P L D 1961 Supreme Court 13 (PLP)

Fazal Elahi, Advocate Supreme Court instructed by Ijaz Ali Attorney for Respondent. Dates of hearing : 10th and 11th November 1960. CORNELIUS, C. J.-As we are of the opinion that owing to a legal flaw of a serious nature, it is necessary to set aside the convictions of the appellants Muhammad Sajjad and Muhammad Sharif, and to direct that they be retried on the same charges, it is desirable that we should say as little as possible concerning the facts. The legal flaw which we have found in the proceedings is that, at the conclusion of the trial, the provision in section 309, Criminal Procedure Code, that each assessor shall be asked to state his opinion regarding, all the charges, was not complied with. There were three accused persons in the case, namely, Ata Muhammad, Muhammad Sajjad and Muhammad Sharif of whom Ata Muhammad was charged under section 302/109, P. P. C as a person who had instigated the crime, namely, the murder of one Muhammad Khan, apparently from motives of jealousy arising from Muhammad Khan's appointment as Lambardar in the village. Ata Muhammad was acquitted by the High Court The evidence against him is distinct and without bearing upon the case against the other two accused persons. Muhammad Sajjad is a son of Ata Muhammad, while Muhammad Sharif is a tenant-servant of Ata Muhammad. These two persons were charged with having, in collaboration with a stranger who was armed with a pistol, caused the death of Muhammad Khan by means of multiple blows with knives. A second charge against these two men was that in furtherance of an intention shared by them in common with the aforesaid stranger, the act of causing simple hurt to two women, namely, Mst. Zainab mother of the deceased, and test. Aimna, a relation was performed by the aforesaid stranger. The injuries caused were two contusions to Mst. Zainab, and a contusion, a contused wound and an abrasion to Mst. Aimna, and these were said to have been caused with the butt-end of the stranger's pistol. These two women professed to have attempted to save Muhammad Khan when he was being stabbed to death by Muhammad Sajjad and Muhammad Sharif. It was said that the stranger pulled them aside before striking them. There were only two other eye-witnesses, namely, Inayat and Bahawal, both of whom are described as collaterals of Muhammad Khan. Bahawal was relied upon by the trial Court as well as by the High Court, but the High Court judgment shows that the learned Judges chose not to rely upon Inayat thinking that it was "very doubtful if this man was present on the spot at all". His place of residence is at a considerable distance, and his excuse for being on the spot was negatived by another witness, apart from which he was directly inimical to the accused Ata Muhammad. No independent circumstance being available to connect either of the appellants with the commission of the crime, it was most important to examine the character of the eye-witnesses with .4 particular care to be assured that, although they were closely related to the deceased, whose enmity with the present appellants and Ata Muhammad was a matter of common knowledge, yet they could be relied upon beyond reasonable doubt for holding that the appellants and no others caused the death of Muhammad Khan. As for Bahawal, the opinion was expressed that as the scene of the occurrence was close to his land, it was natural for him to be there, and his failure to intervene (he bore no injury on his person) was explained by the presence of a pistol in the hand of the stranger-murderer. But as to the two women witnesses, their presence was held to be established beyond reasonable doubt by two circumstances, firstly, the presence of stains of blood on their clothes, and secondly, the presence of injuries on their persons. If thus arose as a matter of crucial importance in the case that the opion of the assessors as to whether the two appellants were constructively liable for the injuries caused to the two women witnesses, should have been obtained. It was directly connected with the question whether or not the assessors believed that those injuries were inflicted upon them in the course of the incident. Four assessors assisted at the trial and each was asked his opinion in respect of two questions only, viz:- "(1) whether the prosecution has succeeded in proving that Sajjad and Muhammad Sharif are guilty of murder of Muhammad Khan on 29th May, 1958, at village Kot Ali, and (2) whether Ata Muhammad accused abetted their murder?" They were not asked their opinion as to the credibility of individual witnesses, and in particular no question was put to them upon the clear charge under section 323/34, P. P. C., which had been preferred against them in respect of the simple hurt to Mst. Zarnab and Mst, Aimna. The omission was in clear contravention of section 309, Criminal Procedure Code. We have been