the second Additional District Judge Nawabshah took further 2 years to decide. Thus, they have already undergone the agony of protracted trial. In view of the circumstances it would not be just and proper to remand the case to the trial Court. Both the revision applications stand disposed of accordingly."
23. In view of the above facts, and that the appellant has suffered the rigor of the trial for about 3/1-2 years I am not inclined to remand the case for retrial. The appellant is in custody and is directed to be released forthwith unless required in any other case.