' The petitioners have filed this petition under section 561-A, Cr.P.C. For the quashment of judgment and order, dated 9-8-1993 passed by learned Additional Sessions Judge, Chakwal in Criminal Revision No,2/19 of 1988-91 filed by respondent No,2 whereby he accepted the revision and upset the judgment dated 6-1-1988 passed by the Judicial Magistrate Section 30, Chakwal acquitting the petitioners in case F.I.R. No,41/83, dated 18-6-1983 under section 307/148/149, P.P.C. Police Station Dhumman, District Chakwal and remanded the case to the trial Magistrate for its retrial from the stage of recording the statements of the accused under section 342, Cr.P.C.
2. The brief facts relevant for the decision of this petition are that on 18-6-1982 at 9-00 a.m. Abdul Jalil P.W.1 made statement Exh.P.A. Before the police that there was an evacuee property adjacent to the house of Habib Khan petitioner No,3 which consists of two rooms and a Dhewdhi. One Shamim owner of Afghan Collieries was in its possession since 1950-51. In the year 1968, Fazal Dad, uncle of the complainant, got issued a P.T.O. With regard to that property in his favour under Settlement Scheme No,VII but its possession remained with Afghan Collieries. According to Exh.P.A., the complainant got possession of the property 18/19 days before the occurrence. On the day of occurrence at 8-00 a.m. The complainant alongwith his brother Muhammad Saghir P.W.5 was sitting in the courtyard of that house when the petitioners came there with common object while armed with Soties and raised Lalkara. Mahboob petitioner inflicted a Soti blow which hit Muhammad Saghir P.W. On his head. Habib Khan caused Soti blow to the complainant on his head.
Sohail inflicted a Soti (which was having sharp-edged iron) blow which hit the complainant on front side of his left buttock. Muhammad Afzal inflicted a Soti blow hitting Muhammad Saghir P.W.
On his back. Muhammad Idrees gave a Soti blow to the complainant on the upper side of his left shoulder. In the mean time, Abdullah Khan and Muhammad Afzal, father and maternal-uncle respectively of the complainant stepped forward to rescue them. Ghulam Qadir petitioner caused Soti blow on the head of Muhammad Afzal P.W.2. Habib Khan petitioner inflicted a Soti blow on the right hand of Abdullah Khan P.W.3. Muhammad Idrees inflicted Soti blows to Abdullah Khan P.W. On his right shoulder and on the right side of his back. Muhammad Afzal petitioner then caused Soti blows to the complainant on his back. Mehmood inflicted a Soti blow on the left arm of Abdullah Khan P.W. Then all the petitioners started inflicted Soti blows to the complainant and the injured P.Ws. The complainant also caused injury to Muhammad Idrees with a Soti in his defence.
' The hue and cry raised by the complainant attracted Manzoor Hussain and Muhammad Farooq.
3. The learned Magistrate vide his order, dated 1-6-1988 acquitted the petitioners. The complainant filed a revision against the said order which was accepted by the learned Additional Sessions Judge vide judgment, dated 9-8-1993 and remanded the case to the trial Magistrate for retrial from the stage of recording the statements of the accused/petitioners under section 342, Cr.P.C.
4. Learned counsel for the petitioners contended that the learned Additional Sessions Judge remanded the case for retrial on the sole ground that the petitioners were not properly examined under section 342, Cr.P.C.; hence the trial Court violated the provisions of section 342, Cr.P.C. He further contended that according to the scheme and object of the Criminal Procedure Code, the procedural law was enacted to ensure that the accused who is a favorite child of law should get justice, and any illegality which is not curable under section 537, Cr.P.C. If committed during the trial and caused prejudice to the accused would entitle him to acquittal on this legal plane only. The Code nowhere has laid down that any illegality in the procedure if committed and has not caused prejudice to the accused would entitle the prosecution to ask for the retrial of the case. He has placed reliance on PLD 1988 Pesh. 44, 1988 PCr.LJ 954, 1988 MLD 1477, 1988 PCr.LJ 1580, 1990 PCr.LJ 1221, PLD 1986 FSC 242 and PLD 1986 Lah.
340.
5. Learned counsel for the State has supported the impugned judgment on the ground that the learned trial Magistrate has committed a material illegality in the examination of accused persons under section 342, Cr.P.C.; hence the impugned order is sustainable in the eye of law.
6. Learned counsel for respondent No,2 vehemently urged that the primary duty of the Court of law is to do justice and the procedural law is enacted for keeping this and in view that if due to the non-observance of procedural law injustice has occasioned irrespective of the fact whether it effects the defence or the prosecution, the case should be remanded for retrial. He further contended that by non-observing the provisions of section 342, Cr.P.C. The trial Court committed an illegality which is not curable under section 537, Cr.P.C. Hence the learned Additional Sessions Judge rightly remanded the case for its retrial. He also submitted that the learned trial Court has not maintained the proper record of the proceedings and this defect cannot be cured; hence the impugned order is not open to any legal exception.
7. I have heard the learned counsel for the parties and examined their respective submission.
8. The object of the Criminal Procedure Code is that the accused should be given proper chance to defend his case before the Court of law and justice should not be sacrificed at the altar of the procedure but if during the trial any procedural illegality is committed which has caused prejudice to the accused then that illegality is not curable under section 537, Cr.P.C. And sentence or conviction of the accused could be reversed or altered on this score alone. Section 537, Cr.P.C.
Does not give any benefit or right to the prosecution to claim retrial on the ground of procedural irregularity, even if it is accepted for the sake of arguments that non-compliance of the provisions of section 342, Cr.P.C. Is an illegality, still it does not advance the case of prosecution, because this provision is primarily made for the benefit of the accused. The bare reading of section 537, Cr.P.C.
Would disclose that if during the course of the proceeding, any irregularity is committed which has caused prejudice to the accused that illegality is not curable but other procedural irregularities are curable under the provisions of section 537, Cr.P.C. I may observe here that the trial already held by the learned Magistrate has not been found to be unsatisfactory and has not resulted into failure of justice. The learned Magistrate acquitted the petitioners after proper appreciation of evidence with regard to the occurrence took place in the year 1982. Even the learned Additional Sessions Judge has not kept in mind the guiding principles for not ordering the retrial i,e, ordeal of protracted trial which the petitioners had already undergone, the time that has elapsed between the date of commission of the offence and the date of order of retrial; the expenditure that might have been incurred by the defence and the nature of evidence available against the petitioners.
' For the foregoing reasons, it is concluded that the impugned judgment is not well-balanced and reasonable one, the same is accordingly set aside and the judgment of the trial Court is restored.