referred by Mr. M. Sleem for the appellants to a number of judgments of superior Courts on the question of the effect of non-compliance with the particular provisions of section 309, Criminal Procedure Code which are here in question. The view taken on the subject by the learned Judges of the High Court in the present case does not conform to any previous decision, including those which are cited in their judgment. It appears to proceed upon the single consideration that the Session Judge was not bound to conform to the opinion of the assessors, and their opinion could therefore have no effect upon the decision of the case. The learned Judges were aware that in so holding, they were nullifying a clear provision of the Code of Criminal Procedure, as appears from the following observations in their judgment:- "The wisdom of the Sessions trial with the assistance of the assessors, must only be known to the Legislators who incorporated it in the Criminal Procedure Code. It appears that the utility of this provision of law only lay either with the assessors or with the authorities who selected them. Otherwise in law their assistance was of no consequence in the decision of the Sessions case, because whereas under subsection (1) of section 309 of the Criminal Procedure Code the Sessions Judge was bound, after the conclusion of the prosecution evidence and that of the defence, to require each of the assessors to state his opinion orally on all the charges on which the accused had been tried, under subsection (2), it was specifically laid down that he was not bound to conform to such opinion." Some of the implications of this pronouncement are distinctly unpleasant, and from every point of view it would have been much better avoided. The present is not a proper occasion upon which to examine the full utility of having assessors at a trial of a serious offence, but as to the importance which should be attached to the opinions of assessors, how they are formed and how they are to be obtained, we may refer with advantage to two judgments of the Privy Council, namely the case of Dhalamini from Swaziland in Africa (AIR 1943 P C 4) and that of Tumahole Bereng from Basutoland in Africa (A I R 1949 P C 172=P L D 1949 P C 47). These judgments, which the principles of which we hereby express our agreement, were pronounced in cases where trials for serious offences had been held under the local law with the aid of assessors, and the Judicial Committee placed so high a value upon the correct formation of an assessor's opinion, and upon the correct mode to be adopted in obtaining the opinions of assessors, that where they found departure from the correct practice, they did not hesitate to quash the convictions. It is only in a very extreme case that a Judge can be permitted the liberty of questioning the wisdom of legislation. His duty is to apply the law as he finds it, and in this particular case, we are constrained to say that the learned Judges in the High Court have consciously not complied with this requirement of their duty, and have done so upon an estimate of the procedural provisions with which we are wholly unable to agree. The judgments cited upon section 309, Criminal Procedure Code were delivered in relation to the particular facts of each case, and the only principle which we think can safely be extracted is that non-compliance with the relevant provision in section 309, although, ,it might have the full aspect of illegality if no opinions at all were obtained from the assessors or any of the charges, yet if the non-compliance is in respect only of a minor part of the case as we find it to be here, the contravention would amount ordinarily to an irregularity, and as to an irregularity of procedure, the principle is clear, namely, that it does not vitiate a conviction unless there has been consequential prejudice to the person convicted. In the present case, we find that the failure of compliance is directly connected with the formation of a correct opinion as to the credibility of the evidence given by the two woman witnesses, and upon the answer to that question, the decision in the whole case must naturally turn. Therefore, the prejudice from the failure to question the assessors with respect to the charge under section 323/34, P. P. C., is perfectly plain. We direct accordingly, that the appeal be allowed and the convictions of the appellants being set aside, their case should be remanded to the trial Court, for retrial of the two appellants on the two charges previously framed, namely, under section 302/34, P. P. C., for the murder of Muhammad Khan and under section 323/34, P. P. C., for the simple injuries caused to Mst. Zainab and Mst. Aimna. It will in alt respects conduce to justice if the case were placed for trial before a Sessions Judge other than Mr. Munammad Ali who tried the case in they first instance. A. H.??? Re-trial ordered.