' HASNAT AHMAD KHAN, J.---Succinctly the facts of the case as unfolded in the F.I.R. No,174/2001 dated 10-10-2001 lodged at the instance of Mst. Saghreen Akhtar are; that on 19-10-2001 at about 5- 00 p.m. Sohail Anwar, complainant's son/injured P.W. Visited his fields. At that time Bashir Ahmad and Akhtar were stately busy in cutting/harvesting the paddy crop owned by the complainant party. Sohail Anwar, injured P.W. Prohibited/restrained the said accused persons from harvesting the paddy crop, which culminated into a scuffle between the parties. On hearing the commotion, the complainant along with two other eye-witnesses allegedly reached at the scene of the occurrence and witnessed the same. In presence of the eye-witnesses Muhammad Bashir/petitioner who was allegedly armed with a hatchet asked Mst. Tahira Bibi petitioner to fetch a pistol from her home, on which Mst. Tahira Bibi brought a pistol from her house and handed the same over to her husband namely Muhammad Akhtar/petitioner who shot at and injured the forehead and left flank of Sohail Anwar injured P.W. Hence the F.I.R.
' After due investigation, a report under section 173, Cr.P.C. Was submitted which culminated into the trial of the petitioners which was conducted by a learned Magistrate Section 30, who found Muhammad Akhtar petitioner guilty under section 324, P.P.C. And convicted and sentenced him for a period of 5 years'. R.I. Along with a fine of Rs,10,000 as Daman, in default whereof he was directed to undergo six months' S.I. He was also held guilty under section 337A(iii), P.P.C. And sentenced to 3 years' R.I. Along with a amount of Rs,6000 as Arsh. While Muhammad Bashir and Mst.
Tahira/petitioners were convicted and sentenced under section 34, P.P.C. (which is only an enabling provision) for a period of six months' S.I. And a fine of Rs,1000 each in default whereof they were ordered to undergo S.I. For 15 days. All the petitioners filed an appeal which was accepted by a learned Additional Sessions Judge, Shakargarh, District Narowal on 23-5-2007 and the case sent back to the learned trial Court for its retrial. Being aggrieved of the said order the petitioners have filed this revision petition.
2. In support of this petition the learned counsel contended that after coming to a conclusion that the learned trial Court had committed certain illegalities during the trial, the learned appellate Court i,e, Additional Sessions Judge, Shakargarh, should have. Acquitted the petitioners straightway instead of sending the case back to the learned trial Court; that while ordering for retrial of the case the learned appellate Court failed to consider that the petitioners were facing the rigors of the trial as well as the investigation, since 11-10-2001. To strengthen his argument the learned counsel has placed reliance on the cases of Abid Hussain v. The State 2000 PCr.LJ 1300 and Sohail Ahmad and 6 others v. The State and another 1995 PCr.LJ 2036.
3. After hearing the learned counsel I do not find myself in agreement with him. The record reveals that during the occurrence Sohail Anwar, injured P.W. Was shot at and injured by a pistol shot. The occurrence took place in a broad daylight. During the trial the eyewitnesses including the injured P.W. Stood to their ground and supported the prosecution version whole heartedly and staunchly.
After finding all the accused fully responsible for launching an attack upon the complainant party and causing injuries to the injured P.W. The accused/petitioners were convicted and sentenced by the learned trial Court as mentioned above, but during the trial, the learned trial Court did commit certain illegalities on the basis of which the judgment whereby the petitioners were convicted was set aside by the learned appellate Court and the case was sent back to the learned trial Court for its retrial. It is not the case of the petitioner that the illegalities committed by the learned trial Court did not vitiate the trial, rather it is the case of the petitioners that instead of ordering for the retrial the petitioners should have been acquitted by the learned appellate Court but the arguments advanced by the learned counsel do not carry enough weight. Similarly the case-law cited by the learned counsel for the petitioners is not helpful to the petitioners. In the case of Sohail Ahmad and 6 others (supra) the application under section 561A, Cr.P.C. Challenging the order of retrial after reversal of judgment of acquittal was accepted by this Court, therefore, the said precedent cannot be pressed into service for the acceptance of this revision petition. The facts of the case titled Abid Hussain v. The State (supra) are also distinguishable from those of the case in hand. In the said case a judgment of conviction passed in a case involving a minor offence under section 21(2)(b) of Agricultural Pesticides Ordinance, 1971, was set aside and the case was remanded. The order of remand, however, was converted into that of an acquittal by this Court. But unlike that case the petitioners, in this case, are involved in a case of heinous and serious nature, therefore, they cannot be acquitted simply on the technical grounds.
4. Admittedly, during the trial the learned trial Court committed certain illegalities which made the entire trial vitiable. For instance, it is an admitted fact that the statements of material prosecution witnesses were recorded by some official of the said Court. Similarly the charge was not framed against the accused/petitioners in accordance with law. Moreover, while recording the statements of the accused/petitioners under section 342, Cr.P.C. Incriminating evidence was not put to them. A perusal of the memo. Of appeal filed by the petitioners reveals that while seeking their acquittal, all the said lacunas were duly pointed out by the petitioners themselves after terming the same as illegalities. Under the law the learned trial Court was bound to record the evidence itself or on its dictation. The violation of the said law, is such an illegality, which vitiates the trial. While holding so, I am pinning my faith on the cases of Ghulam Abbas v. Inayatullah and another PLD 1976 Lah. 1555, Muhammd Inayat and others v. Muhammad Aslam and another 1998 PCr.LJ 344, Muhammad Sarwar v. Khuda Bakhsh PLD 1950 Lah. 274, Abdur Rehman v. Allah Diwaya PLD 1950 Baghadad-ul- Jadid 96 and Tahir Javed and others v. Abdul Razzaq and others PLD 1995 Lah.
261. In all the said cases, after setting aside the impugned judgments based upon the said illegality, the cases were sent back to the learned trial Courts for their retrial. In another case titled Abdul Hakeem and another v. The State 2005 PCr.LJ 181 it was held that conviction without framing a distinct charge and examining the accused on that charge, suffered from a material irregularity, not curable by section 537, Cr.P.C. In the case of Farrukh Sayyar and 2 others v. Chairman N.A.B., Islamabad and others 2004 SCMR 1 the petition for leave to appeal filed by the accused challenging the order of demand passed by the High Court was dismissed by the Honourable Supreme Court and the order of the retrial was upheld. In a nutshell the learned counsel for the petitioners has failed to point out any illegality, irregularity or B jurisdictional mot: committed by the learned appellate Court, therefore, the petition in hand being devoid of any force is dismissed in limine.