P L D 1953 Federal Court 1 (PLP)

ABDUL RASHID, C. J.-This is an appeal, by special leave, from a decision of a Division Bench of the Chief Court of Sind, confirm ing the sentence of death awarded to the appellant by Mr. Justice Muhammad Bachal, under section 302 of the P. P. C., after a trial by jury, who found the appellant unanimously guilty of the murder of his wife Kaniz Fatima. Mst. Kaniz Fatima was the daughter of Ahmad Din, a motor driver of Lahore. She was married to the appellant in 1944. After a few months of married life, Mst. Kaniz Fatima left the accused and went to live with her father, owing to constant quarrels between her and her husband. On the 11th of April 1949, Muhammad Hussain, a clerk employed in the Pakistan Ministry of Industries, got married to her at Lahore. It was alleged by Mst. Kaniz Fatima at the time that she had been divorced by the appellant by executing a deed on the 26th of August 1948. Shortly after his marriage Muhammad Hussain brought Kanlz Fatima to Karachi and took up residence in the Martin Colony. On the 26th May 1926, the appellant filed a complaint against Kaniz Fatima and Muhammad Hussain under section 494 of the P. P. C., in the Court of a Magistrate at Lahore. The allegation against Muhammad Hussain and Kaniz Fatima was that they were guilty of bigamy as he had never divorced Mst. Kaniz Fatima. In the last week of June the appellant went to Karachi from Lahore. He made an effort to contact Kaniz Fatima and Muhammad Hussain on several occasions but without success. Kaniz Fatima was murdered at about 9-15 a.m., on the 1st of July 1949, in her bath-room. According to the prosecution, the appellant was seen rushing out of the quarter in which Muhammad Hussain was staying, with his hands and clothes heavily covered with blood. He was challenged by Nazar Hussain, but he ran away as soon as Nazar Hussain asked him to stop. He was pursued and ultimately captured at some distance from the quarter. Nazar Hussain and several other persons who had pursued and captured the accused were examined as witnesses in the case. After Mr. Justice Bachal had delivered a lengthy charge to the jury, the jury retired to consider their verdict. The jury returned after an interval of an hour and stated to the Judge that they were not unanimous, but were divided 5 to

4. The Judge then further addressed the jury as follows:- "Mr. Foremen and gentlemen of the Jury-verdict of 5 to 4 is no verdict. You are therefore given time for further consi deration" and ask to give as far as possible an unanimous verdict or a majority verdict. You are again informed that in cases where there is circumstantial evidence the testimony of an eye witness is not necessary and if from all or any circumstantial pieces of evidence that the prosecution have adduced against the accused you can be of the opinion that the one and the only inference to be drawn from the proved facts will be that it is the accused who committed the offence, then you have to return a verdict of guilty, but if you have any doubt or thing that any other inference is possible or can be taken then you have got to return, if you choose to do so, a verdict of not guilty against the accused." After the second address by the Judge, the jury retired and returned again after 50 minutes and stated, through their foreman, that they were not unanimous and were still divided 5 to

4. The learned Judge then made the following note on the record :- "(the Jury returned a verdict of 5 to

4. Hence they are given the following further directions)". "In this case gentlemen you should not give verdict by your heart but by your head. The Law has imposed upon you the duty of giving a true verdict according to the evidence in the case. You should not be led away by any feeling of the result in this case in case of the conviction of the accused or the acquittal of the accused, but the sole consideration of your verdict should be by head and not by heart. I will therefore again give you time for consideration and ask you to give, as far as possible, an unanimous verdict or a majority verdict, after basing your verdict on considerations by the head and not by the heart." The jury again retired and returned after an absence of forty minutes and gave a unanimous verdict of guilty. They, however, recommended that in respect of the sentence mercy should be shown to the accused. The first point that was strenuously argued by Mr. Rizvi, on behalf of the appellant, was that the learned Judge had erred in telling the jury that a verdict of 5 to 4 was no verdict at all. It was urged by counsel that Mr. Justice Bachal was exercising the powers and performing the duties of a Sessions Judge when he was holding a jury trial under the provisions of the Cr. P. C. The procedure applicable to the trial was the procedure which governs jury trials by a Sessions Judge and not that which applies when a jury trial is held before the High Court. It was maintained that as the case was tried before a Court of Session, the learned Judge should have accepted the majority verdict and pronounced Judg ment accordingly. This was the course that he was bound to follow under section 306 of the Code. It was open to him, however, to express disagreement with the verdict of the Jury, and if he did so he could refer the case to the Chief Court of Sind under section 307 of the Code. On behalf of the Crown, it was contended by Mr. Inam Ullah that though at the time of holding the trial Mr. Justice Bachal was exercising the powers and performing the duties of a Sessions Judge in the Sessions Divisions of Karachi, the procedure applicable to the trial was the one prescribed by the Code of Criminal Procedure for trials before the High Court, and that the learned Judge was not competent to accept the majority verdict of 5 to

