ORDER OF REFERENCE The facts of the case are as follows :- The accused Jahan Dad was married to !List. Munawar Begum, about 15 years ago. They Have five children. Two of them are daughters and three of them are sons. In March i9iy, they shifted to the town of Jhelum, for earning their livelihood by dint of hard labour. The accused worked as a labourer in the town of Jhelum, whereas his wife installed an owes for baking breads on wages.
2. Unfortunately on 2-5-69 the man and wife had an altercation on a petty matter. At Kuftanwela the wife reprimanded her son on a trifle and the accused took it ill. He abused her. Her brother, Basher was also there. He intervened and separated then. The matter was hushed up. After a short time, the accused began to close the windows and the wife objected to it. They exchanged abuses.
The accused felt so much offended that he took up a hatchet and gave a blow from its wrong side to her head. In the turmoil their youngest son Tanvir began to weep. He was lifted up by the wife in her lap. At the same hatchet from the wrong side, unfor--tunately, this blow landed at Tanvir. The result was that the child died after a short time. The wife had received only simple injuries. The accused was challaned for an offence under section 304, P. P. C.
3. The case was tried by Mr. Mohammad Feroze Ahmad Khan, Magistrate section 30, Chakwal. He sentenced the accused under section 304, Part II, P. P. C. To undergo R. I. For two years and under section 324, P. P. C. To undergo R. I. For three months. The accused was confined in jail on 25-8- 1969.
4. The accused filed an appeal. The learned Additional Sessions Judge, Jhelum, by his order dated 16-3-1970, ordered retrial on technical grounds. The case went back to the trial Court. Firstly, the trial Court issued notices and after three dates of hearing it was brought to the notice of the said Court that the accused was in District Jail, Hazara, undergoing some imprisonment. Many letters were written to the Jail Authorities and finally on 13-11-1970, the accused appeared before the Court in police custody. In the meantime the accused had suffered his entire punishment and the Jail Authorities passed a release order. As he was still required by the Court for trial in this case, therefore, he was not released. In jail inspection he represented to me that he had already undergone his punishment, therefore, he should not be tried for the second time for the same offence. I have examined the records, I find that the accused was in District Jail, Hazara, therefore, no body had informed him that his appeal was accepted and a retrial was ordered. No information was sent to the Jail Authorities to the effect that he was no longer a convict but he was only an under trial. In these circumstances he has undergone the punishment already which was awarded to him by the trial Magistrate on 25-8-1969.
The proceedings are forwarded for revision on the following grounds :--
(i) As the accused had already undergone his punishment, therefore, it will be sheer injustice to try him again for the same offence.
(ii) The facts, as alleged do not disclose a case under section 304, P. P. C. The accused had no intention to cause the death of his wife or his son. He had no knowledge that the injury was likely to fall on his son and to cause his death. In my considered opinion his falls under section 323, P. P. C.
Or at the maximum his action may be called a rash and negligent act and so his case falls under section 304-A, P. P. C.
The first altervative is that the entire proceedings may be quashed and the accused may be discharged. The second alternative is that the order of the appellate Court by which the case was remanded may be set aside so that the conviction under order dated 25-8-1969 may stand. In that case it can be held that the accused had already undergone his imprisonment. As grave injustice was being done to the accused, there--fore, I have released him on bail. The record is sent to the Lahore High Court, Lahore, for passing any suitable order in the circumstances of this case.
Jahan Dad respondent was convicted under section 304 Part II and 324, P. P. C. With a sentence of R.I. For two year and R.I. For three months respectively on 25th August 1969 which was set aside on appeal on 16th March 1970 by Kh. Muhammad Ashraf then Addl. Sessions Judge, Jhelum remanding the case for a retrial on account of mere technical defect as the evidence had been recorded by the Reader without the preparation of any memorandum by the trial Magistrate. This order was however not communicated to the jail authorities who bad released him after the expiry of his sentences.
2. The trial Magistrate after this remand had however issued warrants for his arrest and he was produced in his Court in custody on 13th of November 1970.
3. In the course of his retrial Sh. Saeed Ahmad, Sessions Judge, Jhelum, visited the jail and on coming to know of his misfortune had made a reference to this Court recommending the quashment of these pro--ceedings against him as his retrial involved double jeopardy.
4. I have sent for the record and perused the same with the assist--ance of Mr. Akhtar Shabbir.
Advocate, appearing on behalf of the State which has confirmed the above facts. To my mind, the order of remand of the case on this technical defect was bad in law in view of the observations made in Muhammad Aziz v. Crown (PLD 1950 Lah 134), Hazrat Jamal v. The State (PLD 1958 SC
(Pak) 383), Rat! v. State (1971 P Cr. L J 753) and State v. Mehmud A.I (1972 P Cr. L J 1020) I have, therefore, to set it aside.
5. As a result of the proposed order the appeal filed by the respondent in the Court of the Sessions Judge, Jhelum, against the order of his conviction dated the 25th August 1969 shall have to be restored for a fresh decision, but it would be inexpedient to re-open the mater after four and a half )ears as he has in the meanwhile undergone the sentences imposed upon him in this case. It would, therefore, be in the interest of justice to quash all these proceedings under section 561-A, Cr.
P. C. And order according). As the respondent has already been released on bail by the Sessions Judge his bail bonds shall stand discharged.