P L D 1960 (W (PLP)

However, in view of the decisions of a Division Bench of this Court, I hold that the trial has been vitiated by non‑com pliance with the provisions of section 309, Cr. P. C."

5. Counsel have informed us, and we are aware, that in a number of cases orders have been passed for retrial to ascertain the opinions of the assessors distinctly on each : ;urge The office has reported that 22 cases have been remanded for this purpose by the Karachi Bench from January 1959.

6. Section 309, Cr. P. C. is as follows :‑ "309 (1) When, in a case tried with the aid of assessors; the case for the defence and the Prosecutors reply (if any) arc concluded, the Court may sum up the evidence for the prose cution and defence, and shall then require each of the assessors to state his opinion orally on all the charges on which the accused has been tried, and shall record such opinion, and for that purpose may ask the assessors such questions as are necessary to ascertain what their opinions are. All such questions and the answers to them shall be recorded. (2) The Judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors. (3) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 562, pass sentence on him according to law." The view that failure to ascertain opinions on each charge separately vitiates the trial is based on the following words of the section "require each of the assessors to state his opinion orally on all the charges on which the accused has been tried." The word "all" does not seem necessarily to imply that opinions should be invited and given separately on all charges. If opinion was not given on a charge then, of course, the contention would be right that the provisions of section 309, Cr. P. C. have not been complied with. For instance, this view was taken in Arbab v. The State (PLD 1957 Kar.170). But in at least two judgments on this subject there are expressions which create an impression that opinions ought to be ascertained on each charge separately. They are (1) Shevanti v. Emperor (29 Cr. L J 561). (2) Shah Nawaz v. Crown (P L D 1953 Lah. 598). The discussion in the first case indicates that the defect that was found was not a failure of the trial Court to obtain the opinions of the assessors on each charge separately but that there was an omission to obtain their opinion on a charge which had been framed. In the last‑mentioned case the observation is as follows :‑ "The record does not state what questions were put to the assessors but it seems to be quite clear that on the conclusion of the trial they were not required to state their opinion separately on each of the charges." Their Lordships set aside the convictions and sentences of the appellants and directed the Sessions Judge to resume the hearing of the case from the stage where the first irregularity was com mitted. They ordered the Sessions Judge‑ " . . . . . (to) take assessors' opinion on each charge . . . ." On the basis of these observations it is contended that ascertainment of the opinions of the assessors collectively on all the charges is illegal and should result in a retrial.

7. A contrary view was taken in an unreported Confirmation Case No. 101 of 1958/Cr. Appeal No. J‑14 of 1959 by Ortcheson and Wahiduddin Ahmed, JJ. Wahiduddin, J. observed :‑ "It was also urged by learned counsel for the appellant that the assessor's opinion was not obtained under section 309, Cr. P. C. separately on each charge and against each of the accused and that the trial is vitiated. I do not find any force in this contention. It appears to me that the non‑observance of this rule in this case has not caused any prejudice to the appellant. The assessors unanimous opinion is that the appellant is not guilty. There will be no sense in remanding this case for further trial from the stage of the assessors' opinion, as it is not at all going to help the appellant's case." Ortcheson, J. observed :‑ "There remains the contention of the defence that the trial is vitiated by the failure to obtain the opinion of the,, assessors on each of the charges against the accused . . In the present case . . . . ., the assessors clearly expressed an opinion that the case against Ibrahim appellant is not proved beyond doubt and that he is not guilty. It is true that this finding does not reveal explicitly that the assessors gave separate opinions on the two charges. But on the other hand it is not conclusively established that their opinions related to one charge only. This argument of the defence accordingly is without force."

8. A question arises as to whether violation of section 309, Cr. P. C. should be considered to be a mere irregularity curable by section 537, Cr. P. C. if prejudice has not been caused to the accused. The view taken in Khanu v. The State (P L D 1958 Lah. 330) is that such violation is not a mere irregularity. On the other hand, emphasis was laid on prejudice to the accused by Wahiduddin Ahmed, J. in the above mentioned unreported case, in Manzur v. State (51 Cr. L J 933 (F. B.)) and Prem Nath v. State of Delhi (P L D 1956 S C (Ind) 197). The question as to how far prejudice to the accused should affect a decision has assumed obvious importance in the present case because counsel for the State has pressed for retrial in the face of opposition by counsel for the appellant.

