P L D 1967 Lahore 932 (PLP)

(i) That the learned trial Magistrate had not properly treated and considered the prosecution evidence produced by the complainant in the case; (ii) that the learned Magistrate had imported the evidence of the cross case which had not been brought on the record of the present case and the reading of such an extraneous evidence had vitiated the judgment. In support of this contention reliance has been placed on Shahed Ali and others v. The State P L D 1962 Dacca 576 and Nur Elahi v. The State and others P L D 1966 S C 708.

4. Having given my careful consideration to the contentions raised by the learned counsel, I am not pursuaded to see much force in them. In the first instance, the learned trial Magistrate has given a complete resume of the prosecution evidence. Of course, he has not separately dealt with the statements of the prosecution witnesses, but it was hardly necessary to do so inasmuch as they were a mere repetition of what was stated by the complainant himself, whose entire version has been incorporated in the judgment. It is pertinent to observe that at least four of the prosecution witnesses, namely, Rahim Bakhsh, complainant, Peer Bakhsh, Wali Muhammad and Yasin were accused in the cross case. It is equally significant to observe that Sadiq Shah who was stated to have been sent by Rahim Bakhsh petitioner to lodge a report at the police station immediately after the occurrence, which the police allegedly refused to record was not produced as an eye‑witness with no plausible explanation for withholding him. A perusal of the judgment clearly shows that the prosecution evidence as well as the defence version as it emerged from the lengthy cross examination to which the prosecution witnesses were subjected and to whom the defence version was clearly put, coupled with the evidence of the two defence witnesses, received proper consideration at the hands of the learned Magistrate. In the circumstances of the case he had to pick and chose between the two conflicting versions, accepting one and rejecting the other, so as to determine as to which of the two parties was the aggressor and which the aggrieved. Considered from the point of view of section 367 of the Code of Criminal Procedure, I am clearly of the view that the judgment fulfils all the legal requirements contained therein and as such is not pen to question.

5. Coming to the next contention raised by the learned counsel for the petitioner, it may be observed that although the learned Magistrate appears to have inadvertently fallen into an error by referring to the recovery of the blood‑stained earth near the house of Muhammad Yusuf Shah, fixing the place of occurrence and also to medical evidence showing the direction of the gunshot injury sustained by Tufail Shah at the hands of Rahim Bakhsh petitioner, this would hardly advance the petitioner's case. He seems to have considered the two versions in juxtaposition in the light of the arguments simultaneously advanced by both sides as would be clear from the following observation made in the opening sentence of fifth paragraph of the judgment: "Having fully scrutinised the complainant's evidence, the defence evidence and having considered all the facts of the two cases, the challan and the complaint case in close juxtaposition and having heard the arguments advanced from both sides, I find that this complaint case is simply groundless and mendacious." The two authorities cited by the learned counsel state the well established principle of law that every case has to be decided on the basis of the evidence on its own record and the Courts should not allow themselves to be influenced by the evidence on the record of the other connected or cross case. In the Supreme Court authority, Nur Elahi v. State and others (P L D 1966 S C 708), it was observed by B. Z. Kaikaus, J, as follows: The law is that every criminal proceeding (and in fact every civil proceeding) is to be decided on the material on record of that proceeding and neither the record of another case nor any finding recorded therein should affect the decision. If the Court takes into consideration evidence recorded in another case of a finding recorded therein the judgment is vitiated. A finding recorded in a criminal case is not legal evidence in another criminal proceeding. In fact there is an express provision in the Evidence Act, that is, section 43, which debars the Court from taking it into consideration. It makes no difference that the finding is recorded by a High Court or the Supreme Court. It remains irrelevant. The Court which is to determine a matter must determine the matter itself unaffected by opinion expressed in other cases." In the Dacca authority, it was observed by Murshed,1., as he then was, as follows: "We would also like to point out that whenever there is a case and a counter case in respect to the same occurrence it is desirable that they should be tried simultaneously by the same learned Judge; yet the records of each case should be kept distinct and separate. The evidence or record of one case cannot be used in connection with the other case. Each case must be decided on its own evidence and record. The advantage of a simultaneous trial is that it gives the trying Judge a whole picture which will help him to appreciate properly the evidence in each case, but it does not enable him to use the records of one case for the purpose of disposing of the other case."

