1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- Appellant Allah Wariah son of Beg Muhammad vide judgment, dated 8th October, 1995, recorded by Sessions Judge, Nasirabad at Dera Allah Yar, has been found guilty for offence under section 302/34, P.P.C. And sentenced to suffer life imprisonment with fine of Rs,2,000 and in default to further suffer six months' S.I. Benefit of section 382-B, Cr.P.C.
2. Was also extended to him. As such, instant appeal has been filed.
3. ' It is the case of prosecution that on 16th November, 1973, P.W. Mitha lodged a report vide F.I.R.
4. (Exh.P./1-A) at Police Station, Jhatpat, alleging therein that on the date of incident when he and Muhammad Murad deceased were going on bull-cart for harvesting the crop, when accused Hyder son of Mughal, Allah Wariah alias Akki (appellant) and Fazal Muhammad, opened fire upon them, at the Bridge, resulting instantaneous death of Muhamamd Murad. After registration of case, except Fazal Muhammad, other two accused'could not be arrested. On completion of investigation, challan was submitted against him and he obtained bail, but thereafter did not turn up to face trial and it is reported that he had died. Later on co-accused Ghulam Hyder was arrested and on conclusion of trial, vide judgment, dated 15th January, 1992, passed by Sessions Judge, he was convicted and sentenced to suffer life imprisonment with fine of RS.10,000 and in default in payment of fine to further suffer R.I. For six months, with benefit of section 382-B, Cr.P.C. The said conviction order was upheld in Criminal Appeal No,13 of 1992, by this Court vide judgment, dated 22nd July, 1992. The Honorable Supreme Court of Pakistan, in Jail Appeal No,135 of 1992, also maintained the conviction, vide judgment, dated 14th November, 1992.
5. ' It is alleged that Ghulam Haider on his arrest pointed out that accused Allah Wariah, is confined in Nara Jail, Hyderabad, therefore, on such information, Investigation Agency managed to get his custody from there, towards November, 1988, and subjected him to interrogation.
6. ' During investigation on 21st November, 1988, Vide Exh.P.3/A accused produced a gun, after digging the earth, which was taking into possession: Thereafter it so happened that again appellant was shifted to Hyderabad, where he was wanted in some other case. Learned counsel for appellant stated that appellant has been acquitted in all those cases.
7. ' Ace Jingly on reproduction of accused, Sessions Judge, commenced the trial, by framing charge on 5th October, 1994, to which, appellant did not plead guilty.
8. ' In support of its case, prosecution examined the following witnesses:-- P.W.1 Mitha, the complainant; ' P.W.2 Sohna, the brother of deceased; ' P.W.3 Shabbir Ahmad, the witness of recovery of shot gun (Article 1); ' P.W.4 Dr. Faqir Muhammad, the Medical Officer, who conducted postmortem of deceased in 1973 and produced rinplicate copy of Certificate as Exh.P.4/A.
9. ' P.W.5 Syed Faqir Shah. On 16th Novembul 1973, he was posted as Constable with Attaullah Khan Niazi, S.11 , and being acquainted with the latter's signatures; he confirmed that Exh.P.3/A, recovery memo. Of cartridges, 3-B. Inquest report 3-C, Inspection Note, 3-D, blood-stained earth, 3-E, blood- stained clothes and P.5/A, site plain, contain his signatures. To provide contents of these documents, statement of Muhammad Hasham son of Kaloo was recorded on 4-12-1990, during trial of co-accused Ghulam Haider. However, this witness independently produced sketch of Wardat (Exh.P.5/A) although the then S.H.O. Did not associate him as witness, when he prepared the site plan; ' P.W.6 Jamil Asghar, the S.H.O., who got recovered shot gun (Article 1) on 21-11-1988, after 11th of taking over the custody of appellant.
10. ' Thereafter prosecution side was closed and appellant was examined under section 342, Cr.P.C. As well as on oath under section 340(2), .Cr.P.C. In both the statements, he canvassed his false implication in the commission of offence.
