1969 PLP 555 (SCMR)

(d) Criminal Procedure Code (V of 1898)

S. 297‑Charge to jury‑Direction to jury to arrive at verdict on legal evidence found proved by "consideration of head and not heart" and further direction "sot to return verdict by five to four"‑Direction, in .circumstances, held, not improper. Ghulam‑Mohi‑ud‑Din v. The Crown P L D 1953 F C 1 distinguished. M. Anwar, Advocate Federal Court instructed by M. A. Rahman, Attorney for Appellant. Ghias Muhammad, Advocate Federal Court instructed by Iftikhar‑ud‑Din Ahmad, Attorney for Respondent. Date of hearing : 2nd December 1953. CORNLIUS, J.‑This appeal, by special leave, is brought before the Court by one Sham Beg who was charged with the murder of one Mst. Nur Bano committed on the 25th September 1949, at a place in Karachi Town. The trial was by jury before the Sind Chief Court, and was presided over by Mr. Justice Muhammad Bachal. It is stated on behalf of the appellant that the jury returned a verdict by five to four in favour of Sham Beg, whereupon the Judge discharged the jury and directed a retrial. The second trial was also by jury before the Sind Chief Court, and was presided over by the same learned Judge. At the end of his charge to the jury, the learned Judge directed them as, follows :‑ "You should not be led away in your verdict by any suspicions or surmises or inferences, but base your verdict on the legal evidence alone which you find proved by consideration of your head and not by heart. I shall ask you gentlemen to, give your opinion as far as possible unanimously or by a majority verdict of at least six to three and you should not commit the mistake of the previous, jury of returning a verdict of five to four which is an incomplete verdict and which led to, the fresh trial in this case." The jury then delivered their verdict which was not unanimous, but seven of the nine jurymen declared their opinion that Sham Beg was guilty of the offence of murder. The Judge accepted the majority verdict and recorded conviction under section 302, P.P.C., and holding further that the murder was deliberate and pre -designed, he imposed a sentence of death. An appeal was taken before a Division Bench of the Sind Chief Court, and was. dismissed. Certain points of misdirection were raised, but were negatived by the Division Bench, and these have not been raised again before us. The learned Judges examined the facts and came to the conclusion that the charge was satisfactorily proved and the sentence was appropriate. The convict obtained leave to appeal to this Court on the point "whether in a Sessions trial before the Chief Court of Sind, when the jury brings a majority verdict of not guilty in the proportion of five to four, the jury can be discharged and a retrial ordered by the Judge who tried the case." The answer to this question turns upon whether a trial by jury before the Sind Chief Court, in the exercise of its original criminal jurisdiction, is governed by the procedure applicable to a High Court or must follow the procedure laid down for a Court of Session. The point has received the consideration of this Court in the recent case of Ghulam Mohi‑ud‑Din v. The Crown (P L D 1953 F C) and this Court has found that, although the Sind Chief Court is constituted by the Sind Courts Act, 1926 as a "Court of Session" in relation to trials such as the present trial, yet it is in fact to be regarded as a Special Court and the procedure to be followed at such trials is that prescribed for High Courts and not the pro cedure laid down for Courts of Session. Accordingly, the provisions of section 305 of the Criminal Procedure Code were applicable to the first trial when the jury returnee a verdict by five to four. When there are not as many as six of the nine jurymen who agree in opinion, the duty of the Judge is to discharge the jury "after the lapse of such time as he thinks reasonable." It is now argued that the Judge did not allow proper time for obtaining a larger measure of agreement, but in the absence of any indication on the record to the contrary, it must be presumed that this condition of the statute was satisfied. Consequently, the first trial had necessarily to be concluded by an order discharging the jury, and a consequential order under section 308 of the Criminal Procedure Code. This disposes of the point upon which special leave to appeal was granted, but Mr. Anwar, on behalf of the appellant, has sought to argue, that there was a defect in the composition of the Court which recorded the conviction, inasmuch as Mr. Justice Muhammad Bachal, who had formed the opinion at the close of the first trial that there should be a retrial was rendered ineligi ble to preside at the second trial by the operation of section 556 of the Criminal Procedure Code. The incapacity under that section applies to a Judge who "is a party or personally interested". The mere fact that a Judge has made an order under sections 305 and 308 of the Criminal Procedure Code does not, in our opinion, render him either a party, or personally interested in the case, and this is so even if the order under section 308 be an order for retrial. Where such an order is necessitated by the circumstance that not as many as six of the jurymen are agreed in opinion, it is not a condition of the making of the order that the Judge should disagree with the opinion of the majority, but such an order must of necessity be made, as soon as the Judge is satisfied that, reasonable time having been allowed, it is not pos sible to induce as many as six of the jurymen to agree in opinion. The very wording of section 308 clearly shows that the normal consequence of an order of discharge is a retrial ; the exception is provided for in the words "unless the Judge considers that he (the accused) should not be retried". In the latter case, it is the duty of the Judge to state his opinion to that effect in writing on the charge. It has not been possible for the learned counsel to contend on behalf of the appellant that the present was a case in which such an opinion could reasonably have been held. Having considered the facts of the charge, and the evidence led in support, we are satisfied that the forming of such an opinion was not reasonably possible in the present case, and therefore the order for retrial was the natural and necessary order in the case. It was finally argued that the admonition to the jury to be guided by the head and not by the heart and the strong injunc tion against returning a verdict by five to four, constituted a form of pressure on the minds of the jurymen, of which the effect was adverse to the accused, owing to the warning against a sentimental approach to the case. Those matters were not placed before the appellate Court, and the argument appears to rest on certain observations made by this Court in the case of Ghulam Mohi‑ud‑Din v. The Crown. It is unnecessary to reproduce those observations here, as the facts and circumstances are dissimilar. It is enough to say that we cannot find that the directions com plained of have any tendency other than that of securing from the lo jury an effective verdict based on correct appreciation of the case it. There is no force in this appeal and we hereby dismiss Appeal dismissed.