P L D 1959 (W (PLP)

SHABIR AHMAD, J.--‑(31‑3‑1959)‑Mr. D. Fazluddin, as Addi tional Sessions Judge, Lyallpur, tried Nathe Khan, his three sons Ibrahim, Muhammad Sharif and Moodi as well as Ghulam Qadir alias Qadu for the murder of Irshad Khan and attempted murder of his brother Adalat Khan and his servant Sardara as well as for certain other offences alleged to have been committed, in the same transaction in which the murder was committed, with the result that while convicting Ibrahim and Muhammad Sharif under section 304, Part II of the Pakistan Penal Code for which offence a sentence of five years' rigorous imprisonment was imposed, he altogether acquitted the other three, of whom the charge against Nathe Khan was that he had abetted the offences committed by the other four accused, while the charge against Moodi and Ghulam Qadir alias Qadu was that they had shared the common intention with Ibrahim and Muhammad Sharif to commit the offences for which the accused were tried. Against the decision of the learned trial Judge Ibrahim and Muhammad Sharif have presented the present appeal, while Provincial Government has presented an appeal (Criminal Appeal No. 852 of 1957) against the acquittal of Ibrahim, Muhammad Sharif and Qadu of the offence of murder and a revision petition (Criminal Revision No. 716 of 1957) with a view that in the event of the failure of appeal against the order of acquittal the sentence imposed on Ibrahim and Muhammad Sharif be enhanced. This order will govern the above‑mentioned two appeals and the petition for revision.

2. The incident out of which the case arose was stated to have occurred on the 26th of October, 1956, in Chak No. 138/.6. B. in the district of Lyallpur at the dera of Nathe Khan, who was one of the accused, and a report with regard to it was made the next day at 6‑45 a.m., at Police Station Summundari which is at a distance of about 6 miles from the scene of the occurrence, by Muhammad Afzal, son of Irshad Khan, who claimed that he had witnessed the occurrence. The prosecution case was that though the parties are related to each other, their relations were by no means cordial, and it was because of the strained relations that the sons of Nathe Khan attacked Irshad Khan, who is the maternal uncle of Muhammad Sharif and Moodi but not of Ibrahim, their half‑brother, and caused injuries to Adalat Khan, brother of Irshad Khan, and Sardar, his servant. In the first information report it was said that week before the occurrence molasses belonging to the informant and his father had been stolen by someone who had substituted water in place of the stolen molasses and that inquiries had revealed that the act was done by Moodi, Ibrahim and Sharif sons of Nathe Khan who had committed the theft in order to use the molasses to prepare illicit liquor. It was added that Irshad Khan and Adalat Khan had talked about the theft to Nathe Khan and told him to tell his sons, two of whom were also the sons of a sister of lrshad Khan, not to behave in that manner and Nathe Khan said that the charge was baseless. The complainant party remained alert and waited for an oppor tunity to show Nathe Khan that his sons prepared illicit liquor. On the evening of the occurrence, Irshad Khan and Adalat Khan called Nathe Khan and asked him to accompany them to see what his sons were doing. Irshad Khan and his brother Adalat Khan, accompanied by Nathe Khan, went towards the place where illicit liquor was distilled, and the informant accomplied them. On the way Sardara, a servant of Irshad Khan, joined the party. When they readied square No. 2, which was in‑ possession of Nathe Khan they found Moodi, Ibrahim and Sharif, three sons of Nathe Khan, and Qadu and Faqira Gujjar preparing illicit liquor. Irshad Khan abused Moodi, Ibrahm and Sharii', whereupon Moodi and Ibrahim arming themselves with kulharis, Sharif arming himself with a takwa and Qadu arming himself with a dang, attacked Irshad Khan and his companions. The attack was opened by Ibrahim who hit Adalat Khan on the head and thereafter all the four who had armed themselves caused injuries to Irshad Khan, Adalat Khan and Sardara, all three of whom fell down on the receipt of injuries and the informant saved himself by hiding in a nearby sugar‑cane field. An alarm was raised which attracted Allah Ditta Gujjar and Barkhurdar Rajput of the village to the scene of occurrence, who too saw what had happened. Nathe Khan threatened Allah Ditta and Burkhurdar that if they tried to intervene, they will meet with the same fate as the others had done. The report added that the three injured persons, who had received serious injuries, had been brought to the hospital, where, they were being attended to by the doctor and their condition was precarious.

3. At the trial, the prosecution produced Muhammad Afzal (P. W. 9), Sardara (P. W. 10), Bashir Ahmad (P. W. 11), Allah Ditta (P. W. 12) and Ralia (P. W. 13) as eyewitnesses of the occurrence. The version given by the five eyewitnesses, but for a few discrepancies on minor points, was to the effect that the party of the accused had attacked Irshad Khan, Adalat Khan and their servant Sardara who had taken Nathe Khan, the father of three of the accused, to the scene of the occurrence, where some of the persons who were engaged in distilling illicit liquor had made a concerted attack on Irshad Khan, Adalat Khan and Sardara and had caused them a number of serious injuries. The learned trial Judge did not accept the statements of the eyewit nesses produced by the prosecution except that of Sardara the presence of injuries on whose person was a circumstance which went a long way to show that he had seen the occurrence which he claimed to have seen and in which he alleged that he himself had received injuries.

4. The prosecution also relied on certain recoveries from three of the accused, namely, Ibrahim, Sharif and Qadu. The shirt and chadar of Ibrahim was removed at the tome of his arrest and he produced a hatchet. The chadar and parna of Muhammad Sharif were removed and he produced a kandhali, while the hatchet, chadar and shirt of Qadu were removed and he produced a dang. The report of the Serologist to the Govern ment of Pakistan, which is Exh. P. G. G., on the record, shows that the shirt and kulhari of Ibrahim, parna and kandhali of Sharif, chadar, shirt and dang of Qadu were stained with human blood.

5. When questioned by the committing Magistrate to explain the circumstances appearing in the evidence against them, all the appellants denied that they had anything to do with the occurrence. At the trial, however, Ibrahim made a statement to the following effect :‑ "Before sunset on the day of occurrence, the ram belonging to the deceased damaged my crop. I caught that ram and took it to the dera of the deceased. There an altercation took place before sunset at about 4 o'clock between us in which there was an exchange of abuse. At about isha‑time, I along with my brothers Muhammad Sharif and Moodi was sleeping at my dera, when eight or nine persons came and attacked us. They began to belabour us. I was successful in escaping by ruining away. This is how I got the injuries on my person." He added that he had been falsely involved because of his love affair with Mst. Mahmooda, the daughter of Irshad Khan. Muhammad Sharif did not support the statement of his brother Ibrahim and when questioned to explain how he had received the injuries, which were found on his person by the doctor who had examined him, he said that he bore those injuries because the police had given him a beating. Moodi too did not support the statement of Ibrahim. No evidence was produced in defence by, any of the accused persons.

6. Before dealing with the facts of the case it appears necessary to dispose of a contention raised by Mr. Muhammad Ismail Bhatti, Advocate, who appeared for Ghulam Qadir alias Qadu, an acquitted accused, who is one of the three respondents in Criminal Appeal No. 852 of 1957. The learned counsel contended that as the learned committing Magistrate had, after framing charges against the accused persons, not asked them whether or not they intended to produce evidence in defence at the trial and had thereby contravened the provisions of law contained in subsection (1) of section 211 of the Code of Criminal Procedure, the trial of the accused persons was bad and the only order that this Court was competent to pass was to direct that there should be a retrial. In addition to the words used in section 211 of the Code of Criminal Procedure, Mr. Bhatti relied on a decision of the Supreme Court of Pakistan in Moonda v. The State (P L D 1958 S C (Pak.) 275) and the decision of my learned brother Changez in Shal Khan v. The State (P L D 1959 Lah. 55). The contention of Mr. Muhammad Ismail Bhatti was that non‑compliance with the provisions of subsection (1) of section 211 of the Code of Criminal Procedure was an omission which could not be cured and it was consequently necessary that the proceedings taken by the committing Magistrate from the stage at which the charges were framed soon after which the accused should have been asked whether or not they wanted to produce evidence in defence at the trial, should be held to be illegal and not binding. It is correct that my learned brother Changez has held in Shal Khan v. The State that non‑compliance with the provisions of section 211 of the Code of Criminal Procedure is not a mere irregularity which could be cured and it is obvious that if the Supreme Court too has taken the same view in Moonda v. The State, there will be no option but to set aside the proceedings taken by Mr. D. Fazluddin in the present case as well as the proceedings of the committing Magistrate from the stage at which subsection (1) of section 211 of the Code of Criminal Procedure became applicable. I have very carefully gone through the decision of the Supreme Court and have arrived at the conclusion that their Lordships have not held that non‑compliance with the provisions of subsection (1) of section 211 of the Code of Criminal Procedure is an omission which is not curable under section 537 of the Code of Criminal Procedure. It is true that their Lordships have not said in so many words that non‑compliance with subsection (1) of section 211 of the Code of Criminal Procedure was being treated by them as a curable omission but from the order passed by their Lord ships, it is clear that the omission was treated as an irregularity to be taken notice of only if failure of justice has resulted from it.

