P L D 1954 Baghdad﷓ul﷓Jadid 64 (PLP)

FAIZ MUHAMMAD, C. J.‑Abdul Hamid son of Fazal Muhammad and Fazal Muhammad son of Muhammad Bakhsh Arains of Tehsil Khanpur, who are son and father have been convicted by the Sessions Judge Rahimyar Khan under section 307 P. P. C. and 307 read with section 109 P. P. C. respectively and sentenced to six years R. I. each. Both have appealed to this Court against their conviction and sentences. Malik Karam Ezad Advocate represented the appellants while Legal Remembrancer appeared for the Crown. Before the appeal could be argued on facts my attention was attracted by what appeared to me a grave irregularity about the appointment and behaviour of assessors who were supported to aid in the trial. The learned counsel for the parties also submitted that the irregularity was material enough to vitiate the trial. For a proper appreciation of the position it is necessary to begin with the appointment of the assessors. From a perusal of the record of the Sessions Court it appears that summonses were to be issued to the following five persons to present themselves in the said Court on 20th of February 1954 to serve as assessors in the trial of the case:‑ (1) Sh. Ilahi Bakhsh of Rahimyar Khan, (2) Haji Abdus Samad of Mianwali Shekhan, (3) Munshi Nabi Bakhsh also of Mianwali Shekhan, (4) Syed Imam Shah of Hajipura and (5) Mirza Mujtaba Ashraf of Ashrafabad. There is nothing on record to indicate whether the above named persons did or did not appear in Court on the 20th of February 1954 and if they did appear why only one of them namely Sh. Ilahi Bakhsh and two others (not summoned) were made to act as assessors. The only order on file, dated the 20th of February 1950 is silent on the point. However it appears from the record that the trial started in the presence of three assessors namely Sh. Ilahi Bakhsh Muhammad Akbar Kanjoo and Qazi Muhammad Hashim. It is difficult to see how the two last mamed gentlemen happened to be in Court on the 20th of February 1954 and were made to act as assessors and whether their names are on the list of assessors prepared under section 321 Cr. P. C. The matter does not end here. There is on record an application, dated the 14th of March, 1954 in which Muhammad Akbar Kanjoo requested the Court to excuse him from attendance on that date on the ground that he ‑ had broken his arm. The only order on the back of this application is to the effect that it may be placed on file. This is dated the 16th of March, 1954 and is signed by some one for the Sessions Judge. It does not show that the Sessions Judge had done anything to ascertain whether the excuse put forward by Muhammad Akbar Kanjoo for his non‑attendance was in fact true or that any attempt was made to compels his attendance. Anyhow the trial proceeded with the a of two remaining assessors. On the 3rd of April 19'Y nazi Muhammad Hashim applied to the Court to excuse him from attendance on that date on the ground that he was suffering from fever. On the back of this application there is an order by the Sessions Judge saying that the application was not accompanied by a Medical Certificate. It was, therefore, forwarded to the Magistrate 1st Class Rahimyar Khan with the direction that he the Magistrate may ask Qazi Muhammad Hashim to prove his illness. The Magistrate was further required to send the relevant paper to the Sessions Court. In the case of Qazi Muhammad Hashim also there is nothing on record to show that any attempt was made to enforce his attendance. Two of the three assessors having been thus eliminated the trial proceeded with the aid of only one assessor namely ad, Sh. Ilahi Bakhsh and the case was decided. After the above recital of facts which have been gleaned from the record of the case I may state that there is nothing illegal about a trial in the Sessions Court being continued with the aid of two or even one assessor if it is started with the requisite number (3 or 4) of them. The use of the words "the other assessor or assessors" occurring in sub section (1) of section 285 Cr. P C. leaves no manner of doubt in this regard. But if we read section 284 and 285 (1) together we come to the conclusion that while the former section lays down the rule about the number of assessors with whose aid a trial is to be held, the latter section constitutes an exception to it. Viewed in this light section 285 (1) Cr. P. C. must of necessity be construed strictly i. e. conditions laid down in it should be strictly complied with before it is made use of in a particular case. The subsection runs as follows:- " If in the course of a trial with the aid of assessors, at any time before the finding, any assessor is from any sufficient cause, prevented from attending throughout the trial, or absents himself, and it is not practicable to enforce his attendance, the trial shall proceed with the aid of the other assessor or assessors". Read carefully this section lays down two conditions precedent for its applicability. These are:‑ (1) that the assessor or assessors concerned should be prevented from attending throughout the trial or be absent from a sufficient cause and (2) that it should be impracticable to enforce his or their attendance. Unless and until these two conditions are satisfied it would, in my opinion, be improper to hold the trial with the aid of less than the requisite number of assessors as provided in section 284 Cr. P C. In other words non‑compliance with conditions laid down in section 285 (1) constitutes a material irregularity which cannot be cured by section 537 Cr. P. C., This was the view held by a Division Bench ruling of Allahabad High Court reported as A I R 1946 All. p.

253. The learned Judges Sinha and Bennet in that case observed as follows :‑ "The judgment does not show what prevented Fateh Mamoor Khan from attending the Court and whether the learned judge considered that his absence was due to sufficient cause within the meaning of the law. All that the order sheet shows is that he was not present. It also does not show that the learned Judge took any steps which were practicable" to enforce the attendance "of Fateh Mamoor Khan. We think that this was a material irregularity which has vitiated the trial of the accused". I need hardly say that I am incomplete agreement with this view. In my opinion the present case is on all fours with the Allahabad case: There is nothing on the record of the present case to indicate that the absence of two assessor namely Mohammad Akbar Kanjoo and Qazi Mohammad Hashim had been from a sufficient cause. Nor is there anything on record to show that it was impracticable to enforce their attendance. I have a shrewd suspicion that the learned Sessions judge himself did not believe that the excuse put forward by Qazi Mohammad Hashim about his illness was valid. In any case we do not know whether this assessor was really ill or was merely avoiding attendance. Similarly we do not know whether Mohammad Akbar Kanjoo did or did not fracture his arm. In the face .of these circumstances it cannot be said to have been established that the non‑atten dance of these two assessors had been from a sufficient cause that it was impracticable to enforce their attendance. In fact no steps seem to have been taken to enforce it. There is also another factor which makes me doubtful about the desirability of allowing the judgment of the trial Court to stand. As pointed out above five persons had been summoned out of whom three or four had to be chosen for aiding in the trial. There is nothing on record to show whether all these five persons responded to the summonses or not. If they did respond and turn up why four out of them were not chosen and why two other persons who had not been summoned were asked to aid in the trial. For all the reasons stated above I set aside the order of the Sessions Judge and send the case back for trial according to law. The case will now be tried by the Additional Sessions Judge Bahawalnagar. The appellants will be released on bail on each of them furnishing security for Rs. 5,000 and also executing personal bonds for the like amount. The Additional Sessions judge is directed to give preference to this old case over other comparatively recent ones. A. H. Case sent back for re‑trial.