1968 P Cr (PLP)

"That you on 5th June 1957, in Tapo Khan Deh 94, Taluka Mirpurkhas committed murders by intentionally causing the death of Kamber son of Rahimdad, Piaro son of Darhun and Sono son of Tiku by means of bullet shot and thereby you committed an offence punishable under section 302, P. P. C. You are further charged that at the same time and place you voluntarily caused grievous hurt with a bullet shot to A. S. I. Police, Sandey Khan, Guldad Khan when he was discharging his duties as a public servant and thereby you committed an offence punishable under section 333, P. P. C. You are further charged that at the same time and place you fired rifles at H. C. Shah Muhammad, Abdul Ghani A. S. I. P., Sandhey Khan and others members of the party under such circumstances and with such intention that had Shah Muhammad, Abdul Ghani, Sandhey Khan been killed, you would have been liable to have murdered them and thereby you committed an offence punishable under section 307, P. P.C. You are further charged at the same time and place you were found going armed with rifles without licence and thereby you committed an offence punishable under section 19(e) Arms Act." The case against the appellants was tried with the aid of three assessors. The questions put by the learned Judge and the opinion of the assessors is as under: "

1. Mr. Sultan Ahmad. Q.--‑You have heard the entire evidence, what is your opinion? A.‑--Guilty.

2. Mr. Sirajuddin. Q.--‑You have heard the entire evidence, what is your opinion? A.‑‑‑Guilty.

3. Mr. Jalaluddin. Q.‑--You have heard the entire evidence, what is your opinion? A.‑--Guilty." It would appear from the charges already reproduced above that the appellants were charged under various provisions of the Penal Code and section 19‑(e) Arms Act. To our mind, the question put to the assessors, in order to obtain their opinion, was not sufficient compliance of section 309, Cr. P. C. The non-compliance of section 309, Cr. P. C., to our mind, has caused prejudice to the appellants. From the question put to the assessors it dies not appear that the assessors were called upon to give their opinion on the various charges against the appellants. The learned Advocate in support of his contention that non‑compliance of section 309, Cr. P. C. is a grave violation of the procedure prescribed for ascertaining the opinion of assessors, relied on Shah Nawaz and others v. The Crown (P L D 1953 Lah 598), Prem Nath v. The State of Delhi (P L D 1956 S C (Ind.) 4), Arbab v. The State (P L D 1957 Kar. 170) and Ghulam Hyder v. The State (P L D 1958 Kar. 441). We would, for the reasons given above, set aside the convic tions and the 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. If he comes to the same conclusion as he did in the judgment under appeal, he need not write a different judgment' and the judgment under appeal may be written with such modifications as he ma consider necessary in the light of the opinion of the assessors. The assessors so require, the learned Judge may read out the evidence of the witnesses and hear the arguments of the parties. The case to be disposed of within three weeks fro the date of the receipt of the record. The office to send the record of this case immediately to the Sessions Judge. Case remanded.