7. The relevant facts of the case with which their Lordships of the Supreme Court were dealing in Moonda v. The State may be briefly stated. During the trial of fifteen persons by a Sessions Judge, a question was asked by him from the police officer who conducted the investigation whether or not his investi gation had disclosed that some of the accused persons were innocent, and the officer had answered in the affirmative. The trial Judge had acquitted those of the accused persons who, according to the investigating officer, were believed innocent by him, while the others were convicted. The convicted persons had appealed to this Court against their conviction, and the Provincial Government had presented an appeal under section 417 of the Code of Criminal Procedure for the reversal of the order of acquittal passed in favour of four of nine of the accused who had been mentioned by the investigating officer not to have been considered by him to be guilty. In this Court the appeal of the convicted persons had failed, while that of the Provincial Govern ment had succeeded, and the case had gone to the Supreme Court on appeal. Their Lordships of the Supreme Court said in their order that subsection (1) of section 211 of the Code of Criminal Procedure laid a mandatory duty on the committing Magistrate to require the accused at once, after the charge had been framed, to give a list of witnesses and the fact that some of the accused persons in the case before them had not produced defence evidence in the Court of Session though given an opportunity to do so was immaterial. The ultimate order of their Lordships of the Supreme Court was that the Sessions Court should again ask the accused persons the question whether or not they wanted to produce evidence in defence and if the question be answered in the affirmative, the evidence mentioned by the accused persons should be taken. The reason why I have arrived at the conclu sion that their Lordships of the Supreme Court had not held non‑compliance with the provisions of subsection (1) of section 211 of the Code of Criminal Procedure to be not curable is that if they had done that, they would have directed the case to start from the stage at which the omission occurred, because it is manifest that if an omission is incurable in character, proceedings taken thereafter are null and void and cannot be cured by doing something other than what should have been done but was not done. An omission is either curable under section 537 of the Code of Criminal Procedure, or it is not. If it is curable, it may be overlooked or something may be directed by the appellate or revisional Court to be done to cure it. If, on the other hand, it is not curable, no Court can say that if something other than what the law enjoins is done the omission will be deemed to have been cured because the Court will be legislating and not merely interpreting what the Legislature has enacted.

8. A reference may now be made to the decision of my learned brother Changez in Shal Khan v. The State. In that judg ment my learned brother held that the proceedings taken by a Magistrate in disregard of the statutory provisions of law con tained in sections 211 and 212 of the Code of Criminal Procedure are illegal and section 537 of the Code of Criminal Procedure cannot be invoked to cure the omission of the Magistrate. In coming to this conclusion my learned brother relied on Moonda v. The State ; Kashinath Das and others v. Kalipada Das (A I R 1953 Cal. 12) ; Sripad Duley and others v. The State (A I R 1953 Cal. 10) ; and Abanti Pramanik and others v. The State (A I R 1953 Cal. 626). It appears to me that all omissions made curable by section 537 of the Code of Criminal Procedure must be omissions to carry out mandatory provisions of that Code. If a provision of law which has not been followed is not mandatory in character, it cannot be said that an omission has occurred because if discretion has been given to a Court to follow a certain procedure or not with regard to a matter, its omission to follow that procedure cannot amount to an omission of which the law will take notice. All omissions by Courts, however, cannot be considered to be illegalities vitiating all that followed them in the proceedings. For instance, if a Magistrate were to only initial a document which the law requires him to sign, it will be difficult to hold that the omission was one which is not curable under section 537 of the Code of Criminal Procedure, and many examples of this type could be cited. However, as it is my view that the Supreme Court of Pakistan has not held that the omission to comply with the provisions of section 211 of the Code of Criminal Procedure is not curable by section 537 of the Code of Criminal Procedure if no miscarriage of justice has occurred, I do not consider it necessary to dilate upon the point and will content myself with reproducing the penultimate and ultimate paragraphs of the judgment in Moonda v. The State which run as follows :‑ "For both these reasons, we consider that the petitioners Dargahi and five others are entitled to the same opportunity as we are allowing to the appellants, Moonda and three others, that is to say, a right to be questioned as to their defence generally, and an opportunity to produce defence evidence if they are so advised. "We accordingly allow the appeal of Moonda, Siraj, Lai and Sardara son of Fazal Elahi, and set aside the order of con viction made against them by the High Court. We also allow the petition of Dargahi, Muhammad, Raja, Niaz Ali son of Haku, Allah Dad and Sardara Mirasi, and while granting them leave to appeal, we set aside their convictions as well. In both cases, we make a direction as follows, that is to say, the case shall be remitted to a Sessions Court to be selected by the High Court and shall be retried from the point of conclusion of the prosecution evidence, as against the ten appellants before this Court, who shall be re‑examined by the trial Court under section 289 of the‑Criminal Procedure Code, and the trial shall proceed from that point according to law to its conclusion in a judgment of conviction or acquittal, as the case may be. In particular, and to avoid any doubt we direct that each of the ten accused persons affected by this order shall be expressly allowed an opportunity to state whether or not he will adduce evidence in his defence and shall be given such reasonable opportunity as the law requires to produce his evidence, if any. Orders regarding the custody of these appellants will be made by the High Court in the first instance, and thereafter by the Sessions Court when it is seized of the case." One of the two reasons mentioned in the above‑reproduced penulti mate paragraph of the judgment of the Supreme Court was that the committing Magistrate had not followed subsection (1) of section 211 of the Code of Criminal Procedure and the other was that the point raised on behalf of the accused that, because only four out of the nine acquitted accused had been appealed against by the Provincial Government, Article 5 (1) of the Constitution then in force whereby equality before the law was guaranteed had been contravened, could not be determined unless the entire case which was one and indivisible were before the Court, but it is clear from the judgment that their Lordships held that two mistakes had been committed in the Courts below. Now, if two mistakes, one committed by the committing Magistrate who omitted to question the accused persons under section 211 of the Code of Criminal Procedure and the other committed by the trial Judge, who admitted in evidence the inadmissible state ment of the investigating officer with regard to his opinion about the guilt or innocence of the accused persons, did not make it necessary that the proceedings should start again from the stage of the committing Magistrate's omission, it can hardly be urged that the law is that if a committing Magistrate has not followed subsection (1) of section 211 of the Code of Criminal Procedure, the proceedings must start again from the point at which the omission occurred. It is clear from the judgment of the Supreme Court that the case of Dargahi and five others to whom reference was made in the penultimate paragraph of the judgment of the Supreme Court was different from the case of Moonda and three others mentioned in that paragraph, because the latter set of accused were included in the list which the investigating officer gave of the persons who in his opinion were innocent while the accused mentioned in the former set were not. Both sets of accused were, however, given the same opportunity to produce defence evidence before the Sessions Court but it appears to ma that if the two sets of accused had not been tried at the same trial, Dargahi and five others, who had been questioned by the learned trial Judge whether they would, like to produce evidence in defence but had declined to do so would not have been afforded the opportunity to re‑open the case from the stage at which the prosecution evidence closed in spite of the fact that they had not been asked by the committing Magistrate whether they would produce any witnesses at the trial, as required by subsection (1), of section 211 of the Code of Criminal Procedure. In this view I am fortified by the remarks of the learned Judges of the Supreme Court in the last but three paragraphs of their judgment to the effect that the case against all the accused was one and any aspect of the evidence whether for the prosecution or for the defence which might go in favour of one or more of the accused persons would necessarily have a bearing upon the question of the guilt or innocence of the others. Moreover, it will be noticed that the omission of the committing Magistrate to comply with the provisions of subsection (1) of section 211 of the Code of Criminal Procedure was not at all referred to by the learned Judges of the Supreme Court when dealing with the case of Dargahi and three others.

9. I might, however, point out that in Shal Khan v. The State, my learned brother Changez was dealing with a set of facts which were not the same as in the present case. He had to deal with the omission of the committing Magistrate to follow subsection (1) of section 211 of the Code of Criminal Procedure before the trial began in the Sessions Court and not with a case in which the point was raised in an, appeal against the order of the trial Court, as is the case here. In one respect the two cases are materially different from each other, because of the omission of the committing Magistrate to follow subsection (1) of section 211 of the Code of Criminal Procedure is attacked in an appeal against the order of the trial Court, the circumstances which will have to be taken into considera tion will be materially different from those which will have to be dealt with if that omission were attacked before the trial starts. In another respect, however, the two kinds of cases are not materially different from each other, because section 537 of the Code of Criminal Procedure is so worded that for the purposes of that section the order of a Magistrate committing the accused to stand trial before the Court of Session or the High Court stands on the same footing as .the judgment of the trial Court. In Shal Khan v. The State my learned brother disposed of a number of references made by Sessions Judges that the order of commitment made to them be set aside because the mandatory provisions of subsection (1) of section 211 of the Code of Criminal Procedure had not been followed. The recom mendations made by the Sessions Judges were accepted by my learned brother and it appears to me that he followed that course mainly because he was of the view that in Moonda v. The State, their Lordships of the Supreme Court had held that the omission of the committing Magistrate to follow subsection (1) of section 211 of the Code of Criminal Procedure was an illegality of a type which was not curable under section 537 of the Code of Criminal Procedure and it is by no means unlikely that if he had not been of that view he would not have passed the orders he did. My learned brother said in Shal Khan's case that the point whether non‑compliance with subsection (1) of section 211 of the Code of Criminal Procedure could lead to quashing of the order of commitment was not raised before the Supreme Court in Maonda v. The State and therefore that Court did not consider it. There is no material before me to raise the presumption raised by my learned brother, but even if I did I would consider myself incompetent to hold that their Lordships of the Supreme Court did not, before passing orders, examine from all aspects the omission so permanently brought to their notice. The failure of a committing Magistrate to ask the question envisaged by subsection (1) of section 211 of the Code of Criminal Procedure not being an incurable omission for the purposes of section 537 of the Code of Criminal Procedure, the High Court will set aside the order of commitment only if it comes to the conclusion that the omission has caused prejudice to the accused and, speaking for myself, I will be slow to infer prejudice to an accused person if that accused person does not assert that he was prejudiced by the omission. In view of what I have said above, I would hold that the omission of the committing Magistrate to question the accused persons under subsection. (1) of section 211 of the Code of Criminal Procedure not being an incurable omission can be taken notice of only if it has resulted in a failure of justice.

