P (PLP)

(d) Confession‑Use against co‑accused‑Stronger indepen dent corroboration in material particulars required in the case of retracted than in that of unretracted. Even an unretracted confession by one accused implicating another must be corroborated in material particulars before its evidentiary value can be used against the second accused. In the case of a retracted confession the evidence against the co‑accused must be infinitely stronger to the extent that even without the evidentiary value of this retracted confession he would have been convicted on independent evidence. Public Prosecutor, for Crown Mirza Muhammad Hanif and Sh. Muhammad Arif, for Respondents. JUDGMENT.‑‑This is an appeal by the Local Administration against the order of acquittal dated 22nd December 1949 by the learned Sessions judge in the case of the accused Muhammad Hanif and Muhammad Ayyub who were charged with an offence under section 302 of the Pakistan Penal, Code. I have carefully perused the records of this case as well as the judgment of the learned Sessions Judge and I observe that, in this case, the Sessions Judge was assisted by three assessors who unanimously came to the opinion that the accused Muhammad Hanif was guilty of the murder of Muhammad Sarwar but that the accused Mohammad Ayyub was not guilty. In perusing the judgment I also observe that the learned judge has made no mention of the fact that he has taken an opposite view from that expressed by the three assessors in the case of Muhammad Hanif It is therefore necessary for me to examine, in the first place, the applicability of section 309, Criminal Procedure Code, in regard to this aspect of the case. Subsection (2) of this section clearly states that a Judge shall give his judgment, but in so doing shall not be bound to conform to the opinion of the assessors. There can therefore be no doubt that the learned Sessions Judge was not bound, by any mandatory provisions of law, to accept any opinion of the assessors as expressed and that it was his duty to assess and weigh the evidence, both for the prosecution and the defence, and both as to the facts and law, and then to give his judgment accordingly. In this case the Sessions judge has acted in accord ance with the provisions of the law. I feel, however, there are certain principles upon which a judge should act and which he should follow when he is assisted by assessors in a trial. It has rightly been held that a judge who decides a case without inviting the opinion of the assessors virtually holds the trial without the aid of assessors and his finding cannot be regarded as one by a Court of competent jurisdiction. But in the case before me there is no doubt from the record that the opinions of the assessors were invited and have been recorded. In so far as this case is concerned, I feel, however, that the matter cannot rest there. Various High Courts have repeatedly held that the record should not only contain the opinion of each assessor, as given orally, but should also contain the conclusions arrived at by each assessor i. e., the grounds for his opinion. Further, as remarked by Jenkins C. J. in 2 Born. L. R. 322: "We are led by the meagre record of the assessors 's opinion in this case to point out how desirable it is that assessors should be invited and encouraged by a Sessions judge to state briefly the grounds of their opinion as well as the result". Assessors are undoubtedly appointed to aid a judge in the trial and to give their opinion, though such opinion is not legally binding on the judge as in the case of a verdict by a jury. But when the opinion of the judge differs from that formed by the assessors the judge should always ascertain the grounds for the assessors' opinion. Again if a Sessions Judge's finding differs from the opinions of the assessors, and he gives a judgment without conforming to their opinions, it is his duty to record in his judgment the opinions of the assessors and the reasons given by them for their opinions. It is equally clear that while the opinions of assessors are opinions only, having no legal validity, their weight will depend solely on the reasons and sense by which they are supported. It has further been held that a record indicating the grounds for the opinion expressed by assessors will be of use to the Court of Appeal when a case comes before it for hearing. I am in full agreement with the principles expressed above. In this case the assessors have given a clear opinion as to the guilt of accused Muhammad Hanif, and equally as to the innocence of accused Muhammad Ayyub; but in recording his judgment the learned Sessions judge has made no reference whatsoever to the opinions so expressed, and, for reasons stated in his judgment, has recorded his own views as to why he considers both the accused innocent and has acquitted them. As the Court of Appeal in this case, in which an appeal against acquittal has been lodged, I am placed in the difficult position of being unable to assess the reasons why the assessors game to the conclusion that accused Muhammad Hanif was guilty. I am further placed in the difficult position of being unable to follow why the learned Sessions judge disregarded the opinion expressed, While I have made it clear that it is not mandatory upon a Judge to follow the opinion expressed by the assessors, it should, in common prudence, be necessary or a Sessions Judge to give his clear reasons for dis agreeing with tile opinion so expressed, particularly in a case where the opinion of three assessors is unanimous, for if such opinions are apparently completely disregarded and the judge concerned proceeds to record his judgment without stating why he disagrees, there' must be' a strong presumption to the effect that the trial has been held virtually without the aid of the assessors, even though the legal formality of recording their bare opinion has been ob served. In that event, the trial itself would be without competent jurisdiction and would have to be set aside and re‑trial ordered. In this case, however, the opinions of the assessors lave been expressed and recorded but the fact that no reference to the opinions is made in the judgment 'must be considered as an irregularity, though curable under the provisions of section 537, Criminal Procedure Code. In accepting the fact that the irregularity is curable I cannot, however, overlook