P L D 1960 (W (PLP)

MUHAMMAD SHAFI, J.‑‑--Ata Muhammad, aged about 50 years, son of Ghulam Muhammad, his son Muhammad Sajjad, aged about 20 years, and his tenant and servant Muhammad Sharif, aged about 22 years, son of Nawab, were tried by the learned Sessions Judge, Gujranwala, the former under section 302/109, P. P. C. and the latter two under sections 302/34 and 323/34, P. P. C. Precisely the charge against them was that Ata Muhammad abetted, whereas the other two accused, in furtherance of their common intention, committed the murder of their co‑villager Muhammad Khan, aged about 40 years, son of Hasan Muhammad. The latter two at the same time but without being abetted by Ata Muhammad, caused simple injuries with blunt weapons, in furtherance of their common intention to Mst. Aimna Bibi (P. W. 24), a distant paternal cousin of the aforementioned Muhammad Khan, and Mst. Zainab Bibi (P. W. 25), his mother, who came to rescue him, at about morning time on the 29th of May 1958. The learned Sessions Judge has convicted Ata Muhammad under section 302/109, P. P. C. and the other two accused under section 302/34, P. P. C. and has sentenced them all to death, and having done so has forwarded the record on to this Court for the confirmation of the sentence. He has not said anything in his judgment about the charge under section 323/34, P. P. C. He has neither convicted Muhammad Sajjad and Muhammad Sharif under this A section nor acquitted them. It will, therefore, have to be taken that they were by implication acquitted of this charge. All the three accused have come up on appeal to this Court. This order will dispose of both the appeal and the reference.

2. Giving the motive for this murder, it was alleged by the prosecution that one Imam Din was the Lambardar of Kot Ali about fourteen years ago. He died leaving behind a daughter by the name of Mst. Sardar Bibi. As he had left no son, there fore, the Lambardari was given to his brother's son Muhammad Hussain. Ata Muhammad considered himself entitled to the Lambardari. It has, however, not been brought on the record as to what was the basis of his claim, but he consulted revenue papers in order to replace Muhammad Hussain but found that they did not support his claim. Although he could not dislodge Muhammad Hussain from the coveted Lambardari, yet he turned bitterly against him. In June 1949, this Muhammad Hussain mysteriously disappeared. A report seems to have been made of his disappearance but no copy of it has been placed upon this record. On the 1st of July 1949, however, his mother- in‑law Mst. Hasan Bibi made a report that Muhammad Hussain was murdered by Ata Muhammad appellant and one Khushi Muhammad son of Rehman who had taken him away from his house and were last seen in his company by Bahawala son of Jafar and Khushi son of Haji. It appears that Ata Muhammad and Khushi were arrested and indicted for the murder of Muhammad Hussain but were eventually acquitted. Muhammad Hussain never returned. He had three daughters by the name of Sughra, Surayya and Rasul Bibi. It is alleged that Ata Muhammad appellant took these girls as well as Mst. Sardar Bibi, daughter of Imam Din, the first Lambardar, under his own protection. He got Mst. Sardar Bibi married to his son Tasadduque Husain and Rasul Bibi, daughter of Muhammad Husain to his other son, Muhammad Sajjad appellant. He also took into possession the land belonging to these girls. At the time of the disappearance of Muhammad Hussain, Muhammad Khan who now figures as the deceased person, was in the Army. He left military service and came over to the village and was appointed Lambardar in Muhammad Husain's place. This annoyed Ata Muhammad immensely because he was looking forward most eagerly to be appointed as Lambardar. That they became inimical to each other is clear from the following incidents.

3. About four years prior to this murder, Muhammad Khan was fired at and the charge was brought against the three appellants as well as against Nawab son of Qutubuddin, Inayat son of Sardar Khan, and Ghulam, son of Lal. They were challaned but were acquitted by Mr. Khurshid Ahmad, Magis trate, Gujranwala, by his order dated 20th of December 1955.

4. On the 26th of July 1957, Muhammad Sharif appellant made a report that Ata Muhammad appellant had been very severely injured. Four persons were challaned, namely, Dilawar Husain, Pir Muhammad, Nura and Rahman. The name of Muhammad Khan deceased was placed in column No. 2 of the challan. All these persons were finally acquitted on the 9th of December 1957. As the enmity between the parties had reached a stage when it was considered by the police that their being left without securities was hazardous to the community, it challaned them under section 107/151, Cr. P. C. The persons arrayed on one side were the three appellants, Abdul Karim son of Sardar Khan, Nawab and Ghulam. On the other side, the persons challaned were the deceased, Sardar Khan son of Hasan Din, Muhammad Yar son of Nazar (P. W. 18) and Khushi Muhammad son of Fateh Ali (P. W. 22). The parties, however, com promised this case, and were therefore, discharged on the 18th of February 1958.

5. In spite of this compromise, the parties, it is alleged, remained at daggers drawn and were on the look‑out for an opportunity to harm the other. This opportunity, it is claimed, was seized by the three appellants on the 29th of May 1958. It is alleged that they had actually prepared themselves for committing this murder about six or seven days prior to this occurrence. Ata Muhammad had sent for Lal (P. W. 19) and had asked him to participate in the commission of this crime. This Lai happens to be the real maternal uncle of the deceased. It is stated by him that his daughter was married to the deceased while in exchange the deceased's sister was married to his son. The deceased divorced his daughter and consequently the sister of the deceased was also divorced by his son. This created bad blood between them, and Ata Muhammad appellant had knowledge of it. Taking advantage of the bad relations, Ata Muhammad sent for Lai and told him of his design to murder Muhammad Khan and requested Lai to be present at the time when the murder was committed. Lal refused to take part in the murder of the deceased but he expressed his willingness to join them in assaulting the deceased and causing him any harm short of death. This was not acceptable to Ata Muhammad and he, therefore, did not insist on his participation in the crime.

6. The preparation of Ata Muhammad for the murder of Muhammad Khan has also been attempted to be proved by the evidence of Wali Muhammad (P. W. 20) who stated that he had loaned a sum of Rs. 100 to Ata Muhammad and when he demanded it back from him he told him that he had sold 180 maunds of wheat as he required money for murdering Muhammad Khan. This perhaps he said in order to show that he needed every single pie that he possessed and could get hold of in order to achieve his evil object and could not afford to repay the debt.

7. After preparations had been completed, it is asserted by the prosecution that Ata Muhammad appellant left for Sargodha with all his bag and baggage and his family, so that after the murder of Muhammad Khan he could, with ease, abscond.