10. Having held that the contention of Mr. Muhammad Ismail Bhatti that the omission of the committing Magistrate to comply with the provisions of subsection (1) of section 211 of the Code of Criminal Procedure vitiated the proceedings from the stage at which the section came into play cannot be accepted, I proceed to consider whether or not the accused persons were prejudiced by the non‑compliance with the provisions of the section, because if they were, it is clear that the omission could not be overlooked. The learned counsel for the State contended that because the point raised by Mr. Bhatti was not raised in the Court of the committing Magistrate and not even in the Court of the Sessions Judge, nor was it taken in the grounds of appeal, put in on behalf of Ibrahim and Muhammad Sharif, it should be held that no prejudice had resulted by reason of non‑compliance with subsection (1) of section 21l of the Code of Criminal Procedure. Ordinarily, the persistent silence relied upon by the learned counsel for the State would have been a very strong factor against the accused persons, but it cannot be overlooked that it was but recently that the effect of non‑compliance with the provisions of subsection (1) of section 211 of the Code of Criminal Procedure had come into pro minence and I am not prepared to hold that because the objection was not raised earlier, it must be held that no miscarriage of justice had occurred. The learned counsel for the State pointed out that shortly before the charges were framed the accused persons had been asked whether they would like any witnesses to be examined and none of them said that he would do so. Nathe Khan, who was the first to be examined by the committing Magistrate, when questioned whether he would produce defence said that he would do so in the Court of Session, if necessary. Ibrahim was questioned next and he too gave a reply similar to that which his father had given, as did Muhammad Sharif who was examined after Ibrahim. When Moodi, who was examined after Muhammad Sharif, was asked the question whether he would produce defence, he too gave a reply similar to that which his father had given and the statement which Ghulam Qadir made was also to the same effect. All the accused persons were asked by the learned trial Judge if they would produce defence and the answer of every one of them was in the negative. Mr. Muhammad Ismail Bhatti contended that almost similar answers had been given by the accused persons in the case Moonda v. The State, and as their Lordships of the Supreme Court had directed that the Sessions Judge should question the accused again as to whether they wanted to produce any defence, it was imperative that the same course should be followed in the present case. If the Supreme Court had laid down as a proposition of law that the omission of a committing Magistrate to ask the question contemplated by subsection (1) of section 211 of the Code of Criminal Procedure makes it necessary that a Court of Appeal must direct the trial Court to ask the accused person the question whether he wanted to produce witnesses in defence even though precisely the same question had been asked by the trial Court after the close of the prosecution evidence, it would have amounted to law declared by the Supreme Court and no Court in Pakistan could have followed any other course, but it is clear that the Supreme Court did not declare that to be law. It is a well known principle of interpretation of judicial decisions, and has been laid down by the Federal Court of Pakistan in Fazal Elahi v. Crown (P L D 1953 F C35 at p.58), that a decision given in a case is meant primarily to apply to the facts of that case and as I think that the order passed by the Supreme Court in Moonda v. The State will have to be passed in the present case only if the facts of the two cases are similar in almost all material respects I will proceed to examine whether they were. In Moonda v. The State the Sessions Judge was directed to ask precisely the same question from the accused which had been asked by him already, namely, whether they wanted to produce evidence in defence, because the irrelevant statement of the investigating officer that some of the accused persons were innocent may have made it appear to the accused persons that it was not necessary to produce evidence in defence. No such considerations apply to the present case and it appears to me that it is not imperative that the same order be passed in this case as was passed by the Supreme Court in the case relied upon by the learned counsel for the appellants. In the present case, though the committing Magistrate did not question the accused after framing a charge whether they would produce any evidence in defence at the trial but he had asked the accused 13 a question about defence evidence before the, framing of the charge and the trial Court too gave them an opportunity to produce defence evidence which they declined to do. In these cir cumstances, affording an opportunity to the accused to produce evidence in defence at this stage would be nothing but an invita tion to produce perjured evidence and as an invitation of that character did not meet with the approval of the highest Court in Pakistan in the case reported as Ali v. The Crown (P L D 1952 F C 71), 1 will be reluctant to issue the invitation unless the law leaves me no choice in the matter. I have indicated that it is not imperative in the present case that the accused be now asked the question which should have been asked by the committing Magistrate after framing the charge and hold that the omission relied upon by C Mr. Muhammad Ismail Bhatti which had not caused any failure of justice is governed by section 537 of the Code of Criminal Procedure and must be overlooked entirely.

11. A point which was touched upon during arguments may now be dealt with. Five persons were sent up for trial for murder and other offences. All were acquitted of the charge of murder and only two were convicted of a comparatively minor offence, while the other three were acquitted altogether, but the acquittal of only one of the three accused acquitted altogether, namely, Ghulam Qadir alias Qadu, has been questioned by the Provincial Govern ment in their appeal (Criminal Appeal No. 852 of 'J957). The omission of the Provincial Government to appeal against the acquittal of Nathe Khan and his son Moodi was sought to be used as a sort of admission by the Provincial Government that the prosecution case against those two was false. It was said, perhaps, only half‑heartedly, that the fact that the Provincial Government had presented an appeal under section 417 of the Code of Criminal Procedure against only one of the three acquitted accused should result in the rejection of the entire prosecution case. I cannot L accept this contention because when the Provincial Government presents an appeal against the acquittal of an accused person, the High Court has to determine whether or not the acquittal which is questioned by the appeal merits interference with and is not con cerned with the guilt or innocence of those acquitted accused against whom the Provincial Government has, for some reason, not chosen to appeal. The omission to appeal against some of the acquitted accused may have been due to the fact that the officer who had the final say in the matter was interested in them or for some reason the case against them was considered by him not to be of such a character as to justify an appeal against his acquittal. If, however, the co‑accused of the person whose acquittal has not been challenged by an appeal, but whose own acquittal has been, proves to the satisfaction of the Appellate Court that the accused whose acquittal had not been challenged had been falsely implicated in the case, he may be able to get some benefit because the Court will be reluctant to accept against some of the accused the evidence of witnesses who were clearly proved to have implicated a person who was innocent. 1 might here again refer to the decision of the Supreme Court in Moonda v. The State, because the fact that only four of the nine acquitted accused had been appealed against by the Provincial Government appears to have been commented upon by the learned counsel who appeared in the Supreme Court for the defence. It is clear from the judgment of their Lordships of the Supreme Court that the omission of the Provincial Govern ment to appeal against some of the acquitted accused was attacked before them as a disregard of the principle of equality before the law which was guaranteed to all citizens of Pakistan by the Consti tution of the Islamic Republic of Pakistan which was in force at all relevant stages of that case. The learned Judges of the Supreme Court did not express their view on the contention raised before them but as the omission of the Provincial Government to appeal against the acquittal of only some of the accused in this case has not been attacked on precisely the same ground on which it was attacked before the Supreme Court, it does not appear necessary to decide whether the argument that the fundamental right of equality before the law had been infringed by the omission of the Provincial Government to appeal against some of the accused is open after the 7th of October, 1958 when the Constitution of the Islamic Republic of Pakistan, an article of which, guaranteed equality before the law, was abrogated. As regards the argument that omission of the Provincial Government to appeal against some of the acquitted accused amounts to an admission that the, prosecution case against them was false, I might say that a similar contention raised before a Bench of which I was a member in The Crown v. Mirza Khan (P L D 19.55 Lah. 271) was not accepted and an attempt to have the judgment of conviction passed by that Bench reversed by the Federal Court of Pakistan met with no success.

12. Opportunity which offered itself in this case to address the oft‑addressed argument that because the learned trial Judge had acquitted three of the five accused the case against the other two should also have been held by him to be doubtful was not allowed to slip during arguments of the learned counsel for the accused. The trial Court had given benefit of the doubt to three of the five accused which does not amount to the same thing as holding that these three were conclusively proved to have been falsely implicated in the case. When an accused person is given the benefit of the doubt, it does not mean that he has been proved innocent but means only this that his guilt is not proved to that degree of certainty which has been for ages considered necessary in all civilised countries before a person is adjudged guilty of a breach of the criminal law of the land. If in any case one or more of the accused persons are proved to be innocent and not merely entitled to the benefit of the doubt, the other accused persons against whom the prosecution has produced no other evidence except that which has been found to be definitely false against some of the accused will probably, get the benefit of the doubt, because it will not be safe to base conviction on evidence which was proved to be false with regard to some of the accused persons, but that result need not follow if there is, in addition to the evidence which has been found to be false, some other evidence of a convincing character. The argument that complete acceptance or complete rejection of the prosecution case should be aimed at is, no doubt, not devoid of speciosity but cannot be supported on any reasonable ground.

13. I will now take up the question whether or not Ibrahim, Muhammad Sharif and Ghulam Qadir alias Qadu, against all three of whom the Provincial Government has presented an appeal under section 417 of the Code of Criminal Procedure with a view to having them sentenced for an offence of murder, were proved to have participated in the occurrence. As mentioned already, the prosecution produced five persons, namely, Muhammad Afzal (P. W. 9), Sardara (P. W. 10), Bashir Ahmad (P. W. 11), Allah Ditta (P. W. 12) and Ralia (P. W. 13) as eye‑witnesses, but the learned trial Judge chose to rely only to some extent on the state ment of Sardara (P. W. 10) alone who bore injuries on his person. There were recoveries of clothes stained with human blood from the persons of Ibrahim, Muhammad Sharif and Ghulam Qadir alias Qadu and recovery of a weapon stained with human blood at the instance of each of them. The recoveries respecting Ibrahim and Muhammad Sharif were accepted by the learned trial Judge and used as evidence against them to corroborate the statement of Sardara (P. W. 10), whose presence at the spot was accepted by him, but he did not choose to use the recoveries from him or at his instance against Ghulam Qadir alias Qadu.

