P (PLP)

ABDUL RASHID, C. J.‑I have had the advantage of reading the judgments which my learned brothers propose to deliver. I regret that I do not find myself in agreement with the conclusion arrived at by them. The petitioners, Muhammad Haroon and Muhammad Naeem, were tried by the Sessions Judge, Gujranwala, in November and December 1949. The trial took place with the aid of four assessors, namely, Sher Muhammad, Mir Atta Muhammad, Mian Roshan Din and Sh. Muhammad Zarif. The list of assessors for the Gujranwala Division was revised for the last time in the year 1946, and this list of assessors was it force at the time of the commencement of the trial. The names of Sher Muhammad and Mian Roshan Din, who acted throughout the trial as assessors, do not find a place in this list. The first contention raised on behalf of the petitioners was that inasmuch as the trial was held with the aid of these two assessors, the Court of the Sessions Judge of Gujran wala was not a lawfully constituted tribunal, and the petitioners' trial was, therefore, wholly illegal. This position could not be controverted by the Advocate‑General. He, however, relied on the provisions of the Punjab Public Safety (Second Amendment) Act 1950 (which will hereinafter be referred to as the Act) and urged that‑ the illegality in the trial had been cured by the provisions of subsection (3) of section 2 of the Act. He maintained that the trial of the petitioners must be taken to have been held without the aid of assessors, and that as it had been enacted by the Act that where a trial had been held without the aid of assessors, no finding, sentence, or order, passed by the Court shall be reversed or altered by reason only of there having been any irregularity in the procedure under which the case was tried, unless such irregularity had occasioned a failure of justice, the finding given and the sentence awarded by the Sessions judge could not be reversed. In order to support his argument that the present trial must be taken to have been held without the aid of assessors, the Advocate‑General stated that as Sher Muhammad and Mian Roshan Din were not named in the Assessors' list they cannot be taken to have acted as assessors at all, and their presence must be ignored altogether. Section 284 of the Code of Criminal Procedure lays down 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. It was maintained by the Advocate‑General that as only two persons, namely, Mir Atta Muhammad and Sh. Muhammad Zarif out of the competent assessors attended the trial, and as their number was less than the minimum number prescribed by section 284 of the Code of Criminal Procedure, it should be 'declared that the present trial was a trial without the aid of assessors. In the present trial, four assessors were summoned. These four assessors were chosen by the Sessions judge to act as such. The trial proceeded with the aid of the four assessors. At the end of the trial, the opinion of these four assessors was taken by the Sessions Judge. In due course, the Sessions judge delivered his judgment. In these circumstances, how can it possibly be said that the present ‑trial took place without the aid of assessors. If two of the assessors were not competent to act, the whole trial must be said to have been vitiated. If the, phrase " without the aid of assessors " is given its ordinary and, literal meaning, it cannot be held that this was a trial without the' aid of assessors. The presence of incompetent assessors may vitiate the trial in its entirety, but such a trial cannot be described as a trial without the aid of assessors. The proper way to describe such a trial is that the trial was held with the aid of four assessors, and that as two of the assessors were incompetent to act, the tribunal was not properly constituted. The rule of " beneficial construction " relied upon by my learned brothers comes into play only when the language of the statute is so ambiguous that two constructions are equally or almost equally possible. Where the language of a statute is, however, plain and unambiguous, the rule of beneficial construction has no applicability. The following passage which occurs at page 3 of Maxwell on the Interpretation of Statutes (Eighth Edition) nay be reproduced with advantage :‑

" When the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattel, to interpret what has no need of interpretation. Such language best declares, without more, the intention of the law‑giver, and is decisive of it. The rule of construction is " to intend the Legislature to have meant what they have actually expressed ". It matters not, in such a case, what the consequences may be. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced, even though it be absurd or mischievous. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expressions used therein rather than from any notions which may be entertained by the Court as to what is just or expedient. The words cannot be construed, contrary to their meaning,, as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconve nient the meaning conveyed may be, it must receive its full effect. When once the meaning is plain, it is not the province of a Court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands, accord ing to the real sense of the words." Can it be said, in the present case, that the phrase " without the aid of assessors " as used in subsection (3) of section 2 of the Act is in any way ambiguous ? The names of Sher Muhammad and Mian Roshan Din were not on the list of assessors. They, however, acted as assessors in the company of Mir Atta Muhammad and Sh. Muhammad Zarif. It would be giving a strange and strained meaning to the phrase " without the aid of assessors" if it be held that though four persons were summoned as assessors, were chosen as assessors, acted as assessors, and gave their opinion as assessors, the trial took place without the aid of any assessors. It must be remembered that the Act is an amending Act. In the case of an amending Act, specially when it is of a remedial or validating nature, it is always pertinent to inquire what was the mischief for which the old law did not provide, and what was the remedy provided by the statute to cure that mischief. At the time of the passing of the Act, some Sessions judges were of the opinion that they were entitled to hold trials without the aid of assessors, while others took the view that it was incumbent on them to hold trials with the aid of assessors. The law was uncertain, and the Act was enacted to set this conflict at rest. It cannot, therefore, be held, and I say so with all respect to my brother Abdur Rahman, that the practice followed by the various Sessions Judges is entirely irrelevant in construing the provisions