8. Then on the day of the occurrence at about morning time Muhammad Sajjad and Muhammad Sharif armed themselves with big knives and having obtained the services of a third person, who accompanied them armed with a country‑made pistol, went to a field belonging to the deceased and Bahawala (P. W. 23) jointly. Muhammad Khan deceased was at the critical time seen sitting on a band while Bahawala (P. W. 23) was ploughing the field. The culprits sat with Muhammad Khan for a while. Thereafter, it is alleged that they caught hold of him from his arm and dragged him into a vacant site where the shoe‑makers carry on their tanning work. The deceased raised an alarm and so did Bahawala. Both Muhammad Sajjad and Muhammad Sharif took out chhuras from their trousers' folds and began to cause injuries to Muhammad Khan. The stranger who had pistol with him struck him with the butt‑end of the pistol on his face. On hearing the alarm, Mst. Aimna Bibi (P. W. 24), Mst. Zainab Bibi (P. W. 25) and Inayat (P. W. 26) arrived at the spot. Mst. Aimna Bibi fell upon Muhammad Khan but the stranger hit her with the butt‑end of the pistol and dragged her away. Mst. Zainab Bibi then fall our Muhammad Khan but she was also treated by the stranger in the same manner. Bahawala (P. W. 23) and Inayat (P. W. 26) wanted to go to the help of Muhammad Khan but they were kept back at the point of pistol by the stranger. After the accused had caused numerous injuries to the deceased, they left the spot. Bahawala wanted to go to the police station to make a report but he learnt that Muhammad Ashiq (P. W. 27), Sub‑Inspector, was in village Noinwala, situated at a distance of a mile from the scene of occurrence. So he went there and lodged a report with him at 9‑30 a.m. The Sub‑Inspector went to the spot and after preparing the injury statement and the inquest report of Muhammad Khan dispatched his dead body to the mortuary, where a detailed autopsy revealed that he had no less than forty‑six injuries on different parts of his body. Some of these injuries were caused by sharp‑edged and some by blunt weapons. The sharp‑edged weapon injuries had various dimensions, e.g., 2 " x ", 1 " x '', 1 " x ", 3/8"x ". The two aforementioned ladies were also examined by the doctor on the 30th of May 1958. Mst. Zainab Bibi was found to have a small contusion, 2 x 1", on the left side of the face, and another contusion, 2" x 1", on the outer side of the right forearm. Mst. Aimna Bibi had a contusion on the back of the right shoulder, a contused wound on the level of the lumbar region, and an abrasion on the back of the left elbow. According to the statement of the doctor, all these injuries were caused within twenty‑four hours of the examination. On a question being asked from the doctor, it was stated that the duration between the infliction of the injuries and examination of the injuries might extend to thirty‑six hours.

9. All the accused were found missing from the village. Muhammad Sajjad and Muhammad Sharif, however, were produced before the police on the 9th of June 1958. Ata Muhammad appellant was arrested on 25th October 1958. The stranger who accompanied Muhammad Sajjad and Muhammad Sharif was said to be one Fazal Muhammad who was arrested and challaned but discharged by the learned committing Magistrate. His case is not before us now.

10. At the trial Bahawala (P. W. 23), Mst. Aimna Bibi (P. W. 24), Mst. Zainab Bibi (P. W. 25) and Inayat (P. W. 26) appeared as ocular witnesses. Lal (P. W. 19) and Wali Muhammad (P. W. 20) appeared to depose about the facts which were intended to prove that Ata Muhammad abetted the murder. Abdul Karim (P. W. 21) was produced to show that Muhammad Sajjad had sold to him 79 maunds of wheat and five seers of gram for Rs. 1,157‑15‑0 on the 17th of May 1958. Probably, this witness was also produced to show chat the appellants were collecting money in order to hire persons for assisting them in the assassination of Muhammad Khan. Khushi Muhammad (P. W. 22) was produced to show that about four or five days before the murder of Muhammad Khan he had met Ata Muhammad accused‑appellant in his village. He was tatting away his family and cattle and on an enquiry told him that he was going to Sargodha to attend a marriage. Ata Muhammad is further alleged to have told him that he vf9uld be there in Sargodh4 for about eight months or so, Khushi Muhammad (P. W. 22) expressed his surprise and asked him as to what would happen to his crop, to which he replied that it would be looked after by his son Muhammad Sajjad.

11. All the three accused denied the charge. Muhammad Sajjad stated that on the day of occurrence he was sick and was admitted into a hospital in District Gujrat. Muhammad Sharif accused‑appellant also made a similar statement and said that he was in Gujrat Hospital looking after Muhammad Sajjad who was lying ill there. Ata Muhammad accused‑appellant admitted his previous enmity with the deceased but denied having abetted the murder. No question was asked from him to explain away his absence from the village from the date of occurrence to the date of his arrest but in reply to a general question as to whether he had anything else to say, he stated that his permanent residence was in Chak No. 19, District Sargodha, and not in the village of the deceased.

12. The learned counsel for the appellants before arguing the appeal on merits raised the following five technical objections in order to show that the trial was bad and was, therefore, liable to be quashed :‑ (1) That the accused had put in a list of witnesses whom they wanted to examine in defence, on the 7th of May 1959. Learned Sessions Judge ordered that the witnesses should be summoned for the 20th of May 1959. The trial, however, concluded on the 19th of May 1959, and on a question being asked from the accused, they were recorded to have stated that they did not want to produce any defence. The argument is that the learned trial Court could not legally ask the accused one day earlier than the date fixed for the examination of defence witnesses as to whether they wanted to examine anybody as defence witness or not. This question, it is con tended, should have been asked from them only on the 20th, the date for which the witnesses had been summoned. (2) That the learned trial Court has mentioned in one of its orders recorded on the 18th of May 1959, that the calendar, the charge‑sheet and the commitment order as well as the statements of the two doctors were read out in open Court and transferred to the Sessions file. This, it was contended, was illegal because the reading of the committal order to the assessors was not warranted by law and it must have prejudiced the accused's case. (3) That the learned trial Judge has not prepared a memo. of the evidence which he was recording and for having dispensed with it he has referred to the Supreme Court authority which had no application to the facts of the present case. (4) That the assessors were not put any question and they, therefore, gave no opinion with regard to the charge under section 323/34, P. P. C. for which Muhammad Sajjad an3 Muhammad Sharif were tried together with the charge under section 302/34, P. P. C. (5) That the trial was bad on account of mis joinder of charges, It is contended that Ata Muhammad was only charged under section 302/109, P. P. C. but not under section 323/109 and, therefore, he could not be tried along with Muhammad Sajjad and Muhammad Sharif who were charged both under sections 302/34 and 323/34, P. P. C. It is most emphatically argued at the Bar by Mr. Sleem that the trial is vitiated on account of these five illegalities committed by the learned trial Court. It is contended that these illegalities have prejudiced the case of the accused appellants but even if this be not the case, still the trial is bad because section 537 of the Code of Criminal Procedure does not cure where the Court has clearly been guilty of the breach of an express provision of law. I shall deal with these so‑called illegalities in the order in which they are given above.

