1. ' S. USMAN ALI SHAH, J.--This appeal by leave of the Court is directed against the judgment dated 24-12-1989 of the Peshawar High Court; whereby, the appellant's appeal against his conviction under section 4 of the Prohibition (Enforcement of Hadd) Order, 1979 was dismissed and the sentence of two years, R.I. And a fine of Rs, 2,000 awarded to him by the Sessions Judge, Peshawar was maintained.
2. ' The fads of the case briefly stated arc that on 28-11-1986 at 22-15 hours A.S.I. Abdul Hamid Khan alongwith other police party at Cantt. Railway Station platform at Peshawar apprehended one Munir Ahmad aged 13/14 years of Gujranwala in a compartment, who was carrying a Flask containing two hundred grams of heroin. The A.S.I. Also observed the appellant Muhammad Shakil, standing alone near the parcel block with a bamboo stick in his hand. The handle of the stick was rounded with plastic tape. A bag was hanging from his shoulder. A search was carried out by the police of his person. The stick was taken into possession. The handle of the stick was detaped and the handle was removed from the stick. Heroin weighing 200 grams was recovered from the hallow of the bamboo stick which was taken into possession vide memo Ex. PB out of which five grams heroin was sent to the Chemical Examiner for analysis. A Murasila Ex. PA/1 was sent to the P.S. On the basis of which F.I.R. No, 375 was recorded against the appellant under section 3/4 Prohibition (Enforcement of Hadd) Order, 1979.
3. ' The appellant was arrested and his other belongings were also taken into possession by the police vide memo Ex. PB/1. The bamboo cane was taken into possession vide memo Ex. PB/2. Report received from the Chemical Examiner about the sample of five grams heroin was that the same is the contraband heroin.
4. ' After completion of the investigation procedure the accused/appellant was challaned before the Additional Sessions Judge to face trial. The appellant pleaded innocence to the charge against him whereas the prosecution examined 4 witnesses in support of its case; viz. Daulat Khan S.H.O.
5. PW-1, Mumtaz Ahmad M.H.C. PW-2, Rang Badshah Constable PW-3 and Abdul Hamid Khan A.S.I.
6. PW-4. Daulat Khan S.H.O. PW-1 submitted a complete challan and Mumtaz Khan M.H.C. PW-2 registered the F.I.R. Ex. PA. After receipt of the Murasila Ex. PA/1. The statement of Rang Badshah was that while he was on duty on the railway platform alongwith others, he noticed the appellant in a suspicious condition; he drew attention of A.S.I. Abdul Hamid PW-4 towards him and on searching his person nothing incriminating was recovered from the bag hanging from his shoulder. Abdul Hamid A.S.I. Deposed that while investigating the case of Munir Ahmad he and his companion noticed the appellant and on his search 200 grams heroin was recovered from the stick out of which five grams were sent for chemical analysis to the Examiner and took the remaining heroin in possession vide memo Ex. PB/1 and also took into possession the stick Ex. P-2 and bamboo Ex. P-3.
7. He prepared the site plan.
8. ' The plea taken by the appellant in his statement before the trial was that Lhe police wanted to apprehend him for having foreign made crockery and demanded Rs, 100 as bribe. Upon his refusal some altercation started which got aggravated into unpleasantness. Meanwhile one Munir Ahmad was arrested with a bamboo stick and a thermos containing heroin. The nutshell of his statement was that such stick recovered from the other accused was attributed to the present appellant. The police forced Munir Ahmad to state that the heroin recovered from him belonged to Muhammad Shakil accused but that man refuted it consistently and on application of appellant later on he gave a statement under section 164 Cr.P.C. Before the Magistrate on 15-12-1986 wherein he favoured the present accused. Copies of his statement and the order of the Magistrate dated 15- 12-1986 are Ex. DA and Ex. DB.