of the Act. It was observed by the Earl of Halsbury in his judgment in the case of The Eastman Photographic Materials Company Limited v. The Comptroller General of Patents, Designs, and Trade‑marks (1898) A. C. 571, that in order to construe an amending statute it is not only legitimate but highly convenient to refer both to the former Act and the evils which it gave rise to, and the latter Act which provided the remedy. Applying these observations to the present case, we find that some of the Sessions Judges were holding trials in those days without the aid of assessors, while others were holding trials with the aid of assessors. The Act tried to remedy this mischief, and the remedy provided was that if a Court of Sessions had tried any accused person without the aid of assessors or by the procedure provided for Courts of Sessions by the Code with the aid of assessors, the sentence or order was not to be altered by reason only of these irregularities unless such irregularities had in fact occasioned a failure of justice. The Act was, therefore, passed with a definite and precise object in view. A certain evil or mischief which had crept into the trial of criminal cases had to be remedied. In Shaw v. Great Western Railway Company (1894) A. C. 383, it was observed that there is a presumption that statutes passed to amend the law are directed against defects which have come into notice about the time when the statutes were passed. It was open to the Advocate‑General to show that a number of cases had come to light in the year 1950 where Sessions judges had tried accused persons with the aid of assessors, who were not entitled to act as assessors, or that a number of cases had been tried with the aid of only two or one assessor, and that it was proposed by the amending Act to remedy this mischief. He could then urge that the words " without the aid of assessors" should, therefore, receive a wide and beneficial interpretation. Not a single such case was, however, brought to our notice. Ire fact, it was stated at the bar that the only evil or mischief which prevailed in those days was that some Sessions Judges were trying cases without the aid of assessors, and some with the aid of assessors, and it was to remedy this evil that the Act was enacted. In order to illustrate my point of view, let us assume that the Sessions judge had tried this case with the aid of four assessors, one of whom was incompetent to act and three of whom were qualified to act as assessors. Could such a trial be held to be a legal trial? In my view, as one assessor was incompetent to act and as the Sessions judge took the opinion of all the assessors, it must be held that the trial was wholly illegal. Could such a trial be held to be a trial without the aid of assessors? My answer and that of my brother judges would be that it was a trial with the aid of assessors. Nevertheless, it would be an illegal trial, though the requirements of section 284 of the Code of Criminal Procedure regarding the minimum number of assessors had been satisfied. If a person, who is incompetent to act as an assessor acts as such, the whole trial is vitiated. This is clear from the judgment of their Lordships of the Privy Council in the case of Tumabole Bereng and others v. The King A. I. R. (36) 1949, p.

172. A trial of this nature, even according to the judgment of my learned brothers, cannot be held to be a trial without the aid of assessors as at least three competent assessors were present at the trial, and at the same time, it cannot be held to be a legal trial with the aid of assessors, as the presence of a. single incompetent assessor would snake the trial wholly illegal. After their Lordships bad held in the abovementioned case that Mr. Driver should not have acted as assessor, n they held the whole trial to be illegal. They further h9id that if a single person gave his opinion as an assessor when he was not qualified to do so, it would amount to such a disregard of the forms of justice as to lead to substantial and grave injustice within the rule adopted by the Privy Council in dealing with criminal appeals. It has been observed by my brother, Muhammad Akram, that the Act was a remedial Act, the object of which was to legalise those trials which were held in contravention of the pro visions of the law and obviate the need of a retrial. According to him statutes of this nature could always not be so worded as to provide for every contingency that may possibly arise. With the utmost respect, I differ from the view expressed by my learned brother. In construing an amending Act, whether of a remedial nature or not, it is open to the Court to refer to the defects which had come to notice about the time when the statute was passed, and to interpret the words of the remedial Act in the light of the defects which had been discovered. If the Act meant to remedy all defects relating to the summoning and choosing of assessors and all other matters relating to assessors, it could have been laid down that no irregularities or illegalities relating to assessors shall invalidate any trial unless such irregularities or illegalities had in fact occasioned a failure of justice. Such a provision was not made because no case had come to light where incompetent persons had been summoned by a Sessions judge and had been made to act as assessors throughout the trial. I would, therefore, hold that this trial was held with the aid of four assessors, and that as two of the assessors were incompetent to act, the trial was wholly illegal. I am further of the opinion that the trial of the petitioners was illegal from its very inception, not because the trial was held without the aid of assessors, but because two out of the four persons, who acted as assessors, were not qualified to act as assessors. To hold a trial with the aid of assessors, who are not qualified as assessors, is an illegality and not a mere irregularity. Such an illegality cannot be cured by merely ignoring the presence of two of the four assessors. The provisions of the Act are in no way applicable to a case where two unqualified persons have been allowed to act as assessors. Ix may be remarked in passing that the holding of a trial without the aid of assessors where it ought to have been held with the aid of assessors is an illegality. The adoption of such a procedure does not amount merely to an irregu larity simply because subsection (3) of section 2 of the Act des cribes it as an "irregularity". Assuming that it is permissible in law to ignore the presence of two incompetent assessors, the next question for consideration is whether a trial with two competent assessors can be described as a trial without the aid of assessors. It has been said that there is no real