P L D 1961 (W (PLP)

"Akbar Ali.‑I believe the prosecution evidence against all the accused excepting Inayat Ullah and Majid. The last two are innocent. The rest are guilty. Muhammad Ismail.‑I agree with the opinion of the first assessor. Muhammad Umar.‑I also agree with the opinion of the first assessor. Muhammad Habib.‑I believe the prosecution evidence. All the accused are guilty. In the context of the charges framed and the opinion of the assessors as recorded by the trial Court, it has to be examined whether section 309 of the Code of Criminal Procedure has been contravened. This section provides 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 con cluded, 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 ascer tain 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."

5. It may be mentioned that subsection (1) of section 309, Criminal Procedure Code, as it originally stood read as follows :‑ "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 and shall record such opinion." It was amended in 1923, and it was expressly provided that the opinion of the assessors shall be obtained "on all the charges on which the accused has been tried". It was also provided that for the purpose of ascertaining their opinion the Court may ask the assessors such questions as are necessary and all such questions and answers shall be recorded. It is, thus, obvious that the Legis lature purposely provided that the opinions of the assessors shall be ascertained and recorded on all the charges, and all the questions, as are put to ascertain their opinion, and their answers to such questions, shall also be recorded. It is urged that the trial Court has contravened the provisions of section 309 (1), Criminal Proce dure Code, in both these respects, i.e., the questions put to the assessors have not been recorded, and, secondly, the assessors have not been required to state their opinion on all the charges.

6. In the case before us, the questions which were put to the assessors have not been recorded, and we have to deduce the questions from the answers of the assessors, as recorded. The omission to record the questions is in itself an illegality, but it is A not so material and is curable under section 537, Criminal Proce dure Code, because a question or questions were obviously put, and their substance can be gathered from the answers. The form of the questions is not material, as such questions, as may be deemed necessary by the Court, to ascertain the opinion of the assessors, may be put. We do not, therefore, attach any impor tance to this omission, though it would have been better if the Court had recorded the questions, when more than one charge was framed against the accused. If the trial Court had put questions about all the charges, there may have been no illegality, whatever may have been the answers of the assessors, though the law requires that such questions may be put up as are necessary to ascertain their opinion thereon. From the answers of the assessors, as recorded, it cannot be inferred that questions were put to the assessors on all the charges. The answers given by the first three assessors are that they believe the prosecution evidence against all the accused excepting Inayat Ullah and Majid, who, in their opinion, were innocent. The opinion, thus, relates the prose cution evidence, and not to truth or falsity of the charges. It is argued by the learned counsel appearing for the State that it could be inferred that these assessors were questioned by the Court about the charges, and that they have expressed their opinion on the charges. This contention cannot be accepted because their answers, as recorded, clearly relate to the evidence and not to the charges. There is nothing to indicate that their attention was directed to all the charges, for ascertaining their opinion on them. The fourth assessor states that he believes the prosecution evidence and all the accused are guilty, and this is more to the point but he does not say that they are guilty of all the charges. If the other assessors had also made this statement we may perhaps have treated it as their opinion on all the charges. As a result of deducing the questions put to the assessors from their answers as recorded, we cannot hold that they were questioned on all the charges. There is, therefore, contravention of section 309 (1), Cr. P. C. in this important respect. This breach cannot be lightly treated in view of the fact that the Legislature expressly introduced this requirement by an amendment in 1923. The answer of the Full Bench in Tooh v. The State (P L D 1960 Kar. 1) to the first question that "the form of questions and answers is not material so long as opinion of each assessor is obtained on all charges without exception" would lead us to the conclusion that the opinion of the assessors must be obtained on all charges. It should be clear on the record that their opinion has been obtained on all the charges without exception. This does not appear from the record in the present case. This is also not a case in which there is only one charge. There were not less than four charges framed against the accused.