11. ' In defence, no witness was examined.
12. ' On the conclusion of trial, learned Sessions Judge, vide judgment, dated 8th October, 1995, convicted the appellant under section 302/34, P.P.C. Detailed hereinabswe. Mrs. Ashraf Abbas, learned Advocate, contended that prosecution had failed to produce consistent/convincing and trustworthy evidence to establish accusation against appellant. So much so, the trial Court did not convict the appellant, independently, in view of the evidence available on record. Actually on having discarded total evidence, conviction has been based on the judgment of this Court in Criminal Appeal No,13 of 1992, dated 22nd July, 1992, which has been confirmed by Honourable Supreme Court by dismissm ing Criminal Jail Appeal No,135 of 1992, vide judgment, dated 14-11-1992.
13. According to learned counsel it was mandatory for trial Court to have recorded reasons of conviction independently, whatever the position may be, instead of relying on the previous judgments, which otherwise could not be pressed into service against appellant, because he was not party to them.
14. ' Chaudhry Ejaz Yousaf, learned Additional Advocate-General, stated that evidence of P.W. Mitha has been thrashed out thoroughly, during trial and appeal proceedings in the case of co-accused Ghulam Hyder and on the basis of same, conviction of life imprisonment was awarded to him, therefore, on the same evidence, appellant Allah .Wariah, beirig co-accused can lightly be convicted and he cannot claim exception, in view of minor contradictions in his statement, which were bound to crop up, as a period of more than 20 years had passed, when he witnessed the incident. As such, conviction recorded against appellant, being proper and in accordance with law, deserves to be maintained.
15. ' We have heard the parties' counsel at length and have also perused the proceedings conducted by Sessions Judge, during trial of appellant.
16. ' Apparently it being a unique case in its nature, where trial of accused has been held after about 20/21 years from the date of incident, on the basis of evidence, so collected, at that time by Attaullah Khan Niazi, S.H.O. (not produced), therefore, to decide the fate of case, it is necessary to be more careful, so that injustice is not caused to any of the party.
17. ' A careful perusal of impugned judgment indicates that substantially learned Sessions Judge, failed to persuade himself for recording conviction/sentence against the accused on the basis of material produced before him. But to convict/sentence the accused, he placed reliance solely on the judgment recorded by this Court in Criminal Appeal No,13 of 1992, filed by co-accused Ghulam Haider, whereby the order of conviction/sentence, dated 15th January, 1992, was maintained and also on the verdict of Honourable Supreme Court, dated 14-11-1992, whereby Jail Appeal No,135 of 1992 filed by said accused was dismissed.
18. ' In this regard it is to be seen that according to Article 56 of the Qanune-Shahadat, 1984, the judgment passed in a litigation, to which a person was not party, will have no binding effect, in view of the principle enshrined in the maxim "Res inter alias judicare nullom inter alias prejudicum" i,e, a matter adjudicated upon between one set of persons does not in any way prejudice another set of persons. The previous judgments, in which appellant Allah Wariah was not a party has no prejudicial effect, as for as, his case is concerned. The learned Court misdirected itself by recording conviction/sentence against him, on the basis of previous judgments.
19. ' It is pertinent to note that trial Court also independently evaluated and assessed available material on record, but did not proceed to independently decide the matter, due to which, prejudice has been caused to both the parties, because the State also could not file appeal against prejudicial observations against it, as ultimately on wrong assumption of law, conviction was recorded. On the other hand, since the appellant was convicted for the reasons, not recognized by law, therefore, to this extent, only he could have filed appeal. Thus, in the circumstances, we consider it appropriate to set aside the impugned order and remand the case to learned Sessions Jiidge, for recording final order independently, keeping in view the principle of law, concerning the binding effect of previous judgment, noted hereinabove.
20. ' Thus, appeal is partially allowed, impugned judgment is set aside and case is sent to trial Court i,e, Sessions Jduge, Nasirabad for rewriting the judgment, strictly in accordance with law, after providing an opportunity of hearing to all concerned.