13. Objection No. 1.--The procedure as to when should the accused be questioned about the defence witnesses is as follows. When, upon taking the prosecution evidence and such examination of the accused as is contemplated in section 209 of the Criminal Procedure Code, the Magistrate feels 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 was charged. This charge is then read over and explained to the accused person and copy thereof, if so required, given to him free of cost. Under section 211 the accused is 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. The Magistrate may, in his discretion, allow the accused to give in any further list of witnesses at a subsequent time. If the accused is committed for trial before the High Court, then he is allowed to give a further list of the persons whom he wishes to be summoned to give evidence on his trial to the Clerk of such Court. It is within the discretion of the Magistrate to summon and examine witnesses named in any list given to him under section

211. Under section 213 of the Criminal Procedure Code, the Magistrate is required to commit the accused for trial by the Court of Session after he has required the accused to give in a list of witnesses and he has declined to do so or he has given such list of witnesses and the Magistrate, in his discretion, has examined or not examined them. After the accused is committed to the Court of Session, such Court may alter or add to any charge at any time before the opinions of the assessors are expressed and if the charge is altered or added, then the accused must be allowed an opportunity to examine with reference to such alteration or addition any further witness whom the Court may think to be material. At the trial by the Court of Session, the prosecutor has to examine the witnesses first. After the examination of the prosecution witnesses and that of the accused is concluded, the accused shall be asked whether he wants to adduce any evidence and if he expresses his willingness to do so, then he will be afforded an opportunity to examine his witnesses. Under section 291 of the Criminal Procedure Code, the accused shall be allowed to examine any witness not previously named by him only if such witness is in attendance but he shall not, except as provided ill sections 211 and 231, be entitled of right to have any witness summoned, other than the witnesses named in the list delivered to the Magistrate by whom he was committed for trial. Strictly speaking then, when the accused is committed to the Court of Session he can, after the conclusion of the prosecution evidence and his own statement, examine all witnesses who are present in Court, but he cannot, as a matter of right, demand the summoning of the witnesses whom he has not mentioned in the list submitted by him to the committing Magistrate. In the instant case, the prosecution evidence was concluded in the Court of the committing Magistrate on the 12th of January 1959. The case was adjourned to the following day for the accused to submit the list of the defence witnesses. None of the accused, however, submitted the list of the defence witnesses and so they were committed to the Court of Session. The accused were, however, afforded another opportunity in the committal order to put in a list of defence witnesses within one week, but they did not avail of even that opportunity. Now, so far as I can see, there is no provision in the Criminal Procedure Code entitling the accused to ask the Court of Session to summon any witness not named by him before the committing Magistrate, that is to say, the accused is not entitled R to make an application in the Court of Session to summon any witness if he has not submitted a list of his witnesses before the committing Magistrate. The application of the accused therefore, which was made to the Court of Session on the 7th of May 1959, had no legal sanction behind it, but the Court of C Session summoned those witnesses for the 20th of May 1959, which was, strictly speaking, a favour shown to the accused. The Sessions' trial commenced on the 18th of May 1959. The whole of the prosecution evidence was examined and the statements of the accused recorded on the 19th of May 1959. The accused were specifically asked if they wanted to produce defence evidence to which they replied in the negative. If any one of the accused was anxious to examine any witness, then it was open to him to make a request to the Court on the 19th to adjourn the case till the next day in order to examine the witnesses summoned for that date. If such a request had been made, the Court, although not bound by law to do so, would have, in all probability, adjourned the case in the interest of justice and examined the witnesses whom the accused wished to produce on the 20th. I, however, see no justification for the argument advanced by the learned counsel for the appellants that the learned trial Court committed an illegality by asking the accused, on the 19th of May whether they wished to produce any evidence or not. This objection is rejected.

14. Objection No. 2.‑There is a printed sheet placed on the record of the Sessions Court. It is supposed to be English Criminal Form No. 148, i.e., the opening sheet of Sessions trial. At the bottom of this sheet, the following matter is printed:‑-- "Memo of papers transferred from the Magistrate's to the Sessions file and read out as part of the proceedings of the Sessions Court." Then the following documents are mentioned in the handwriting of somebody other than the learned Sessions Judge, who has, however, initialed the entry: (1) Charge sheet. (2) Calendar sheet. (3) Commitment order. (4) Statement of accused. (5) Statements of Dr. Ahmad Ghulam and Lady Doctor F. M. Dean. It is difficult to know whether these documents were actually read out or not in the open Court yet the filling up of the blank in the opening sheet of the Sessions trial seems to be just a matter of ordinary routine. According to the procedure laid down in section 271 of the Criminal Procedure Code when the Court of Session is ready to commence the trial the accused shall appear or be brought before it and the charge read out and explained to him. He shall then be asked whether he is guilty of the offence charged or claims to be tried. If the accused pleads guilty the plea shall be recorded and he may be convicted thereon. If, however, he refuses to, or does not, plead, or if he claims to be tried, the Court shall proceed to choose the assessors. When the assessors are chosen, the prosecutor then opens the case by reading from the Pakistan Penal Code or other law the description of the offence charged and stating shortly by what evidence he expects to prove the guilt of the accused. The prosecutor shall then examine his witnesses. It is after the examination of the prosecution witnesses is concluded that the examination of the accused, duly recorded by or before the committing Magistrate, is tendered by the prosecutor and read as evidence. So far as the evidence of a doctor is concerned, the procedure is provided in section 509 of the Criminal Procedure Code which lays down that the deposition of a Civil Surgeon, or other medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission, may be given in evidence in any enquiry, trial or other proceeding under this Court, although the deponent is not called as a witness. There is no provision in the Criminal Procedure Code or in any other law that I know of which necessitates the reading of the calendar‑sheet or the commitment order in the open Court and transferring them from the Magistrate's file to the Sessions' file. If it is a general practice, then the sooner it is stopped the better, because it is a sheer waste of time and labour. Nevertheless I have not been able to find any provision of law laying down that the reading of such documents to the assessors is prohibited. The commitment order is not a confidential or a secret document that the assessors are not allowed to see it or to know what it contains. All that the commitment order contains is the statement of facts and the opinion of the Magistrate that a prima facie case against the accused has been established and, therefore, he is committed to the Court of Session. This the assessors can presume even without seeing the commitment order or its having, been read out to them. I, therefore, see no violation of any law if the Sessions Judge read out the commitment order in Court which, as I have already stated, is absolutely useless an wholly unnecessary. This objection was once before too raised by Mr. Sleem and disposed of by a Division Bench of Lahore High Court in case Rahmat Khan v. The Crown (P L D 1951 Lah. 228). My Lord Muhammad Munir, C. J. (as he then was) delivering the judgment observed as follows:‑-- "Reading by the Sessions Judge of the order of commitment does not vitiate the trial. The mere reading of such order is no more than a statement of the prosecution case contained in the charge with the reading of which the trial commences or the opening of the case for prosecution by the Public Prosecutor under section 286 of the Code of Criminal Procedure and the reference by him to evidence by which it is expected to be supported. It cannot possibly be said that merely because before the trial commenced the assessors came to know what evidence against the accused had been given before the committing Magistrate they became biased against him." In this case the learned Chief Justice considered and discussed at length the case of Tumahole Bereng v. The Kin; reported in (AIR 1949 P C 172=P L D 1949 P C 47), in which case an Administrative Officer who, with a native assessor, sat at the trial to assist a Judge of a High Court of Basutoland was held to have disqualified himself from acting as an assessor because before and in anticipation of hi, appointment as an assessor he had accompanied the investigating officer to the scene of the crime and acquainted himself with the physical features of the spot and certain material aspects of the Crown case in the company of the approver and the Crown witnesses but in the absence of the accused. My Lord Chief Justice Muhammad Munir very rightly observed that there was no analogy between the case which was before him and the one reported, in Tumahole Bereng v. The King as in fact there was none. 1 am, therefore, of the opinion that the reading of the' committal order, assuming that it was done, does not vitiate the trial, nor does it prejudice the case of the accused in any way.