4. He, therefore, acted quite rightly in asking the jury to give either a unanimous verdict or a verdict of 6 to

3. The question, consequently, arises whether a jury trial conducted by a Judge of the Sind Chief Court, after a commitment has been made to the Chief Court, is governed by the provisions of the Cr. P. C. which apply to trial by the Court of Session or those that apply to trials before the High Court. Up to the year 1940, the constitution of the Civil and Criminal Courts of Sind was governed by the Bombay .pct XII of 1886 as amended in 1906. Section 1-A of this Act is in the following terms :- "The Judicial Commissioner and additional Judicial Commis sioners shall be appointed by the Local Government by whom alone they shall be liable to be suspended or removed. They shall, within the District and Sessions Division of Karachi each of them, exercise all the powers of a Judge of a District Court and of a Sessions Judge and all Regulations, Acts, Notifications, and Rules now or hereafter in force and applying to the Judge of District Court or Sessions Judge of Karachi, shall; so far as they are not inconsistent with this Act or with any Notification or Rules hereinafter duly published or made, be deemed to apply also to each such Judicial Commissioner and Additional Judicial Commissioner." By section 9(c) of the Act power was given to a Bench of two Judges to hear appeals from the decision of a single Judge in criminal matters. Two Judges of the Court were also entitled to act under section 374 of the Code of Criminal Procedure to confirm death sentences. It appears, therefore, that from 1866 the Sind Chief Court had a dual capacity. It exercised the jurisdiction of a Sessions Judge in the Sessions Division of Karachi as far as original, trials were concerned. A Division Bench of the Sind Chief Court heard anneals from the decisions of a single Judge, Din and cases in which death sentences had been awarded were submitted to a Division Bench of a Court under section 374 of the Code of Criminal Procedure for confirmation. From 1866 to 1923 the Court of the Judicial Commissioner, Sind, followed the procedure applicable to trials by jury before the Court of Session. During that period no difficulty arose, as in respect of original criminal trials the Court of the Judicial Com missioner was a Sessions Court. In 1924, however, section 266 of the Code of Criminal Procedure was amended, and it ran as follows :- "In this Chapter, except in sections 276 and 307 and Chapter XVI(I the expression "High Court" means a High Court of Judicature established under the Indian High Courts Act, 1861; or the Government of India Act, 1915, and includes the Courts of the Judicial Commissioners of the Central Provinces, Oudh and Sind and such other Courts as the Governor-General-in-Council may, by notification in the Gazette of India, declare to be High Courts for the purposes of this Chapter and of Chapter XVIII." From 1923 onwards the Judicial Commissioner's Court began following the procedure applicable to High Courts in the exercise of their original criminal jurisdiction. This is clear from the decision of a Full Bench of the Sind Chief Court in the case of Haji Khudabux and others. v. The Emperor (A I R 1925 Sind p. 249). It was held in that case that the amendment of section 266 in 1923 had the effect of laying down that in all Sessions trials the procedure of the Judicial Commissioner of Sind must be similar to that of the Bombay High Court. The Bombay Act XII of 1866 was superseded by the Sind Courts Act, 1926. It must, however, be pointed out that the Sind Courts Act of 1926 did not come into force till the year 1940, and the Act of 1866, as amended in 1906, continued to govern the Civil and Criminal Courts in Sind including the Judicial Commissioner's Court till 1940. It appears that ever since 1923 jury trials have been conducted in the Judicial Commissioner's Court, and later on, in the Chief Court of Sind, according to the procedure applicable to jury trials in the High Courts as laid down in the Code of Criminal procedure. As mentioned already the Sind Courts Act 1926 came into force in the year 1940. Section 8 of this Act lays down that the Chief Courts shall be the highest Civil Court of Appeal and Revision, and the highest Court of Criminal Appeal and Revision for Sind, and the principal Civil Court of original jurisdiction for the civil district of Karachi, and shall he the Court of Session, and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi. Section 10 of the Act lays down that, notwithstanding anything in the Code of Criminal Procedure, Magistrate exercising jurisdiction in the Sessions Division of Karachi, when committing accused persons for trial, shall commit them to the Chief Court. The argument on behalf of the appellant was that as the Chief Court of Sind was declared to be the Court of Session for the Session Division of Karachi, and as that Court was to exercise the powers and, perform the duties of a Sessions Judge the procedure applicable to such a court was the procedure laid down in the Cr. P. C. for regulating jury trials by Sessions Judges. If the Chief Court of Sind has to be regarded as a Court of Session and has to exercise the powers and perform the duties of a Sessions Judge, it is clear that it must be regarded as a Sessions Court for all purposes under the Cr. P. C. It cannot be regarded as a Court of Session for the exercise of its powers and performance of its duties, and be given at the same time the status of a High Court in procedural matters. The contention on behalf of the Crown was that though the Chief Court is to exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi, the commit ment by the Magistrate under clause (a) of section 10 of the Act is not to the Court of Session for Karachi but to the Chief Court. The Chief Court being the highest Court of criminal jurisdiction in the Province of Sind must be regarded as a High Court and the procedure that must be followed by the Chief Court is that which applies to High Courts in the exercise of their original criminal jurisdiction. Chapter XXIII of the Cr. P. C., begins with section

