P L D 1953 Lahore 598 (PLP)

The Judgment under appeal, however showed that the learned Judge freely referred to that statement when stating the defence of this appellant though there was nothing on the record to show that the statement was read over to the appellant or to the assessors. The irregularity committed, therefore, vitiated the result of the trial. (b) Criminal Procedure Code (V of 1898), S. 309‑Assessors not asked to state their opinion on all charges on which accused had been tried‑Trial bail. M. Saleem and Muhammad Shafi for Appellants. C. M. Sharif, Assistant Advocate‑General for Respondent. MUHAMMAD MUNIR, C. J.‑--Shah Nawaz Khan, Fatah Zaman, Adalat Khan, Ahmad Khan and Fateh Khan were tried by the learned Sessions Judge, Jhelum, on charges of rioting, murder and attempted murder. Khan Zaman and Adalat Khan were further charged under section 19 (f) of the Arms Act for being in pos session of firearms without a licence. The learned Judge acquitted Ahmad Khan and Fatah Khan but convicted the other three and sentenced Shah Nawaz and Khan Zaman to death and Adalat Khan to transportation for life on the charge of murder. All three were also found guilty of attempted murder and rioting and were sentenced to ten years' rigorous imprisonment each on the former and to three years' rigorous imprisonment each on the latter charge. Khan Zaman and Adalat Khan were further sentenced to two years' rigorous imprisonment each under section 19(f) of the Arms Act. They have all appealed and the sentences of death have been referred to this Court for confirmation. One of the points taken in appeal by Mr. Saleem is that the convictions and sentences are vitiated by two irregularities. The, first irregularity pointed out is that the statement of Shah Nawaz appellant made by him as a witness for the prosecution in the cross case relating to the murder of Nur Muhammad was no brought on record and put to the assessors. This appellant. when examined by the committing Magistrate, was asked, "Did' you along with the co‑accused and the three absconders (Anwar Khan, Muhammad Nawaz and Bahadur Khan) when you were armed with a rifle and your co‑accused, Khan Zaman and Adalat Khan were armed with firearms. Ahmad Khan and Fatah Khan were armed with sotis and three absconders were also armed with firearms, go and take up position near the baithak of Sub. Maj. Zaman Khan and open fire at the baithak of Bahadur Khan and iujured Ghulam Ali, Mst. Feroze Bi, Mst. Begum and Fatah Khan pf whom Ghulam Ali and Mst. Feroze Bi succumbed to their gunshot wounds?" He replied that the version put forward by the prosecution was incorrect, that he alone was armed with a rifle and that he had made a full statement as a prosecution wit ness in the cross case. This statement was not brought on the record either by the learned committing Magistrate or by the learned Sessions Judge. The Judgment under appeal, however, shows that the learned Judge freely referred to that statement when stating the defence of the appellant though there is nothing on the record to show that the statement was read over to the appellant or to the assessors. The irregularity committed, there fore, vitiates the result of the trial. The other irregularity complained of is that, as required by section 300 of the Code of Criminal Procedure, the assessors were not required by the learned Sessions Judge to state their opinion on all the charges on which the appellants had been tried. As already pointed out, the charges tried related to murder, attempted murder, rioting and possession of firearms without a licence. The record does not state what questions were put to the assessors but it seems to be quite clear that on the conclusion of the trial they were not required to state their opinion separately on each of the charges tried. We are, therefore, constrained to set aside the convictions and sentences in this case and direct the learned Sessions Judge to resume the hearing of the case from the stage where the first irregularity was committed. He will recall all the four assessors, read to Shah Nawaz appellant his statement before the committing Magistrate as a prosecution witness in the cross case, ask him whether he made that statement, place that statement on record, rehear arguments, take the assessors' opinion on each charge and then write a fresh judgment. If he comes to the same conclusions as he did in the judgment under appeal he need not write an entirely different judgment and the judgment under appeal may be re‑written with such modifications as he may consider necessary in the light of the proceedings taken. The case will be disposed of within a month from the date of the receipt of the record. K.M.A. Retrial ordered.