distinction in principle between a trial without the aid of assessors and a trial without the minimum required by law. With all respect, I cannot assent to this proposition. The procedure that will be followed when two competent assessors assist the Sessions judge in the trial would be materially different from the procedure which a Sessions judge will adopt when there are no assessors at all. This fact alone completely distinguishes a trial without the aid of assessors from a trial held with the aide of two assessors. If, at the commencement of the trial, only two competent assessors are present, it cannot be held that the assessors are non‑existent in the eye of law. In such a case, all that can be said is that as the mandatory provisions of section 284 of the Code of Criminal Procedure have not been complied with, the whole trial has been vitiated. The legal effect of the complete absence of assessors and of the presence of only two assessors may be the same in the sense that in both cases the trial will be held to be illegal. But this reason alone is not sufficient for holding that there is no distinction in principle between a trial without the aid of assessors and a trial with a deficient number of assessors. To sum up, I hold that the phrase "without the aid of asses sors" in the Act must be given its plain grammatical meaning, that the present‑trial was wholly illegal as two persons, who were not qualified to act as assessors, were made to act as assessors, and that the tribunal which tried the petitioners was not properly constituted. I would, therefore, grant the petitioners special leave to appeal to this Court. ABDUR RAHMAN, J.‑Muhammad Haroon and Muhammad Naeem were committed to the Court of Sessions at Gujranwala on the 31st May, 1941. They were tried by the Sessions Judge, Gujranwala, on various dates between the 10th November, 1949, and the 21st December, 1949, under section 396 of the Pakistan Penal Code. The trial took ,place with the aid of four assessors, namely, Sher Muhammad, Roshan Din, Ata Muhammad and Muhammad Zarif. It resulted in a conviction. Muhammad Haroon was sentenced to transportation for life and Muhammad Naeem to rigorous imprisonment for a term of ten years. They preferred two appeals to the High Court of judicature at Lahore. Haroon's appeal was allowed to the extent that the sentence of transportation passed against him was reduced to ten years' rigorous imprisonment. Naeem's appeal was dismissed. They have presented two petitions for special leave to appeal under the Privy Council (Abolition of Jurisdiction) Act, 1950, which may be disposed of by one order. The main contention advanced on behalf of the two petitioners before this Court was that the trial of the accused was invalid inasmuch as two of the assessors (Sher Muhammad and Roshan Din) had not been chosen by the Sessions judge from out of the list prepared or‑ revised under sections 321 and 324 of the Code of Criminal Procedure and the trial could not, therefore, be held to have taken place with the aid of assessors as required by section 268 of the Code. It fails to be observed, however, that this objection had neither been taken before the Sessions judge, nor before the High Court, although the accused were represented by a senior counsel during the trial and by an eminent counsel during the hearing of the appeal before the High Court. The excuse that the counsel were not aware of the incompetency of the assessors either during the trial or at the appellate stage is probably correct; but it has nevertheless failed to impress me as nothing can be said to have been done, or omitted from having been done in `good faith' (see the definition of that term in section 52 of the Pakistan Penal Code and read it jointly with what is stated in section 4 (2) of the Code of Criminal Procedure which has been done or omitted without due care and attention. And there can be no manner of doubt that the omission to raise an objection on that ground either in the Court of Sessions or before the High Court could not be said to have been made in spite of the exercise of due care and attention. To permit such an objection to be raised for the first time at this stage would, moreover, be tantamount to permitting the petitioners to spring a surprise on the opposite side which, if found to be correct, could not now be met or remedied without giving a fresh lease of life to the case when the crime was found to have been committed as far back as the 27th March, 1949. This would prolong the petitioners' agony flowing from uncertainty and cause further waste of public time and money. Even these considera tions would not have been, however, enough, had we found justice to have miscarried in consequence. But this was not even alleged, much less shown to have occurred. It must also be remembered that this Court is not ordinarily prepared to go into questions of facts or of law which have not been raised in the Courts below, or at least in the High Court, and has not, therefore had the benefit of their opinion. Having regard to the contention, however, as to the lack of competency of the tribunal composed, as it was stated to be, of the Sessions judge and the assessors, we considered it advisable to order the Advocate‑General of the Punjab to appear before us and to state whether the contention advanced before this Court was correct in point of fact and if it were so, why special leave to appeal should not be granted ? He appeared accordingly and admitted that the two assessors had not been, as urged by the petitioners, chosen out of the list as required by law, but submitted that by virtue of the provision contained in section 2 (3) (i) of the Punjab Public Safety Act (Punjab Act XXIX of 1950), the contention advanced on behalf of the petitioners is nevertheless, of no substance and should not be upheld. The circumstances mentioned by the Advocate‑General, which had led the Sessions judge to pass a general order, and that verbally, to have a few more residents of the locality present before trials for acting as assessors, are wholly insufficient and cannot but be deprecated. This was, I presume, done in good faith to avoid delay in the trials, but in a matter like this, no question of good or bad faith arises. The qualifications mentioned in section 319 of the Code of Criminal Procedure are by no means enough, as appears to have been taken on a per functory reading of the provisions of the Code, unless the names of the persons, qualified under that section, find a place first in a list prepared by the officers mentioned in section 321 of the Code, which is duly published as required by section 322 of the Code, and finally in section 324 (3) of the Code. It may be that the provisions as to trials by