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Criminal Petition for Special Leave to Appeal No. 22-R of 1980, decided on 8th March 1981. (On appeal from the judgment and order of the Lahore High Court, Lahore, dated 5-4-1980, passed in Criminal Appeal No. 54 of 1979).
-- Cross-cases-Trial Judge deciding case in hand on basis of testimony appearing in cross-case-Action of trial Judge, held, not only entirely illegal but also not curable under S. 537 of Criminal Procedure Code, 1898-Impugned judgment of High Court in so far as it concerns refusal to direct retrial, held further, not wrong in view of circum stances of case and keeping in view part played by both sides resulting in injuries to both parties.-Criminal Procedure Code (V of 1898),' S. 534.--[Cross-cases-Retrial].
Pehlwan v. The State P L D 1975 Kar. 84 and Emperor v. Anandya S. Mahir A I R 1940 Lah. 466 ref.
Sardar Muhammad Ishaq Khan, Advocate and M. Afzal Siddiqi, Advocate -on-Record for Petitioner.
Nemo for Respondents Nos. 1 to 3.
Muhammad Aslam Uns, Advocate on behalf of Advocate-General (Punjab) for the State.
Date of hearing : 8th March 1981.
This order should be read alongwith the order on Criminal Petition No. 19-R of 1980. -The acquittal in appeal, of the respondents by the High Court, which has been challenged through this petition, is based on the grounds as observed by the learned Single Judge, that "the learned trial Judge has not discussed the evidence in the instant case whether relating to the ocular account, the medical testimony or the reco veries, 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 the 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 required for this view Pehlwan 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 sentence of the appellants must be set aside".
The learned Single Judge in the High Court also considered the question of directing retrial but for good reasons mentioned in para. 8 of the impugned judgment, declined to do so.
The reason which prevailed with the learned Single Judge in the High Court for setting aside the judgment of the learned trial Court, it cannot be doubted, is unexceptionable. And in the circumstances of the case, keeping in view the part played by both the sides in the occurrence which resulted in injuries to both the sides, we do not find any error in the impugned judgment of the High Court in so far as the refusal to direct the retrial is concerned. It is not a fit case for grant of leave. We have dismissed the leave petition in the cross-case. This petition is also dismissed.
Petition dismissed.
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