15. Objection No. 3.‑The learned Sessions Judge before he commenced the trial recorded the following order:‑-- "I am ditcating the prosecution evidence in my own words to the Stenographer, who is typing it on the typewriter, in my presence. It is not possible to prepare a separate memo. of H evidence. It is therefore dispensed with in view of the latest pronouncement of the Supreme Court reported as P L D 1958 S C (Pak.) 383." Under section 356 of the Criminal Procedure Code, in all trials before the Court of Session, the evidence of each witness shall be taken down in writing in the language of the Court by the Sessions Judge, but if it is taken down by somebody else in his presence and hearing and under his personal direction and superintendence, then as the examination of each witness proceeds, he must make a memo, of the substance of what such witness deposes. Under section 357 of the Code, the Provincial Government may direct that in any district or part of a district or in any proceedings before any Court of Session or before any Magistrate or class of Magistrates, the evidence of each business shall, in the cases referred to in section 356, be taken down by the Sessions Judge or Magistrate with his own hand and in his mother‑tongue unless he is prevented by any sufficient reason from taking down the evidence of any witness in which case he shall record the reason of his inability to do so and shall cause the evidence to be taken down in writing from his dictation in open Court. Their Lord ships of the Supreme Court in case Hazrat Jamal v. The State (P L D 1958 S C (Pak.) 383), relied upon by the Sessions Judge in his order reproduced above, held as under:‑-- "That the language of section 357 itself would appear to militate against the contention that subsection (3) of section 356 is not in any case affected by a notification under section

357. From the very nature of the case, if the evidence is dictated in his own words by the presiding‑officer to a stenographer, it would be difficult for him simultaneously to prepare a memo randum of the evidence of each witness as it proceeds, and indeed the necessity for doing so would not be apparent when the record of evidence is maintained in the very words of the Judge himself. While section 356 talks of the evidence of each witness being taken down either by presiding‑officer himself or `in his presence and hearing and under his personal direction and superintendence' section 357 provides that in case where the evidence is not taken down by the presiding‑officer with his own hand, he shall record the reason of his inability to do so and shall cause evidence to be taken down in writing `from his dictation in open Court'. It may be that the Legislature while providing for the memorandum to be prepared in the hand of the presiding‑officer in case the evidence is recorded `in his presence and hearing and under his personal direction and superintendence' did not contemplate the preparation of similar memorandum in case the evidence was dictated by the presiding officer in open Court. The object of these provisions is after all to secure as faithful and accurate a record of what each witness says in Court as it is possible to make and that object would be amply served by the preparation of a record to the dictation in open Court by the trial Judge." These observations clearly dispense with the preparation of the memorandum of evidence. This objection, therefore, has also no force.

16. Objection No. 4.‑Undoubtedly Muhammad Sajjad and Muhammad Sharif were tried for the charges under section 302/34 of the Pakistan Penal Code for committing the murder of Muhammad Khan deceased and under section 323/34 of the Pakistan Penal Code for causing simple hurt with blunt weapons on the persons of Mst. Aimna Bibi and Mst. Zainab Bibi, P. Ws. 24 and 25 respectively. Ata Muhammad was tried jointly with them for having abetted the murder only. At the conclusion of the trial which was held with the assistance of four assessors, each assessor was asked separately two questions, namely, "(1) Have you heard and understood the prosecution evidence and the arguments of the parties' counsel, and (2) after considering the whole case what is your opinion about (a) whether the prosecution has succeeded in proving that Muhammad Sajjad and Muhammad Sharif are guilty of murder of Muhammad Khan on the 29th of May 1958, at village Kot Ali, and (b) whether Ata Muhammad accused abetted that murder." The answer of all the four assessors to the first question was in the affirmative. In answer to the second question three of the assessors stated as follows:‑-- "I have heard and understood the whole case. In my opinion Muhammad Sajjad and Muhammad sharif accused are guilty of murder of Muhammad Khan on the 29th of May 1958, at village Kot Ali by causing a large number of injuries to him with chhuris, and (b) Ata Muhammad accused is guilty of abetting the said murder as he incited his son Sajjad and his servant Sharif to commit that murder." Chaudhury Nawab Khan, the fourth assessor, answered part (a) of the second question as his three colleagues had done, but as regards (b) part he was of the opinion that Ata Muhammad was not guilty of abetment. It will thus be seen that no question was asked from the assessors in respect of the charge under section 323/34 of the Pakistan Penal Code for which Muhammad Sajjad and Muhammad Sharif were also tried, nor did they them selves volunteer their opinion in respect of it.

17. Under section 309 of the Code of Criminal Procedure, after the trial is concluded, it is the discretion of the Court to sum up the evidence for the prosecution and defence, but it is imperative upon it to require each of the assessors to state his opinion orally on all the charges on which the accused has been tried and it shall record such opinion and for that purpose may ask the assessors such questions as are necessary to ascertain what their opinions are. It is mandatory for the Sessions Judge to record all such questions and answers. It will thus be seen that the learned Sessions Judge in omitting to ask the assessors their opinion on the charge under section 323/34 of the Pakistan Penal Code violated the mandatory provisions of section 309 of the Code of Criminal Procedure and has thus committed an illegality. The question, however, is whether on account of this illegality the whole trial should be quashed and a retrial ordered. It is conceded by the learned counsel for the appellants that no prejudice is caused to the accused because none of them has been convicted under section 323/34 of the Pakistan Penal Code. The charge on which they have been convicted was put to the assessors specifically and their opinion obtained thereupon and duly recorded.