the fact that the main consideration of the Appellate Court is to ensure that justice is done. In a case falling within the purviews of section 302, Pakistan Penal Code public interest is involved, for the accused have been placed on trial by the Crown and as such it is the duty of an appellate Court to ensure that a fair and proper trial takes place. It can be argued and strongly argued that, in ignoring completely the opinions expressed unanimously by three assessors without assign ing any reasons therefore, justice may not have been done; for some reason must have existed for three assessors to return unanimously and independently a verdict of guilty against the accused Muhammad Hanif. If those reasons were unsound tile accused would be properly acquitted, Dut if they were sound, but still ignored by the trial judge, a presumption might be raised that in acquitting him the judgment was manifestly perverse. The powers of an Appellate Court to order re‑trial under the provisions of section 423 (1) (a) of the Criminal Procedure Code are discretionary. As a general rule an order for re‑trial will be proper where trial in the lower Court has been illegal, irregular or otherwise defective. It is therefore, necessary for me to see whether the case before me can be considered as falling within the purviews of this general rule of practice. In the first place, as I have already stated, no illegality had peen committed but, in my opinion, a serious irregularity has been committed even though it is curable by section 537, Criminal Procedure Code. It might be held that as the record is before me and since I have heard arguments both for the prosecution as well as for the defence, this Court is in a position to come to its final conclusions on both the facts and the law of the case and to give its finding on the appeal. But, however lengthy the arguments may have been, and however detailed the record, there is the serious omission that I am unable to discover the reasons for the assessors coming to the conclusions which they did in, the case of Mohammed Hanif and the reasons why, in his judgment, the learned Sessions judge ap parently ignored the opinions so expressed and formed an opinion of his own, the basis of which was the acquittal of both the accused. I therefore consider that this irregularity is of such a serious nature that the only course before me is to exercise my discretion and to direct a re‑trial. The case for the accused as such will not be prejudiced and the Crown will once more be permitted to seek a de novo trial. In making this order I do not propose to comment on the merits of the case against the accused Muhammad Hanif. The‑result of this order is the setting aside of the previous trial and the case will be at large once, more before another trial Court. I would observe that this order is not intended to act as. an encour agement to the Crown to seek to produce further evidence against the accused as an important guiding principle is‑to the effect that re‑trial will not be ordered to permit of the persecution improving on the evidence already led in the previous trial. This part of my order will relate to the accused Muhammad Hanif only and I accordingly direct that the proceedings already taken against him will be set aside and that he will be re‑tried in the Court of Ses sion, Baluchistan, It follows, as a matter of course, that the appeal against the acquittal of Muhammad Hanif must be accepted. I now proceed to deal with the case against the accused Muhammad Ayyub. The circumstances here are somewhat different, for the assessors unanimously found him not guilty. In recording his judgment the learned Sessions judge has come to the same conclusions as the assessors and has acquitted the accused. I do not propose to go into lengthy comments about the case against accused Muhammad Ayyub as it is clear from the record that the main evidence against him is the fact that he was implicated by the co‑accused in the confession which the latter made. This con fession was subsequently retracted and it is an elementary principle of law that even an un-retracted confession by one accused implicating another must be corroborated in material particulars before its evidentiary value can be used against the second accused. In the case of a retracted confession the evidence against the co. accused must be infinitely stronger to the extent that even without the evidentiary value of this retracted confession he would have been convicted on independent evidence. Certain circumstantial evidence has been led by the prosecution against Muhammad Ayyub accused, but it is not sufficiently strong in nature to sustain a conviction against him. I find that the Sessions Judge has come td correct assessment of the evidence against this particular accused and has given him the benefit of the doubt and so acquitted him. Moreover, as has been held by this Court in cases in which appeals are lodged against acquittal, the accused should have the benefit of the doubt presumption as to his innocence. This presumption follows from the fact that 'where, in the first place, he must be considered innocent until proved guilty the presumption in his favour is all the stronger when once he has been acquitted at his trial. The case for the Crown in making a successful appeal against acquittal is extremely onerous. There is no doubt in my mind that the case against accused Muhammad Ayyub is weak, and it would only be possible for me to set aside the order of acquittal if I were fully satisfied that the learned Sessions judge has taken a completely perverse view of the facts of the case or the law governing it. It is further clear that it would not normally be proper for an Appellate Court to take an opposite view of the facts to those expressed by the trial judge who has had the full opportunity, of hearing witnesses and assessing their value as wit‑nesses for the prosecution. The case against this accused is one of fact, and I do not feel that the learned Sessions Judge has either taken a perverse view of the facts of the case or of the law in regard to the evidentiary value of the confession by the accused Muhammad Hanif in relation to the co‑accused Muhammad Ayyub. In these circumstances I decline to accept the appeal against accused Muhammad Ayyub which is accordingly dismissed. K. M. A./A. H. Re‑trial ordered.