14. It is established by the medical evidence on the record that the party of the complainants received an extremely large number of injuries. With regard to Irshad Khan deceased it was stated by P,. W. 2 Dr. Rahmat Ullah, Medical Officer, Gojra, who performed the post‑mortem examination, that the body was found to have no less than 30 injuries which were on all parts. On opening the chest, the doctor found that the 5th, 6th, 7th and 8th ribs were fractured and on removing the scalp he saw that there was a cracked fracture of the left parietal. Doctor Abdur Rashid, who was the first witness for the prosecution at the trial, deposed that on the 27th of October 1956, as Assistant Medical Officer, Civil Hospital Samundari, he examined Adalat Khan, on whose person he found an incised wound, two contusions and two con tused wounds, of which the incised wound was grievous and dangerous in character. The same doctor examined Sardara (P. W. 10) on the 27th of October, 1956 and found no less than twenty injuries on his person. All the injuries of Sardara were simple in character and only one of them was caused with a sharp‑edged weapon. The same doctor examined Ibrahim accused on the 28th of October, 1956 and found three abrasions on his person which were simple in character and caused by friction within about 48 hours of the medical examination. Muhammad Sharif accused was also medically examined by the same doctor on the 28th of October, 1956 and was found to have on his person nine abrasions which, in the opinion of the doctor, had been caused by friction within about 48 hours of the medical examination. The medical examination of Ghulam Qadir alias Qadu on the same day by the same doctor showed that he had eight injuries on his person, of to which one was a contused wound, one a contusion mark and the rest abrasions. In the opinion of the doctor, the contused wound and the contusion mark were caused with a blunt weapon, while the abrasions had resulted from friction, and that the injuries were received within about 48 hours of the medical examination. Moodi too was examined by the same doctor on the same day in the evening and was found to have three abrasions on his parson.

15. The fact that Ibrahim, Muhammad Sharif and Ghulam Qadir alias Qadu were found to bear injuries on their persons which according to the doctor who examined them, must have been received near about the time of the occurrence which resulted in the death of Irshad Khan is a circumstance which is not without significance. As already mentioned Ibrahim said in his statement before the learned trial Judge that he, Muhammad Sharif and Moodi had been attacked by eight or nine persons at about isha prayer time at his dera. This story of attack was not supported by Muhammad Sharif and Moodi each of whom ascribed the injuries on his person to a beating alleged to have been given to him by the police. At the trial, Ghulam Qadir alias Qadu also took up the position that the injuries found by the doctor on his person were given to him by the police. There is no proof on the record that the injuries on the persons of Muhammad Sharif and Ghulam Qadu alias Qadu resulted from a beating given to them by tire police, and this part of the defence case was not even put to any of the prosecution witnesses. The fact that Ibrahim, Nitahammad Sharif and Ghulam Qadir alias Qadu bore injuries on their persons is piece of evidence which goes a long way to establish that they toot part in the incident and corroborates the statement of Sardara (P. W. 10), whose presence at the spot at the time of the occurrence was held even by the learned trial Judge to be established. None of the eye‑witnesses admitted that he, or any one else in his presence, had caused any injury to any of the accused persons. It is however, by no means unlikely that some of the mirror injuries found on the persons of the four accused who, according to the prosecution case, took an active part in the incident, were received by them at the hands of their companions who, because of the confusion that must have resulted on account of an attack in a small room by four persons on three others, may have unwittingly hit their own companions. All the injuries received by four of the five accused except two of those received by Ghulam Qadir alias Qadu were abrasions most probably received because of their happening to be hit or rubbed against some hard substance when intent on giving blows to the victims. It was not the case of Ghulam Qadir alias Qadu that he was attacked by the deceased or his companions, nor did Ibrahim, who pleaded that there was an attack on him and his companions, say that Qadu was one of those companions. I am satisfied that Ghulam Qadir alias Qadu received the injuries found on him in the same incident in which Ibrahim and Muhammad Sharif did. The learned trial Judge chose to give the benefit of the doubt to Ghulam Qadir alias Qadu, but he appears to have done so without considering all the evidence against him, namely, the injuries on his person, his production of a dang stained with human blood and the depositions of the eye‑witnesses.

16. The learned trial Judge held that only Sardara (P. W. 10) had witnessed the occurrence and expressed the view that the other four witnesses, who deposed that they had seen the occurrence, were only posing to be eye‑witnesses but it appears to me that in arriving at this finding he relied on facts and circumstances which, in addition to being inconclusive, were of an entirely trivial nature. No doubt there were minor discrepancies between the statements of the witnesses on minor points, but the discrepancies of this nature are inevitable when persons are examined in meticulous detail about all possible matters connected with an incident which occurred months before they make their depositions. Ghulam Qadir alias Qadu is not related to Ibrahim and Muhammad Sharif and I can see no reason why, if he were not present at the dera at the time of the incident, he should have been named as one of the assailants. Ghulam Qadir alias Qadu stated that he had been involved in the case because he was suspected of having stolen an ox of Rahmat Ali, a brother of Irshad Khan deceased. There is no proof of this suspicion having been entertained against him, and his statement to this effect which was for the first time made at the conclusion of his trial in the Sessions Court, does not appear to be, true. The fact that Adalat Khan, who himself received a grievous injury, did not appear as one of the prosecution witnesses was commented upon by the learned trial Judge by saying that the prosecution bad been deprived of a valuable piece of evidence. It appears that the learned trial Judge did not accept that part of the statement of Muhammad Afzal (P. W. 9) which was to the effect that as a result of the incised injury he received on the head which had cut many of the bones, Adalat Khan had lost his power of speech and was under medical treatment even till the day the witnesses had appeared in Court. If Adalat Khan had not lost his power of speech, it was open to the accused persons two of whom, namely, Muhammad Sharif and Moodi were sons of his real sister, to call him as a witness in defence, because being so closely related to them he would not have given false evidence against them. The learned trial Judge mentioned that Allah Ditta (P. W. 12), one of the eye witnesses, produced by the prosecution, had been convicted of an offence of theft, which fact the witness denied which showed that in addition to being a thief the witness was a liar. Allah Ditta denied that he had been convicted of theft and the learned trial Judge relied on a judgment of Mr. M. Shafi, Magistrate Ist Class, Lyallpur, dated the 24th of September, 1952, a copy of which is on the record as Exh. D. J., according to which one Allah Ditta, son of Ali Bakhsh, Gujjar, a resident of Chak No. 138/G. B. Thana Samundari, District Lyallpur, was awarded ten stripes for an offence of theft. The name, parentage and the residence of Allah Ditta (P. W. 12) tally so exactly with the Allah Ditta mentioned in the copy of the judgment Exh. D. J. that it was permissible to infer that he was the person who was convicted. Assuming that the statement of Allah Ditta (P. W. 12) could be brushed aside for the reason given by the learned trial Judge, I fail to see how the state ments of the other eye‑witnesses were deserving of the same treatment. In view of the evidence relied upon by the pro3ecution of which one part is the depositions of Muhammad Afzal (P. W. 9), Sardara (P. W. 10), Bashir Ahmad (P. W. 11) and Ralia (P. W. 13), 1 hold that it was established beyond all reasonable doubt that Ibrahim, Muhammad Sharif and Ghulam Qadir alias Qadu had taken part in the incident which resulted in fatal injuries to Irshad Khan, a grievous and some simple injuries to Adalat Khan and twenty simple injuries to Sardara P. W.

17. This brings me to the question whether an offence or offences were committed by Ibrahim, Muhammad Sharif and Ghulam Qadir alias Qadu, all three of whom are respondents in the appeal presented by the Provincial Government. The prose cution case was that these three accused and Moodi opened an attack when they were surprised distilling illicit liquor. The learned trial Judge has not accepted this part of the prosecution case, but he does not appear to have considered the case from the correct angle. The story of distillation of illicit liquor was not so improbable as it appeared to the learned trial Judge to be. I can see no reason why that story, supported as it is by evidence given by at least four persons, who are eye‑witnesses of the assault and by the recovery of a lamp and a stove from the place which, according to the prosecution, was the scene of the distillation of the illicit liquor should not be believed. It is true that the prose cution did not produce evidence that the earth on which the material from the distilling apparatus was stated to have been spilt by the accused was stained with spirit, but it must be remembered that there is no evidence that the stage of distilla tion had proceeded so far that the molasses had turned into spirit, but even if there was some spirit, it must have evaporated away long before the earth on which it was spilt reached the Chemical Examiner for being subjected to chemical examination. In this connection one cannot overlook that the case of exercise of the right of private defence set up by Ibrahim which the learned trial Judge appears to have accepted was very improbable. Muhammad Sharif and Moodi did not support Ibrahim in his belated plea of having been attacked at the dera, and though Moodi's case is no longer relevant for other purposes, his statement can, in my opinion, be taken into consideration when determining whether or not the statement of Ibrahim made with regard to Moodi, Muhammad Sharif and himself having been attacked could be accepted. Ibrahim had stated that eight or ten persons had attacked him and his two brothers. 1f the statements were correct, one would expect that the assailants would cause a great many injuries and themselves remain unscathed or receive a few minor injuries. What one finds, however, is that while the party of the accused received very minor injuries, almost all of which must have resulted from their happen ing to hit or rub against things lying in the room where the incident took place, when employed in the attack on the victims, the party of the complainants received innumberable injuries. Considering the entire evidence and the circumstances I have arrived at the conclusion that the learned trial Judge erred in holding that Ibrahim and Muhammad Sharif, whom he convicted under section 304 Part II of the Pakistan Penal Code, had acted in the exercise of a right of private defence of person but had exceeded it. It appears to have escaped the notice of the learned trial Judge that the con viction of Ibrahim and Muhammad Sharif under section 304 Part II of the Pakistan Penal Code could not have been recorded if his finding that they acted in exercise of the right of private defence was correct. If they had a right of private defence, only that one of them who was proved to have caused both or either of the fatal injury could have been punished for causing death of Irshad Khan and his conviction should have been under section 304 Part I and not under section 304 Part II of the Pakistan Penal Code, because a person who causes the death of another by break ing his skull or smashing four of his ribs must be presumed to have intended the death of the victim. I am not unaware that as held by a Full Bench of the Lahore High Court in Qadir Bakhsh v. The Crown (P L R 1953 Lah.637), the Federal Court had expressed the view in Safdar Ali v. The Crown (P L D 1953 F C 93) and Muhammad Aslam v. The Crown (P L D 1953 F C 115) that when a person acts on grave and sudden provocation or in the exercise of a right of private defence, he cannot be deemed to have the intention to cause death even if he does kill the person who has attacked on grave and sudden provocation. This view, however, was not adhered to in some other cases. In an unpublished case, Nawab Din v. The Crown (Federal Court Criminal Appeal No. 15 of 1953), which was an appeal against the judgment: of the Lahore High Court in Nawab Din v. The Crown (P L D 1953 Lah. 588: P L R 1953 Lah. 314), in spite of the finding that he had been guilty of causing death on grave and sudden pro vocation, Nawab Din was convicted by the Federal Court of an offence under section 304 Part I of the Pakistan Penal Code and sentenced to transportation for life. The judgment in Nawab Din's case was given by the Federal Court on 23rd December, 1953 while the judgment of the Full Bench of the Lahore High Court in Qadir Bakhsh v. The Crown was given on 17th March, 1953 and it is obvious that the decision of the Federal Court which was later in date must be followed in preference to the earlier decisions of that Court or of any other Court in Pakistan. As regards a person t who exceeds his right of private defence and kills another; there is the decision of the Supreme Court of Pakistan in Akhtar Husain v. The State (P L D 1958 S C (Pak.) 251) in which the conviction was recorded under Part I of section 304 of the Pakistan Penal Code and not under Part II of that section. It would, therefore, appear that even on his own finding the learned Sessions Judge should have convicted Ibrahim and Muhammad Sharif under Part I of section 304 of the Pakistan Penal Code and not under the Second Part of that section.