6. As stated earlier, the learned trial Magistrate obviously had not taken due care to strictly observe this principle and had made at least two references to facts which had trot been brought on the record of the instant case. The question which falls for determination is whether such an error on the part of the learned trial Magistrate will ipso facto vitiate the judgment, or whether it would be still open to consider the effect of the other reasoning given by him excluding the two objectionable and inadmissible references. In my view the answer to the first part of the question must be in the negative. Having carefully gone through the evidence with the assistance of the learned counsel for the petitioner, I am in no manner of doubt that no Court on earth could possibly convict the accused in a case like this which suffers from several inherently fatal flaws. Firstly, it is simply preposterous to conceive of situation where twenty‑three persons armed with deadly weapons like guns and hatchets formed themselves into an unlawful assembly with a view to launch an attack on members of the opposite‑party and in fact had actually launched such an attack, using fire‑arms and lethal weapons and yet surprisingly enough not a single person from the opposite party consisting of only half a dozen members unarmed and taken unaware received not even a scratch. Miracles might take place, but in the circumstances as asserted by the petitioner, there appears to be hardly any room for such a miraculous escape of the outnumbered victims of attack.

7. Secondly, there is absolutely no explanation of the inordinate delay of two months in the lodging of the complaint which even then was lodged by the petitioner while still in judicial custody. In the first place, there is nothing to show that the petitioner or his other co‑accused were arrested immediately after the occurrence and were thus afforded no opportunity to have recourse to the local police for lodging the report Again, it is in evidence that the petitioner sent several telegrams to various authorities including the Superintendent of Police and D. I. G. alleging that about a hundred persons had attacked his house. It is clearly mentioned in paragraph 6 of the complaint that Sadiq Shah a cousin and co‑accused of the petitioner went to the police station for lodging a report, but the police refused to record the same. As pointed out earlier, Sadiq Shah, who in the circumstances was the most important witness did not come to the witness‑box. It appears that being an ex‑serviceman he was recalled by Army authorities in the month of November 1965, but this would hardly be a reason for withholding him inasmuch as, the September War being already over, he could presumably be spared from his unit, for a day or two, at the instance of the Court to appear as a witness. No effort seems to have been made to summon him from his unit. Rahim Bakhsh Shah, petitioner, stated in cross‑examination that he had not instructed any of his relations to institute a complaint in Court regarding the occurrence. One fails to understand why did he sleep over the matter for two months. It may be incidentally pointed out at this stage that while referring to the inordinate delay in the lodging of the complaint, the learned trial Magistrate has misread 10th September 1965 for 16th of September 1965, as the date mentioned in the complaint, on which it was presumably drafted and also presented in the first instance, but this is of no consequence whatever.

8. Lastly, even the motive of the alleged attack, namely, the abduction of Mst. Anwar Bibi by Sadiq Shah and her marriage against the wishes of her brothers, does not seem to be established. She herself appeared as P. W. 7 and stated that when she returned to the village after her marriage with Sadiq Shah at Kot Mithan, she was threatened by her brothers and lodged a report at the police station, but no security proceedings were taken by the police. H. C. Ghulam Husain appeared as P. W. 14 and produced this report Exh. P. D. purported to have been lodged by Mst. Anwar Bibi. This report is dated the 9th of September 1965, according to the English record, in which digit '4' seems to have been changed to digit '5' in ink. In the Urdu record, however, the date mentioned is 9th of September 1964. In any case, it does not help the petitioner, inasmuch as if the report was lodged in September 1965, it would be subsequent to the occurrence and would have no relevancy. Alternatively, if it was lodged on 9th of September 1964, it would be pretty long before the occurrence, losing all its force and poignancy.

9. In view of the above discussion, I am of the opinion that the irrelevant references by the learned Magistrate in his judgment to some facts which have not been brought on the record of this case, do not per se vitiate the entire judgment which otherwise fulfils all the legal requirements contained in section 367 of the Criminal Procedure Code and the effect of such irrelevant considerations on the final outcome of the case which has to be kept in view. If in the circumstances of a particular case, the irrelevant consideration of extraneous and inadmissible evidence forms the basis of an order of an acquittal or conviction as the case may be, then certainly the entire judgment is vitiated. If, however, on the other hand, a complete exclusion of such extraneous considerations which are only of a minor and unimportant nature, does not affect the result of the case, it would not be proper to stretch its vitiative effects, so as to render the judgment unsustainable. In the instant case the remand of the case for fresh trial would be a sheer waste of time as the acquittal of the accused is a foregone conclusion.

10. For the foregoing reasons, the present Criminal Revision fails and is hereby dismissed in limine. A. H. Petition dismissed.