Sessions judges with the aid of assessors were considerably relaxed under the Punjab Public Safety Act 1947 (Punjab Act II of 1947) which had remained in force up till the 14th August, 1949 and was thus in force on the date on which the present case was committed to the Court of Sessions. But when in the absence of any provision in the West Punjab Public Safety Act 1949 (XVIII of 1949) which came into force on the 15th August, 1949, corresponding to the one contained in section 37 of the Punjab Act II of 1947, an attempt was made to have a trial with the aid of assessors, the provisions of the Code should have been strictly adhered to and the choice of assessors must have been confined to the list prepared and revised in accordance with the provisions of the Code. Sessions judges may enjoy large powers but they must realise that in being called upon to try their fellow human beings, they are discharging very onerous and responsible duties and they must necessarily conform to tire rules of procedure which have been laid down in the Code. Any impression created by their irresponsible conduct in disregarding the mandatory provisions of law must re‑act adversely on the administration of justice as a whole. Had it not been for certain other provisions of law, which have been brought to our notice, I should not have hesitated in agreeing to quash the entire proceedings; in spite of the loss of public time and money already referred to, and in ordering a trial de novo. Sections 35 and 37 of the Punjab Public Safety Act (Act II) of 1947, had amended the Code of Criminal Procedure in certain respects. Section 35 had provided for the offences under the said. Act or under any other law for the time being in force (which would obviously include the Pakistan Penal Code) in a `dangerously disturbed area (defined in section 2 (8) of the Act) to be triable in accordance with the procedure prescribed for the trial of summons cases under Chapter XX of the Code of Criminal Procedure. The same procedure was also to apply to offences which, were committed in any area other than the `dangerously disturbed area' if the Provincial Government had certified an offence or offences to be triable under the Act. It was stated, however, in subsection (2) of the section that subsection (1) would apply to the trial of offences committed before the Act of 1947 came into force and in `dangerously disturbed area' before the date of the notification to be issued by the Provincial Government. It is unnecessary to decide in the present case how far had the second sub‑clause of section 35 succeeded‑ in making it clear that the offences committed after the Act of 1947 had come into force and after a notification had been issued by the Provincial Government in respect of a dangerously disturbed area would also be triable in accordance with the provisions contained‑, in the first sub‑clause of section 35, if the intention of the legislation was that it should equally apply to offences committed after it had been brought into operation. Section 37 (1) of the Punjab Public Safety Act 1947 (II of 1947) had also amended the Code of Criminal Procedure and substituted a rule according to which the procedure for trial of summons cases was to be adopted by a Court of Sessions in all cases triable exclusively or to be tried by it under the provisions of that rule. Section 268 of the Code, under which all trials before a Court of Sessions had to be either by jury or with the aid of assessors, was omitted by section 37 (2) of the Act (II of 1947) with the result that all cases triable or tried by a Court of Sessions had to be tried as summons cases without jury or without the aid of assessors. The question whether in view of the general terms in which section 35 (1) of the Act was couched, if it were found to apply to the offences committed after the Act had been brought into force, and if the Provincial Government had certified an offence or offences to be triable under the Act, which they could have done, there was any necessity for section 37 or whether it was placed on the statute book ex majore cautela may have to be carefully examined some day. This Act remained in force until the 14th August 1949, when another Act entitled the West Punjab Public Safety Act, 1949, (West Punjab Act XVIII of 1949) came into force on the following day. The provisions contained in section 35 were to a large extent, (see section 30 of the latter Act) but those contained in section 37 of Act II of 1947 were not, repeated in the latter Act (XVIII of 1949). In view of the proviso contained in section 36 of the Act, section 35 of the earlier Act had been expressly saved and all cases pending or instituted before the 15th August, 1949, had to be tried in accordance with the provisions of that section. The omission to refer to section 37 of the Act of 1947 in the latter Act (XVIII of 1949) led a Division Bench of the High Court of Lahore to take view in the Crown v. Shamsuddin Pak. L. R. (1950) Lah. 99 = P. L. D. 1950 Lah. 93, that "in all cases pending before a Sessions Judge before the 15th day of August, 1949, the procedure of a summons case should be followed and the trial held with the aid of the assessors as required by section 268 of the Criminal Procedure Code and the sessions cases instituted or pending before a Magistrate before the 15th August, 1949, shall have to pass through the mill of the commitment proceedings before reaching the Sessions Court." If this decision correctly interprets the meaning of the proviso to section 36 of the Act of 1949, as to which I can, in the absence of necessary data, say nothing for the present a trial by a Court of Sessions by jury or with the aid of assessors was necessary. And if it were so, the assessors must have been chosen from the list prepared, as already indicated, under sections. 