256. This section, as it stands at present, lays down that except in sections 266 and 307 and in Chapter XVIII the expression "High Court" means a High Court within the meaning of the Govern ment of India Act, 1935, and includes such other Courts as the Provincial Government may by notification in the Official Gazette declare to be High Courts for the purposes of this Chapter and Chapter XVIII. Under section 219 of the Government of India Act, 1935 Chief Court of Sind has been declared to be a High Court. Section 6 of the Cr. P. C., lays down that "Besides the High Courts constituted under any law other than this Code far the time being in force, there shall be five classes Criminal Courts in British India, namely :- I.-Courts of Session : II.-Presidency Magistrates : III.-Magistrates of the first class: IV.-Magistrate of the second class V.-Magistrates of the third class ." The Sind Chief Court, according to the Code, is a Court constituted under a law other than the Code of Criminal Pro cedure for the time being in force. It is, therefore, a "Special Court". It happens that the words "Court of Session" are used in section 8 of the Sind Courts Act for the Sind Chief Court when it exercises the powers and performs the duties of a Sessions Judge. Nevertheless, it is not a Court of Session under the Cr. P. C., but a Court under a "Special Law". It is unfortunate that the nomenclature is such that this "Special Court" has been confused with the Court of Session constituted under the provisions of the Cr. P. C. When exercising its original criminal jurisdiction a the Chief Court of Sind functions as a "Special Court" though it has been styled a Court of Session for the Sessions Division of Karachi. Section 5 of the Code of Criminal Procedure lays down that "all offences under the I. P. C., shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained." An offence under, section 302 is an offence under the I. P. C. Therefore, this "Special Court" has to try this offence in accordance with the provisions of the Cr. P. C. As this "Special Court" is a High Court, by virtue of the provisions of section 2.66 of the Cr. P. C., read with section 219 of the Government of India Act, the procedure applicable to this "Special Court" is the procedure that applies to trials by jury before a High Court. Mr. Inam-Ullah referred to several sections of the Sind Courts Act, 1926 to show that so far as procedure provisions for original criminal trials are concerned, the Sind Chief Court is entitled to follow the procedure applicable to trials before the High Courts. In this connection, he referred to section 13 of the Sind Courts Act which was repealed only in 1943. This section lays down that where any question of law has been decided by a Judge of the Chief Court exercising the jurisdiction of the Chief Court as the principal criminal Court of original jurisdiction for the Sessions Division of Karachi and no reference has been made under the provisions of section 12 or section 434 of the Cr. P. C., the Chief Court may on its being certified by the Government Advocate of Sind that in his opinion the decision should be further considered review the case, or such part of it as may be necessary, and finally determine the question and may thereupon pass such judgment, order, or sentence, as it thinks right. A reference under section 434 of the Cr. P. C., (which was repealed in 1943) could only be made by a Judge conducting an original criminal trial in the High Court to a Court consisting of two or more Judges. This shows that when a single Judge of the Sind Court is conducting an original trial he has to follow the procedure which governs a Judge of the High Court in the exercise of its original criminal jurisdic tion. We must read sections 8 and 10 and the other provisions of the Sind Courts Act in such a manner that they would harmonize with one another, unless such interpretation would do violence to the clear and unambiguous language of the enactment. In my opinion, the whole scheme of the Sind Courts Act, 1926 shows C that, for the purposes of original criminal trials, Sind Chief Court was to follow the procedure governing trials before a High Court. It was urged on behalf of the defence that as the judgment of a singly Judge of the Sind Chief Court in the exercise of its original criminal jurisdiction is subject to appeal to a Division Bench of the same Court, and as sentences of death awarded by a single Judge are subject to confirmation by the Appellate Bench of the Sind Chief Court, it must be held that even in procedural matters a trial held by a single Judge of the Sind Chief Court with the help of a jury is to be regulated by the provisions relating to trials before the Court of Session. In my opinion, this argument has no force whatever. Section 266 of the