7. That there is contravention of section 309 (1), Criminal Procedure Code, admits of no doubt, but the question which still remains to be decided is whether the conviction of the appellants is vitiated thereby. Learned counsel for the appellants cites Abdul Majid v. The State (P L D 1960 Lah. 80), which relied upon Prem Nath v. The State of Delhi (P L D 1956 S C (Ind.) 197). The case cited is one in which the accused was charged and convicted under sections 302 and 394 of the Pakistan Penal Code, and the assessors' opinion was obtained only on the charge under section 302 and not on the charge under section 394, Pakistan Penal Code, it was held that the conviction and sentence of the accused under section 394, P. P. C., was illegal, as all the acts, which constituted the subject‑matter of the two charges, i.e., the murder and robbery, constituted one transaction, so connected with each other that the truth or falsity of one was bound to react on the other, and it could not be said that the failure to obtain the opinion of the assessors in respect of the charge under section 394, Pakistan Penal Code, had not prejudiced the accused and had not, thus, rendered the conviction and sentence under section 302, P. P. C., also illegal. The conviction and sentence of the appellant under sections 302 and 394, Pakistan Penal Code, was set aside and the case was remanded for a fresh trial. It was also held that the provision of section 309 of the Code of Criminal Procedure was inoperative and reliance was placed on Khanu v. The State (PLD 1958 Lah. 330). The learned Judges held therein that the findings of the assessors did not necessarily lead to the conclusion that the accused was guilty of the offence with which he was charged and that the failure of the learned Addi tional Sessions Judge to observe the mandatory provisions of section 309, Criminal Procedure Code, constituted an illegality and the conviction and sentence of the appellant was set aside, not withstanding the fact that the Additional Sessions Judge had stated that the assessors had expressed the opinion that the accused had been proved guilty. The learned Judges relied on Lal Behari Singh v. Emperor (A I R 1934 Oudh 354), which lays down that a Sessions Judge was bound to record the opinion of each assessor in respect of charges, on which the accused are tried, and his failure to do so meant that he had virtually tried the case without the aid of the assessors, and that such a trial was void in toto. This conclusion was based on the decision of the Privy Council in Subramania Ayar v. King Emperor (I L R 25 Mad. 61). Learned counsel for the State relies on Muhammad Sajjad and two others v. The State (P L D 1960. Lah. 520). Muhammad Shafi, J., came to the conclusion that it was only a violation or infringement of a mandatory provision of law that has the effect of causing damage to the trial, enquiry or other proceedings, rendering them illegal and void, and that section 537, Criminal Procedure Code, cured violations of mandatory provisions of law in matters of procedure, provided they had not resulted in miscarriage of justice, and each case had to be decided on its own particular facts. In deciding whether. the violation had occasioned a miscarriage of justice, the Court had to take into account several factors, and if the illegality was so great that prejudice would necessarily be implied or imported, section 537 of the Criminal Procedure Code would not cure it. The test is whether the case of one party or the other has been prejudiced or not, and it was not possible to agree that on a mere violation of the‑mandatory provision of section 309 of the Code of Criminal Procedure, the trial was vitiated. In this case the accused were charged under sections 302/34 and 323/34, P. P. C. The opinion of the assessors was obtained on the charge under sections 302/34, P. P. C., but not under section 323/34, P. P. C. The accused were not convicted under section 323/34, P. P. C. It was held that the trial was not vitiated because the accused were not prejudiced by the omission. Shabir Ahmad, J., did not con sider it necessary to determine the effect of non‑compliance with section 309 of the Code of Criminal Procedure if the trial had resulted in a conviction for more than one offence, although the assessors were questioned only with regard to some of them. But he agreed with Muhammad Shafi, J., that the omission to question the assessors with regard to the offence on which a conviction was not recorded should be ignored as section 537 of the Code of Criminal Procedure cured it.

8. A reference may also be made to Shah Nawaz and others v. The Crown (P L D 1953 Lah. 598), decided by Muhammad Munir, C. J., and Shabir Ahmad, J., in which it was urged that the convictions and sen tences were vitiated by two irregularities, namely that the statement made by Shah Nawaz appellant in the cross case was not brought on the record and put to the assessors and, secondly, that the assessors were not required by the learned Sessions Judge to state their opinion on all the charges, on which the appellants had been tried. The first irregularity was held to have vitiated the result of the trial. The record did not show what questions were put to the assessors and it was held that it was clear that at the conclusion of the trial the assessors were not required to state their opinion separately on each of the charges tried. The convictions were set aside and the case was remanded to the Sessions Judge to resume the hearing of the case from the stage where the first irregularity was committed.

9. The provisions of section 309, Criminal Procedure Code, came up for consideration before a Full Bench consisting of Inamullah, J., Qadeeruddin Ahmad, J., and Khamisani, J. in Tooh v. The State the following questions were referred to the Full Bench for decision (1) Is it necessary under section 309, Criminal Procedure Code, that the opinion 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 ? The answer of the Full Bench to the first question is that it is not necessary that the opinion of the assessors should be ascertained separately on each charge, and that 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. In view of their answer to this question, they came to the conclusion that the decision of the second question did not arise.