9. In view of the above, we think that a reference should be made to a Full Bench for opinion on the following questions:‑ (1) Is it necessary under section 309, Cr. P. C. that the opinions of the assessors be ascertained separately on each charge ? (2) Does a failure to do so, vitiate the trial irrespective of prejudice to the accused? QADEERUDDIN AHMED, J.‑We need not repeat the facts contained in the order of reference, nor need we reproduce section 309, Cr. P. C. here as it has been quoted in that order. The language of the section would show that the answer to the first question referred to us mainly depends on what is under stood by the word "all" and partly on the connotation of the word "opinion". The expression "all" presents no difficulty. The provision of law is that the opinion of `each' assessor should be taken or `all' charges. The word "all" is not a synonym of "each" and as both words have been used in one phrase a distinction is to be drawn in their effect. The distinction is that the opinion of each assessor is to be taken separately, but it may be obtained on all charges collectively. The word "all" refers to all the charges that there may be without exception, but does not imply that they must be dealt with one by one either by the Court or by the assessors. The word "opinion" implies that the assessors should apply their minds. and then come to the conclusion of guilty or not guilty. For this purpose they must consider the facts, apply the law to them and thereafter draw their conclusions. The process of thought leading to an opinion, precedes that opinion and is not a part of that opinion, but the difference between the two parts has not been clearly kept in view in some judgments and as a result of the obscurity observations have been made in some judgments to indicate that the grounds of the opinions of the assessors were more important than the opinions themselves. A Division Bench of the High Court of judicature at Fort William in Bengal held in Queen v. Mst. Mina Nuggerbhatain and Mst. Lunchen (3 W R 6 (1865)), that an opinion was not a verdict and that there fore the reasons for it were to be taken into consideration for determining what weight was to be attached to it. In other words an opinion given by an assessor without the grounds on which it was based was of little value. Jackson J. held that if the opinion of a Judge was different from that of the assessors then the Judge should, ascertain the grounds of the assessor's opinion. This view has found favour in varying degrees in several old judgments like Queen Empress v. Mahadu Tukaram and Tukaram Salu (2 B L R 322), and Queen Empress v. Fakira Bin Lingappa (2 B L R 323), Bushmo (3 W R 21), and in a few recent judgments like Bhikari Singh v. Emperor (A I R 1934 Pat. 561 at p. 564). If this view was correct, then one could argue that each assessor was to give his opinion on every charge separately with reasons for it and that collective expression of opinion by an assessor on a set of charges was not according to law, since there were bound to be, more or less, different reasons for the opinion expressed on each charge. As the law stands, however, the grounds of the assessors' opinions find no place in it. The Court may put questions to them to ascertain their opinions but ascertaining an opinion is widely different from ascertaining the reasons behind it. How an assessor forms an opinion is fundamentally his own concern. He is only to give his opinion and the wisdom behind it is not a necessary part of it. The assessors are expected to frequently express erroneous opinions, for there was no other reason for enacting subsection (2) of section 309, Cr. P. C. A Full Bench of the Madhiya Bharat High Court has held in Manjur v. State (AIR 1950 M B 37) that : ‑ "It is usual to find the assessors no wiser at the end of a trial than at the commencement and they rarely serve any useful purpose save the satisfaction of the judicial conscience in following the‑provisions of law." In India trial with the aid of assessors has been abolished. The facts of Ghulam Hyder and others v. The State (P L D 1958 Kar. 441), which is a recent judgment of this Court, provide an instance of the absence of analytical powers in most of the assessors of this country. To insist that their opinions should be supported by reasons (which means good reasons) is to throw a heavier burden on them than the law has placed on them. If they express their individual opinions, the requirements of the law are satisfied, irrespective of the quality of reasons behind them. To avoid a possible misunderstanding we may make a digression here and add that statements made by the assessors sometimes do not amount to the expression of their opinions. If, therefore, questions are asked by the Court from them which may help them, by directing their thoughts to those processes of reasoning by which conclusions are drawn, in forming and expressing their opinions, such questions would be advisable. The reasons for their opinions would be relevant to the extent only of clearly ascertaining their opinions. There is a clear distinction between attaching importance to the grounds of opinions and eliciting the processes of thought to make sure that opinions were formed and expressed. Reverting to the first question referred to us, we wish to mention that we have found nothing in the language of section 309, Cr. P. C. ‑on which to found the view that the opinion of each assessor must be ascertained on every charge separately. Mr. Tufailali Abdur Rahman traced the history of the contrary view with the help of reported judgments in order to illustrate that there was no reasoning recorded