18. In order to explain the arguments which follow, it seems necessary to give at the outset a brief analysis of the different provisions of the Criminal Procedure Code specifying the powers of the Criminal Courts in respect of their taking cognizance of cases and after they have taken cognizance of them, their authority to do or not to do certain acts or do them under the given con ditions. Section 6 of the Code of Criminal Procedure gives the following six classes of the Criminal Courts :‑ (1) High Courts. (2) Courts constituted under any law other than the Code of Criminal Procedure for the time being in force. (3) Court of Session. (4) Magistrates of the 1st Class. (5) Magistrates of the 2nd Class. (6) Magistrates of the 3rd Class. Leaving aside the High Courts and the Courts constituted under any law other than the Code of Criminal Procedure for the time being in force, the territorial jurisdiction of the remaining four classes of Criminal Courts are well defined. A Court of Session will have the jurisdiction only in a Sessions Division and the Magistrates only in Districts. The jurisdiction of these Courts to take cognizance of cases has also been defined in the Code of Criminal Procedure and so are the powers of these Courts to pass sentences and orders. After a Court has taken cognizance of a case, it has to follow a procedure very elaborately and carefully laid down in the aforementioned Code. According to this pro cedure the Courts have been given discretion to do or not to do certain acts, or have been specifically prohibited from doing certain acts, or have been directed to do certain acts only on the existence of specified conditions. Now, a Court dealing with a case may take its cognizance when it is not empowered in law to take it or when it is prohibited in law to take the cognizance without fulfilling the conditions precedent to its taking such cognizance or after taking cognizance it may do acts which it is prohibited in law to do or commit an error to doing the acts which it is bound to do in law or to do or omit to do them or commit an irregularity in doing them. All these cases present an absolutely different situation and entail very different consequences. If a Court take cognizance of a case without having been empowered in law to do so or without fulfilling the condition precedent to its taking the cognizance or does an act which it is prohibited in law to do, then it assumes jurisdiction which is not vested in it by law. Where, however, a Court has the jurisdiction to proceed with the case but exercises that jurisdiction erroneously or irregularly or omits to exercise it, then all these questions are the matters which arise out of the exercise of jurisdiction by such Courts.

19. If a Court has a discretion to do or not to do a certain thing and it omits to do it or its doing it is erroneous or irregular, then this cannot per se be regarded as the violation of any law. At the best, it would amount to the Court not exercising the discretion vested in any law. In the very nature of the things no one can be said to have committed an error in doing a thing unless he has done something incorrectly either through ignorance or inadvertence, and one cannot be said to have done things incorrec tly unless the correct thing has been precisely laid down in law. Similarly one cannot be said to have omitted to do certain thing unless one is required to do that thing imperatively. In the like manner one cannot be said to have done a thing irregularly unless the way in which such thing is to be done is laid down in precise terms. The presiding officers of Courts who are after all human beings, in doing the acts which in law they are bound to do are likely to commit error or irregularity in doing them or omit to do them either by carelessness or by negligence or by inadvertence. It is in order to provide a safeguard as against those errors, omissions or irregulari ties, that the legislature has enacted section 537 of the Code of Criminal Procedure. The phraseology of this section itself makes it perfectly clear that it is meant to cure or repair the damage done to a trial, enquiry or other proceedings taken under the Criminal Procedure Code. It is only the violation or infringement of the mandatory provision of law that has the effect of causing damage to the trial, enquiry or other proceedings and rendering them illegal and void. It is only when a Court is empowered by law and is otherwise competent to take cognizance of the trial, enquiry or other proceedings and it commits an irregularity or error in the manner of the exercise of the jurisdiction in respect of manda tory provision of law that the legislature felt the necessity of enacting section

537. This it had to do in order to legalize or validate what otherwise would have been quite illegal and invalid. The non‑observance of the discretionary provision of law or observance thereof with any error or irregularity which seems to be unthinkable does not have the effect of rendering the trial enquiry or other proceedings illegal or void and so section 537 of the Code of Criminal Procedure will not have any application in. such cases. Section 537 runs as under :‑ "Subject to the provisions hereinbefore contained, no findings, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account‑ (a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or (b) (c) of the omission to revise any list of jurors or assessors in accordance with section 234, or (d) of any misdirection in any charge to a jury. Unless such error, omission irregularity, or misdirection has in fact occa sioned a failure of justice. Explanation.‑In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings". It is quite clear that if a Court has no jurisdiction to try a case, then section 537 does not come into play at all. Sections which deal with the absence of jurisdiction in certain cases are contained in Chapter XLV. Under section 529 if any Magistrate not empowered by law to do any of the things mentioned in that section erroneously in good faith does that thing, then his pro ceedings shall not be quashed merely on the ground of his not being so empowered. If, however, the Magistrate not being empowered by law in this behalf does any of the things mentioned in section 530, then his proceedings are incurable and void. Sec tion 537 will not be attracted in such cases. Section 531 validates the proceedings taken in the wrong place provided the effect has not in fact occasioned a failure of justice. Section 532 validates irregular commitments made to the Court of Session or the High Court. Under section 533 the mistakes committed in the recording of the confession or the statement of the accused persons are cured provided the error has not injured the accused as to his defence on the merits. Section 535 deals with the omission to prepare a charge. Under section 536, if an offence triable with the aid of assessors is tried by a jury, the trial shall not on that ground only be invalid, but if an offence triable by a jury is tried with the aid of assessors, the trial shall not on that ground only be invalid, unless the objection is taken at its earlier stages. Section 538 deals with the attachment of property. Similarly where the Courts are prohibited to do certain acts, section 537 will not be taken to have conferred any authority upon them to do those acts. This section will also have no relevancy in cases where the Courts are vested with discretion to do or not to do certain things. This section is concerned with the effect of the breach of mandatory provisions regulating the procedure of the Courts as regards the trial. In interpreting section 537 of the Code of Criminal Procedure, some Courts have drawn a distinction between an illegality and irregu larity, but with all respect I am unable to see the relevancy of this distinction, because all violations of a mandatory provision of law are illegal and section 537 only deals with the violations of such mandatory provisions. I am, however, in favour of drawing a distinction between the mandatory provisions which are prohibitory in nature and the mandatory provisions which are merely directory. Section 537 would not apply to the first category of the provisions, but would certainly apply to the second. I would not apply section 537 to the prohibitory mandatory provision, because one can commit an error in doing a thing or omit to do that thing or do that thing with irregularity, but these words in context with "not doing a thing" would be unimaginable. Here, with all respect, I slightly differ from the opinion given by my Lord The Chief Justice in Ibrahim and others v. The State (P L D 1959 Lah. 715), where his Lordship his observed as follows:‑-- "Is it then possible to say that where there is a prohibition, express or implied, disobedience 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 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 A I R 1947 P C 67 that the difference between the two cases is one of degree. The difference is in the manner of trial. If it substantially follows the manner prescribed by the Code, any omission in the observance of detail is an irregularity, and it can be cured." There is a word of different between the two mandatory provisions "you shall not do this act." and "You shall do this act." In the former, the emphasis is on the absence of jurisdic tion while in the second case the emphasis is on the existence of and a command to exercise the jurisdiction. Where the Code says that you shall not do a thing it has taken away the jurisdic tion of the Courts to do that thing. In such a case, therefore, section 537 cannot come to the help of conferring any jurisdic tion on the Courts to do that thing. For example under section 33 the Court of any Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law in case of such default but the term should not be in excess of Magistrate's powers under this Code. If the Magistrate awards the term of imprisonment in excess of his powers, that surely will not be cured by section 53". Similarly, under section 35 no person can be sentenced to imprisonment for a longer period than fourteen years, under section 117 no person against whom proceedings are not being taken under sections 108, 109 or section 110 shall be directed to execute a bond for maintaining good behavior, under section 188 no charge as to any offence committed in an Acceding State or Tribal area etc., etc., shall be inquired into in the Provinces and the Capital of the Federation unless the Political Agent, if there is any, for the territory in which the offence is alleged to have been committed certifies that in his opinion the charge ought to be inquired into in the Provinces and the Capital of the Federation, under section 193 no Court of Session can take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf , under sections 195, 196, 196‑A and 198, no Court can take cogniz ance of the offence unless certain conditions are fulfilled, under section 262 no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter, under section 345 no offence can be compounded except as provided by section 345, under section 392 in no case shall the punishment of stripes exceed 30 and in the case of a person under 16 years of age, 15, under section 403 a person acquitted or convicted of any offence is not liable to be tried again for the same offence, under section 404 no appeal shall lie from any judgment or order of a Criminal Court except as provided by this Code or by any other law, for the time being in force, and under section 439 no order can be passed to the prejudice of the accused unless he has an opportunity of being heard either personally or by his pleader in his own defence. There are several other provisions in Criminal Procedure Code and other laws which specifically and imperatively command the Court not to do certain things. I need not repeat them because this would make the judgment unnecessarily cumbersome and unwieldy. If the Court violates any one of these mandatory provisions and does those acts, then section 537 will not come into picture at all. It will be futile to argue in any one of these cases that as the violations of these obligatory provisions has not occasioned any miscarriage of justice, therefore, they should completely be overlooked. This in my view cannot be done. In all other respects, I fully endorse the view taken by my Lord the Chief Justice as reproduced above. This distinction of irregularity and illegality was drawn in what has come to be known as Subramania Ayyar's case, reported in (I L R 25 Mad. 61). In this case it was held by their Lordships of the Privy Council that the disregard of an express provision of law as to the mode of trial was not a mere irregularity such as could be remedied by section 537 of the Criminal Procedure Code. Such a phrase as "irregularity" is not appro priate to the illegality of trying an accused person for more different offences at the same time, and those offences being spread over a longer period than by law could have been joined together in one indictment. In a later case V. M. Abdul Rahman v. King‑Emperor (A I R 1927 P C 44), their Lordships of the Privy Council distinguished Subramania Ayyar's case by saying that in this case the procedure adopted was one which the Court positively prohibited and it was possible that it might have worked actual injustice to the accused. In my view where there is a prohibition to do a certain act, then the Court has no jurisdiction to do it and the act will, therefore, be void whether it has caused any injustice to the accused or not.

