' SARDAR MUHAMMAD RAZA, J.--- This is an appeal filed by Muhammad Naeem son of Gulshan and Ahmed son of Sherin of Bar Shawa District Swat against -the judgment, dated 12-9-1996 of the learned Sessions Judge/Special Judge/Zilla Qazi Swat whereby, under section 302/307/34, P.P.C., the appellants were convicted and sentenced as follows:--
(1) Appellant Muhammad Naeem (1) Under section 302, P.P.C. For causing the death of Ibrahim, to life imprisonment and a fine of Rs,80,000 or in default to undergo imprisonment for five years.
(ii) Under section 307, P.P.C. For causing injury to P.W. Ismail, to 7 years' R.I. And a fine of Rs,50,000 or in default to two months' S.I.
(iii) 7 years' R.I. And a fine of Rs,50,000 or in default to suffer two months' S.I. For causing injury to abandoned P.W. Pashmin.
(2) Appellant Ahmed Under section 307, P.P.C., 7 years' R.I. And a fine of Rs,50,000 or in default to undergo imprisonment for two years, for causing injury to P.W. Mst. Bacha Hakima.
' This was with reference to F.I.R. No,122, dated 11-3-1994 of Police Station Matta Swat.
2. The aforesaid was a cross-case to F.I.R. No,121, dated 11-3-1994 of 'Police Station Matta registered against the opposite party where, through the same single judgment; Ismail, Mehmood and Abdullah were convicted under section 307, P.P.C. And sentenced to rigorous imprisonment for a period of six years and a fine of R.60,000 in default of payment of which each was to suffer two years imprisonment. The convicts under section 307, P.P.C. Have also filed an Appeal No,261 of 1996.
Both the aforesaid appeals shall be decided through this single judgment.
3. While hearing the arguments, we were confronted with an agitating situation to the effect that not a single witness in the trial was either examined on oath or on solemn affirmation, in both the cases. Under Regulation II of 1976: the Oath Act, 1873 stands extended to the Provincially Administered Tribal Areas. Subsequently an amendment was made in section 6 of the Oaths Act through Federal Laws (Revision and Declaration) Ordinance XXVII of 1981, whereby the examination of a Muslim witness on oath had become mandatory. This amendment pertained to the settled area and as the aforesaid Ordinance was not extended to Provincially Administered Tribal Areas, the examination of a witness in such areas shall be on solemn affirmation. This principle was discussed by this Court in Shah Pasand v. The State 1989 PCr.LJ 1966. In view of this legal position, the learned trial Judge ought to have had examined the witnesses on solemn affirmation. From none of the statements so recorded it appears that the witnesses were examined either on oath or on solemn affirmation.
4. Anyhow, under section 13 of the Oaths Act, 1873, the failure to examine a witness on oath or solemn affirmation does not entail upon vitiating the proceedings and hence we would keep the matter aside for the time being.
5. The next most unavoidable feature of the case is that the learned trial Judge has recorded evidence in both the cases separately but has disposed of the cases through single impugned judgment. It is almost a century old principle of law and practice in the administration of criminal justice that each and every case has to be decided on the basis of evidence recorded therein. No reference of the evidence of the cross case could be given in the other case unless that evidence is lawfully brought on the record of the other case. It was in Bhola Nath v. The Emperor AIR 1920 All. 79 that such practice of recording single judgment in two separate trials, was deprecated. In a case of Mounagurusarni Naicker AIR 1933 Mad. 367(2) the wring of one judgment was against deprecated if the facts of both the cases were not dealt with quite independent of each other. In State v. Bashir Ahmed PLD 1963 Kar. 242 it was further reiterated that findings of one case could not be transposed and applied to the facts involved in the other case. The Honourable Division Bench of the Karachi High Court laid stress on the point that each case has to depend on the circumstances that arise in it.
6. The learned counsel on either side have taken us through the judgment of the trial Court in sufficient detail. We are constrained to observe, after going through such consolidated judgment, that the learned trial. Judge has not discussed each material witness on the test of his own credibility. The veracity or otherwise of a witness was never discussed. The learned trial Judge happens to have exhibited his utter confusion about the truth or otherwise of each case and thus placed himself on the horns of dilemma by saying that, in view of the prevailing situation in.His mind, there were only two paths before him to be followed.
7. The first path before him was that both the accused be acquitted because, according to him, it could not be settled as to who was the aggressor. Second path before him was that the evidence given by both the parties be believed in to and whatever facts they attempted to conceal, should be ignored. While groping as to which of the two paths to follow, the learned Judge concluded that if the first path is resorted to, there were chances of armed-conflict between the parties even in future which was likely to bring about loss of lives. Rejecting this possibility, he avoided the acquittals and followed the path of convictions on both sides in order that it would bring peace in future and would also be a source of deterrence for the parties who would avoid taking law into their own hands. This way of appreciating evidence in the administration of criminal justice, in view of the learned Judge, was the requirement of Sharia. This was rahter, too much about interpreting and appreciating Sharia. It amounts to saying that when the evidence cannot be properly appreciated and when the Judge stands subjectively confused, he should punish both the parties so that they are deterred for the future; having lest regard to the fact as to who is guilty and who the innocent.
8. 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.
9. Mr. Amir Gulab Khan, the learned trial Judge has tried to import his own views about the case and seemed to have been influenced by extraneous circumstances, therefore, the cases should now be remanded to some other Court.
10. Consequently, both the appeals are accepted, all the convictions and sentences are set aside and both the cases are remanded back to the Court of Additional Sessions Judge/Special Judge Swat (Mr. Muhammad Sher Shah) with direction that after hearing arguments in both the cases these be decided in accordance with law by writing independent judgments.
11. It is stated at the Bar that one of the accused had spent more than two years in jail and so is entitled to be released on bail. It is also stated that in "Ismail v. State Criminal Appeal No,261 of 1996", a partial compromise has been effected. Both these matters are directed to be agitated before the trial Court, if permitted under the law.
12. Parties are directed to appear before the learned Additional Sessions Judge/Special Judge, Swat on 21-5-1997. The record be sent immediately.