18. This brings me to the question what offence is established against Ibrahim, Muhammad Sharif and Ghulam Qadir alias Qadu accused. There is no doubt that the injuries received by Irshad Khart were sufficient in the ordinary course of nature to cause death, as they were deposed to be by the doctor who performed the autopsy on Irshad Khan's corpse, nor can there be any doubt that the person who caused the injuries which broke the ribs and the one who caused the injury which cracked the skull of Irshad Khan was guilty of an offence of murder, because both of these injuries were individually fatal and the person causing them could be safely held to have intended to cause the death of his victim. There is no definite proof with regard to the author of the individually fatal injuries, and; consequently, Ibrahim, Muhammad Sharif and Ghulam Qadir alias Qadu could be held guilty of murder. only if it were established that the person or persons who caused the fatal injuries did so in the prosecution of the common intention of the assailants to cause death.

19. There is no direct evidence to the effect that the common intention of his assailants was to cause the death of Irshad Khan, but direct evidence of that type can be available only in cases in which the deliberations of the assailants have been overheard, or one of the assailants appears as a witness against the others and inference with regard to common intention of the assailants is in a vast majority of cases to be drawn from their acts. The evidence on the record shows that as soon as Irshad Khan and his compa nions accompanied by Nathe Khan reached the dera where illicit distillation of liquor was in progress, persons engaged in the distillation opened an attack with weapons which they brought out from that very room. The alacrity with which each of the accused persons armed 1himself with a weapon of a dangerous character would show that they had already agreed that if anyone came upon them when they were engaged in illicit distillation of liquor, they would open an attack on him and would not care if the attack resulted in fatality. That this was the common intention of the illicit distillers is crystal clear from the fact that though two of the persons who surprised them, namely, Irshad Khan and Adalat Khan, were brothers of the mother of two of the accused, namely, Muhammad Sharif and Moodi, they were dealt blows that killed one and almost killed the other. No conviction was recorded by the learned trial Judge for the injuries received by Adalat Khan and though there is no appeal against the acquittal with regard to the offence under section 307 of the Pakistan Penal Code with which the accused were charged for attempting to murder Adalat Khan, I am not precluded from taking into consideration the fact that Adalat Khan received serious injuries in the incident in which Irshad Khan received injuries which were fatal. It may be con ceded that the common intention which the illicit distillers of liquor had formed was not this that they will kill Irshad Khan and was only this that they will kill anyone who surprised them when engaged in their distilling of liquor, but if Irshad Khan happened to be the person who surprised them, they cannot escape liability for the offence of murder simply because in furtherance of their common intention to kill an undetermined person they killed one who was not only known to them but was also related to some of them. I would, therefore, hold that Ibrahim, Muhammad Sharif and Ghulam Qadir alias Qadu accused were proved guilty of an offence under section 302/34 of the Pakistan Penal Code.

20. The evidence on the record proves that Adalat Khan, the brother of ltshad Khan received almost fatal injuries in this incident and there can be no manner of doubt that the assailants of Adalat Khan weve guilty of an offence under section 307/34 of the Pakistan Penal Code with regard to the injuries caused to Adalat Khan and for an offence under section 323/34 of that Code for the injuries received by Sardara. The prosecution case at the trial was that the persons who caused mortal injuries to Irshad Khan caused injuries to Adalat Khan and Sardara also, but the appeal presented by the Pro vincial Government sought only the conviction of Ibrahim, Muhammad Sharif and Ghulam Qadir alias Qadu for the offence of murder. The omission of the Provincial Government to seek conviction of these three accused for the other offences alleged to have been committed by them in the same transaction, of which offences they were acquitted by the trial Court, deprives this Court of the power to record a conviction for those offences and the point has been taken notice of to emphasise what has been said in an earlier part of this judgment with regard to the omission of the Provincial Government to appeal against the acquittal of some of the accused. If the omission of the Provincial Government to question the acquittal as a whole by an appeal against an order of acquittal were to be deemed suffi cient for throwing out the whole prosecution case, it would have been necessary to throw out the present case, because the Provincial Government did not chose to frame their appeal in such a manner that the acquittal of Ibrahim, Muhammad Sharif and Ghulam Qadir alias Qadu, with regard to offences other than murder alleged to have been committed by them in the same transaction in which murder was committed, could be set aside in appeal.

21. In view of what I have said above, I would accept the appeal presented by the Provincial Government (Criminal Appeal No. 852 of 1957) and convict Ibrahim, Muhammad Sharif and Ghulam Qadir alias Qadu under section 302/34 of the Pakistan Penal Code. The offence proved merited the exaction of the extreme penalty but as the occurrence took place very long ago, I feel reluctant to pass a sentence of death and would sentence Ibrahim, Muhammad Sharif and Ghulam Qadir alias Qadu to transportation for life for the murder of Irshad Khan. In view of the fact that they have been convicted of an offence more serious than the one of which the learned trial Judge con victed them, the appeal by Ibrahim and Muhammad Sharif (Criminal Appeal No. 537 of 1957) has faild automatically and the petition for revision presented by the Provincial Govern ment for enhancement of the sentence imposed by the learned trial Judge on Ibrahim and Muhammad Sharif for an offence under section 304 Part II of the Pakistan Penal Code has become infructuous. CHANGEZ, J.--‑(31‑3‑1959).‑--I have read the judgment of my learned brother with the care and attention which it deserves. I fully agree with his findings so far as the merits of the case are concerned, but I regret that I have not been able to persuade myself to accept the view of my learned brother that the omission of the committing Magistrate to comply with the provisions‑of subsection (1) of section 211 of the Code of Criminal Procedure is an omission which is curable under section 537 of the Code of Criminal Procedure and that the proceedings taken subsequent to it are not vitiated as the omission has not resulted in a failure of justice. I had an occasion to deal with the precise question in Shal Khan v. The State and for the reasons given in detail, I would like to adhere to my views expressed in that judgment. I wish to emphasise the fact that as soon as a charge is framed under the provisions of section 210 of the Code of Criminal Procedure, a statutory duty is cast on the Magistrate by subsection (1) of section 211 of the Code to require the accused at once to give in, orally or in writing, a list of defence witnesses whom he wishes to be summoned to give evidence on his trial. This duty in the words of their Lordships of the Supreme Court of Pakistan "must be interpreted as a concomitant of a right vested in the accused to obtain cancella tion of a charge framed by a committing Magistrate by invoking the discretionary power of the Magistrate to receive evidence for the accused persons under section 212 of the Code." Besides, it ensures the attendance of the witnesses for the defence at the trial. But if such a list is not filed by the accused, then in view of the provisions of section 291 of the Code of Criminal Procedure he is not entitled at the trial to the issue of summons to any witness as of right, nor can he insist on an adjournment being granted to enable him to produce such a witness. In a large number of cases the accused are unrepresented before the com mitting Magistrates and if the Magistrates were to ignore the provisions of subsection (1) of section 211, the accused will not only be deprived of the exercise of discretion by the Magis trates under section 212 of the Code but will also lose their right to the issue of summons to any witness whom they may wish to examine in their defence at the trial. It is significant that the Magistrate is not permitted to commit the accused soon after the framing of the charge. It is only when he has complied with sections 211 and 212 of the Code that he is empowered to commit the accused. In between the two stages the Magistrate is given the extraordinary power of cancelling the charge, in case he exercises his discretion in summoning and examining the witnesses named in the list given by the accused under section

211. It is, therefore, clear to me that these provisions create a substantive right in favour of the accused which the Magistrate is bound to comply with. As there is a likelihood of the accused being discharged by the Magistrate at this stage, it is no consolation to him to say that he will get full opportunity of being heard by the Sessions Judge at the trial. Similarly, if the accused wishes to produce defence evidence under section 208 of the Code of Criminal Procedure, and the Magistrate refuses to record it and commits the accused to the Court of Session, can it be seriously contended that the order of commitment is not illegal because the accused will have the opportunity of producing his defence evidence at the trial.

2. I am conscious of the fact that in Moonda's case their Lordships of the Supreme Court of Pakistan were not pleased to quash the commitment order, and had not said that non‑com pliance with these provisions was an illegality. I had pointed out in Shal Khan's case that in all probability the point was not raised before their Lordships. It appears that the learned counsel appearing in that case had urged before their Lordships that in view of the irregularities committed in that case the accused bad been prejudiced by declining to produce their defence evidence at the trial and had prayed that the accused should be given an opportunity to produce their defence evidence. However, the observations of their Lordships in connection with the non compliance of the committing Magistrate with the provisions of sections 208, 211 and 212 are couched in very clear and emphatic terms. I am, therefore, inclined to interpret that their Lordships intended to lay down that non‑compliance with these provisions was not a mere irregularity.

