P L D 1952 Baghdal﷓ul﷓Jadid 4 (PLP)

ABDUL AZIZ, C. J.‑Azim, Hakeem and Mukeem were tried by the learned Sessions Judge, Bahawalpur in two separate cases, in case No. 21 for causing the death of one Fateh Muhammad while in case No. 22 for causing the death of one Jahangir on 18th of June 1950. Though the trials were held separate yet the learned Sessions judge disposed of the two cases by a single judgment. Azim was convicted in each case under section 302 Pakistan Penal Code and was Sentenced to death directing that the sentence regarding the murder of Fateh Muhammad shall be executed first. Hakim and Mukeem were acquitted in each case. There are two appeals before this Court on behalf of the accused through Jail. Both the appeals shall be disposed of separately. As he was un represented consequently Mr. Fazal Karim Chishti was engaged on his behalf on the Government expense. An objection was raised by his learned counsel that the judgment of the learned Sessions judge was bad in law because after holding two separate trials he was not competent under law to mix up the two cases and give one judgment. In order to dispose this objection it was deemed necessary to go into the facts of the cases. The story of the prosecution is that Yasin P. W. 1 in case No. 21 who resided in mauza Kup Kureishian was allotted a piece of land in the mauza of Ghamanpur to which the accused belonged. The distance between these two mauzas is about 12 squares of land. The accused with intent to take possession of part of the land allotted to Yasin irrigated about 3 rectangles of the land without his permission. To this Yasin protested but of no avail. On the fateful date, i.e., on 18th of June 1950, Allah Bakhsh and Sadiq P. W. 4 and 10 of case No. 21 were sent by the accused to plough the land already irrigated by them. Soon after them Yasin P. W. 1 arrived there and with the help of Ata Muhammad, Hakim Ali, Gorqan Mahar and Rahmat Ali prosecuting witnesses 2, 3, 5 and 6 of case No. 21 commenced to plough the remaining two rectangles. Yasin saw the accused emerging from the basti of Ghamanpur which was at a short distance from the place of occurrence. They were armed with deadly weapons, for instance Azim carried a rifle, Hakim a hatchet and Mukeem a lathee. Apprehending some mischief Yasin sent Fateh Muhammad deceased his real brother to Ghamanpur, to fetch some person for their help. Fateh Muhammad met the accused on the way who did not allow him to go to Ghamanpur. As the deceased resisted the attempt of the accused to stop him from going to the village he was fired at by Azim. The bullet hit him at the back of his right shoulder and injured the lung and the blood vessel inside the chest. Fateh Muhammad fell on the ground and died instantaneously. The accused slipped away from that place and went back to the basti. The news of the occurrence had reached the village. Jahangir deceased who belongs to the same village was sitting at that time at his shop in the company of Khurshid, Ahmad Yar and Dona P. W. 2, 3 and 15 respectively in case No.

