P L D 1957 (W (PLP)

LARI, J.

Arbab has been convicted under sections 302, 307 and 363 read with section 149, P. P. C. Sentence under section 302, P. P. C. is death, under section 363, P. P. C. 5 years R. I. and a fine of Rs. 100 while the sentence under section 307, P. P. C. is two years R. I. and a fine of Rs.

100. The sentences of imprisonment are to run concurrently. Curiously enough he has not been convicted of an offence under section 148, P. P. C. although there was a specific charge to that effect. The appellant had been charged as under :- "That you on or about 20th December 1953 at village Darro Taluka Gambat, were member of unlawful assembly with the other absconding accused and did in prosecution of the common object of such assembly take away Mst. Arbab and others forcibly, commit an offence of rioting with a deadly weapon pistol and thereby committed an offence punishable under section 148, P. P. C. And that you there and then abducted Mst. Sonan with intention that she may be compelled to marry against her will and thereby committed an offence punishable under section 366, P. P. C., and that you there and then did commit murder by intentionally causing the death of Nawazyo and Photo with pistol shots and thereby committed an offence punishable under section 302, P. P. C. and that you there and then did an act and gave pistol shots to P. Ws. Rajo, Loung, Ladho. Ramzan under such circum stances, that if you had caused their death you would have been guilty of murder and thereby committed an offence punishable under section 307, P. P. C. and thereby committed offence under sections 148, 366, 302, 307, P. P. C. triable by Court of Session and I hereby direct that you be tried by the Sessions Court on the said charges". We regret to say that the above charge has not been fairly drawn. It is the prosecution's own case that Loung and Ramzan had received slight injuries with blunt weapon. The charge however recites that the appellant gave pistol shots to Loung and Ramzan as well. Again it is the prosecu tion's own case that Rajo and Ladho received gunshot injuries during the course of the incident, it not being known as to who actually fired the' shots in question. The charge however recites that it was the appellant who gave pistol shots to Rajo and Ladho. The same is the case with Photo who is said to have received gunshot injuries during the incident. In regard to Mst. Sonan it is not the case of the prosecution that it was the appellant who abducted. No doubt the allegation was that some member of the unlawful assembly actually abducted Mst. Sonan. The position therefore is that in regard to abduction of Mst. Sonan, causing death of Photo, causing injuries to Loung and Ramzan and further making murderous assault on Rajo and Ladho the appellant would be responsible by virtue of section 149, P. P. C. The appellant should not have been charged with substantive offence but with offences by virtue of section 149, P. P. C. The learned trial Court has himself found that the appellant was guilty of offences under sections 363 307 and 302 P. P. C. by virtue of section 1491 P. P. C. The charge should also have been to that effect. The appellant has been convicted of an offence under section 307 read with section 149, P. P. C. but it appears that the opinion of assessors was not taken in regard to alleged offence under section 307, P. P. C. The opinion of the assessors may be reproduced here:- "(1) Haji Ghulam Kadir.- In my opinion the accused is guilty of being a member of unlawful assembly and abducting Nawazio and Soni but he is not guilty for murder or causing injury to Nawazio and Photo and others as there is no reliable evidence to show that accused Arbab shot or injured them. (2) Ghulam Abbas.- In my opinion the accused Arbab is guilty of being member of unlawful assembly whose common object was to abduct Soni and Nawazio to avenge detention of his wife and guilty of abducting the girl and Nawazio and is also guilty of causing murder of Nawazio and Photo. (3) Muhammad Yousif.- In my opinion the accused Arbab is guilty of being member of unlawful assembly with common object to abduct Nawazio and Soni and in that he and his accomplice abducted them and he is also guilty of murder for killing Nawazio by shooting him and is also equally liable for murder of Photo. (4) Ramzan.