9. ' The statement given by Munir Ahmad who was at that time an under-trial prisoner in the Central Jail Peshawar was recovcrdcd by the M.I.C. Peshawar, on the application of the appellant and is as under:-- "On 29-11-1986 at 22-15 hours I was sitting in the railway compartment at Railway Station Peshawar Cantt. When in the meanwhile the railway police boarded the compartment, a thermos and a stick was lying on the seat in the said compartment near me. The police picked up the thermos and the stick and told me that it belong to me to which I refused. The police took me from the compartment alongwith the thermos and the stick but on the way at platform the accused Muhammad Shakil was standing and was taking tea. The police suspected and searched him. Some crockery was found with him as the result of which the police and Muhammad Shakil started altercation with each other. The police also apprehended him and brought him to the P.S. In P.S. The railway police forced me to give evidence to the fact that the stick and the thermos in question belong to Muhammad Shakil to which I refused. I was beaten in the P.S. And was compelled to say that the thermos and the stick belong to Muhammad Shakil before the Magistrate. I agreed, I was brought and. Produced before the Magistrate but 1 refused to say before the Magistrate that the stick and the thermos belongs to Muhammad Shakil accused in Case F.I.R.. No, 375 dated 29-11-1986. The stick and the thermos have not been recovered from Muhammad Shakil and I was present at that very moment. In cross-examination by P.I. He deposed "The railway police has registered a case against me under section 3/4 P.O. Vide F.I.R. No, 374 dated 29-11-1986, where 200 grams heroin has been shown recovered from me. I do not know Shakil but I know him this much that he was arrested in my presence. I have not come alongwith Shakil from Lahore. I had refused to record my statement on the line which the investigating police showed me to involve Muhammad Shakil accused. I do not know where Muhammad Shakil resides. I came to know the name of Muhammad Shakil on the railway station. It is incorrect to suggest that the evidence which I have given in Court today was shown to me by the relative of the accused. The relative of accused Shakil even not met me in the Central Jail Peshawar."
10. ' In his own trial Munir Ahmad acquitted accused under section 342 Cr,P.C. Has stated on oath that he was working in the hotel of one Gul Khan at Lahore sometime back. He left that job and came to the Shrine of Hazrat Data Ganj Bakhsh Sahib. There he met one person by the name of Shakil who offered him a job. Mohammad Shakil took the accused to his house and employed him as a domestic servant. At evening time Muhammad Shakil took the accused to Peshawar in a train. On the following day at 3 p.m. Muhammad Shakil went to Bara alongwith the accused. On reaching Bara he asked the accused to wait for him at the Bus stand. Muhammad Shakil went into Bara Bazar and returned back after a while. He had purchased a thermos bottle, 4 plates and one tea- pot. Mohammad Shakil entrusted the said articles to the accused. They then came back to Peshawar. At night time Muhammad Shakil alongwith the accused went to Cantt: Railway Station.
11. Muhammad Shakil purchased a ticket for the accused and made him sit in the 2nd Class compartment of the train. He also gave him thermos bottle. Mohammad Shakil himself sat in another compartment of the train. After some time the police entered the compartment and took thermos bottle from the accused. On their inquiry the accused told the police that the thermos bottle belonged to the said Muhammad Shakil. The police at the instance of the accused thereafter arrested Muhammad Shakil.
12. ' During the trial the learned Sessions Judge took judicial notice of the case of Munir Ahmad who was acquitted on 18-8-1987 and held that a small boy of about 12 years of age could never be supposed to carry a stick in question. The learned trial Judge discarded the statement of Munir Ahmad under section 164 Cr.P.C. As unreliable and also discarded the plea taken by the accused/appellant and declared it a solitary plea without any support from the record. He held that mere possession of a ticket is not sufficient to prove transportation of the material observing that "unless a person physically enters a railway compartment or other vehicle, he cannot be charged of having transported or attempted to transport the material. While standing on the platform nobody can infer his intention to travel, for, even if there be any, it could be changed at any moment. Article 3 of the Prohibition (Enforcement of Hadd) Order is, therefore, not applicable and the case falls only under Article 4 thereof'.
