P L D 1954 Federal Court 79 (PLP)

Muhammad Yaqub Ali Khan, Advocate, Federal Court, instructed by M. B. Khizar Tamimi, Attorney, for Respondent. Date of hearing : 20th May 1952 ABDUL RASHID, C. J.‑--This is an appeal, by special Leave, from a decision of a Division Bench of the Chief Court of Sind. The appellant was sentenced to death, under the provisions of section 302 of the P. P. C., for the murder of his own wife Mst. Siani. He was also convicted under section 304 (Part I) for causing the deaths of Kasim and Mst. Nasiban and was sentenced to transportation for life in each case. He was awarded a sentence of one years rigorous imprisonment under section 19 (e) of the Arms Act. The facts of the case are few and simple. Five or six years before the present occurrence the appellant, was married to Mst. Siani deceased. Mst. Siani was the daughter of Hakim. Hakim and the appellant used to reside in adjoining houses. The deceased Kasim had married a sister of Hakim and was a cousin of the accused. He used to live with Hakim. In the same house there used to reside Mst. Nasiban deceased who was abducted by the accused and was latter on married by him. It was suspected that she was carrying on an affair with Kassim. The case for the prosecution is that at about 2 p.m. on the 15th of October 1948, Hakim was returning from an adjoining village when he heard the sound of gunshots proceeding from his house. As soon as he reached near the house, be saw Yousaf coming out, armed with a gun and cartridges. Hakim entered the house and saw his daughter Mst. Siani lying dead as a result of a gunshot wound. He went into the adjoining house and saw Kassim and MO. Nasiban lying dead. These two persons were without trousers and had been killed with gunshots. Hakim brought several persons to see the dead bodies and then proceeded to the police station where he lodged a report at 8 p.m. After committing the offence the accused absconded. He was ultimately arrested in Khairpur State by the State Military Forces. Minoo was a friend of the accused and in his house was present another person, Dost Muhammad. Both of these witnesses allege that the accused bad told them that be had murdered three relatives, two being females and one male. Salimi, a small girl of 7, was also produced as a witness in the case but the learned judges of the Chief Court of Sind have discarded her testimony on adequate grounds. The conviction thus rests on the evidence of Hakim, and the testimony of Minoo and Dost Muhammad relating to the extra‑judicial confession and the arrest of the accused after about two months while he was in possession of a shot gun. The trial in the Sessions Court lasted for several days. The accused was tried with the aid of three assessors, namely, Mr. Janado, Mr. Jamal‑ud‑Din and Mr. Dur Muhammad. On the 18th of March 1950, which was the last day of the trial, Mr. Jamal‑ud‑Din absented himself. The other two assessors stated that the case against the accused was doubtful. The principal point argued on behalf of the appellant was that on the 18th of March, the last day of the trial, the tribunal was not properly constituted as the learned Sessions judge was assisted on that day by only two assessors. It has been laid down under section 284 of the Cr. P. C. that where the trial is to be held with the aid of assessors, not less than three and, if practicable, four shall be chosen from the persons summoned to act as such. Under section 285 it has been enacted that if any of the assessors absents himself and it is not practicable to enforce his attendance, the trial shall proceed with the aid of the other assessor or assessors. It was strenuously urged that as there was no note on the record that it was not practicable to enforce the attendance of Mr. Jamal‑ud‑Din who bad absented himself on the 18th March, the learned Sessions judge had no jurisdiction to continue the trial with the aid of only two assessors. The tribunal not having been properly constituted on the 18th of March, the proceedings of that day were without jurisdiction. It was maintained that in these circumstances the only course justified by law was to order a re‑trial. In support of this con tention, reliance was placed, on behalf of the defence, on the decision of the Allahabad High Court in the case of Emperor v. Baddan (I L R (1946) All. 129.). In that case, the judgment of the trial Court did not show what prevented one of the assessors from attending the Court on a certain day and whether the judge considered that his absence was due to sufficient cause within the meaning of the law. All that the order‑sheet showed was that one of the assessors was not present. It also did not show that the judge took any steps which were practicable to enforce the attendance of the assessor. In these circumstances, it was held that the trial had been vitiated by a material irregularity as it was not clearly shown on the record that the Sessions judge had taken any steps to enforce the attendance of the absent assessor. This decision of the Allahabad High Court merely refers to the provisions of sections 284 and 285 of the Code of Criminal Procedure and lays down that as there was no indication on the record that the Sessions judge took any steps to enforce the attendance of the absent assessor, it must be held that he took no such steps. The above decision of the Allahabad High Court was followed by a Division Bench of the Dacca High Court in the case Kasim Ali Mira v. The Crown (P L R 1951 Dacca 589=P L D 1952 Dacca 253.). This judgment contains no independent reasoning and merely follows the Allahabad decision. It is necessary to refer to four sections of the Code of Criminal Procedure, namely, sections 274, 282, 284 and 285, in order to determine whether the words "if practicable" have been used in a directory or a mandatory sense. It has been enacted by section 274 that in trials before the High Court the jury shall consist of nine persons but that in trials by jury before the Court of Session the jury shall consist of such uneven number, not being less than five or more than nine, as the Provincial Government may direct, provided that where any accused person is charged with an offence punishable with death, the jury shall consist of not less than seven persons, and, if practicable, of nine persons. Section 282 lays down that if in the course of a trial by jury any juror absents himself and it is not practicable to enforce his attendance, a new juror shall be added. In dealing with trials with the aid of assessors, section 