1. Both the appeals cited above are being disposed of by this common order, as they arise out of a common judgment passed by the Court of Additional Sessions Judge, Kandhkot in Session Cases Nos.127 and 131 of 1993 'State v. Gulab and others, Session Case No,39 of 1994 'Abdul Razak V.
2. Ghulain Hussain and others' and Session Case No,40 of 1994 'State v. Abdul Razak and others'.
3. The Sessions Cases Nos.127 and 131 of 1993 arise out of Crime No,42 .of 1993 registered at Police Station, Ghouspur and the Sessions Case No,39 of 1994 is outcome of a direct complaint filed by Abdul Razak while the Sessions Case No,40 of 1994 is the counter-case founded on the outcome of investigation in Crime No,43 of 1993 registered at Police Station, Ghouspur.
4. 'It has been noted that a common charge was framed in cited Cases Nos.127 and 131 of 1993 and private Complaint No,39 of 1994,, while in the counter-case, the charge has been, framed separately. Thus, two trials proceeded simultaneously and witnesses were examined in each case separately, but at the conclusion of both the trials, the cases were disposed of by a common judgment dated 15-1-2003 and the accused persons were convicted. They have called in question their conviction, and sentences through the appeals cited above, before this Court.
5. After arguing the case at some length, learned counsel for the appellants as also learned A.A.-G. submitted that gross miscarriage of justice has been caused, since evidence of one case has been read in the other and the crucial finding has been given on one and a common point. Mr. Muhammad Daud Baloch learned counsel for appellants in Criminal Appeal No,21 of 2003 further relied upon 1981 SCM R 435 on this point, wherein the relevant observations are in following terms:-- "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.
6. 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 these 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."
7. Besides, all the learned counsel concede that even the charge framed in each case.does not satisfy the requirements of sections 221 and 222, Cr.P.C. as a number of different offences have been jumbled down in a single narration without mentioning specifically the required particulars and description.
8. In view of above defects, which go deep to the root of the case and affect the merits of the trial, indeed, failure of justice has occasioned. As such, by consent both the appeals are allowed, the conviction and sentences are set aside and the cases are remanded for retrial in accordance with law right from the stage of framing of the charge.
9. All the learned Advocates point out that the accused persons were on bail during the trial and Mr. Ali Azhar Tunio, learned A.A.-G. has no objection, if they continue to remain on same bail as already furnished in the trial Court till the conclusion of these trials. They should however, execute fresh P.R. bonds while the sureties should continue to 'remain the same.
10. The appeals stand disposed of accordingly.