Cr. P. C., read with section 219 of the Government of India Act, 1935, makes the Sind Chief Court a High Court only for the purposes of Chapter XXIII and Chapter XVIII, with the exception of sections 276 and 307, Cr. P. C. Appeals under the Cr. P. C., are governed by Chapter XXXI. The definition of "High Court" given in section 266 is therefore, not applicable to the provisions relating to appeals and revisions. On the coming into operation of Part III of the Government of India Act, 1935, on the 1st of April 1837 Sind became a separate province. The Sind Courts Act, 1926 closely followed the lines of the Letter Patent of the Bombay High Court. This Act was brought 'into force on the 15th of April 1940. The Court of the Judicial Commissioner of Sind became on that day the Chief Court of Sind. It is obvious from several decisions of the Sind Court cited at the Bar that the Court of the Judicial Commissioner of Sind and later on the Sind Chief Court have been following the procedure applicable to trials before the High Courts in the exercise of their original criminal jurisdiction since 1923. In these circumstances, even if the language of the Sind Courts Act, 1926 be regarded as ambiguous and misleading we must not disturb the interpretation that has been placed on the various sections of the Act of 1866 and the Sind Courts Act, 1926, unless we find that the practice followed in the Sind Chief Court for a long time is not justified by any provision of law. In Loufsa Migneault v. Malo (Law Rep. 4 P C pp, 136-139) the question arose as to what was the effect of a Canadian Statute passed in 1801 which enacted that "Whereas doubts have arisen touching the method now followed of proving last Wills and Testaments made and executed according to the forms prescribed by the laws of England, before one or more of the Judges of the Courts of Civil Jurisdiction in the province; be it, therefore, enacted that such proof shall have the same force and effect as if spade and taken before a Court of Probate." The Judicial Committee made the following remarks at page 136 which may be reproduced in extenso:- "At first sight it certainly appeared to "their Lordships that this language availed to introduce the law of England with res pect to the conclusiveness of a probate duly granted into the law of Canada ; and that where, as in the present case, a suit as to the validity of the will had been contested in open Court, both parties appearing, pleading, and one examining, the other cross- examining. Witnesses, and probate had then been granted, the same question could not be raised again, at all events between the same parties, before another Tribunal; but that the produc tion of the probate would operate as an estoppel to any such action. This, moreover, appears to their Lordships to be the true construction of the words, "such proof shall have the same force and effect as if made and taken before a Court of Probate." "Their Lordships, however, think that they cannot consider this matter now as res-integra. They cannot disregard the practice of the Canadian Courts with respect to it for the last seventy years, and they have, therefore, made as careful an investigation into this practice as the circumstances permit." "Upon the whole; it appears to their Lordships that, by the uninterrupted practice and usage of the Canadian Courts of Justice since 1801, the law has received an interpretation which does not affix to the grant of probate, even in the circumstances of this case, that binding and conclusive character which it has in England, and that according to that interpretation it was com petent to the Respondent to impugn the validity of this will by way of defence to the action brought by the Appellant for the payment of the annuity". "Their Lordships think that they ought not to -advise Her Majesty that a different construction ought now to be put upon the law". The Rule of stare decisis is fully applicable to the present case. During the last 28 years the Sind Judicial Commissioner's Court, and later on the Chief Court, have conducted all trials in the exercise of their original criminal jurisdiction in accordance with the procedure applicable to the High Courts. If we now hold that the Sind Court had no jurisdiction to follow the proce dure applicable to the High Courts, we would be disturbing a practice which has been followed in numerous cases. Reference in this connection may be made to the decision of the Supreme Court of the United States in the case of Alexander J. Marshall v. The Baltimore and Ohio Railroad Campany (U. S. Sup. Court Reports-14 Lawyers Ed. pp, 312 at 324.) .where the following observations occur :- "The published report of that case (whatever the facts may have been) exhibits no dissent to the opinion of the Court by any member of it. It has, for the space of ten years, been received by the Bar as a final settlement of the questions. which have so frequently arisen under this clause of the Constitution; and the practice and forms of pleading in the Courts of the United States have been conformed to it. Confining in its stability, numerous controversies involving property and interests to a large amount, have been heard and decided by circuit Courts, and by this Court; and many are still pending here, where the jurisdiction has been assumed .on the faith of the sufficiency .of such an averment. If we should now declare these judgments to. have been entered without jurisdiction or authority we should inflict a great. and irreparable evil on the community. There are no cases, where an adherence to the maxim of "stare