284 lays down that when the trial is to be held with the aid of assessors, not less than three and, if practicable, four shall be chosen. Section 285 enjoins that if any assessor absents himself and it is not Practicable to enforce his Attendance, the trial shall proceed with the aid of the other assessor or assessors. It appears to us that the word "practicable" in all these four sections must be given the same meaning and significance. The word "practicable" in sections 282 and 285 merely directs the Court to take effective steps to secure the attendance of the absent assessor or juryman if it is practicable to enforce his attendance. The Code does not enjoin that in every case the trial Court must make a note on the record as to what steps have been taken to enforce the attendance of the absent assessor or juryman. It has been laid down in a number of cases that if there is no note on the record one way or the other, it must be taken for granted that the trial Court acted in a legal manner and took steps to enforce the attendance of the absent assessor. Reference may be made in this connection to the decision of the Patna High Court in the case of Jamal Momim v. Emperor (A I R 1925 Pat. 381.). The following observations may be reproduced in extenso: "Mr. Sen, the learned Counsel for the appellants, in the first place, attacks the constitution of the Court by which the appellants were convicted. He points out that under section 284 of the Cr. P. C. it is required that if practicable four assessors should be chosen and that the minimum number of assessors is three ; and he argues that it is only where it is not practicable to find four assessors that the Court can be properly constituted with three ; and where only three assessors are chosen, reasons should be recorded why it has not been practicable to choose four. In the present case the proceedings do not show any reason why four assessors were not chosen". "We have dealt with this question on this Bench before, and, while pointing out that where four assessors are not chosen, it is right that the Court should give reasons in the order‑sheet to explain the impracticability of choosing four, the trial with three assessors, without the record of these reasons, is not irregular but is still according to law and does not offend against the provisions of section 284". The same question was dealt with at great length by a Full Bench of the Calcutta High Court in the case of Emperor v. Benat Pramanik ((1935) 1 L R Cal. 900.). In that case 18 jurors were summoned and only seven attended. They were chosen by lot without any objection by either side. As the offence was punishable with death, it was urged that the trial was illegal as the jury should have consisted of not less than seven persons and if practicable nine. There was no note on the record one way or the other whether the trial Court had made any effort to secure the attendance of nine jurors. It was argued in that case that the trial judge ought to have satisfied himself that it was not practicable to secure the additional number of jurors necessary to make up a total number of nine and that the learned judge ought to have made some entry on the record to indicate that he had exhausted all possible sources for obtaining the extra number of jurors. This contention was repelled by the Full Bench. It was held that where there is nothing on the record to show otherwise, the High Court ought to proceed on the principle embodied or implied in the phrase omnia rite acta, that is to say, the High Court ought to proceed upon the assumption that the trial in the Court below took place in full accordance with the requirements of law. The learned judges of the Full Bench disapproved of some previous cases of the Calcutta High Court. They observed that unless there was an indication on the face of the record itself or there was other material before the Court which led to the conclusion that it was or might have been practicable to have the jury composed of nine jurors rather then seven, one must assume that it was not practicable to have nine jurors. They further assumed that the Sessions judge had sufficient knowledge and experience to know what was required under the terms of section 274 of the Code of Criminal Procedure, and therefore it must be held that in the circumstances in which the trial began it was not practicable to have more than seven jurors for the trial of the accused persons. The judgment of the Calcutta High Court in the case quoted above is of great importance as it was approved by the judicial Committee of the Privy Council in the case of Mirza Akbar v. King‑Emperor (41 Cr. L J (1940) 871.). The following observations from the judgment of their Lordships may be reproduced with advantage :‑ "Reference was made to various decisions under section 274 of the Cr. P. C., which provides that where any accused person is charged with an offence punishable with death, the jury shall consist of not less than seven persons and if practicable of nine persons. The language of this provision is different from that of the rule and the conditions are different, particularly in view of section 276, which enables a deficiency to be made good by leave of the Court by choosing other jurors from persons who may be present. There has been some difference of judicial opinion, as to the true effect of section 274, but the more recent and, in their Lordships' opinion, better view is that adopted in Emperor v. Benat Pramanik, which is that if the judge proceeds with seven jurors, it must be assumed in the absence of anything on the record to satisfy the Appeal Court that it was practicable to have more than seven jurors, that section 274 had been complied with". In the absence of anything on the record, it must be assumed in the present case that the provisions of sections 284 and 285 of the Code of Criminal Procedure was complied with by the Sessions Judge. In these circumstances, it cannot be held that the tribunal was not properly constituted on the 18th of March 1950, when the case was heard by the Sessions judge with the aid of two assessors. The decision given by the Dacca High Court in the case of Kasem Ali Mira v. The Crown must be over ruled. On the merits it has been held by the learned judges of the Chief Court of Sind that the evidence of Minoo, Dost Muhammad and Hakim proves the guilt of the appellant beyond all reasonable doubts. We cannot re‑examine this evidence afresh in this Court. We, therefore, dismiss this appeal. A. H. Appeal dismissed.