3. After a careful consideration of the point involved I am of the view that these are substantive provisions of law, and non‑compliance with these provisions is an illegality which is not curable under section 537 of the Code of Criminal Pro cedure. It is time that the Magistrates should realise their responsibility and refrain from doing anything which might violate the statutory provisions of law contained in sections 208, 211 and 212 of the Code of Criminal Procedure. I wish to add that it is with some reluctance that I have ventured to differ from the views of my learned brother for whose vast knowledge and experience in these matters I entertain the highest respect.

4. On the view which I have taken in the matter, the trial in the present case stands vitiated. I, therefore, set aside the convictions and sentences of Ibrahim and Muhammad Ashraf appellants and the acquittal of the appellants and Ghulam Qadir alias Qadu respondent of the charge of murder. I also quash the commitment order and send back the case to the Magistrate with the direction that he should proceed with the case from the stage of the framing of the charge in strict compliance with the relevant provisions of law. I might, however, make it clear that if the commitment is not to be quashed, the accused should be sentenced as directed by my learned brother. ORDER OF REFERENCE SHABIR AHMAD AND CHANGEZ JJ--‑(31‑3‑1959).‑We are agreed on all points raised at the hearing of the appeal except the one relating to the effect of the omission of the Committing Magistrate to question the accused under subsection (1) of section 211 of the Code of Criminal Procedure. The case will be laid before another Judge under section 429 of the Code of Criminal Procedure. The case is sent to His Lordship the Chief Justice for nominating the Judge before whom the case shall be laid. As the trial concluded on the 11th May, 1957 early disposal of the case is necessary and we have directed the counsel for the parties to appear before His Lordship the Chief Justice at 9 a.m., to‑morrow so that the time which would otherwise be taken up by the observance of formalities may be saved. M. Ismail Bhatti for Appellants. R. A. Jeremy for Respondent. KAYANI, C. J.--‑(16‑6‑1959).‑This case has come to me on a difference of opinion between Mr. Justice Shabir Ahmad and Mr. Justice Changez as to the effect of non‑compliance with the provisions of section 211 (1), Code of Criminal Procedure, on the subsequent murder trial. They both agreed on the evidence that the accused were guilty, but whereas the former thought that non‑compliance with the aforesaid provisions was merely an irregularity curable under section 537 of the Code, the latter regarded it an illegality which is fatal to the trial.

2. The persons tried were Nathe Khan, his three sons, Ibrahim, Muhammad Sharif and Moodi, and a fifth man, Qadu. The Sessions Judge convicted Ibrahim and Muhammad Sharif under section 304, Part II, P. P. C., and acquitted the other three. Both the convicts and the Provincial Government appealed, the appeal of the latter being against the acquittal of the two convicts and Qadu under section 302, P. P. C. As a precautionary measure, the Government also filed a petition for the enhancement of the sentences of the two convicts, which were rigorous imprisonment for five years in each case. If the question of law raised in this reference is decided against the convicts, the Judges have agreed that the appeal of the Provincial Government should succeed, and that a sentence of transportation for life be imposed on the two convicts and on Qadu.

3. Before the committing Magistrate framed charges against the accused, he asked them if they would produce witnesses in defence, and each one of them replied that he would do so in the Sessions Court, if necessary. In addition, one of them produced a copy of a judgment in defence. In the Court of Session, when asked if they would produce defence, they replied in the negative. The objection is that they were not asked to file a list of wit nesses after the charge was framed and before they were committed to the Court of Session.

4. The following provisions of the Code are relevant :‑ Section 207.--‑The following procedure shall be adopted in inquiries before Magistrates where the case is triable exclusively by a Court of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court. Section 208.‑(1) The Magistrate shall, when the accused appears or is brought before him, proceed to bear the complaint (if any), and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or on behalf of the accused, or as may be called for by the Magistrate. (2) * * * * * * (3) If the complainant or officer conducting the prosecution, or the accused applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so. Section 209.‑(1) When the evidence referred to in section 208, subsections '(1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accor dingly. (2) * * * * * * Section 210.‑(1) When, upon such evidence being taken and such examination (if any) being made, the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial, he shall frame a charge under his hand declaring with what offence the accused is charged. (2) As soon as such charge has been framed, it shall be read and explained to the accused, and a copy thereof shall, if he so requires be given to him free of cost. Section 211.‑(1) The accused shall be required at once to give in orally or in writing, a list of the persons (if any) whom he wishes to be summoned to give evidence on his trial. (2) The Magistrate may, in his discretion, allow the accused to give in any further list of witnesses at a subsequent time ; and where the accused is committed for trial before the High Court, nothing in this section shall be deemed to preclude the accused from giving, at any time before his trial, to the Clerk of the Crown a further list of the persons whom he wishes to be summoned to give evidence on such trial. Section 212.‑The Magistrate may, in his discretion, summon and examine any witness named in any list given in to him under section

211. Section 213.‑(1) When the accused, on being required to give in a list under section 211, has declined to do so, or when he has given in such list and the witnesses (if any) included therein whom the Magistrate desires to examine have been summoned and examined under section 212, the Magistrate may make an order committing the accused for trial by the High Court or the Court of Session (as the case may be), and shall also record briefly the reasons for such commitment. (2) If the Magistrate, after hearing the witnesses for the defence, is satisfied that there are not sufficient grounds for committing the accused, he may cancel the charge and discharge the accused. Section 215.‑A commitment once made under section 213 by a competent Magistrate or by a Civil or Revenue Court under section 478, can be quashed by the High Court only, and only on a point of law.

5. Now although it is true that when the accused is examined during the inquiry, the examination is under section 209, and its purpose is not to inquire whether the accused would produce any defence, yet in practice a question to that effect is put to him in the course of such examination, and when this course is adopted, the intention is to cover not only the stage of inquiry but also of the trial. In other words, if the accused says that he Wishes to produce defence, he may do so in the Magistrate's Court or he may reserve it for the trial. Section 211, however, gives the accused a right, after the charge is framed, to say that he would summon witnesses to give evidence at the trial, though, here again, as a matter of widely recognized practice, a list of defence witnesses for the trial is filed in the committing Court, without any formal interrogation under section

211. It is pertinent to observe that the emphasis in section 211 is on a "list" or a "further list" of witnesses to be summoned to give evidence at the trial, not on the production of the witnesses in the list, and there is no compulsion on the Magistrate under section 212 to examine any of these witnesses. There may be in the list, however, a name so important that the Magistrate might consider it worth while to summon the bearer of that name, and after examining him, to cancel the charge. But there is no right in the accused to require the examination of any such witness at that stage, the very patent object of inviting a list being to facilitate the trial and avoid such delay as may arise from submitting a list at a late stage. This object becomes further clear in section 290, which states that the accused may examine a witness who is present in Court, but that he shall not be entitled to have any witness summoned at the stage of defence during the trial, other than the witnesses named in the list given by him under section 211.

6. In practice, therefore, when the accused is examined under section 209, he is also asked if he would produce any defence, and this question has been regarded to do away with the necessity of asking for a list under section

211. Whenever any such list is filed, it is in answer to a question put during the examination under section 209, and no person is precluded from filing a list even if he has stated under section 209 that he has no intention of producing defence.

7. That this practice did not accord with the procedure laid down in the Code was first pointed out by the Supreme Court in Moonda v. The State (P L R (1958) 2 W P 1186: P L D 1958 S C (Pak.) 275). Whether their Lordships regarded this omission as an illegality or an irregularity is the subject of controversy between my two brothers who have referred this case to me, and it is certainly an unhappy position in legal procedure that while their Lordships are still in the Supreme Court, a controversy as to their intention should be raging here and should not be directly referable to them.

8. The facts in Moonda's case were not very simple. Of the fifteen persons under trial, the Sessions Judge had acquitted nine on the strength of a statement made by the investigating officer that he could not swear as to their guilt, and convicted the other six. These six had appealed to the High Court, and as against four of the nine acquitted persons an appeal had been lodged by the Provincial Government. The appeal of the six convicts was rejected and they sought special leave to appeal to the Supreme Court. The appeal of the Provincial Government was accepted, and the four persons affected by this order appealed to the Supreme Court. In the judgment of the Supreme Court the former set has been called the "petitioners" and the latter set the "appellants".

9. The Supreme Court first dealt with the appeal before it and pointed out that the appellants' defence had been prejudiced by the investigating officer's statement in their favour, because, after that statement, they had considered it unnecessary to produce any defence. When, however, the High Court reversed the order of their acquittal, "this result was achieved without these appellants having had the opportunity which the law requires to state their defence in full, and to exercise the option whether or not they would produce evidence in support". Their Lordships, therefore, decided to order the retrial of the "appellants" from the stage where they had to be questioned as to their defence.

10. The position as regards the "petitioners" for special leave‑the six persons convicted at the trial‑was regarded by their Lordships to be "not precisely the same". They had no reason to be optimistic like the "appellants" and they had declined in normal circumstances to produce evidence in, defence. But their Lordships were impressed with the ingenious argument that "there was a single case presented against all the fifteen persons who were brought to trial and that any aspect of the evidence, whether for the prosecution or for the defence, which might go in favour of one or more of the accused persons, would necessarily have a bearing upon the question of the guilt or innocence of each of the other accused persons". Then, as though by way of an additional argument, their Lordships observed :‑ "Moreover, it was pointed out after reference to the original record that in the matter of giving the accused persons an opportunity to produce defence evidence, there had been a violation of the procedure required by the Committing Court. In that Court, some of the accused persons had sought permission to produce defence evidence, under section 208 of the Criminal Procedure Code, which requires the Magistrate to take 'all such evidence as may be produced in support of the prosecution or on behalf of the accused or as may be called for by the Magistrate'. Five witnesses had been summoned for "the defence under power given to the Magistrate by sub section (3) of section

208. Thereafter, on the 17th September 1956, the Magistrate framed a charge, and immediately there after committed the accused persons for trial directing them at the same time to put in a list of their defence witnesses. Our attention has been drawn to the provisions of sections 210, 211, 212 and 213 of the Criminal Procedure Code, and it is urged that since in the result an order of commitment was made by the Magistrate his duty after recording evidence under section 208 was to frame a charge and to read it and explain it to the accused as required by section 210, after which it was his clear duty under section 211 to require the accused 'at once to give in orally or in writing a list of the persons (if any) whom he wishes to be summoned to give evidence on his trial'. Subsection (2) of section 211 gives the Magistrate discretion to allow the accused to put in a further list of witnesses at any later time, but this only serves to emphasize the mandatory nature of the duty imposed by subsection (1), namely, to require the accused at once, after the charge has been framed, to give in a list of witnesses. That this is a substantial duty, and corresponds to a substantial right is evident from section 212 which empowers the Magistrate in his discretion to summon and examine any witness named in any list given by the accused under section

211. Evidence recorded under section 212 may induce the Magistrate to cancel the charge and discharge the accused as is expressly laid down in subsection (2) of section 213". In the next paragraph, after referring to an argument by the Advocate‑General, their Lordships said: "In our opinion, the production and examination of witnesses under section 208 does not by any means constitute com pliance with the duty imposed upon the Committing Magistrate by section 2,11 of the Code which duty must be interpreted as a concomitant of a right vested in the accused to obtain cancellation of a charge framed by a Committing Magistrate by invoking the discretionary power of the Magistrate to receive evidence for the accused persons under section 212 of the Code".