decisis" is so absolutely necessary to the peace of society, as those which affect retroactively the jurisdiction of Courts. For this reason alone, even if the Court were now of opinion that the principles affirmed in the case just mentioned, and that of The Bank (326 v. Deveaux, 5 Cranch, 61) were not founded on right reason, we should not be justified in overruling them. The.practice founded on these decisions, to say the least, injures or wrongs no man ; while their reversal could not fail to work wrong and injury to many." I hold, therefore, that in the exercise of its original criminal jurisdiction the Sind Chief Court is entitled to follow the provisions .4 of the Cr. P. C., relating to original criminal trials before the High Court. The next question for consideration is whether the Judge can require the jury to retire for further consideration more than once. It has been pointed out in an earlier part of this judgment that in the present case the learned Judge asked the jury to retire twice for further consideration. The decision of this question rests on the interpretation of section 302 of the Code of Criminal Procedure which is in the following terms:- "If the jury are not unanimous, the Judge may require them to retire for further consideration. After such a period as the Judge considers reasonable, the jury may deliver their verdict, although they are' not unanimous." The learned Judges of the Sind Chief Court state in their judgment that they cannot find any support in the language of section 302 for the proposition pressed before them by Mr. Brohi that section 302 of the Code only permitted a Judge to require a jury to retire for farther consideration once. According to them, it was obvious from the terms of the section that the' only condition which was necessary to, enable a Judge to require the jury to retire for further consideration was that the jury was not unanimous. If the remarks of the learned Judges were construed literally, it would be open to the Judge to ask the jury, to retire for further consideration half a dozen times, so long as they were not unanimous. I cannot agree with the learned Judges in this respect. Section 302 lays down definitely that after such a period as the. Judge considers reasonable, the jury may deliver their verdict, although they .are not unanimous. In. these circumstances, it is not open to the Judge to send back the jury repeatedly for further consideration until they are unanimous The words "after such a period as the Judge considers reasonable" also lead to the conclusion that the Judge can ask the jury to retire for further consideration only once, and the time taken by the jury for reconsideration must be such as the Judge considers reasonable. Thereafter the jury are entitled to deliver their verdict even though they are not .unanimous. If the Judge were entitled to require the jury to retire for further consideration repeatedly a jury trial would become almost a farce. The Judge, in such circumstances, could coerce the jury into agreement with him. So far as jury trials in this country are concerned, we are bound by the provisions of section 302 of the Code, and cannot have recourse to any practice that might prevail in England or elsewhere in respect of jury trials. Mr. Inamullah was not able to cite a single authority, Indian or English laying down that without any request for further elucidation by the jury, the Judge was empowered to ask the jury to retire for further consideration more than once. I would, therefore hold that the provisions- of section 302 of the Code empower a Judge to require the jury to retire for further consideration only once. If the verdict of the jury is unintelligible or they require elucidation on any complicated question of law or fact, the Judge may remove their difficulty and ask them to retire for further consider ation. Retiring for a second time, under the circumstances outlined G above, would really be in continuation of their first retirement for further consideration. In such circumstances, the further consider ation for a second time would constitute part and parcel of consideration for the first time. I would, accordingly, hold that Bachal, J., was not empowered to require the jury to retire more than once for further consideration. When the jury returned for the first time and stated to the Judge that they were divided 5. to 4 the Judge gave them a short address which has already been reproduced in this judgment. The Foreman of the jury had not asked for further elucidation. H He had only stated that the members of the jury were divided 5 to

4. I, therefore. fail to understand why the Judge addressed them a second time, and pointed out that where there is circum stantial evidence the testimony of an eye-witness is not necessary. The point had been emphasized by the learned Judge in his original address to the jury at some length. The learned Judge was not justified in presuming that the jury were finding any difficulty in giving a unanimous verdict simply because there was no *eye-witness in the case. The jury returned a second time after about 50 minutes and the Foreman stated that they were still divided 5 to

