1996 P Cr (PLP)

P.W.1 Mitha, the complainant; P.W.2 Sohna, the brother of deceased; P.W.3 Shabbir Ahmad, the witness of recovery of shot gun (Article 1); P.W.4 Dr. Faqir Muhammad, the Medical Officer, who conducted post‑ mortem of deceased in 1973 and produced duplicate copy of Certificate as Exh.P.4/A. P. W.5 Syed Faqir Shah. On 16th November, 1973, he was posted as Constable with Attaullah Khan Niazi, S.H.O., and being acquainted with the latter's signatures; he confirmed that Exh.P.3/A, recovery memo. of cartridges, 3‑B, Inquest report 3‑C, Inspection Note, 3‑D, blood‑stained earth, 3‑E, blood‑stained clothes and P.5/A, site plain, contain his signatures. To provide contents of these documents, statement of Muhammad Hasham son of Kaloo was recorded on 4‑12‑1990, during trial of co‑accused Ghulam Haider. However, this witness independently produced sketch of Wardat (Exh.P.5/A) although the then S.H.O. did not associate him as witness, when he prepared the site plan; P.W.6 Jamil Asghar, the S.H.O., who got recovered shot gun (Article 1) on 21‑11‑1988, after 11th of taking over the custody of appellant. Thereafter prosecution side was closed and appellant was examined under section 342, Cr.P.C. as well as on oath under section 340(2); Cr.P.C. In both the statements, he canvassed his false implication in the commission of offence. In defence, no witness was examined.. On the conclusion of trial, learned Sessions Judge, vide judgment, dated 8th October, 1995, convicted the appellant under section 302/34, P.P.C. detailed hereinabove. Mrs. Ashraf Abbas, learned Advocate, contended that prosecution had failed to produce consistent/convincing and trustworthy evidence to establish accusation against appellant. So much so, the trial Court did not convict the appellant, independently, in view of the evidence available on record. Actually on having discarded total evidence, conviction has been based on the judgment of this Court in Criminal Appeal No. 13 of 1992, dated 22nd July, 1992, which has been confirmed by Honourable Supreme Court by dismissing Criminal Jail Appeal No. 135 of 1992, vide judgment, dated 14‑11‑1992. According to learned counsel it was mandatory for trial Court to have recorded reasons of conviction independently, whatever the position may be, instead of relying on the previous judgments, which otherwise could not be pressed into service against appellant, because he was not party to them. Chaudhry Ejaz Yousaf, learned Additional Advocate‑General, stated that evidence of P.W. Mitha has been thrashed out thoroughly, during trial and appeal proceedings in the case of co‑accused Ghulam Hyder and on the basis of same, conviction of life imprisonment was awarded to him, therefore, on the same evidence, appellant Allah Wariah, being co‑accused can lightly be convicted and he cannot claim exception, in view of minor contradictions in his statement, which were bound to crop up, as a period of more than 20 years had passed, when he witnessed the incident. As such, conviction recorded against appellant, being proper and in accordance with law, deserves to be maintained. We have heard the parties' counsel at length and have also perused the proceedings conducted by Sessions Judge, during trial of appellant. Apparently it being a unique case in its nature, where trial of accused has been held after about 20/21 years from the date of incident, on the basis of evidence, so collected, at that time by Attaullah Khan Niazi, S.H.O. (not produced), therefore, to decide the fate of case, it is necessary to be more careful, so that injustice is not caused to any of the party. A careful perusal of impugned judgment indicates that substantially learned Sessions Judge, failed to persuade himself for recording conviction/sentence against the accused on the basis of material produced before him. But to convict/sentence the accused, he placed reliance solely on the judgment recorded by this Court in Criminal Appeal No. 13 of 1992, filed by co accused Ghulam Haider, whereby the order of conviction/sentence, dated 15th January, 1992, was maintained and also on the verdict of Honourable Supreme Court, dated 14‑11‑1992, whereby Jail Appeal No. 135 of 1992 filed by said accused was dismissed. In this regard it is to be seen that according to Article 56 of the Qanun e‑Shahadat, 1984, the judgment passed in a litigation, to which a person was not party, will have no binding effect, in view of the principle enshrined in the maxim "Res inter alias judicare nullom inter alias prejudicum" i.e. a matter adjudicated upon between one set of persons does not in any way prejudice another set of persons. The previous judgments, in which appellant Allah Wariah was not a party has no prejudicial effect as for as, his case is concerned. The learned Court misdirected itself by recording conviction/sentence. Against him, on the basis of previous judgments. It is pertinent to note that trial Court also independently evaluated and assessed available material on record, but did not proceed to independently decide the matter, due to which, prejudice has been caused to both the parties, because the State also could not file appeal against prejudicial observations against it, as ultimately on wrong assumption of law, conviction was recorded. On the other hand, since the appellant was convicted for the reasons, not recognized by law, therefore, to this extent, only he could have filed appeal. Thus, in the circumstances, we consider it appropriate to set aside the impugned order and remand the case to learned Sessions Judge, for recording final order independently, keeping in view the principle of law, concerning the binding effect of previous judgment, noted hereinabove. Thus, appeal is partially allowed, impugned judgment is set aside and case is sent to trial Court i.e. Sessions Judge, Nasirabad for rewriting the judgment, strictly in accordance with law, after providing an opportunity of hearing to all concerned. N.H.Q./574/Q Case remanded.