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Criminal Revision No. 3 of 1968/(l3WP), decided on 22nd April 1968.

S. 439 read with Ss. 537 & 561----A---Illegality discovered in proceedings---Renders whole trial, vitiated--Appellate Court held, not called upon, in such circumstance, to examine merits of case before ordering retrial.

S. 537 [as amended by Code of Criminal Procedure (West Pakistan Amendment) Act (XVII of 1964)]---Charge framed against accused under S. 506, Part II, P. P. C.--Order of conviction made "under S. 506 Part II, read with S. 34, P. P. C."---Illegality, held, curable under S. 537.

S. 439 read with S. 423 Retrial---Incriminating circumstance brought on record by testimony of prosecution witness not put to accused---Accused prejudiced by such omission---Order of retrial maintained.

Ch. Muhammad Amjad Khan for Petitioner.

The learned counsel argues that the learned Sessions Judge, Rahimyarkhan, before ordering re-trial in this case should have considered the merits of the case and should have given a finding, as to whether the case was worth ordering a re-trial. The general principle of law is that when an illegality is discovered in certain proceedings, the whole trial stands vitiated. The learned Sessions Judge found two illegalities in the proceedings against the present petitioners. In the first instance, he found that whereas the charge framed against them under section 506, Part II of the Pakistan Penal Code did not mention section 149 of the Pakistan Penal Code, the ultimate order of conviction was made under section 506, Part II read with section 34 of the Pakistan Penal Code. Secondly, he found that Muhammad Rafiq (P. W. 4) made a statement against the accused and his evidence was made the basis for their convictions, but the incriminating circum stances brought on the record by this witness's testimony were never put to the accused. So far as the first illegality is concerned; in my view, it could be cured by application of section 537 of the Criminal Procedure Code as amended by West Pakistan Act XVIII of 1964.

2. The second ground for re-trial holds however, good because the accused has definitely been prejudiced by the omissions of the trial Court to put the evidence of Muhammad Rafiq to him. In my view, the learned Sessions Judge was not called upon to examine the merits of the case when he found an irregularity in the case which vitiated the whole proceedings.

3. I find no force in this revision petition which is hereby dismissed in limine.

Petition dismissed.

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