P L D 1952 Sind 23 (PLP)

TYABJI, C. J.‑This is a revision application made on behalf of Kasim son of Usman, who has been committed to this Court in its Sessions jurisdiction for trial of an offence under section 392 of the Pakistan Penal Code. The trial was fixed for the 16th April. In this application, which was made on the 14th April, it was contended that a procedure, which was improper and contrary to the law; had been. adopted in summoning the jury, that the matter had been brought to the notice of the learned judge, Muhammad Bachal J., before whom the trial was to take place, and that the learned Judge had erred in neither adjourning the trial, nor having the jury summoned in accordance with .the procedure laid down by the law. As the objections raised to the procedure adopted appeared to us to be of a very grave character, we ordered an adjournment of the trial until this application was heard and disposed of. The material facts are as follows :‑ The applicant was tried by a jury before Muhammad Bachal J. On the 5th March, 1951, the jury brought in a verdict of not‑guilty by a majority .of seven to two. The learned judge, finding himself unable to accept the verdict, ordered a retrial and fixed the date of the retrial for the 16th April The Registrar who is the Clerk of the Crown sum moned 40 jurors to attend Court on the date of the hearing. Of these 21 were Christians and 19 Muslims, no Hindu or Parsi jurors had been summoned, as the Registrar had been directed by the learned Judge not to summon any such jurors. On the 28th March the Registrar, under the directions of the learned judge, submitted a report with regard to the jurors summoned for the retrial, in which it was mentioned that 21 Christians and 19 Muslims had been summoned. Thereupon, on the 29th March, the learned judge passed the following order :‑ "Ten more Christains to be bound down from those dis charged in case before the 16th". It appears that the learned Judge has for some time past adopted a very unusual and novel procedure. When the jury was empanelled at a trial, and it was found that there were Christian jurors present who, either because they were chal lenged or because their names were not drawn by the lot, were not empanelled, the learned judge ordered all such. Christian jurors to be bound over to attend again as jurors on other dates, on which other Sessions trials were fixed. The order passed by the learned Judge on the 29th March, therefore, meant that out of the Christian jurors who would attend on the dates when other Sessions trials were ‑fixed before the 16th April, ten who were not empanelled were to be bound down to appear again on the 16th April. On the 31st March the learned judge passed another order, in modification of the order which he had passed on the 28th, as follows:‑ 'Christians not bound down before the 2nd, and those dis charged in the case fixed on the 9th, be bound down for hearing on 16th." These words require to be explained. There was a Sessions trial fixed for the 2nd of April, and another on the 9th April. Certain jurors had been summoned to attend the trial which had been fixed on the 26th March, and had been bound down to attend on the 2nd April. If the order passed by the learned judge on the 29th March stood as it was, the Christian jurors, who had been summoned for and had appeared on the 26th March and had‑been bound down to appear again on the 2nd April, would also have been liable to be bound down for the trial on the 16th April. This was‑brought to the notice of the learned judge, and the learned Judge's order, made on the 31st March, was meant to make it clear that those jurors, who had been bound down on the 26th to appear on the 2nd, were not again to be bound down on the 2nd to appear on the 16th, but excepting such jurors, all other Christian jurors, who would appear on the 2nd or the 9th April and not be empanelled on the jury, were to be bound down to appear on the 16th April, even if the number of such Christian jurors exceeded ten. In pursuance of this order 9 Christian jurors who attended Court on the 2nd, and 7 who attended Court on the 9th, were bound down to appear on the 16th. On the 10th April the Registrar again reported the position to the learned judge in a statement showing the "position of service of summonses' upon Christian jurors" for the trial on the 16th..' This statement showed that 21 Christians had been summoned ; that out of them, 2 had been exempted, 5 had been unserved, 10 had been served, and 4 summonses had not been returned. The statement also showed that 9 Christian jurors had been bound down on the 2nd and 7 on the 9th: The position with regard to the Muslim' jurors summoned was also separately shown. It was mentioned that out of the 19 Muslims summoned, 11 had been served, 2 exempted, 2 had been unserved, and 4 summonses had not been returned. It was clear, therefore, that 26 Christians and 11 Muslims might be expected to attend on the 16th. On this, the learned Judge passed the following order on the 12th April :‑ "Out of the Christians appearing on the 16th after the jury is selected, the remaining Christians, except those bound down before, should be bound down for the next retrial case. Stop 5 Muslims forthwith." In accordance with this order 5 Muslims jurors, out of the 11 who had been served, were asked not to attend, so that 26 Christian and 6 Muslim jurors would, it was expected, attend on the 16th. On the 13th April, Mr. Hassanally, the learned counsel for the applicant , made an application before the learned Judge in which he objected to the procedure adopted, asked for an adjournment of the trial fixed on the 16th April, and prayed that a fresh list of jurors be ordered to be summoned by the C J . Clerk of the Crown in accordance with the law. It was pointed out in the application that under the Criminal Procedure Code and the Rules of this Court the power of summoning the jurors was vested in the Clerk of the Crown. It was pointed out that the procedure adopted by the learned judge of discriminating between the various communities, of binding down persons who attended as jurors, and of compelling Christian jurors to attend more than once in six months was illegal and contrary to the provisions of the Criminal Pro cedure Code, and it was contended that a jury