By this single judgment I will dispose of the Criminal Miscellaneous No,533/Q of 1999/BWP and Criminal Miscellaneous No,534/Q of 1999/BWP as the common question of law is involved therein.
2. This is a petition under section 561-A, Cr.P.C. Against the judgment passed by the learned Sessions Judge, dated 1-5-1999 by virtue of which he remanded the case to the learned trial Court against the judgment, dated 15-8-1998 passed by the learned Assistant Commissioner/Magistrate 1st Class, Rahimyar Khan whereby the petitioner was sentenced under section 21(2)(b) of the Agricultural Pesticides Ordinance, 1971 and was sentenced to one year's R.I. And a fine of Rs,50,000 in default of payment of fine to further undergo S.I. For six months.
3. A complaint was lodged by the Deputy Director, Agriculture against the petitioner under section 21 of the Agricultural Pesticides Ordinance, 1971. The learned trial Court framed a formal charge on 10-6-1998 for keeping the abovementioned pesticides for sale which was substandard. The petitioner denied the charge and pleaded not guilty.
4. The statements of P.W.1 Ghulam Rasool, the Field Assistant and P.W.2 Ch. Muhammad Anwar, Deputy Director, Agriculture (Extension), Rahimyar Khan, were recorded as witnesses. The prosecution tendered in evidence the report of the Assistant Agricultural Chemist Pesticides, the Quality Control Laboratory, Multan, Exh.P.C. And that of Federal Pesticide Testing and Reference Laboratory, Karachi, Exh.P.D. The Statement of the petitioner as an accused was recorded under section 342, Cr.P.C. And vide order, dated 15-8-1998 the learned Assistant Commissioner/Magistrate 1st Class, Rahimyar Khan convicted the petitioner under section 21(2)(b) of the Agricultural Pesticides Ordinance, 1971 and awarded one year's R.I. Alongwith fine of Rs,50,000, in default of payment of fine to further undergo S.I. For six months. The petitioner filed a criminal revision petition before the learned Sessions Judge under section 439-A read with section 435, Cr.P.C. The learned Sessions Judge, vide judgment, dated 1-5-1999 accepted the revision petition, set aside the judgment and conviction having been delivered against the petitioner by the learned trial Court and remanded the case to the learned trial Court for trial afresh.
5. The learned counsel for the petitioner submits that the learned Sessions Judge has erred in law remanding the case to the learned trial Court to cure the errors of law committed by the trial as well as the prosecution before the original Court, hence has prejudiced the petitioner's acquittal.
6. The conviction order was based upon report of Assistant Agricultural Chemist Pesticides, Multan and the report of Federal Pesticides Testing and Reference Laboratory, Karachi Exh.P.C. And Exh.P.D.
Respectively, but none of, the reports was put to the petitioner while being examined under section 342, Cr.P.C. And the settled proposition of law in this respect is that when any incriminating evidence is not put to the accused under section 342, Cr.P.C. The conviction cannot be sustained and that each of the incriminating aspect of the matter is mandatory to be put to the notice of the accused so that to enable him to forward his defence. Any incurable defect vitiates the trial. Relies on Sohail Ahmad and 6 others v. The State and another 1995 PCr.LJ 2036.
7. Learned counsel for the State has submitted that the learned Sessions Judge was duty bound to decide the case on merits rather to remand the case to the learned trial Court.
8. The learned counsel in Criminal Miscellaneous No,533-Q of 1999 submits that due to non- observance of procedural law the case can be remanded to the learned trial Court when the revisional Court comes to the conclusion that the trial Court has committed an illegality for non- observation of the provisions of section 342, Cr.P.C., therefore, the instant case is rightly remanded for retrial.
9. I have heard the learned counsel for the petitioner as well as the learned counsel for the State and have minutely gone through the finding of the learned revisional Court.
10. The learned Sessions Judge through speaking order has given a verdict that the conviction based on the evidence which is not recorded according to the Qanun-e-Shahadat and without affording an opportunity of cross-examination to the accused has no legal significance. As cross- examination of P.W.2 was reserved and there is no explanation on the record whether any opportunity of cross-examination of P.W.1 was given and when the two witnesses appeared on 27- 7-1998 their cross-examination was recorded but no oath was administered to both the P.Ws. He has also given a finding that the reports Exh.P.C. And Exh.P.D. Upon which the conviction of the convictee is based were not put to the accused under section 342, Cr.P.C. And this was material incriminating evidence which was mandatory to be put to the accused.
11. The settled proposition of law is that the accused is favourite child of law and all these provisions of law enable the accused to give him a full chance to offer his defence, in order to establish his innocence. It is also the utmost duty of the Court to give him a full opportunity to defend his case in a Court of law and the Court has to see that complete justice has been done. In order to avoid any type of legal prejudice to the accused the Legislature has intentionally under section 537, Cr.P.C.
Restricted that any irregularity of charge which has prejudiced the trial would not be curable to disentitle the accused to acquittal, as laid down in Sheikh Liaquat Hussain v. The State 1997 PCr.LJ
61. Therefore, section 537, Cr.P.C. Does not give any benefit to the prosecution to claim retrial on the ground of procedural error or defect or irregularity.
12. In view of what has been discussed above, I accept this Criminal Miscellaneous and set aside the judgment passed by the learned Sessions Judge, dated 1-5-1999, remand the case to the learned Sessions Judge to decide the case purely on merits.