10. The principle deduceable from these cases is that sec tion 309, Criminal Procedure Code, is a mandatory provision and its violation is clearly an illegality. Learned counsel for the State relies on section 537, Criminal Procedure Code, and argues that the illegality is curable, as no prejudice has been caused to the accused leading to failure of justice. Learned counsel for, the appellants stresses that the opinion of the assessors not having been taken on all the charges, it is a case of a trial without the aid of assessors. Section 537, Cr. P. C., has been considered in some of the cases cited above and in Ibrahim and another v. T'he State (PLD 1959 Lah. 715) by Kayani, C. J. Besides, the Privy Council has thrown light on this section in a number of cases, viz., Subramania Ayyar v. King Emperor, Abdur Rahman v. King Emperor (A I R 1927 P C 144), Babulal Chaukaani v. Emperor (A I R 1938 P C 130) and Kottaya v. Emperor (A I R 1947 P C 67). The conclusion arrived at by their Lordships of the Privy Council in the last‑mentioned case on the argument that a breach of a direct and important provision of the Code cannot be cured but must lead to quashing of the conviction, was that "In their Lordships' opinion, the argument is based on too narrow a view of the operation of section 537, Criminal Proce dure Code. When a trial is conducted in a manner different from the one prescribed by the Code as in Subramani Ayyar v. King‑Emperor 28 I A 257, the trial is bad and no question of curing an irregularity arises; but if the trial is conducted sub stantially in the manner prescribed by the Code and some irregu larity occurs in the course .of such conduct, the irregularity can be cured under section 537, Criminal Procedure Code, and nonetheless so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very compre hensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality or an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships' Board in Abdur Rahman v. The King‑Emperor I L R 5 Rang 53 where failure to comply with section 360, Criminal Procedure Code, was held to be cured by sections 535 and 537, Criminal Procedure Code. The present case falls under section 537 and their Lordships hold the trial valid notwithstanding the breach of section 162." No doubt these observations relate to denial of a right to an accused to obtain copies of police statements during the trial, which might cause material prejudice to the accused and yet their Lordships held that the illegality was curable. Therefore, the conclusion which must be drawn is that every illegality is not fatal to the validity of the resulting conviction and it is the causing of prejudice leading to failure of justice, which vitiates a trial. Whether there has been a failure of justice consequent upon a breach of a mandatory provision of the Code of Criminal Procedure will depend upon the facts of each case. In some cases failure of justice may be inferred, presumed or imported, because of the extent and gravity of the violation. In other cases prejudice and consequent failure of justice may be shown or proved by the accused.

11. In the present case, the appellants have been convicted on two charges under section 302/34 and a charge under sec tion 324/34, Pakistan Penal Code. The opinion of the assessors has not been obtained on these charges. In the Oudh case Gal Behari Singh v. Emperor, relied upon in Khanu v. The State it has been held that a failure to record the opinion of the assessors on all the charges meant that the accused had virtually been tried without the aid of the assessors and such a trial was void in toto. The illegality in not questioning the assessors on all the. charges and in not ascertaining their views on the charges on which the accused are convicted is so material that the mode of trial is against the express provisions of the Code and in such a case prejudice is likely to have been caused and may reasonably be inferred. The case is not one in which the assessors' opinion has been obtained on the charges on which the accused had been convicted, and the illegality in not obtaining their opinion on other charges loses its importance in the context of prejudice and failure of justice. As the case here is one in which no opinion has been obtained on the charges on which the appellants had been convicted, the conviction must be held to have been vitiated, but the trial is valid up to the stage of ascertaining the opinion of the assessors, for the illegality occurred at that stage.

12. We, therefore, set aside the conviction of the appellants and send the case back to the Additional Sessions Judge for taking the opinion of the assessors, who assisted him at the trial, on each charge and for redecision of the case. We would like to point out to him that he should record the questions, which he puts to the assessors, and also the opinions expressed by them on all charges as required by section 309 (1), Criminal Procedure Code. He should recall the same assessors, re‑hear the arguments, take opinion of the assessors on all the charges and write a fresh judgment. The case shall be disposed of by him within a month from the date of the receipt of the records. A. H. Case sent back.