4. The Judge then delivered another address to the jury which amounted to an admonition. He told them that they should not be led away by "any feeling of the result of the case in case of the conviction of the accused or his acquittal", but that the sole consideration for their verdict should be "by head and not by heart". In addressing them in this manner the Judge presumed that the members of the jury were not exercising their intelligence in the determination of the guilt or innocence of the accused, but that they were mainly guided by sentiment in refusing to bring in a verdict of guilty as that might lead to the infliction of the death penalty on, a young man. A charge of this type might readily influence the jury, and induce them to return a unanimous verdict of "guilty". The procedure adopted by the] learned Judge, in giving a fresh address to the jury on each occasion, gravely prejudiced the case of the appellant. I would hold that in the absence of any request from the jury, the Judge was not entitled to deliver a fresh address on each occasion, and that the procedure adopted. by the learned Judge amounts to a violation of principles of natural justice. In the present case, the Judge should have followed the pro cedure outlined in section 305 of the Code. If he disagreed with the majority, or, if there were not so many as six who agreed, the Judge should have discharged the jury. His failure to do so has deprived the appellant of the substance of a fair trial. For the reason given above, I would accept this appeal, set aside the conviction and sentence of the appellant, and remit the case to the Chief Court of Sind for retrial. SHAHABUDDIN, J.-This is an appeal by special leave from a judgment of the Chief Court of Sind confirming the conviction and sentence of death passed under section 302, Pakistan Penal Code, on the appellant, Ghulam Mohi-ud-Din after a trial before Bachal J. of the same Court sitting with a jury of nine, in respect of the murder of Mst. Kaniz Fatima. The murder was committed on the morning of Ist of July 1949 in 1511 Martin Colony Karachi where Mst. Kaniz Fatima was living with her second husband Muhammad Hussain (P. W. 9). The case for the' prosecution was that the appellant who had married the deceased in 1944 divorced her in 1948, that she then married Muhammad Hussain, and for that reason the appellant entered her house when Muhammad Hussain was away and killed her. There were no eye-witnesses and the case against the appellant rested on evidence to the effect that he was seen coming out of the house in blood-stained clothes, that when challenged are started running and that on being chased and caught he confessed that he had killed the deceased because she had remarried. There were injuries on his left hand which according to the medical evidence could have been sustained in a struggle with his victim. It was also in evidence that the appellant had on two occasions prior to the occurrence come to the house in search of Muhammad Hussain. The defence was to the effect that being unhappy with P. W. 8, the deceased sent word to the appellant to take her away, that on the morning of occurrence seeing the appellant, the deceased came out and said that she would go with- him, and that P. W. 9 who was there stabbed her and coming of the house caused the injuries found on the appellant who then ran away and was caught. In his address Bachal, J., explained to the jury the law and the facts, and pointed out the value to be attached to circumstantial evidence. It was not contended before us that there was any serious misdirection or non-direction in the charge. The main grievance of the appellant on the other hand is with regard to what followed the charge to the jury. After an absence of 50 minutes the jury returned and the Foreman informed the Judge that they were not unanimous, but were divided in opinion, five against four. The learned Judge then charged the jury in the following words: "Mr. Foreman and gentlemen of the Jury. Verdict of 5 to 4 is no verdict. You are therefore given time for further consideration and asked to give as far as possible an unanimous verdict or a majority verdict. You are again informed that in cases where there is circumstantial evidence the testimony of an eye-witness is not necessary and if from all or any circumstantial pieces of evidence that the prosecution have adduce against the accused you can be of the opinion that the one and the only inference to be drawn from the proved facts will be that it is the accused who committed the offence, then you have to return a verdict of guilty but if you have and doubt to think that any other inference is possible or can be taken then you have got to return, if you choose to do so, a verdict of (not) guilty against the accused." The jury then retired and returned an hour later and stated through the Foreman that they were still divided in opinion, five against four: The learned Judge instead of recording their verdict charged them again. He said: "In this case gentlemen you should not give verdict by your heart but by your head. The law has imposed upon you the duty of giving a true verdict according to the evidence in the case. You should not be led away by any feeling of the result in this case in case of the conviction of the accused or the acquittal of the accused, but the sole consideration of your verdict should be by head and not by heart. I will therefore again give you time for consideration and ask you to give, as far as possible an unanimus verdict or a majority verdict, after basing your verdict on considerations by the head and not by the heart." Thereafter the jury retired and after an absence of 40 minutes fin they informed the Judge through the Foreman that they were unanimous and then delivered a verdict finding the accused guilty, of murder but added a recommendation for mercy. The learned Judge accepted the -verdict and convicted and sentenced the appellant as stated above. His appeal to the Chief