321 and 324 of the Code of Criminal Procedure. If on the other hand section 35 of the earlier Act (II of 1947) after the issue of a certificate and section 30 of the latter Act after the issue of a notification, (specifying offences indicating those triable by a Court of Sessions which were to be triable under the provisions of these sections) are to be so construed as to cover all offences whether triable by a Court of Sessions or otherwise, and the former was undoubtedly saved by the proviso to section 36 of the Act of 1949, the procedure of summons cases contained in Chapter XX of the Code, in which there is no reference to a trial with the aid of assessors, would be applicable, and a trial with the aid of assessors, would not be essential for an offence tried by the Court of Sessions. Apparently in view of the decision given by the Lahore High Court in Shamsuddin s case Pak L. R (1950) Lah. 99=P. L. D. 1950 Lah. 93, in December 1949, section 36 of the West Punjab Public Safety Act, 1949, was amended. An amending Act known as the Punjab Public Safety Act, 1950 (Punjab Act IV of 1950) was brought into effect by means of a notification dated the 22nd March, 1950. By section 2 of this amending Act, three explanations were added to section 36 of Act XVIII of 1949. According to the first explanation, a case was to be deemed to have been instituted in the Court of Sessions on the date on which it cams received in that Court and in the Court of a Magistrate on the date on which a complaint was lodged or the report of the police officer under section 173 of the Code was received. Under the second explanation, the cases pending or instituted in a Court of Sessions before the 15th August, 1949, were declared to be triable with the aid of assessors. Under the third explanation, the case triable by a Court of Sessions and pending or instituted before a Magistrate prior to the 15th August, 1949, were ordered to be sub ject to the procedure for commitment to the Court of Sessions laid down in sections 208 to 220 of the Code of Criminal Procedure. It may be recalled in this connection that the present case was committed to the Court of Sessions on the 31st May, 1945; and since the offence was committed on the 27th March, 1945 it must have been pending before the Magistrate for sometime between that date and the date on which it was committed. In view of, these explanations, the case had to be tried by the Session judge with the aid of assessors and the procedure for commitment provided in sections 208 to 220 would have had to be followed. It must be remembered, however, that the amending Act (IV of 1950) was passed on the 22nd March, 1950, and by that date not only had the present case been committed to the Court of Sessions but that it had also been derided by the Ses sions Judge. The amendments, therefore, made in March, 1950, could not have been available either to the Magistrate or to .the Sessions‑ Judge in the present case. Even the decision of the High Court in Shanasuddin's case Pak. L. R. (1950) Lah. 99= P. L. D. 1950 Lah. 93, was pronounced on the 15th December. 1949, and by then the proceedings before the Sessions judge must have been about to be finished. It was reported later. These were, however, available when the present cases came to be heard by the High Court and if this point had been raised then, it could have been settled there. By section 3 of the amending Act (IV of 1950), another section (section 37) was added to the West Punjab Public Safety Act, 1949. Without taking note of the difficulty created by the first clause of this section in using the word 'triable' for what was found by the High Court (in Sarfraz Khan's case, Criminal Appeal No 832 of 1949, which had eventually come to this Court for special leave to appeal) to have been used for the word 'tried', section 37 dec lared that in spite of the provisions of section 36 of Act XVIII of 1949, obviously along with the explanations added to that section by virtue of section 2 of the amending Act (IV of 1950), the cases received in the Courts of Sessions, before the 22nd March, 1950, without any action having been taken by the Magistrate under sections 208 to 220 of the Code of Criminal Procedure, or any order passed by Courts of Sessions before the above stated date in cases which were triable but not tried with the aid of assessors, would not be illegal, and that the cases pending in such Courts before the 15th August, 1949, would continue to be tried without the aid of assessors if their trial had commenced before the 22nd March, 1950. The petitioners, I might mention in passing, had been tried and sentenced by the Sessions judge before that date. In view of the obvious mistake for using the word 'triable' instead of the word 'tried' and to obviate some other difficulties which might have been experienced by the legislative authority, another amending Act entitled 'The Punjab Public Safety (Second Amendment) Act, 1950, (Punjab Act XXIX of 1950) was passed and notified on the 23rd October, 1950. Section 2 of the amending Act reads as follows :‑ "

2. After section 30 of the West Punjab Public Safety Act, 1949 (hereafter called the said Act) the following new section shall be inserted, namely :‑‑‑‑ "3‑ A, Procedure in trials‑ (1) All cases which immediately before the 15th day of August 1949 were triable in accordance with the provisions of section 35, Punjab Public Safety Act, 1947, and which having been instituted before the said date were on that date pending trial shall be tried in accordance with the provisions of section 35, Punjab Public Safety Act, 1947, and, except as provided in section 30, in respect of cases which are instituted on or 'after the said date, the procedure for trial, or as the case may be, for enquiry shall be the procedure laid down in the Code. (2) For the purposes of subsection (1)‑ (a) a case before a Court of Sessions shall be deemed to have been instituted on the date on which it is or was received in that Court for trial from the Committing Magistrate, or as the case may be, the Magistrate making over the case to such Court for trial under section 37 of the Punjab Public Safety Act, 1947 ; and (b) a case before a Magistrate or a Bench of Magistrates shall be deemed to have been instituted on the date on which the complaint, or as the case may be, the Police Officers report under section 173 of the Code, was first received in any Magis trate's Court. (3) Notwithstanding anything contained in subsection (1) where in a case instituted before the 15th day of August 1949‑ (i) a Court of Sessions has tried any accused person without the aid of assessors, or by the procedure provided for Courts of Sessions by the Code and with the aid of assessors; or (ii) a Magistrate or a Bench of Magistrates has tried any accused person by the procedure applicable to the trial of warrant cases ; or (iii) the case has been committed to a Court of Sessions by the procedure laid down in Chapter XVIII of the Code, no finding, sentence or order passed by such Court or Magis trate or Bench of Magistrates shall be reversed or altered on appeal or revision or under Chapter ‑XXVII of the Code, by reason only of there having been any irregularity in the procedure under which the case was tried, or as the case may be, committed for trial, unless such irregularity has in fact occasioned a failure of justice." Had section 35 of the earlier Act of 1947 been found to apply to trials by Courts of Sessions for offences committed after that Act had come into force, it would have been unnecessary to think of the provisions contained in section 3 of the amending Act (Punjab Act IV of 1950) or of those contained in