- The accused is not guilty of any offence. Other decoits may have committed the offence. I don't believe the story about abduction and shooting by Arbab". According to Haji Ghulam Kadir the appellant was only guilty of an offence under section 363 read with section 149, P. P. C. Ghulam Abbas and Muhammad Yousuf expressed their opinion that the appellant was guilty of an offence under section 363 as well as section 302, P. P. C. read with sec tion 149, P. P. C. There is nothing to show in the recorded opinion of these two assessors that they were asked about the offence under section 307, P. P. C. Section 307 read with section 149, P. P. C, related to gunshot wounds on Rajo and Ladho. Section 309, Criminal P. C. runs as follows :- "309 (1). When, in a case tried with the aid of assessors, the case for the defence and the prosecutor's reply (if any) are concluded, the Court may sum up the evidence for the prosecution 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". It is clear that it is the duty of the Court to ascertain the opinion of each assessor individually on all the charges on which the accused has been tried and to record such opinion. If an opinion expressed initially does not cover all the charge it is the duty of the Court to put questions in order to ascertain the opinion of each assessor in regard to each charge The opinion of Ghulam Abbas and Muhammad Yousif assessors as recorded by the trial Court clearly shows that no question had been put in regard to charge under section 307, P. P. C. relating to gunshot injuries to Rajo and Ladho. Haji Ghulam Kadir is said to have stated that the appellant was not guilty for murder or causing injuries to Nawazio and Photo and others. It must be remembered that injuries had also been caused to Loung and Ramzan and most probably the word 'others' covers their cases and not that of an offence under section 307 P. P. C. in regard to Rajo and Ladho. In any event it is clear that the trial Court did not ascertain and record the opinion of Ghulam Abbas and Muhammad Yousif assessors as to the charge under section 307, P. P. C. Most probably he did not question Haji Ghulam Kadir also about the charge. Relying on the decisions of Supreme Court of India in case Prem Nath v. The State of Delhi (P L D 1956 S G (Ind.) 197) Mr. Halim Counsel for the appellant ably contended that the trial was vitiated. There is force in this contention. The gunshot injuries to Rajo and Ladho were caused at about the same time and in the course of the same transaction in which Photo and Nawazio were done to death. Opinion of assessors is not binding on the trial Court but it has got persuasive value. If the case of the prosecution as to injuries to Rajo and Ladho were not acceptable to all the assessors it could influence the decision of the Court not only in regard to the offence under section 307, P. P. C, but also as to offence under section 302, P. P. C. In such a case prejudice to the accused from non compliance of the provisions of section 309, Criminal P. C. has to be presumed. Their Lordships of the Supreme Court of India, observed: "In a case where the charges are so interconnected that the truth or otherwise of the one would reasonably react on the truth or otherwise of the other, such prejudice has to be presumed and the conviction would be illegal. In the present case all the acts which constitute the subject-matter of the various charges namely the possession of an unlicensed fire-arm by the appellant and the commis sion of the murders and two attempts to murder with that fire-arm not only constitute part of one transaction but are in such quick succession and are so integrally connected that the truth or falsity of one is bound to react on the other". The above observations apply with equal force to the facts of this case. Nawazio, Photo, Rajo and Ladho are alleged to have been injured in quick succession and in the course of the same transaction. Findings as to injuries found on the person of Rajo and Ladho are bound to have a bearing on the decision as to injuries resulting in death of Nawazio ands Photo. Failure to ascertain the opinion of the assessors in regard to injuries caused to Rajo and Ladho giving rise to a charge under section 307, P. P. C. must be considered to be a grave violation of an imperative provision of the Criminal P. C. We further find that the Medical Officer who examined the injuries of the injured and the deceased was not produced before the Sessions Court nor was his statement recorded by the Committing Magistrate tendered in evidence. It seems that the Medical Officer concerned had been examined in the Court of the Committing Magistrate but the necessary certi ficate on the deposition was not appended by the Magistrate. This defect however was not incurable and could be removed by leading necessary oral evidence. We have given due consideration to the points raised in this case and have come to the conclusion that there has not been a fair trial. Accordingly we set aside the convictions and sentences imposed on the appellant and order fresh trial before a Judge at Sukkur other than Mr. M. A. Kazi who has already expressed his opinion on the merits of the case. A. H. Re-trial ordered.