empanelled in this manner could ‑not be regarded as a properly constituted jury. On this application the learned judge passed the follow ing order : ‑ "Heard Mr. Hassanally. Under Rule 528 Chief Court Rules a juror summoned for a particular date can be asked to attend at the next or some subsequent Session. It is not a fact that only Christian jury have been summoned for the date of hearing. There is no violation of any mandatory provisions, even if this Court is a High Court for the purposes of Chapter XXIII Criminal P. C. The Court will be properly constituted as the jurors shall be chosen by lot. Rejected." This revision application was made in consequence on the 14th April. The objections made by the learned counsel for the applicant, which are all supported by .the learned Advocate- General, must clearly be upheld. Section 315 of the Criminal Procedure Code clearly charges the Clerk of the Crown with the duty of summoning "as many of those who are liable to serve on special or common juries respectively as the Clerk of the Crown con siders necessary" and it is clearly improper for a judge trying a particular case to interfere or concern himself unduly with the functions and duties which under the law have to be carried out by the Clerk of the Crown. Rule 513 of the Rules (Original Side) of this Court makes the Registrar, Appellate Side, or in his absence the Registrar, (Original Side), ex‑officio the Clerk of the Crown. Clause (2) of Section 315 of the Criminal Procedure Code provides that no person shall be summoned as a juror more than once in six months except when the number cannot be made up without him, and it is clear that any summons or order requiring any juror who had been summoned, to attend again within six months would be contrary to the law and clearly without jurisdiction, unless the entire list of jurors of that class had been exhausted within that period. It is hardly necessary to point out that' for the purposes of this provision it makes no difference whether a person who had been sum moned was or was not empanelled on the jury. The statutory, exemption is from being summoned and being called upon to attend. The provision is also clearly meant to ensure that' no packing of the jury takes place. It is intended that jurors should be summoned from the list by rotation, that everyone on the list should be called upon to attend before any of them is called upon to attend a second time within the period. We feel constrained to characterised the attempt made by, the learned judge to discriminate between the jurors on the basis of the community to which they belonged as improper in the extreme, and contrary to every principle on which justice is administered in this State. We hope that there will be no trace of any such discrimination discoverable in the future. The procedure adopted of binding down jurors was also clearly improper, contrary to the express terms of clause (2) of section 315 of Criminal Procedure Code, and entirely with., out jurisdiction. The learned Judge was clearly in error in, chinking that there was anything in Rule 528 (Original. Side) which permitted such a procedure. The Rule is as follows :‑ "Any person who has been summoned as a juror for any Session may apply to the Clerk of the Crown to cause him to be excused from attendance as a juror either generally or at that particular Session. Such application shall be made at least four days before the date fixed for the commence ment of the Session, and shall specify the grounds upon which the application is made. The Clerk of the Crown shall, as soon as possible after the last day allowed for making such applications, dispose of the same or if he considers it necessary or desirable bring them before the judge presiding at the Session. Such orders as may be passed on the appli cation shall be communicated by the Clerk of the Crown to the respective applicants. If the judge or the Clerk of the Crown shall think fit to excuse any of the applicants from attendance at the particular Session, he may do so unconditionally or on condition of his serving at the next or some subsequent Session to be fixed, and any such conditional order shall operate as an authority to the Clerk of the Crown to include "the name of such person in the list for such subsequent Session." It is obvious from the plain terms of this Rule, that it has no application whatever, except when a juror, who has been summoned to appear at a particular Session, applies for an exemption. The Rule only empowers the judge presiding at the Session to pass an order, if and when the Clerk of the Crown considers it necessary to obtain the orders of the judge on such an application for exemption. On such an application for an exemption being so brought before the presiding judge, and on the judge deciding to grant the exemption and not otherwise, the Rule empowers the judge to order either that the exemption be granted unconditionally, or on the condition that the applicant will serve at the next or some subsequent Session. The Rule does not enable the judge to do anything more. The Rule further makes it clear that if the judge orders that the exemption be granted conditionally; the effect of the conditional exemption would be to empower the Clerk of the Crown to summon the applicant again within the period of six months. The Rule also does not dis pense with the‑necessity of the juror, to whom the exemption is granted conditionally, being again summoned in the ordinary regular manner by the Clerk of the Crown to attend at any subsequent Session. The object of the Rule is quite obvious. It enables the Clerk of the Crown and the judge, if they so choose, to refuse to allow a person, who if exempted from attending a particular Session, from claiming the further benefit or nor being summoned again for six months. The Rule clearly does not empower either the Clerk of the Crown or the Judge‑to make any sort of an order whatever against any juror who has not applied for an exemption. Any order passed against any juror who has attended in answer to a summons and has not applied for an exemption would clearly be wholly without jurisdiction, and contrary to the law. These remarks sufficiently dispose of the matter arising for consideration on this application, and no further order is necessary. A. H.