Court having been dismissed the appellant applied for, special leave to appeal which was granted as this Court was of opinion that a consideration of the following points of law which arise out of this case was necessary. "(1) Whether a Judge is justified in requiring jury to retire for further consideration more than once if they are not unanimous? (2) Whether a Judge can add to his charge while directing the jury to retire to consider their verdict? (3) Whether the provisions of section 302 of the Code of Criminal Procedure or those of section 305 of the Code were applicable to the present case? On these points we heard Mr. Rizvi on behalf of the appellant and Mr. Inamullah 'on behalf of the' Crown. I shall take the third point first, as it is important, involving as it does the question whether the practice of the Chief Court Sind in following, in the sessions cases tried by it, the procedure prescribed for High Court trials is in accordance with law. Chapter 23 of the Criminal Procedure Code. contains provi sions prescribing the procedure for the trial of sessions cases before High Courts and Sessions Courts respectively. Some of its provisions are common to both the Courts. For instance section 302 empowers the Court in case where the jury are not unanimous in their opinion to ask their to retire for further consideration. . This applies to the High Courts as well as the Sessions Courts. But section 305 prescribes the procedure for trials before the High Court. It provides that in a sessions trial before High Court judgment should be given in accordance with an unanimous verdict of the jury and that in case the jury are not unanimous but at least six of the jurors agree in opinion and the judge agrees with them the judgment should be according to that opinion. If the verdict is neither unanimous nor of six out of nine a retrial has to be ordered. Section 306 lays down the procedure to be followed in trials before a Sessions Court. In a case tried before a Court of Sessions the Judge can accept even a verdict of 5 to 4 if he agrees with it. In cases of disagreement with the jury he cannot order a retrial but can refer the case to the High Court under section 307 if such a reference is in his opinion necessary for the ends of justice. According to the definition of 'High Court' in section 4 (j) of the Cr. P. C. its original criminal jurisdiction is confined to cases of Europen British Subjects. In the Code of 1872 this definition included the High Courts of Calcutta, Madras and Bombay and the High Court for the N. W. Provinces and the Chief Court of Punjab. That Code, however, did not prescribe the procedure to be followed by the High Court in such trials. But in the Code of 1882 the definition was enlarged so as to include the Recorder of Rangoon and a separate chapter (Chapter 23) was introduced laying down the procedure in the trial of Sessions cases before . High Courts and Sessions Court. As the definition of 'High Court' did not apply to the exercise of original criminal jurisdiction in cases other than those of European British subjects, section 266, the first section of Chapter 23 defined the expression 'High Court' for the pur poses of that chapter with the exception of section

307. Section 366, as it stood in the Code of 1882 made' Chapter 23 applicable to the chartered High Courts, the Chief Court of Punjab and such other Courts as the Governor-General-in Council might declare to be a,. High Court for the purpose of that chapter. In the Code of 1898, there, was a further exten sion of the meaning of 'High Court' both is section 4 (j) and section 266 but the Court of the Judicial Commissioner of Sind was not included under either provision. In 1923, however, when the Code was amended again both the sections were made applicable to the Sind Court. It maybe noted here that the Court of Judicial Commissioner of Sind was established under Act XII of 1866 as the highest Court of appeal in civil and criminal matters in the Province of Sind, and the same' Act as amended in 1906 provided that within the district and sessions division of Karachi, Judges of the Court shall, each of them, exercise all the jurisdiction and have all the powers of a Judge of a District Court and of Sessions Judge. , As by then section 266 of the Criminal Procedure Code had not been extended to this Court, the procedure followed in the trial must necessarily have been that which Chapter 23 of the Code prescribes for a Sessions Court. But since the amendment of section. 266 in 1923 by which the Court of the Judicial Commissioner of Sind was brought within the expression High Court for the purposes of Chapter 23 with the exception of. sections 276 and 307, the procedure that became applicable was -that which Chapter 23 lays down for the High Court. It is indicated, in the judgment of the Judicial Commissioner in Haji Khudabux and others v. Emperor (A I R 1925 Sind 249) that since the 1923 amendment of the Criminal Procedure Code the Judicial Commissioner's Court though acting as a Sessions Court was following the High Court procedure. In 1926, the Sind Courts Act was passed and it provided for the establishment of a Chief Court of Sind, which under section 8 was to be the Court of Session for the Karachi Sessions Division exercising the powers and performing the duties of 'a Sessions Judge. This Act however came into force in 1940 'and in the meantime the Court of Judicial Commissioner as it then was, adopted the High Court procedure when trying sessions cases. This is clear from the observations occurring in Emperor v. Jiand and another (A