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Criminal Appeal No. 54 of 1979, decided on 5th April, 1980.

‑‑‑ S. 537‑Criminal trial‑Evidence, admissibility of‑Trial Court deciding case on basis of testimony appearing in cross‑case‑Action, held, not only entirely illegal but also not permissible under law Illegality committed, held further, vitiative of trial and not curable under. 537, Cr. P. C.‑‑Conviction and sentence set aside, in circum stance.

Pahlwan v. The State P L D 1975 Kar. 84 and Emperor v. Anandya S. Mahir A I R 1940 Lah. 466 rel.

--‑‑S. 307/323/427/452/326 read with S. 34‑Re‑trial‑Accused con victed and sentenced on charge of committing trespass in complain ant's hotel after preparation for hurt and assault, for damaging furniture in hotel, for making an attempt on lives of .complainant 4 and a prosecution witness and for also causing hurt to employees of hotel‑Accused convicted under various sections to short terms of imprisonment‑Trial taking 5 years to complete besides accused suffering detention as undertrial prisoners for one month and 21 days and as convicts for about 8 days‑Re‑trial roughly to take an other 4 years to complete‑Accused, held, already suffered sufficient ly‑Retrial declined, in circumstances.

Nazeer Ahmad Shami for Appellants.

Imtiaz Ahmad for A.‑G. for the State.

Dates of hearing : 25th and 26th March, 1980.

Muhammad Ashraf, Muhammad Banaras and Muhammad Nazeer were tried by an Additional Sessions Judge of Rawalpindi, under sec tion 307;'323/427/452/34, P. P. C. for committing trespass in the com plainant's hotel after preparation for hurt and assault, for damaging the furniture in the hotel, for making an attempt on the lives of Gulzar and Muhammad Zaman and for also causing hurt to the employees of the hotel: By his judgment dated 13th January, 1979, the learned Additional Sessions Judge convicted all the three accused under section 452/427/323 326/34, P.P.C. and sentenced them under section 452/34, P.P.C. to undergo one year's rigorous imprisonment each and to pay a fine of Its. 200 each or, in default thereof, to suffer further rigorous imprisonment for one month each, under section 427/34, P. P. C. to a fine of each or, in default of payment thereof, to undergo one month's rigorous imprisonment each, under section 325/34, P. P. C. to three years' rigorous imprisonment each and to pay a fine of Rs, 1,000 each or,, in default thereof, to undergo six months' rigorous imprisonment each and under section 323/34, P. P. C. to a fine of Rs. 100 each or, in default thereof, to fifteen days' rigorous impri sonment each. By the said judgment, alt the sentences, except those awarded in default of payment of fine, were ordered to run concurrently and half of the fines, if any realized under section 427/34, P. P. C. and 325/34, P. P. C., were ordered to be paid to Gulzar P. W. as compensa tion, and half of the fines, if, any realized under section 323/34, P. P. C., should be paid to Mahboob Hussain P. W. as compensation.. The appeal of the appellants (Criminal Appeal No. 54‑79) and the Criminal Revision (No. 573‑79) filed by Muhammad Gulzar complainant for the enhance ment of the sentence of the three appellants are now before me for disposal.

2. The brief facts of the case are that Muhammad Gulzar complainant P. W. 3 was running a Restaurant known as Gulzar Hotel near Last Bus Stop, Tench Bhatta, Rawalpindi Cantonment. On the fateful night between 29th/30th August, 1974, at 12‑15 a. m. Muhammad Gulzar P. Ws. 3, after directing his servants Mebboob Hussain P. W. 4, Raza Hussain and Muhammad Zamir (P. Ws. not examined) to close the res taurant, left for his house. He had hardly gone a little distance from his restaurant when he heard noise coming from his restaurant and on his return he found his chairs and tables being broken and his above‑named servants being beaten by Muhammad Yasin 'deceased and Muhammad Ashraf, Muhammad Banaras and Muhammad Nazeer accused with fists and kicks. Muhammad Gulzar P. W. 3 inquired from Muhammad Yaseen deceased and the accused as to why they were beating his servants and informed them that they should feel ashamed. This infuriated Muhammad Yaseen deceased and the accused who left the employees and diverted their attention towards the complainant. In order to save himself, Muhammad Gulzar P. W. 3 entered the room of his restaurant, but the accused chased him and dragged him out. At that time the accused were armed with pieces of broken chairs. After the complainant was dragged out, Muhammad Yaseen deceased gave a blow with stick fitted with iron shod on his head, whereas Muhammad Nazeer accused caught him and the remaining two accused also caused him injuries. The deceased even broke the left arm of the complainant with the blow. Muhammad Gulzar com plainant had a loaded licensed revolver and in order to save his life, he fired three shots on the lower part of the body of the deceased, out of which one hit his thigh. Muhammad Zaman (given up P. W.) and many other persons came to the spot and they tried to push back Muhammad Yaseen deceased, upon which the deceased caused injuries even to Muhammad Zaman (given up P. W.) who ran away. Muhammad Yaseen deceased on receipt of injuries, ran away and fell down near Mughal Hotel in front of the place of occurrence and died. After the occurrence, the servant of Muhammad Gulzar P. W. 3 informed him about the cause of incident. They told him that the accused and the deceased came to the restaurant and demanded tea, but as the tea had finished and the restaurant had closed, therefore, they could not' fulfil the order, which offended the deceased and the accused who started breaking tables and chairs of hotel besides beating them.