20. I am also not prepared to endorse the view that section 537 cannot be applied to a non‑compliance with the mandatory provision of law but can be applied only where the error is a technical one arising out of inadvertence or accident or oversight. The wording of section 537 do not justify this view. In all cases, however, where the learned Courts have given expression to the above view or the view that section 537 does not come into play when the illegality goes to the root of the case, what was working behind the minds of the learned Judges was the injustice which had resulted on account of the commission of that illegality. After considering the whole question very carefully, I have arrived at the conclusion that section 537 cures the violation of the mandatory provision of law in the matters of procedure provided they have not resulted in the miscarriage of justice. Each case shall have to be decided on its own particular facts, but then in arriving at the conclusion whether the violation has occasioned the miscarriage of justice or not the Court shall have to take into account several factors, such as the language of the mandatory provisions, the scheme and the object to be achieved, the nature of the violation and the gravity of the defect. If the illegality is so grave that prejudice will necessarily be implied or imported, then section 537 of the Code of Criminal Procedure will not cure it. The test, however, will be whether the case of one party or the other has been prejudiced or not. It must be remembered that if all errors, omissions or irregularities, whether they occasion miscarriage of justice or not, are taken notice of, then the object of the law which is made to prevent miscarriage of justice will be completely defeated. Supposing, if in the present case, the entire trial is vitiated because the assessors were not asked their opinion in respect of the charge under section 323/34 for which they have not been convicted and with regard to which no appeal has come up to us, then it would entail a fresh trial even upon the charge under section 302/34, P. P. C. which was neither illegal nor in any way irregular. This will be sheer waste of time and money, and the accused themselves will not like it either.

21. The learned counsel for the appellants has quoted at the Bar Khanu v. The State (P L D 1958 Lah. 330) in which it was held by a Division Bench of this Court that failure of the Sessions Judge to record the opinion of each assessor in respect of two charges on which the accused was being tried amounted to nr, illegality which vitiated the proceedings. In this case, however, the accused were convicted for the offence on which no opinion of tae assessors was taken Although the learned Judges have not said so in their judgment, but the omission had necessarily prejudiced the case of the accused. I am, however, with all respect unable to agree with the observation that simply because the mandatory provision of section 309 of the Criminal Procedure Code was violated, therefore, the trial was bad and for that reason convictions and sentences of the accused were liable to be set aside. If the accused had not been convicted for the offence on which the opinion of the assessors was not taken, I am doubtful if the learned Judges would have still set aside the convictions and sentences and ordered a retrial. Exactly similar case was decided by the same Bench in Criminal Appeal No. 324 of 1959/Murder Reference No. 89 of 1959 Abdul Majid son of Fazal Karim v. The State but therein the reference was made to an Indian case Prem Nath v. The State of Delhi (P L D 1956 S C (Ind.) 197). In this case, the appellant was tried on a charge under sections 302 and 307 of the Indian Penal Code as well as under section 19 (f) of the Arms Act. The opinion of the assessors was obtained on the charge under section 302 but not in respect of the other two charges. On an objection that this was contrary to section 309 and vitiates the whole trial, it was held by the High Court that though it was a. serious irregularity but since the opinion of the assessors was taken in respect of the charge of murder, the conviction and sentence in respect thereof could be maintained while the convic tion under sections 307 Penal Code and 19 (f), Arms Act, had to be set aside. The Supreme Court of India held that the failure to take opinion of assessors in respect of all the charges for which the accused was tried was certainly a grave violation of important provisions of the Code. A conviction in respect of a charge on which the opinion of assessors was not at all taken would be clearly illegal. But whether the conviction in respect of any other charge for which accused was jointly tried but in respect of which the opinion was in fact taken is bad or not would depend on the facts of each case. The question in each case would be whether there is a reason to think that not taking of the opinion in respect of the other charges was likely to have prejudiced a consideration of the charge in respect of which the opinion was taken. In a case where the charges are so inter‑connected that the truth or otherwise of the one would reasonably react on the truth or otherwise of the other prejudice P has to be presumed and the conviction would be illegal. Principle enunciated in the authority is quite sound and I respect fully agree with it. Following this authority the learned Judges of this Court in Murder Reference No. 89 of 1959 observed as under:‑-- "Thus, the conviction and sentence of the appellant under section 394 of the Pakistan Penal Code, the charge in respect of which the opinion of the assessors was not taken, are illegal. The question, however, remains whether the conviction and sentence of the appellant under section 302 of the Pakistan Penal Code, for which he was jointly tried and in respect of which the assessors opinion was obtained, are legal or not. All the acts which constitute the subject‑matter of the two charges, namely, the murder of Muhammad Bashir and robbery, not only constitute one transaction but took place in such quick succession and are so connected with each other that the truth or falsity of one is bound to react on the other. In the circumst ances, it cannot be said that the failure to obtain the opinion of the assessors in respect of the charge under section 394 of the Pakistan Penal Code has not prejudiced the appellant," On the facts of that case, therefore, the learned Judges perhaps were right for setting aside the convictions of the appellant on both the charges and ordering retrial because in their view the act of the learned Sessions Judge in not requiring the assessors to give their opinion on the charge under section 394 had prejudiced the case of the accused. In all cases, therefore, the test should be whether the illegality had prejudiced the case of one party or the other, and if it has, the illegality, however, minor or insignificant it may be, will not be cured by section 537, but if it S has not, however great the illegality may be, it will be, cured by section 537 of the Code of Criminal Procedure.

