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Criminal Appeal No. 319 of 1979, decided on 8th May, 1979.

---- S. 417 and High Court (Lahore) Rules and Orders, Vol. III, Chap. 4, r. 4--Appeal against acquittal-Additional Sessions Judge recording evidence in two cross-cases separately but disposing of cases by a single judgment by mixing of evidence of both cases- Rule 4, Chap. 4 of High Court Rules and Orders, Vol. III, however, providing for evidence in one case not to be treated as evidence in other case even with consent of parties and judgment to be written separately without importing evidence of other case-- Judgment recorded, by Additional Sessions Judge, held, illegal ---Acquittal of accused set aside, in circumstances.-[Evidence Appeal against acquittal].

Additional Advocate-General for the State.

Kh. Muhammad Sharif for Respondents.

Date of hearing : 8th May, 1979.

-This order will dispose of Criminal Appeals Nos. 319 and 74 and Criminal Revision No. 84, all of 1979. These have been taken together as they arise out of the same judgment.

2. On 29-5-1974, at ishawela a, fight took place in village Bamba of tehsil Lahore. During the fight a number of persons were injured. One of them namely, Muhammad Shafi, later succumbed to his injuries. In respect of this incident two cross-cases were registered by the local police. In one case Munir, Nazir, Latif, Ahmad Din and Rehmat Ali were cited as the accused persons and the allegations against them inter alia were that they had caused the death of Muhammad Shafi and made murderous assault upon members of the opposite-party. In the cross case Muhammad Sher, Mehr Din, Muhammad Sharif, Abdul Hamid and Muhammad Saleem were mentioned as the assailants; they were also charged with offences under section 307 of the Pakistan Penal Code. Both cases were tried simultaneously by Mian Habibur Rehman, Additional Sessions Judge, Lahore. He disposed them of by one judgment. He acquitted Munir and his party of all the charges but convicted Muhammad Sher and his party of offences under sections 148 and 307, read with section 149 of the Pakistan Penal Code. Criminal Appeal No. 74 of 1979 has been filed by Muhammad Sher and others to challenge their convictions and sentences. Criminal Appeal No. 319 of 1979 is by the State and Criminal revision is by Mst. Sharifan. They call in question the order of acquittal, made in favour of Munir and his party.

3. The learned Additional Sessions Judge very properly recorded evidence in the two cases separately. However, while disposing of the two cases by a single judgment he mixed up the evidence of the two cases. This he could not legally do. Although there is nothing illegal in disposing of cross cases by one judgment the Court has to take care that the evidence in one case does not influence its finding in the other for, each case has to proceed on its evidence and even if the parties agree evidence in one case cannot he treated as evidence in the other. Apparently the attention of the learned Additional Sessions Judge was not drawn to rule 4, Chapter 4, High Courts Rules and Orders, Volume III, which runs as follows :-

"When both parties to a riot are prosecuted the two cases must be tried separately and evidence in the one case cannot be treated as evidence in the other, even with the consent of the parties (I L R 4 Lah. 376). Similarly judgments in such cases should be written separately and care should be taken to see that the evidence in the one case is not imported into the judgment in the other. Sometimes Courts consider it convenient to dispose of such cases in a single judgment, but in doing so they are liable to mix up the evidence in the two records. Even when the I ower Courts are careful enough not to mix up the evidence, the mere fact of their having written one judgment furnishes the convicts with a ground of appeal that the directions of their Lordships of the Privy Council in Madat Khan v. The King-Emperor I L R 8 Lah. 193 have not been followed. Such objections have to be heard, examined and decided and a good deal of the time of the appellate Court is thus wasted."

For the reasons stated above, we consider that the judgment record ed by the learned Additional Sessions Judge is illegal. Accordingly we accept both the appeals, set aside the conviction and sentence recorded in Criminal Appal 74 and the order of acquittal made in Criminal14 Appeal No. 319 and direct the learned Additional Sessions Judge to, rewrite judgments in the two cross cases on the basis of the evidence' recorded in each case In view of this order the Criminal Revision No. 84 has become infructuous and is hereby dismissed.

Appeal dismissed.

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