Law: Criminal Procedure Code, 1898

Section: S. 375

Criminal Procedure Code (V of 1898), S. 375 read with S. 342-Further inquiry during Reference to High Court, of case of convicted person sentenced to deathProvisions of S. 375 regarding inquiry cannot be used to cure "illegality"-Noncompliance with provisions of S. 342-"Illegality"-Case to be remanded for "re-trial", not for "inquiry" in terms of S. 375 : [Emperor v. Hari and others A I R 1935 Sind 145 ref. Queen v. Sheikh Mustafa 1 Suth W R Cr. 1 and Empress v. Pahuji I L R 19 Bom. 195 considered].   Re-trial-Ordered ab initio where Sessions Judge who held original trial had been raised to Bench of High Court-[Moonda v. The State P L D 1.958 S C (Pak.) 275 considered].   Re-trial-High Court (D. B.) remanding case for "inquiry" in terms of S. 375, Criminal Procedure Code (V of 1898) owing to non-compliance with provisions of S. 342, Criminal Procedure Code (V of 1898)-Case coming up before different (D. B.) after comple tion of "inquiry"-Latter (D. B.) of opinion that "re-trial" instead of "inquiry" in terms of S. 375 was called for-Case referred to (F. B.)-Remanded for "retrial".   JUDGMENT   ORTCHESON, J.---The relevant facts of the case are given in this Court's order dated the 25th of January 1962, which should be referred to in this connection.   Mr. Ghazanfar Ali Shah for the State was unable to cite any precedent on the pointthat section 375, Cr. P. C. can be used A to cure an illegality, arid for the reasons in the referring order we have no option but to hold that the order remanding the case for further enquiry passed by the Bench which heard the appeal of the convict and the reference under section 374, Cr. P. C. cannot be sustained. That order is accordingly quashed and the conviction of the appellant set aside.   The next question for consideration is what further action should be taken. Although,in Maonda v. The State (P L D 1958 S C (Pak.) 275), it was ordered that the case be remitted to a Sessions Court to be selected by the High Court and retried from the point of conclusion of the prosecution evidence, keeping in mind…