22. All of them apprehending some trouble shut them selves inside the shop. The accused went straight to his shop and broke the door. Jahangir and his companions fled out of the shop but Azim fired a shot from behind the deceased which hit him on the back of the head and it resulted in his death. The report was made to the Police Station Minchinabad at 12 noon on the same day. Head‑Constable Abdul Qadir com menced the investigation, took into possession the dead body and recovered an empty cartridge lying near the dead body of Fateh Muhammad. The accused were arrested and 7 live cartridges were recovered from the possession of Azim and a recovery memo. Exhibit P G was prepared. Gun Exhibit P 1 was recovered from Azim, hatchet Exhibit P 2 from Hakeem and Dang Exhibit P 3 from Mukeem. Memorandums of recovery Exhibits PC/1, PF and PE respectively were prepared. The post‑mortem examination of the deceased was conducted by Dr. Abdul Wahid on 19th of June 1950. According to him the death of Fateh Muhammad had been caused by a bullet wound across the chest which had caused injury to the lung and the blood vessel inside the chest. After giving the facts we have to consider the technical question raised by the learned counsel for the appellant, i.e., whether the judgment was bad in law simply on account of the fact that the learned Sessions Judge while holding two separate trials disposed of the cases by one judgment. Section 537 of the Criminal Procedure Code reads as follows :‑ Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXV II or on appeal or revision on account‑ (a) of any error, omission or irregularity in the complaint. summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or (b) unless such error, omission, irregularity, or mis direction has in fact occasioned a failure of justice. It is admitted by the learned Crown counsel that the learned Sessions Judge had indeed committed an irregularity in disposing of the two cases by one judgment. But his contention was that as that irregularity had not caused any injustice to the accused consequently it was curable under the said section. This proposition could not be controverted by the learned counsel for the appellants. His only grievance was that the disposal of two cases by one judgment had adversely affected the mind of the learned Sessions judge and thus had prejudiced the case of his clients. It is clear from the judgment of the learned Sessions judge that he had disposed of each case on the evidence which was recorded in that case alone. He had not read the evidence of one case into the other case. The question of the prejudice to the accused by the action of the learned Judge could not arise to our mind. We would have agreed with the proposition of Mr. Fazal Karim if the learned Judge had mixed up the evi dence of two cases in deciding them. In other words if he had referred the evidence of one case in deciding the other case. Similar question had arisen in 1927 Penal Code 26 where two parties were charged for their attack on 'each other in the same occurrence, and the charges were tried separately at two dis tinct trials. The evidence given for the prosecution was similar to a substantial extent in each case. Each party was a witness against the other but there was also independent evidence. Although they were tried separately, the High Court gave one judgment, but treated the cases as two cases which had been separately tried. There was, however, a body or separate evi dence which was applicable to each case and that in itself was enough for the conviction. It was held there that although technically it might have been better to keep the evidence entirely distinct and to have delivered two separate judgments, no injustice has followed from what was done. In this case the learned Sessions judge meticulously kept the evidence in each case separate from the other. Consequently the irregularity committed by him could not be treated as illegality as it had not prejudiced the cases of the appellant. A similar view is expressed on page 3014 of the Code of Criminal Procedure by Chitaley IV Edn. It is in the following terms : Under the law, although the `same affair' may give rise to different cases, the cases must be tried and disposed of sepa rately and the evidence in any such case cannot be used in any other case. But a breach of this rule need not necessarily lead to injustice and where no injustice is caused, under the principle of this section the proceedings will not be set aside notwithstanding any irregularity in this respect. Where, how ever, there has been prejudice caused, the proceedings should be set aside. The conclusion to which we arrive at is that whenever there are two distinct trials the judgment should be separate in each trial. If however this is not done, it is only an irregularity under section 537 of the Criminal Procedure Code provided the action of the Judge had not caused any injustice to the accused. In this case we are of opinion that no injustice is caused to the accused and we therefore overrule the objection of Mr. Chishti and hold that the irregularity committed by the learned judge stands cured in each case under section 537 of the Criminal Procedure Code. The next question is whether the case against the appellant for causing the murder of Fateh Muhammad was proved. There is voluminous evidence of eye‑witnesses which prove that Fateh Muhammad was killed by Azim, See the evidence of Yasin, Ata Muhammad, Hakim Ali, Allah Bakhsh, Gaman, Ahmad Ali, and Sadiq Muhammad prosecution witnesses P. W. 1, 2, 3, 4, 5, 6, and

10. The learned counsel for the appellant was unable to raise a finger against the testimony of any of these witnesses. It means that he had admitted as correct what was stated by them. We therefore hold that it was proved beyond doubt that Azim had killed Fateh Muhammad and we therefore maintain the conviction of the appellant under section 302 recorded by the learned Sessions Judge. There can be no two opinions on the question of sen tence. It was a diabolical murder shooting an un‑armed man and consequently the sentence of death passed by the learned Sessions judge is maintained which shall be executed after it is confirmed by Alahazrat Sarkar‑i‑Ali the Ameer of Bahawalpur. The file shall be sent to the Judicial Committee. A. H. Appeal dismissed.