22. As has already been stated in the instant case, the accused were acquitted of the charge on which the opinion of the assessors was not obtained and, therefore, their case is not' prejudiced. The matter would have been absolutely different if the State had come up on appeal to this Court and had com plained that the trial was bad on account of this omission of the learned trial Court, but so far as the accused are concerned, S they have nothing to complain about.

23. Learned counsel for the appellants has very strenuously argued that the omission of the Court to require the assessors to give their opinion on section 323/34, P. P. C. charge has occasioned miscarriage of justice in this manner that if the assessors had been asked to give their opinion and had given their opinion in an absurd manner, it would have reflected upon their opinion with regard to the charge under section 302/34, P. P. C. as well. The wisdom of "the Sessions trial with the assistance of the assessors" must only be known to the Legislators who incorporated it in the Criminal Procedure Code. It appears that the utility of this provision of .law only lay either with the assessors or with the authorities who selected them. Otherwise in law their assistance was of no consequence in the decision of the sessions cases, because whereas under subsection (1) of section 309 of the Criminal Procedure Code the Sessions Judge was bound, after the conclusion of the prosecution evidence and that of the defence, to require each of the assessors to state his opinion orally on all the charges on which the accused had been tried, under subsection (2) it was specifically laid down that he was not bound to conform to such opinion. It is, therefore, quite obvious that whatever opinion of the assessors it could not have any effect on the decision of the case one way or the other. It necessarily follows that even if we assume in favour of the accused that the assessors had given an absurd view if asked with regard to the charge under section 323/34, P. P. C. still it would not in any way affect the decision of the Court with regard to the charge under section 302/34, P. P. C. because even on that charge the learned Sessions Judge was not bound to conform to the opinion of the assessors. In a similar case In the matter of the opinion of Narain Das reported in (ILR 1 All. 610) the trial was not quashed because the omission of the Sessions Court to ask the assessors opinion, though a serious irregularity, was held not to be fatal to the trial as it had not caused any miscarriage of justice. I, therefore, find no force in this objection and overrule it.