3. On 30th August 1974 Muhammad Gulzar P. W. 3 proceeded to Police Post R. A. Bazaar, where he lodged his statement Exh. P. C. which was recorded by Irsbad Ahmad S: 1. P. W. 5: On the basis of the said statement, formal F.1. R. Exh. P. C./1 ' was recorded at Police Station, Saddar, Rawalpindi, at 3‑15 a. m. by Ali Akbar S. I. P. W. 2. The Police Officer then proceeded to the hotel, from where he recovered two broken dandas and broken pieces of chairs (26 in number), vide memo Exh. P. D. and the car belonging to Muhammad Yaseen deceased vide memo Exh. P.E. Muhammad Gulzar P. W. 3 and Muhammad Zaman given up P. W.) being found in injured condition were referred to the. hospital for medical ex amination Dr. Muhammad Siddique P. W. I examined Muhammad Zaman (given up P. W.) at 3‑25 a. m. and found a contused wound an abraded contusion and two contusions on his head right arm and chest. All the in juries were simple and caused with a blunt weapon within 24 hours. The same doctor at 4‑30 a. m. examined Muhammad Gulzar P. W. 3 and found three lacerated wounds, a contused wound, a contusion and abrasions on his head, left forearm knees. The ulna bone of the left forearm was found fractured, whereas the other injuries were simple.

All the injuries were caused by blunt weapon.

4. After completing the necessary investigation, the challan against the accused was sent up.

5. At the trial, the prosecution produced Muhammad Gulzar P. W. 3 and Mahboob Hussain P. W. 4 in support of the ocular account, Irshad Ahmad S. I. P. W. 5 in proof of the recoveries and Dr. Muhammad Siddiq P. W. 1, Jahan Dad Khan X‑Ray Asst. P. W. 6 and Dr. Tahir Anees P. W. 7 to corroborate the medical testimony. All the accused denied the accusations levelled against them. In their statements under section 342, Cr. P. C., all the three accused admitted that they in company with Muhammad Yaseen deceased went in the car of the deceased to Gulzar Hotel and they demanded tea from Mahboob Hussain P. W. 4, Raza Hussain (given up P: W.) and Muhammad Zamir (P. W. dead), the employees of the hotel, and Muhammad Banaras and Muhammad Nazeer accused also admitted that they threw one or two chairs towards Muhammad Gulzar complainant and Muhammad Zaman (given up P. W.), when the employees of the hotel injured Muhammad Yaseen deceased and were preparing to attack them, but denied all the other allegations put to them.

6. The learned trial Judge, without discussing either the ocular account, the medical testimony or the evidence as regards recovery, held that as he has discarded the version of the accused and accepted that of Muhammad Gulzar P. W. 3, whilst disposing of the connected murder case, which reasons given in the said cross‑case should be read as a part of his judgment, he accepted the prosecution version, which he held was, even otherwise, supported by Muhammad Gulzar P. W. 3 and Mahboob Hussain P. W. 4 and the medical testimony. Without discussing anything further, the learned trial Judge proceeded to convict and sentence the accused, as stated in para. 1 above.

7. I have heard the arguments of the learned counsel for the appel lants, the private complainant and the State and have also perused the record. This case will be disposed of on a short ground and, therefore, I need not discuss the evidence in this case. As has already been submit ted by me above, the learned trial Judge has not discussed the evidence in the instant case, whether relating to the ocular account, the medical testimony or the recoveries, but has proceeded to dispose of the case in two short sentences as follows :‑

"In this case, there were two cross versions and while disposing of murder case I discarded the version of accused and accepted that of Muhammad Gulzar. P. W. On the reasons given in cross‑case i. e. The State v. Muhammad Gulzar etc., which shall be read as part of this judgment, I accept the prosecution version which even otherwise has been supported by Muhammad Gulzar, Mehboob Hussain and the medical evidence."

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 A required for this view. Pahlwan v. The State (P L D 1975 Kar.84) and Emperor v. Anandya S. Mahir (A I R 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.

8. What only now remains to be determined is whether a re‑trial should be ordered. The appellants have been convicted under various sections to short terms of imprisonment, which sentences have been ordered to run concurrently. The appellants have also suffered detention as under trial prisoners for one month and twenty‑six days and as convicts for about eight days. A retrial, if ordered, will roughly take another four to five years to complete. The present trial took five years to complete, which in itself was sufficient punishment, considering that the appellants had to attend Court on innumerable dates of hearings and suffered finan cially in breaking off from work and attending Court proceedings, to the detriment of their mental health and professional pursuits. Any further duplicate proceedings would ruin them both mentally and financially t a greater extent than any sentence that may ultimately be impose upon them. Considering that the appellants have already suffered sufficiently, 1 do not think that in the interest of justice a re‑trial should be ordered.

9. For the foregoing reasons, this appeal is accepted. The conviction and sentences of the appellants are set aside. The appellants are on bail and their bail bonds shall stand discharged. The fine if recovered, shall be refunded to the appellants. In view of the reasons already stated, there shall be no order as to retrial. There being no merit in the Criminal Revision (No. 573‑79), the same is dismissed in limine.

Appeal allowed.

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