13. ' Consequently, the learned trial Judge convicted the appellant under Article 4 instead of Article 3 of the Prohibition (Enforcement of Hadd) Order 1979 and sentenced him to two years, R.I. With fine of Rs, 2,000 or in default of payment of the fine to suffer further simple imprisonment for six months.
14. The benefit of section 382-B Cr.P.C. Was also given to the appellant vide his judgment dated 18-11- 1989.
15. ' The appellant filed appeal against his conviction and sentence in the High Court. The learned Chief Justice of the Peshawar High Court who heard the appeal held that the statement under section 164 Cr.P.C. Placed on record is neither admissible as a statement of prosecution witness or that of a defence witness. He was inspired by the judgment of the trial Court and in this behalf, this is what he has observed:-- ""The learned trial Judge was left with no alternative but to refer to the judgment given in the case of said Munir Ahmad. It was observed that Munir Ahmad is a boy of tender age, who at the first opportunity before the police and thereafter throughout the trial took the stand that he was employed as a servant by Muhammad Shakil who brought him to Peshawar and that the heroin recovered from the Flask also belonged to Muhammad Shakil. The bamboo stick was examined in Court. Its handle was severed, the hallow inside could contain heroin, allegedly recovered from there. The prosecution on the facts and circumstances outlined above, has been able to establish the guilt of the appellant beyond any shadow of doubt."
16. ' Consequently the learned Chief Justice dismissed the appeal, vide his judgment dated 24-12- 1989.
17. ' The learned counsel for the appellant contended that the trial Court could not take judicial notice of the facts and evidence of another case and thus the plea of innocence taken by the appellant before the trial Court and also before the High Court would entitle him to acquittal. Admittedly, there are two F.I.Rs, against two different accused and they were separately and not jointly, tried, therefore, in a case of this nature they cannot be said persons accused of the same offence committed in the course of the same transaction within the meaning of clause (a) of section 239 Cr.P.C. As separate recovery was allegedly made from the two accused and as their cases were tried separately, they cannot be treated to have participated in the same offence. The conviction of the appellant is based on the findings in the acquittal judgment of Munir Ahmad accused, in so far as it directed that the statement made by accused Munir Ahmad in his own case under section 342 Cr.P.C. Be read out as evidence and proof in the case of the appellant. In our view, this approach is not supportable in law. It is difficult in criminal cases where a person charged of a different incident on his part be convicted on exclusive incident of a separate case. It would appear to be in disregard of the principle of administration of criminal justice that judgment in the case of a person with whom the accused appellant is not co-accused will be bound by the facts of the case against the accused in the former case who has been separately tried. It should not be a proposition of law that the facts of another case should form the facts of another case. The Courts are bound to decide each case on the basis of its own record without reference to record of another case and pass conviction on accused in each case on its own record. There is express prohibition in the Evidence Act and even on accepted general principles, decision in every proceedings in a given case is to be made on its own record. Conflicting decisions given in separate trials shall not be allowed to be used against each other. In Civil Law decision would be only binding upon the parties to the suit and it shall become relevant in another suit only if they fall under sections 40 to 44 of the Evidence Act unless, of course, where the judgments contain an exposition of law, custom or usage having the force of law, in which the Court shall take judicial notice of the judgment so far as they state what the law is and they need not be proved. It does not follow that all statements of facts contained in the judgment become matters of which the Court will take judicial notice.
18. ' On the view of the matter that we take, it is difficult to appreciate how assistance could be derived from the judgment in the case of Munir Ahmad accused of separate case and trial to show the existence of facts against the accused appellant. No independent allegation and evidence have been brought on record to dissociate the appellant from the case of Munir Ahmad. As in support of the impugned orders, the learned Courts below were influenced by the case of Munir Ahmad and as the case of Munir Ahmad was a separate case, tried separately, the connection of the appellant before us on the basis of the record of the case of Munir Ahmad cannot be sustained in law. This appeal must, therefore, succeed.
19. ' As a result, we are constrained to accept this appeal., set aside the conviction and sentence of the appellant. He shall be set at liberty forthwith from jail unless his detention is required in some other case.