11. Their Lordships consequently thought that "for both these reasons" the six petitioners for special leave were also entitled to the same opportunity as was being allowed to the four appellants, to be questioned as to their defence. The entire case was remanded for retrial "from the point of conclusion of the prosecution evidence, as against the ten appellants before this Court, who shall be re‑examined by the trial Court under section 289 of the Code of Criminal Procedure, and the trial shall proceed from that point according to law * * * * * * * * * * * " Section 289 requires the Court to call upon the accused to enter on his defence, and as section 291 prevents him from examining any witness who is not present unless his name is on the list filed under section 211, the Supreme Court further provided that' each of these persons shall be given "such reasonable opportunity as the law requires to produce his defence, if any".

12. It will be noticed that although one of the two reasons why retrial was ordered in the case of the "petitioners" for special leave was that they had not been required under section 211 (1) to give a list of defence witnesses, a duty which should be performed before the accused are committed to the Court of Session, the commitment was not quashed, nor was an altogether fresh trial ordered. All that happened was that the accused were given the right of being questioned again, at the point of conclusion of the prosecution evidence, to ascertain whether they wished to produce evidence in defence. Considering that such a question had already been put to them in the course of their trial, and they had not availed of their right, a retrial for the same purpose, I suggest respectfully, did not confer on them any substantial advantage, and may not have been ordered if the case of the six other persons, described as the "appellants" had not been remanded. In any case, Mr. Justice Shabir Ahmad was justified in observing that if their Lordships had regarded the omission as an illegality vitiating the proceedings, they would have quashed the commitment. It is true that they described the duty under section 211 (1) as being of a "mandatory nature" a "substantial duty" which "corresponds to a substantial right", and "a concomitant of a right vested in the accused to obtain cancellation of a charge framed by a Committing Magistrate by invoking the discretionary power of the Magistrate to receive evidence for the accused persons under section 212 of the Code" ; but if their Lordships' object by the use of these expressions had been anything more than to impress upon the Committing Magistrate the urgent nature of his duty, they would have remanded the case to the Committing Court rather than to the Court of Session. The "substantial right" which corresponds to the "substantial duty" of the Magistrate is the right to file a list of witnesses, not the right to have the witnesses examined by the Magistrate. He may "invoke" the Magistrate's discretionary power, but he cannot compel the exercise thereof. If, therefore, the purpose for which the duty is created has not been defeated, the omission should be condonable.

13. Mr. Justice Changez has followed the view which he expressed in Shal Khan v. The State. In that case, he held, relying on Moonda v. The State, that if the Magistrate omits to observe the provisions of section 211 and to exercise the discretion conferred by section 212, (he has considered both sections "concomitantly") he commits an illegality. But, says he, "this point does not appear to have been raised at all before the Supreme Court and their Lordships have not been pleased to express any opinion about it". With respect, the question before the Supreme Court was exactly this ; that the provisions of section 211 had not been complied with. As regards section 212, it is a contradiction in terms to speak of "discretion" and to regard its non‑exercise as an illegality. For the same reason, the instruc tions to Magistrates in para. 8 of the judgment, that they would scan the list of witnesses given by the accused and apply their minds to it, making a note on the record that they have done so, amounts, I say with great respect, to laying down a new procedure for the commitment of cases.

14. Mr. Ismail Bhatti, arguing the case for the accused suggested that the reason why Moonda v. The State had not quashed the commitment was that the Supreme Court had no power to quash, and that only the High Court can quash a commitment, for that was what section 215 said. One might as well say that the Code of Criminal Procedure did not recognize the Supreme Court as one of the standard Criminal Courts ; but what section 215 meant to say was that "a commitment once made" could not be quashed either by the Magistrate himself or by the Court of Session, and that the only proper procedure for quashing it was by application to the High Court.

15. Now as regards the curative effect of section 537, we should notice that it protects a finding, sentence or order from attack if the attack is based merely on "any error, omission or irregularity in the complaint, summons, warrant, charge, pro clamation, order judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code", and it is difficult to exclude from this extensive protection an omission to require the accused to file a list of witnesses, if thereby the accused does not suffer in his defence. Thus he would suffer if he were prevented from summoning any witness under section 291 on the ground that he had not already named the witness in his list. The only loss occasioned to him is that the Magistrate has no opportunity to exercise a discretion to examine witnesses from the list, but even there the Magistrate did ask the present appellants, though before framing the charge, whether they would produce any defence. I would not, therefore, hold that any prejudice has been caused.

16. On the exact scope of section 537, the Privy Council has thrown abundant light in a number of cases, two of which were noticed by me in Ghulam Muhammad v. Crown (P L D 1951 Lah 11). One of these was Subrahmania Ayyar v. King Emperor (I L R 25 Mad. 61) where the accused was tried on an indictment consisting of 41 charges extending over a period of two years. Their Lordships held that this was plainly in contravention of section 234, Code of Criminal Procedure, which provided that a person may be tried together only for three offences of the same kind if committed within a period of twelve months, and they repelled the contention that disobedience to an express provision as to the "mode of trial" was a mere Irregu larity which could be cured by section 537.

17. The next case brought to our notice was Abdur Rahman v. King Emperor (A I R 1927 P C 144) which suffered from non‑compliance with the provisions of section 360, Cr. P. C. That section requires deposi tions to be read over to witnesses in the presence of the accused and to be interpreted to the witnesses if they are taken down in a language which they do not understand. The evidence was recorded in English, a language which some of the witnesses did not know, but their depositions were read out and explained to them by an interpreter, while the Magistrate proceeded with recording other evidence. As regard the English‑speaking witnesses, the depositions were handed over to them for reading, while the Magistrate, as before, recorded other evidence. Their Lordships held that if no prejudice was caused to the accused, the irregularity was curable under section

537. Referring to Subrahmania Ayyar's case, they observed: "The distinction between that case and the present is fairly obvious. The procedure adopted was one which the Code posit ively prohibited, and it was possible that it might have worked actual injustice to the accused".

18. The next case is Babulal v. Emperor (A I R 1938 P C 130) the contents of which were condensed by me in the following passage in Ghulam Muhammad v. Crown. "In that case several persons had conspired to commit offences and had committed overt acts in pursuance of the conspiracy in the course of the same transaction. The main question before the Privy Council turned on an interpretation of section 239 (d) which provides that persons accused of different offences commit ted in the course of the same transaction may be charged and tried together. The question was whether the sameness of the transaction was to be determined by looking at the accusation or by looking at the result of the trial, and their Lordships decided that for this purpose it was the accusation that had to be looked at not the result of the trial. A subsidiary point involved was whether the charge of theft was properly framed because it alleged a multiplicity of offences whereas the offences did not constitute a single continuing offence. Their Lordships felt that the form of the charge was `most irregular and regrettable', but they agreed with the High Court that no injustice bad been inflicted on the appellants because the specific offences of which they were accused were satisfactorily proved by competent evidence and they thought that the irregularity in the charge was cured under section 537 by the finding that the accused had not been prejudiced. These remarks, however, should not be regard ed as having been occasioned by any violation of section 239 (d), for in an earlier part of the judgment their Lordships have observed that `it has been taken as settled law on all sides throughout these proceedings that the infringement of section 239 (d) would, if made out, constitute an illegality, as distinguished from irregularity, so that the conviction would require to be quashed under the rule stated in 28 I A

257. This is the case referred to above as 25 Mad. 61".

19. A more recent case is Kottaya v. Emperor (A I R 1947 P C 67) where the failure had occurred in respect of section.162, Cr. P. C. During the investigation, a Sub‑Inspector had examined five of the prosecution witnesses, and at this stage a Circle Inspector had taken over the investigation and had re‑examined those five and other witnesses. During the trial, copies of the statements of these‑five witnesses recorded by the Circle Inspector were given to the accused, but as regards the statements recorded by the Sub‑Inspector, the Public Prosecutor stated that there was no record thereof available. After the principal witnesses had been discharged and the Sub‑Inspector came to give evidence, he produced his case‑diary containing these statements, and a copy was then supplied to the accused. There were some discrepancies between these statements and the statements made during the trial, but it was not suggested that the discrepan cies were of a vital nature. Their Lordships while observing that the right of obtaining copies of statements made by witnesses during the investigation was "a very valuable one" inasmuch as it provided important material for cross‑examination, were of the opinion that no prejudice had been caused to the accused as the statements had ultimately been made available, even though too late to be effective, and they did not disclose any material discre pancy. On the argument that a breach of a direct and important provision of the Code cannot be cured, but must lead to the quash ing of the conviction, their Lordships observed: "In their Lordships' opinion this argument is based on too narrow a view of the operation of section

537. When a trial is conducted in a manner different from that prescribed by the Code as in 28 1 A 257, the trial is bad, and no question of curing an irregularity arises ; but if the trial is conducted substan tially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and none the less so because the irregu larity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships' Board in 5 Rang. 53, where failure to comply with section 360, Criminal P. C., was held to be cured by sections 535 and

537. The present case falls under section 537 and their Lordships hold the trial valid notwithstanding the breach of section 162."

