1. MUHAMMAD APZAL ZULLAH, J.--This order should be read along with 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.
2. The State (PLD 1975 Kar. 84 ) and Emperor' v. Anandya S. Mahir (AIR 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".
3. 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.
4. 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.