P L D 1958 Karachi 441 (PLP)

"That you on or about the 8th day of December 1955 at breakfast time formed an unlawful assembly and in prosecu tion of the common object of that assembly you tried to take possession by force of S. No. 408 in Deh Noor Kamal, in possession of Banho Dayio and while taking the possession you caused injuries to Ali Nawaz, Ghulam Nabi, Banho and Sadik and also voluntarily caused deaths of Ghulam Ali and Ghulam Hussain with hatchets and lathis and thereby com mitted offences punishable under sections 147/447/324/302/read with 149, P. P. C. and within Sessions cognizance. And I hereby direct, that you be tried by the Sessions: Court, Larkana on the said charge." The opinions of the assessors were recorded as under :‑‑ "Assessor No. 1 Ghulam Nabi. I can't say about each accused to give opinion. But my opinion is that those accused who are stated by P. W. to have caused injuries are guilty and not others. Assessor No. 2 Mr. Hussain Bux. I am also not able to name the accused individually as guilty or not as they are so many. But in my opinion those accused only are guilty who P. W. say gave injuries and not others. Assessor No. 3 Mr. Ghulam Mohd. "I am also of the same opinion and for the same reason. The accused who P. W's. say gave injuries are guilty and others not." In Arbab v. The State (P L D 1957 Kar. 170), in which one of us was a party, it was observed, following Prem Nath v. The State of Delhi (P L D 1956 S C (Ind.) 4). "It is clear that it is the duty of the Court to ascertain the opinion of each assessor individually on all the charges on which the accused has been tried and to record such opinion. If an opinion expressed initially does not cover all the charges it is the duty of the Court to put questions in order to ascertain the opinion of each assessor in regard to each charge." Their Lordships of the Supreme Court observed in the above case. "The requirement as to the opinion of the assessors having to be taken on all the charges on which the accused has been tried was specifically inserted in S. 309 by an amendment of the Criminal Procedure Code in the year 1923. Prior to this amendment the Court was merely enjoined, at the conclusion of the trial, to require each of the assessors to state his opinion orally and to record such opinions . . . . . . But it does not follow that violation thereof nullifies the entire proceedings in a case like the present, where there are several charges tried together. The trial was certainly regular right up to the conclusion and in the concluding step there has been only a partial violation of the prescribed procedure. The effect of such a partial violation must depend on the facts of each case. In such a case toe truth or the falsity of one portion of the prosecution case may well have a reasonable bearing on the other. The non‑ascertainment of the opinion the assessors on all such charges which form an integrally connected portion of the transaction may cause prejudice. Consistent opinions of an individual assessor on all such inter connected charges are likely to carry greater weight with the Judge . . . . . . The not taking of the opinion of the assessors in respect of all the charges for which the accused C was tried is certainly a grave violation of an imperative provision of the Code. In a case where the charges are so interconnected that the truth or otherwise of the one would reasonably react on the D truth or otherwise of the other, such prejudice has to be presumed and the conviction would be illegal." In the present case all the acts which constitute the subject matter of the various charges not only constitute part of one transaction but are in such quick succession and are so integrally connected that the truth or falsity of one is bound to react on the other. The record does not suggest that section 309, Cr. P. C. was present to the mind of the learned Judge at the time when he recorded the opinion of the assessors. It does not appear upon which of the charges or which of the accused, the assessors thought the accused guilty. While avoiding prolixity the learned Judge should have been careful to be intelligible and precise in recording the reasons by which each assessor arrived at the result. An attempt should have been made, in a case like the present, to elicit from each assessor an opinion of his own, and reasons of his own as required by Sind Courts Criminal Circulars Chapter VII (xxi). It would have been open to him to question them to elucidate their opinions. The learned Judge seems to have recorded the opinions in a rather vague and superficial manner, and one cannot be sure whether the assessors had clearly visualized the position that they were being required to state their opinions on all the charges with which, the accused had been charged. In Shah Nawaz and others v. The Crown (P L D 1953 Lah. 589) Muhammad Munir, C. J., as he then was, set aside the convictions and sentences in similar circumstances and directed the learned Sessions Judge to resume the hearing of the case from the stage where the first irregularity was committed. We, therefore, 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 of the irregularity. He will recall all the three assessors and take their opinion regarding each of the appellants 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. B. A. Conviction set aside Case remanded.