20. In these cases their Lordships have agreed that where the disobedience is in respect of the mode of trial, the trial is illegal and should be set aside. In Subrahmania Ayyar's case more than three charges had been tried together, and this was regarded as affecting the mode of trial. Referring to that case, and distinguishing it from Abdur Rehman v. King Emperor, their Lordships observed in the latter that "the procedure adopted was one which the Code posi tively prohibited." There is no actual prohibition in section 234, which permits a joinder of charges up to three. The prohibition is in section 233, which requires a separate charge for every distinct offence and a separate trial for every such charge : and section 234 relaxes the prohibition up to a limit of three. Even then, the prohibition is not positive, but by implication. Is it then possible to say that where there is a prohibition, express or implied, dis obedience to it will be fatal to the trial, and where there is a direction, although expressed in the same mandatory language as a prohibition, non‑compliance with it will be visited by quashment only if it has prejudiced the trial ? I submit, with respect, that it is difficult to draw a line in all cases, since almost all provisions as i to the trial of offences are expressed in mandatory language, and that it would not be safe to say, as their Lordships pointed out in Kottaya v. Emperor, that the difference between the two cases is one of degree. The difference is in the manner of trial. If it subs tantially follows the manner prescribed by the Code, any omission in the observance of detail is an irregularity, and it can be cured.

21. Kottaya's is an extreme case, for I should have thought that the denial of a right to obtain copies of statements at the effective stage is likely to cause material prejudice to the accused, even though it may subsequently be discovered that the discrepancies in statements were not material. This is because a false witness may be shaken even with small discrepancies in his previous state ment. But if the Privy Council could hold in Kottaya's case that "a very valuable right" can also be denied in a qualified manner if no prejudice is caused, then since the failure to comply with S. 211 (1) causes no prejudice at all to the trial, it would be futile to cancel the commitment for that reason. The principal object of section 211 (1) is to secure a list of defence witnesses in good time, not to secure the exercise of a discretion by the Magistrate under 5cction

212. The exercise of discretion is incidental.

22. I have no doubt in holding that the omission to require the accused to file a list of witnesses under section 211 (1) does not l vitiate a trial, if during the trial the accused had adequate opportunity to defend himself.

23. This disposes of the reference, but Mr. Ismail Bhatti argued that when a case is referred to a third Judge under section 429, it is open to him to differ from both the referring Judges even on u matter on which they are in agreement. This agreement has, in the past, attracted some Judges because they found room for its exercise in the language of section 429, which is as follows :‑ 429.--‑When the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinion thereon, shall be laid before another Judge of the same Court; and such Judge, after such hearing, if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion.

24. Mookerjee J. held in Sarat Chandra Mitrav. Emperor ((1911) I L R 38 Cal. 202)) that since "the case" is laid before the third Judge, it means the whole case : "That section (section 429) provides that when the Judges composing the Court of Appeal are equally divided in opinion, the case with their opinion thereon shall be laid before another Judge of the same Court, and such Judge after such hearing, if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion. Two points are worthy of note in connection with this section ; first, that what is laid before another Judge is the `case', and secondly, that the judgment or order follows the opinion delivered by such Judge. I am not now concerned with the question of the trial of two prisoners with regard to one of whom the Judges composing the Court of Appeal may be agreed in their opinion, while as regards the other the Judges may be equally divided in opinion. In such a contingency it is quite possible to maintain the view that, upon a reasonable interpretation of the term `case', what has to be laid before another Judge is the case of the prisoner as to whom the Judges are equally divided in opinion. I am now concerned only with the contingency in which the Judges of the Court of Appeal are equally divided in opinion upon the question of the guilt of one accused person, though upon certain aspects of the case they may be agreed in their view. In such a contingency, what is laid before another Judge, is, not the point‑ or points upon which the Judges are equally divided in opinion, but the `case'. This obviously means that, so far as the particular accused is concerned, the whole case is laid before the third Judge, and it is his duty to consider all the points involved, before he delivers his opinion upon the case. The judgment or order follows such opinion which need not necessarily be the opinion of the majority of the three Judges ; for instance, at the original hearing of the appeal, one Judge may consider the prisoner not guilty, another Judge may consider him guilty under dike section of the Indian Penal Code, and liable to be punished in a certain way ; the third Judge may find him guilty under a different section and pass such sentence as he thinks fit. It is this last opinion which prevails, subject to the provisions of section 377 of the Criminal Procedure Code in the case of confirmation of sentences of death" Accordingly although the referring Judges agreed that a certain paper called the Pallichitra was a "newspaper" within the meaning of a certain Act, and the only question referred to him was whether an article published in it was seditious, he held that the Pallichitra itself was not a newspaper. In Kunhambu v. The Local Fund Overseer, Chirakkal (1932 Mad. W N 873) Krishnan Pandalal, J. also took the same view, but Waller J., hesitated to accept it. "Two Judges might agree", he said, "that an appellant was guilty, but disagree on a subsidiary point, e.g. a consequential order under section 517 Criminal Procedure Code. I venture to doubt whether the third Judge could hear the whole case on the merits and decide that the man should be acquitted".

25. In Ahmed Sher v. Emperor (A I R 1931 Lah. 513) two Judges had concurred in accepting the appeal of thirty‑one persons and acquitting them, but as regards nine others involved in the same case they had differed. On a reference under section 429, Addison J. said :‑ "Mookerjee J. held in Sarat Chandra Mitra v. Emperor that the case laid before the third Judge under section 429, Cr. P. C., is the complete case in so far as the two Judges who first heard the appeal have differed as regards particular appellants but not the case of the other appellants as to whom they did not differ. That is, I think, a reasonable view to take and I am not now concerned with the question of the guilt of those persons whose appeal they have concurred in accepting".

26. In Daulat Ram v. Emperor (A I R 1947 Lah. 244), Sale J., referred to the opinions of Mookerjee J., and Addison J., and said that "in agreement with this view I propose to act accordingly". But in that case the difference of opinion was on the whole case. There was only one accused and while Bhandari J. thought he should be acquitted, Martin J. was of the opinion that his conviction and sentence should be upheld.

27. Now as regards section 429 itself, it says that when the Judges "are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge * * * * * * * shall deliver his opinion, and the judgment shall follow such opinion". It is true that the whole case must be laid before the third Judge, because the rest of the case might be relevant to the point of difference, and in the absence of these words a stickler of outward form might insist that the third Judge look only at the two opinions and not at the rest of the case. But it is only when the opinion is divided that "their opinions"‑that is to say, the divided opinions‑are placed before a third Judge, and when the third Judge delivers his opinion, it is, in this context, his opinion on the point of difference. The whole section deals with the divided opinion, and it would be unreasonable to hold that because two Judges have differed on a minor point, ‑although they have agreed on major issues, their views on major issues also must be over‑ridden by the opinion of a single Judge. What would be the position in a case where a death sentence had been inflicted, and although the Judges differed whether the accused should be acquitted or convicted, they agreed that in the event of conviction the sentence should be one of transportation for life ? The third Judge could then hold that the sentence should be one of death, notwithstanding that section 377 requires confirmation of a death sentence at least by two Judges. Mookerjee J. tided over this situation by making his view "subject to the provisions of section 377 of the Criminal Procedure Code", but then how is it to be made subject to section 377 ? Will the third Judge say to the referring Judges : "If you want my opinion, one of you must now agree on a sentence of death", or will he ask the Chief Justice to refer the case to a fourth Judge ?

28. Waller J. pointed to another absurdity in the situation when he visualised a case where the Judges agreed on the guilt of the accused but differed as to the disposal of property connected with the crime. "I venture to doubt whether the third Judge could hear the whole case on merits and decide that the man should be acquitted". Mookerjee J. himself, although he relied on the word "case" in section 429, did not meet the whole case when he said : "I am not now concerned with the question of the trial of two prisoners with regard to one of whom the Judges composing the Court of appeal may be agreed in their opinion, while as regards the other the Judges may be equally divided in opinion. In such a contingency it is quite possible to maintain the view that upon a reasonable interpretation of the term `case', what has to be laid before another Judge is the case of the prisoner as to whom the Judges are equally divided in opinion". I submit respectfully that the interpretation does not become more reason able merely because the absurdity of the situation becomes more pronounced. If "the case" is the whole case, then why should only half of it be laid before the third Judge where the accused are two in number ? Then the argument based on the whole "case" should be carried to its logical conclusion and even the case of the acquitted accused should be laid before the third Judge. I agree respectfully that this aspect of the interpretation of Mookerjee J. is reasonable, and I only suggest that its reasonable ness be applied to other difficult situations also, like the one which presented itself to Waller J. or the one relating to confirmation of the sentence of death by which I have attempted to illustrate my argument.

29. Addison J. should not be understood to have accepted the whole argument of Mookerjee J. He had before him a case where the two Judges agreed on the acquittal of thirtyone accused, and to this situation he applied that part of Mookerjee J's. judgment in which the latter had not "concerned" himself with the question of trial of two persons with regard to the acquittal of one of whom the two Judges were agreed. "Mookerjee J. held that the case * * * * * * * * is the complete case in so far as the two Judges who first heard the appeal have differed as regards particular appellants, but not the case of the other 'appellants as to whom key did not differ. This is, I think,. a reasonable view and I On not now concerned with the question of the guilt of those persons whose appeal they have concurred in accepting."

30. I am, therefore, of the view that the case before me for decision is that on which the two Judges differ in opinion, although the whole case must be laid before me for the purpose of enabling me to arrive at a decision.

31. Since the Judges have agreed that the accused are guilty; and since I agree with Shabir Ahmad, J. that non‑compliance with section 211 (1), Code of Criminal Procedure, is a curable irregularity, the judgment shall be in terms of the order proposed by Shabir Ahmad, J. A. H. Order accordingly.