24. Objection No.5.

Section 107 of the Pakistan Penal Code defines abetment. According to it, a person abets the doing of a thing, who‑ First.‑Instigates any person to do that thing ; or Secondly.‑Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing ; or Thirdly.‑Intentionally aids, by any act or illegal omission, the doing of that thing. If a person abets an offence then either the offence abetted is com mitted or not committed, if the offence abetted is committed, then the person abetting may be present at the time of the commission of such offence or not. In all these cases the liability of the abettor varies, if the offence is committed and no express provision is made by the Penal Code for the punishment of the abettor, then he is liable to be punished under section 109 of the Penal Code with the punishment provided for that offence. If he is present at the time when the offence which he has abetted is committed, then he shall be deemed to have committed such offence under section 114 of the Pakistan Penal Code. There is as will be seen very little difference between section 109 and section 114 of the Criminal Procedure Code. In one case the offence remains an abetment, but in the other the abettor is deemed to have committed the principal offence. The liability is the same. If the offence that has been abetted is not committed then if the original offence is punishable with death or transportation then under section 115 the abettor is liable to be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. In all other cases he is liable under section 116 to be punished for a term which may extend to one fourth of the longest term provided for the offence which had been committed in consequence of the abetment or with such fine as is provided for that offence, or with both. I have not referred to other sections dealing with the abetment because those are not very relevant to this discussion. When a person instigates a person to commit an offence or engages with one or more other person or persons in any conspiracy for the commission of the offence, or intentionally aids by act or illegal omission the commission of that q offence, the offence of abetment is committed and is complete. Where, however, the person is to be punished for the abetment when the offence is actually committed, then the offence of abet ment is a continuing offence and is complete only when the princi pal offence is committed. In that case he and the person who commits the offence commit their respective offences in the same transaction. For example, A instigates B to commit the murder of C. While B is committing the murder of C, D, a companion of Bin the course of the same transaction commits the murder of E. Now A can be tried in the same trial along with Band B can be tried in the same trial along with D because both of them committed the offences in the course of the same transaction. Since A has committed the offence of abetment of the murder of C in the course of the same transaction in which B and D have committed the offences, in my view all three can validly be tried together. The question as to when the offence of abetment was completed depends upon the commission or non‑commission of the offence and must be decided on the facts of each particular case. In the present case, it was alleged that Ata Muhammad appellant instigated Muhammad Sajjad and Muhammad Sharif to commit this offence and in pursuance of that instigation the last‑mentioned two persons committed this offence, viz., the murder of Muhammad Khan. At the same time Muhammad Sajjad and Muhammad Sharif caused injuries to Mst. Aimna Bibi (P. W. 24) and Mst. Zainab Bibi (P. W. 25). Ata Muhammad, Muhammad Sajjad and Muhammad Sharif, therefore, committed the respective offences, the first of abetment and the latter two of murder of Muhammad Khan and causing simple injuries to the two women in the course of the same transaction. Their act would, therefore, be covered by clause (d) of section 239 which says that the persons accused of different offences committed in the course of the same transaction may be charged and tried together. The argument of the learned counsel for the appellant is that while under clause (b) of section 239 Ata Muhammad could be charged and tried together with the other two accused for the offence of murder these three persons could not be charged and tried together for the offence under section 323/34, P. P. C. for which Ata Muhammad did not abet. In my view the different clauses of section 239 of the Criminal' Procedure Code are not exclusive of each other. If the offences are committed in the course of the same transaction but the persons committing them are covered by more than one sub clause of T section 239, then they can be tried together and their trial will not be bad in law. There is no indication in section 239 itself to show that the different sub‑clauses are mutually exclusive. In my view the question should be looked at from the point of view of trans action and not offences. If transaction is the same but offences are different, the clauses are inclusive of each other, but if transactions are different, and even if the offences be the same, they will be, subject to other provisions of the Criminal Procedure Code exclusive of each other. The preliminary objections, therefore, have no force and are hereby rejected. 25. Coming to the facts of the case, the learned counsel appearing for the appellants argued that on the evidence produced no case is made out against Ata Muhammad appellant. As has already been stated, he was accused of having abetted the murder of Muhammad Khan. He was not present at the spot when the actual murder was committed. In order to prove his conspiracy with his other two accused, the prosecution examined three witnesses, namely, Lal (P. W. 19) Wali Muhammad (P. W. 20) and Khushi Muhammad (P. W. 22). Lal (P. W. 19) is admittedly the maternal uncle of the deceased. His daughter was married to the deceased but had been allegedly divorced and using it as an instru ment to show that he was against the deceased, he came into the witness‑box to depose that Ata Muhammad accused had sent for him and had sought his assistance in the commission of the murder of Muhammad Khan which he flatly refused to do. There is nothing on the record to show as to why Ata Muhammad approached Lal in order to help Muhammad Sajjad and Muhammad Sharif to commit the murder of Muhammad Khan. His assertion that the deceased had divorced his daughter has not been proved by any documentary evidence upon the record and it really does him no harm now when Muhammad Khan is dead to say that his daughter was in fact divorced by him regards his daughter's share in the property they must have arrived at some private understanding. Evidence of Wali Muhammad (P. W. 20) is on the face of it fantastic. If Ata Muhammad was bent upon murdering Muhammad Khan, then Lie would have kept mum about it in order to achieve his object without any hindrance. It will be absurd to expect him to make his intentions public and tell, out of all, to Wali Muhammad that he had sold 110 Plauads of wheat in order to procure money to commit the murder of Muhammad Khan. Surely as a reasonable man, he should have understood that by talking so loosely, he was making his task more difficult because if Muhammad Khan came to know of it, which he would certainly do, he would take all necessary ;precautions to preserve himself, thus rendering the task of Ata Muhammad difficult and hazardous. Lastly, Khushi Muhammad (P. W. 22) stated that about four or five days before this murder, he saw Ata Muhammad taking away his family and cattle, and on enquiry told him that he was going to be away from the village for the next eight months and that his crops will be looked after by his son Muhammad Sajjad. This Khushi Muhammad, although he denied it and said that he was never challaned under section 107 of the Code of Criminal Procedure, has been mentioned as one of the persons challaned in Exh. P. Z. placed upon this record. It is possible that he was never summoned because Muhammad Khan and Ata Muhammad had compromised the case with each other, but it is difficult to believe that he did not know that he was challaned against Ata Muhammad and was arraigned on the same side as the deceased. But even if his statement be taken as the gospel truth, still it is difficult to connect Ata Muhammad for that reason with this murder. If he conspired with Muhammad Sajjad and Muhammad Sharif to commit this murder, then he would have stayed in. the village and not gone away. He would have been more anxious for the safety of his son than for his own and for that purpose alone he would never have left the village. The evidence of the aforementioned three witnesses does not in any way advance the prosecution case against Ata Muhammad appellant. I have, therefore, no hesitation in agreeing with the learned counsel appearing for the appellant and acquitting Ata Muhammad of the charge. 26. So far as the remaining two accused are concerned, in my view, the evidence against them is both convincing and true. There is no manner of doubt that Muhammad Sajjad and Muhammad Sharif on one side and Muhammad Khan deceased on the other were at daggers drawn against each other. There has been a litigation going on between the deceased and Ata Muhammad since the time Muhammad Khan became a Lambardar. There is no evidence on the record that Muhammad Khan had any enmity with any other person who would be interested in doing away with him. Judicially though the case against Ata Muhammad is weak, yet there is no manner of doubt that he was the brain behind the murder. 27. The first witness produced is Bahawala (P. W. 23) who was ploughing the field when the two accused accompanied by a stranger arrived, dragged Muhammad Khan away and caused fatal injuries. The occurrence took place near the field which was jointly owned by Bahawala and Muhammad Khan. The presence of Bahawala (P. W. 23) therefore, near the scene of occurrence was perfectly natural, it is true that he was a collateral of the deceased, but then for that reason alone his evidence cannot be rejected, particularly when his presence at the spot was most probable. Similarly the presence of Mst. Aimna Bibi (P. W. 24) and Mst. Zainab Bibi (P. W. 25) is quite natural because their houses are situated quite close to the scene of occurrence as will be clear from the plan and they must have been attracted to the spot when the alarm was raised. It was not a case of hit and run, but a case of a prolonged attack on the deceased in which no less than forty‑six injuries were caused upon him. While, therefore, these injuries were being caused to him, it was perfectly natural for both the ladies to come to the spot. Both these ladies saw the occurrence with their own eyes and in corroboration of the fact that while rescuing the deceased, they were injured by the stranger, the doctor was produced and he found injuries upon their respective persons. It is argued that Mst. Zainab Bibi could not have been present at the spot because at the time of occurrence she was living with her younger son but this fact is contradicted by Mst. Zainab Bibi herself who said that in those days she was living with Muhammad Khan deceased in his house and had come to the spot on hearing the alarm raised. The explanation is quite plausible and natural. The fourth witness produced is Inayat (P. W. 26) but I am very doubtful if this man was present at the spot at all. He lived at Chah Budha which was about seven or eight killas away from the scene of occurrence and he also admits that Ata Muhammad accused appeared as a witness against him in a security case. The other ground which has led me to disbelieve his evidence is that he had stated that he came to the spot in order to have his plough repaired by Hayat lohar but it is in evidence from other prosecution witnesses that Hayat lohar was not present in his shop at the time of the occurrence. However even if the statement of Inayat (P. W: 26) is eliminated, the case against Muhammad Sajjad and Muhammad Sharif is proved beyond reasonable doubt by the evidence of the other three ocular witnesses. Both these accused denied the charge and stated that they were in Gujrat in a hospital where Muhammad Sajjad was lying ill. If that was a fact, it should have been quite easy for Muhammad Sajjad to produce medical evidence in order to support his statement. No such evidence has been produced upon the record. I have consequently no doubt in my mind that Muhammad Sajjad and Muhammad Sharif com mitted the murder of the deceased in the manner alleged by the prosecution witnesses. Their appeals are dismissed and the sentences of death confirmed. SHABIR AHMAD, J.‑

I agree with my learned brother that the appeal of Muhammad Sajjad and Muhammad Sharif should be dismissed and their sentence of death confirmed, and the appeal of Ata Muhammad should be accepted and he should be acquitted, but I should not be deemed to be agreeing with all the views that my learned brother has taken about the points of law that fell for determination.

2. I do not consider it necessary for the purposes of the present case to determine what the effect of non‑compliance with section 309 of the Code of Criminal Procedure would be if the trial has resulted in conviction for more than one offence thoughts the assessors were questioned with regard to only some of them is because in the present case no conviction was recorded with regard to the offence about which the opinion of the assessors was not, taken, but I agree with my learned brother that in the present case the omission to question the assessors with regard to the offence for which no conviction was recorded should be ignored as section 537 of the Code of Criminal Procedure can cure it.

3. I find it difficult to agree with my learned brother that for the purposes of section 239 of the Code of Criminal Procedure the offence of abetment is to be deemed to be committed only when the substantive offence is committed, but I have no hesitation in coming to the conclusion that non‑compliance with the provisions of section 239 of the Code of Criminal Procedure in the present case stood cured by reason of the provisions of law contained in section 537 of that Code and the fact that Ata Muhammad, who alone could complain against the joint trial has been acquitted, is a sufficient ground for the application of the curative provisions contained in section 537 of the Code of Criminal Procedure. A.H. Appeal dismissed.