in any judgment of any high Court on which that view could be based. In his address he brought to our notice three judgments which have often been taken to support that view. They are : Mst. Shevanti v. Emperor (A I R 1928 Nag. 257), Manjur v. State (A I R 1950 M B 37 (F. B.)) and Shah Nawaz v. Crown (P L D 1953 Lah. 598). In the first judgment the view expressed is an obiter and unsupported by reasoning. The learned single Judge who decided the appeal thought that the words `on all charges' had been interpreted in the Queen v. Motam Mal (22 W R 34) "to mean that distinct opinion on each charge must be taken and recorded". He did not express his independent view and was in error in thinking that the words had been so interpreted in the judgment cited by him. In the second judgment the learned Judges have repeatedly stated that the trial Court had omitted to record the opinions of the assessors on each charge and remanded it for disposal after recording their opinions on each charge; but the discussion of the facts of the case discloses that the trial Court had failed to record the opinions of the assessors on a charge under section 148, Penal Code and to ascertain their views as to whether there was an unlawful assembly and whether the appellant was a member of that assembly. The opinions of the assessors had thus not been taken on all charges whether separately or collectively. That omission was different in character from an omission to obtain the opinions of the assessors on each charge separately. We were informed that reliance was most frequently placed by counsel, on the third judgment in support of the proposition that the assessors' opinions must be ascertained on each charge separately. In that appeal two objections were raised on behalf of the appellants and the first objection had prevailed, with the result that the learned Judges decided that the trial bad been vitiated. The case was to be remanded for that reason. The second objection was that the assessors had not been "required by the Sessions Judge to state their opinion on all the charges on which the appellants had been tried". It is clear from the language of the objection that the defect lay in the omission to ascertain the assessors' opinions on some of the charges. This objection was upheld in. the following words "That on the conclusion of the trial they (assessors) were not required to state their opinion separately on each of the charges tried", ' and the Sessions Judge was directed to "take the assessors' opinion on each charge". The words "state their opinion separately on each of the charges", read with the objection to which they were related, do not indicate that a distinction was drawn between the ascertainment of opinion on each charge separately and its ascertainment on all charges collectively. The object of those words, in the context, obviously was to be explicit to the trial Court on the requirement that there should be no omission in taking each assessor's opinion on any charge. As Mr. Tufailali Abdul Rahman pointed out, their merit lay in being emphatically clear to the lower Court on this requirement of the law and in simultaneously conveying the instruction that each charge must be kept in mind in order to avoid the error of missing any of them. Among the large number of reported judgments that were cited before us there was only one in which the fact that the assessors' opinions were not obtained separately on two murders was before the Appellate Court. It was Narayana Pillai Bala krishna Pillai v. State (1). The finding of the Division Bench was that the two murders were mentioned in one charge and that separate questions in respect of both of them were put to the assessors, who expressed their opinions in different forms. The answers of one of them covered both murders but the three assessors spoke of `offence' and not of `offences'. The learned Judges held that in Malayalam the singular word that was used by them was used in a plural sense, but they found that the trial Court had not recorded his questions and had only recorded the answers of the assessors. This omission was held to be an irregularity, and not an illegality, on the short ground that the Court was not bound to conform to the opinions of the assessors. We are not at present concerned with that view. The gist of the decision on the question of collective answers in respect of the two murders was that it was not even an irregularity. Our answer to the first question is that it is not necessary that the opinions of the assessors should be ascertained separately on each charge. The form of questions and answers is not material in this regard, so long as the opinion of each assessor is obtained on all charges without exception. We should, however, mention that the instructions contained in a few judgments and in the Sind Courts Criminal Circulars, Chapter VII (XXI), to the effect that each charge should be put to the assessors separately. that their opinions be obtained on each of them and that the assessors' reasons for their opinions should be discovered, are of immense practical value, particularly in those cases which may appear to confuse the assessors, for achieving certainty that no omissions are made and that each assessor applies his mind to all the charges and expresses his opinion on all of them. In view of our answer to the first question, the second question does not arise. In the end we wish to express our appreciation for the assistance rendered to us by Mr. Tufailali Abdur Rahman and Mr. Hayat Junejo who appeared amicus curiae at our request. INAMULLAH, J.‑I agree with the conclusion. KHAMISANI. J.‑I agree. A. H. Reference answered.