subsection (1) of section 2 of the Punjab Public Safety (Second Amend ment) Act, 1950, (Punjab Act XXIX of 1950). This would have been so on account of the proviso to section 36 of Act XVIII of 1949. And in that case, the trial by the Sessions judge would not have been required to be with the aid of assessors and their presence would have been regarded to be superfluous. But since this aspect of the case has not been canvassed before us and the necessary facts required to come to a finding on that question are also not before us, it is not possible for me to come to a decision on that question. I shall, therefore, proceed on the assumption that section 35 of the earlier Act (Act II of 1947) was not applicable to the present cases and with the omission to refer to section 39 of the same Act in the latter Act (Act XVI.II of 1949), the trial of‑a case by the Sessions judge, after that Act had come into force, was required to be with the aid of assessors. This brings me to subsection (3) (i) of section 2 of the Second Amendment Act (Punjab Act XXIX of 1950). So far as relevant to the present case, it provides that no finding, sentence or order passed by the Court of Sessions shall be reversed on appeal or revision by reason of the fact that it had tried any accused person without the aid of assessors, unless the irregularity had in fact "occasioned a failure of justice." It was not contended before us that, this irregularity had in the present case occasioned a failure of justice. But it was submitted that inasmuch as the trial had not been without the said of assessors, but with a lesser number of assessors (the presence of the two appointed from outside the list .being ignored) than required by section 284 of the Code of Criminal Procedure (the minimum being three), the provisions of subsection 3 (1) of the Punjab Act XXIX of 1950 were not attracted, and the trial, being illegal, must be held to have been vitiated altogether. It was also urged that a Court of Sessions, when trying a case with the aid of assessors is composed of a Sessions judge and three or four assessors as the case may be, and the whole trial would be a nullity, if it had commenced with less than three duly appointed assessors. In support of the contention that the trial was illegal and hence null and void, counsel for the petitioners relied on a large number of decisions. The general proposition that a trial by a Sessions judge without the aid of assessors would have to be set aside, if it was required by law to be with their aid, need not be questioned. But it has, in my mind, no application to the present case as I find that constant attempts had been made since 1947 by legislation authorising Sessions judges to try cases without the aid of assessors and to validate trials held without their aid when ever any doubt had been raised as to their validity, particularly in regard to cases instituted before the 15th August, 1949, such as the one against the petitioners happened to be. The short question, therefore, that first arises for consideration is whether these attempts have been successful ? I shall construe subsection 3 (i) of the Punjab Public Safety (Second Amendment) Act, 1950, (Act XXIX of 1950) presently. But before; I do so, I feel bound, having regard to the manifest purpose of the legislation'; to keep in view, not only the words used in the Act', but as pointed out by Goddard L. J. in Pratt v. Cook (1939)

1. K. B. 364 (382), "the history of the Act and the reasons which led to its being passed." According to what was stated in Heydon's case, (1584)

3. Rep. 7 (b) ; some four hundred years ago, by Lord Kenyon in Turtle v. Hartwell (1795) 6 T. R. 429, more than one hundred fifty years ago, and by Cockburn, C. J. in Twycross v. Grant, (1877) 2 C. P. D. 30, over seventy years ago, it is the duty of a judge to place such a construction on a statute as, shall "suppress the mischief and advance the remedy." That is why it is stated at page7l of Maxwell's well‑known work on Interpretation of Statutes (9th edition)‑

"Even where the usual meaning of the language falls short of the whole object of the Legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it. The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words." To this the decision of Lord Easber M. R. in Barlow v, Ross (1890) 24 Q. B. D. 391 (389) may be usefully added. It is stated there that if "there are circumstances in the Act showing that the phraseology is used in a larger sense than its ordinary meaning, that sense maybe given to it. The governing principle of a remedial measure like the one I am now considering, has been extended to oases not included in its language, to prevent a failure of justice and consequently of the probable intention. The language of a statute is generally extended to new circumstances which could not have been contemplated by the' Legislature when it was passed, and it is legitimate to depart sometimes from the primary and literal meaning of certain words. I have referred to these principles to show, that‑ ‑even if any real difficulty had presented itself in construing the word `without' used in subsection 3‑ (i) of the Second Amendment (XXZX of 1950 ), I would not have hesitated to place a liberal construction on that word as I am clearly of the view that the narrow construction which my Lord the Chief Justice is inclined to place upon it Would fail to achieve the manifest purpose of the legislation and it is a cardinal principle of interpretation that a construction which Would reduce a piece of legislation to futility must be avoided. In order to trace the history of the Act and the reasons which had led to its enactment, it must be kept in view that the legislative autho rity had ordered in 1947 (Act II of 1947) all Sessions cases to be tried without the aid of assessors and subject to the procedure laid down in the Code of Criminal Procedure for trial of summons cases. The Public Safety Act of 1949 (Act XVIII of 1949), Which followed in its wake, adopted the same policy and in placing section 30 on the statute book, the legislative authority confirme4 the policy Which had been adopted in the first Punjab Public Safety Act, although its applicability like that of its predecessor in regard to an area other than `dangerously disturbed area' was made to depend on a notification. Being a matter relating to procedure, a previso was, however, added to section 36, (with the object of preventing any misconception) that all cases pending or instituted before the expiry of the earlier Act (Act II of 1947) would hive to be tried in accordance with the provisions of section 35 of that Act. This was followed by a decision of the Lahore High Court in Shamsuddin's case Pak. L. R (1950) Lah.99=P. L. D. 1950 Lah.

93. The legislative authority took notice of that decision and enacted a remedial measure (Punjab Act IV of 1950). Subsections 2 and 3 of that Act reiterated the position that inspite of the decision in 8hamsuddin's case all cases instituted in the Court of Sessions before the 15th August, 1949, shall be tried as summons case:, and without the aid of assessors. It is quite true that these section, might not have been applicable to cases (such as the present ones) which had been decided between the dates on which Act XVII1 of 1949 and the Amending Act IV of 1950 came into force. That is why amongst other things, necessity must have been felt to pass another Act. This was done and Punjab Act XXIX, 1950, was placed on the statute book. It is far more general in character and unequivocally indicates the intention of the legislative authority as to how all cases instituted before the 15th August, 1949, in a Court of Sessions and tried without the aid of assessors shall be dealt with on appeal or in revision. With the introduction of this legislation, the proviso to section 36, the three explanations and section 3 added by Act IV of 1950, and Act IV of 1950 itself had to be and were repealed. The intention of the legislative authority is, in my way of thinking, quite clear and it is our obvious duty to give effect to this legislation and to prevent the mischief which it was designed to suppress. By construing the word nothing' in the manner suggest ed by me, we will be advancing the remedy. It might be pointed out that this Act at least characterises the mistake in the procedure as to the trial of cases without the aid of assessors when they should have been tried with their aid as an `irregularity' and not an illegality. And this was done in spite of the catina of decision holding a defect of this nature to be an 'illegality' of which the legislative authority must be deemed to have been fully aware. Calling this defect to be an irregularity may not be conclusive, but having regard to the history of the legislation on this subject since 1947 the legislative authority's description may not be wholly irrelevant. Anyhow, even if it were an illegality, it could not be so regarded in the presence of several measures taken by the Pro vincial Government culminating in the Punjab Act XXIX of 1950, when it was fully competent to do away with the procedure for trial of sessions cases with the aid of assessors and substitute it by trials without their aid. The fact that some of the Sessions judges were holding trials in those days without the aid of assessors and some were doing so with their aid and that the legislative authority could not have contemplated a case like the present one, where the trial had proceeded with legally insufficient number of assessors does not appear to me, and I say so again with great respect to the view expressed by my Lord the Chief justice, to be even relevant, for in my view there is no real distinction in principle between a trial without the aid of assessors and a trial without the minimum required by law; In the one case all the assessors are physically absent, while in the other only some of them are so, not to take notice of those whose names were not in the list and who could not, therefore, be correctly described as assessors at all. And once the requisite number of assessors is found not to be present when the trial commenced, the assessors must, as a body, be deemed to be absent or, perhaps it would be more correct to say, nonexistent in the eye of law. The legal effect in both the cases is the same and in both cases the trial must be held to have taken place without the aid of assessors. It cannot be held to have taken place with their aid as required by sections 268 and 284 of the Code of Criminal procedure. It is not a case of casus omissus "which ought not to be created by interpretation" as observed by Lord Fitz Gerald in Mersey Docks and Harbour Board v. Henderson Brothers 13 App. Cas. 595 (607) "save in some case of strong necessity". And there is no strong necessity here so to do. I would, therefore, hold that the Sessions judge had tried the case without the aid of assessors, and section 2 (3) (i) of the Act (XXIX of 1950) being applicable to the present case, the order and sentence passed by the Sessions judge could not be altered or reversed. The objection that the Court of Sessions when trying a case with the aid of assessors is composed of the Sessions judge and the assessors is also devoid of any force. It may be correct when a case is being tried by jury. But the distinction between the two cases is obvious. In a trial by jury, the `jury is the real tribunal on all questions of facts and is aided and sometimes directed by the judge, while in a trial with the aid of assessors, the judge is the sole tribunal both on questions of facts and law, though he is aided by each assessor individually so far as the evidence for prosecution and defence are concerned. He is bound to give his own judgment and is not bound to conform to the opinions of the assessors, see section 309 (2) of the Cr. P. C. This would also be clear from the words of section 268 itself, which lays down that "all trials b3fore a Court of Sessions shall be either by jury or with the aid of assessors". I would, therefore, repel the contention that in trying a Sessions case, the tribunal .is composed of a Sessions judge and assessors. I would, on the other hand, hold that a Sessions Judge is the sole tribunal although by virtue of the pro visions in the Code of Criminal Procedure, he is bound to take aid from the assessors, who have been duly appointed under the Code. The other questions raised before us pertained to the region of appreciation of evidence and not being a Court of criminal appeal, we would not examine the evidence afresh. For the above reasons, I would refuse to grant leave to appeal and dismiss both the petitions. A. S. M. AKRAM, J.‑I regret I have not been able to agree with My Lord the Chief justice as regards the order which is to be passed in respect of petition No. 58 of 1950, by Muhammad Haroon, and petition No. 59 of 1950, by Muhammad Naeem, for special leave to appeal. These two petitions arise out of a judgment of the Lahore High Court, whereby it upheld the conviction of the petitioners under section 396 of the Pakistan Penal Code, by the Sessions Judge of Gujranwala, and maintained the sentence of ten year's rigorous imprisonment as regards the petitioner Muhammad Naeem, but reduced the sentence of transportation for life to rigorous imprisonment for 10 years as regards the petitioner, Muhammad Haroon. The point which has now been taken before us for the first time in these proceedings is to be gathered from paragraphs Nos. 3 to 6 of the petitions; they are as follows:‑-- Paragraph No. 3. "That the said trial in the Court of Sessions Judge Gujranwala, was held with the aid of four persons namely:‑ ,

1. Sher Muhammad;

2. Mir Atta Muhammad;

3. Mian Roshan Din; and

4. Sh. Muhammad Zarif: who sat as assessors at the trial. Paragraph No. 4. "The list of assessors for the said sessions division was revised for the last time in the year 1946, and this list of the assessors for the year 1946 was the current list at the time of the Paragraph No. 5. "That Sher Muhammad and Mian Roshan Din are not named in the said list". Paragraph No. 6. ."That inasmuch as the trial of the petitioner was, held with the aid of the afore‑said persons the Court of the Sessions Judge, Gujranwala, was not a lawfully constituted tribunal and the petitioner's trial is, therefore, vitiated". Counsel for the petitioner argues that if Sher Muhammad and Mian Roshan Din, who had not the status of an assessor, are eliminated, the two others left over fall short of the minimum number of three assessors necessary under section 284 of the Criminal Procedure Code; the Court, therefore, was not validly constituted and consequently the convictions and the sentences are liable to be set aside, and the case retried. The Advocate General of the Punjab, who entered appearance in response to the notice given to him, admitted the correctness of the statements of facts in paragraphs Nos. 3 to 5, mentioned above, but drew our attention to section 2 (3) of Act XXIX of 1950, the relevant parts of which are as quoted below :‑

"Section 2 (3) Notwithstanding anything contained in sub section (1) where in a case instituted before the 15th day of August, 1949

(i) a Court of Sessions has tried any accused person without the aid of assessors, or by the procedure provided for Courts of Sessions by the Code and with the aid of assessors; (ii) ................................................ (iii) ................................................no finding, sentence or order passed by such Court ................................................shall be reversed or altered on appeal or revision or under Chapter XXVII of the Code. by reason only of there having been any irregularity in the procedure under which the case was tried, ................................................unless such irregularity has in fact occasioned a failure of justice. In answer counsel for the petitioners submits that under the precise clause (i) above, it could not be said that the trial was held "without the aid of assessors", inasmuch as there were two persons present, who had the status of assessors, while the re maining two purported to act as such. Front the above contentions it is apparent that the whole controversy turns upon the true construction, which is to be put upon the words without the aid of assessors", in clause (i) of subsection (31 of section 2 of Act XXIX of 1950; that is to say whether the words "without the aid of assessors" are limited in their meaning to cases, where all the assessors are physically absent or cover and include even those cases where on account of want of authority or some other incapacity the so‑called assessors, trough physically present are to be considered as not in existence to the eve of the law. It should be noticed that Act XXIX of 1950, is 'a remedial Act, the object of which is to legalise those trials, Which were held in contravention of the provisions of the law (sections 268 and 284 of Criminal Procedure Code) and obviate the need for a retrial. It is a well‑recognised principle that while constructing such a statute its provisions are to be construed liberally sc as to give than a meaning to their fullest extent and capacity, and thereby cover all those cases which fall within the mischief, which tile statute seeks to remedy; statutes of this nature cannot always he so worried as to provide for every contingency that may possibly arise; regard is to be paid, therefore, to the policy which dictates it, as also to the words used, I am accordingly inclined to give the words "without the aid of assessors a wide meaning so as to comprehend within its scope cases not only of physical absence of assessors, but also other cases, in which persons pur porting to act as assessors cannot be regarded as such for some reason of law and thus to give effect to the spirit of law, though not perhaps to the letter of it. From the above point of view, therefore the present trial must be taken to have commenced without the aid of assessors, though in form 1t was otherwise; the assessors constitute an indivisible group and should be taken into consideration as a whole and not separately so as to lend support to the contention by counsel for the petitioners that the trial com menced neither wholly without the aid of assessors,, nor wholly with the aid of assessors, but by an amalgam of the two modes, and, therefore, section 2 (3) of Act XXIX of 1950, was not attracted with the result that the procedure adopted being in contraven tion of the provisions of the Criminal Procedure Code the trial was illegal and liable to be set aside and the case retried. Such a contention in my opinion, is wholly untenable. If I am correct in my view that the trial in the present case is to be treated as a trial held without the aid of assessors, then unless there has been a failure of justice on account of the error committed, the convictions and the sentences of the petitioners cannot be set aside "by reason only of there having been any irregularity in the procedure under which the case was tried" (clause. (iii) of subsection (3) of section 2 of Act XXIX of 1950); but not the slightest suggestion has been trade before us by counsel for the petitioners of any prejudice to the defence or failure of justice on account of such error. It would be worth noticing that under clause (iii) aforesaid a trial wrongly held without the aid of assessors is considered to be an irregularity and not an illegality affecting the constitution of the Court itself, as contended by counsel for the petitioners; it may be that in spite of certain decisions the Legislature in taking that view was influenced by the provisions‑of the Code according to which the assessors do not form an integral part of the Court, and are intended merely to assist the judge by giving their opinion, which the judge may not conform to, the responsibility for coming to a correct conclusion, both in a matter of fact, as well as in a matter of law, resting solely with the judge. Furthermore, I cannot, but discourage the practice of raising, for the first time in this Court, a point which for its determination, entails an inquiry as to new facts alleged, which could be dealt with and easily solved at the outset during the trial, or, even at the time of the appeal. No reason is forthcoming as to why the objection raised now could not be, taken in the Courts below. A mere statement by counsel that he was not aware of the error committed, ought not to be enough in the absence of any material, which can show what it was, which prevented anyone from getting a copy of the list of assessors and checking up with it the assessors chosen; the petitioners in this case were committed to the Court of Sessions in May, 1949, in my opinion this consideration alone should be sufficient for refusing special leave to appeal, there ought to be some finality at some stage of the proceedings, however, for the reasons given by me, even on merits, I am unable to accede to the prayer made by counsel for the petitioners. In my judgment both the petitions ought to be dis missed and I direct accordingly. In accordance with the opinion of the majority these two petitions for the grant of special leave to appeal are dismissed. A.H Petition dismissed.