I R 1928 Sind 149) and in Shewaram Jethanand Shivdass and another v. Emperor (A I R 1939 Sind 209). Even after the Sind Courts Act came into force the same practice was continued and it does continue even to-day. As a matter of fact no objection to this practice was raised in this case either at the trial or in the appeal heard by the Chief Court. The objection that the practice of the Chief Court Sind is not warranted by law has been raised only in this appeal. Mr. Rizvi did not dispute that the practice in question cannot be objected to under the Code of Criminal Procedure in view of section 266 as it stands a0 present, but his contention is that the Sind Courts Act 26 has to prevail over the Procedure Code and that in view of section 8 of that Act the procedure that has been and is being followed by the Chief Court is not warranted by law. Reliance was placed on the words `Court of Sessions' occurring in that section and it was argued that Bachal, J., should have recorded the verdict and should have either accepted it or made a reference under section

307. This argument proceeds on the basis, that the `Court of Session' mentioned in section 8 of the Sind Act is a Sessions Court referred to in the Code. But as pointed out by Mr. Inamullah the Chief Court is not of the class of Sessions Courts mentioned in section 6, of the Code, as those Courts are to be established by Government under section 9 of the same Code, while the Sind Courts Act makes that section inapplicable to the Sessions Division of Karachi. Consequently the Chief Court in this respect comes within the category of 'Courts constituted under any law other than this Code' referred to in section 6 of the Code; and unless a special procedure for such a Court is prescribed under the special Act, the procedure laid down in the Code of Criminal Procedure has to be followed in view of section 5 (1) of the said Code. The Sind Courts Act has not prescribed a special form of procedure. As under section 266, Criminal Procedure Code, the Chief Court of Sind is a High Court with regard to the trials of sessions cases it has to follow the procedure prescribed in Chapter 23 for trials before a High Court. Mr. Rizvi's next submission is that the words in section 8 "shall exercise powers and perform duties of a Sessions Judge" make the Chief Court, a Sessions Court, as far as Chapter 23 of the Criminal Procedure Code is concerned. This contention implies that the Sind Act made section 266, Cr. P. C. inapplicable to the Chief Court of Sind. If this were so, the Special Act would, in my opinion, have said so specifically and not left it to be inferred. As a matter of fact, the provisions of this Act do not render section 266 inapplicable to the Chief Court of Sind. On the other hand, as argued by Mr. Inamullah, it seems for some of its provisions that the Legislature intended that the Chief Court should follow the procedure of trials before High Court. Sec tion 12 of the Sind Courts Act of 1926 gave a single Judge of the Chief Court power to refer for decision to a Bench of Judges any question of law or custom or construction of any document or the admissibility of any evidence arising before the Judge. Section 13 gave a Judge of the Chief Court, exercising the jurisdiction of the Chief Court as the principal Criminal Court of Original Jurisdic tion, power to review the case and determine any question men tioned in section 12 in respect of which no reference had been made under that section or under section 434 of the Code of Criminal Procedure. Following the repeal of section 434, Cr. P. C. fn 1943 section 13 of the Sind Courts Art was also repealed and to section 12, a proviso was added to the effect that that section did not apply to a Judge of the Chief Court exercising the jurisdiction of the Chief Court as the principal Criminal Court of Original Jurisdiction for the Sessions Division of Karachi. This amend ment of the Act does not affect the question before us. The power of reference to a larger Bench in criminal cases having been taken away by the repeal of section 434, Cf.P1C., the repeal of section 13 and amendment of section 12 of the Sind Courts Act had naturally to follow. The importance of sections 12 and 13 as they stood before the said repeal lies in this that they clearly indicated that the Legislature when enacting section 8 did not intend that the Chief Court in the trial of sessions cases, should follow the Sessions Court procedure, though the language of the section gives room for such a construction. Then again, section 11 gives the Chief Court power to make rules and there is nothing in it to restrict this power to civil matters. Mr. Inamullah has drawn our attention to the Crown side rules framed by the Sind Chief Court. Under rule 510 the Sessions Court jurisdiction of the Chief Court shall unless the Chief Judge otherwise directs be exercised by a single Judge. Rule 511 says that the Chief Court shall try cases on the Crown side according to the provisions of the Code of Criminal Procedure before such Judge or Judges as the Chief Judge shall nominate. These rules have not been shown to be inconsistent with the provisions of the Sind Courts Act and in view of what has been said before, they are not inconsistent with the relevant provisions of the Cr. P. C. Mr. Inamullah also referred to section 16 under which the Chief Judge is empowered to appoint a Clerk of the Crown. This, by itself, may not be considered as of sufficient importance in the decision of this question, but taken with the points mentioned so far, it supports the practice followed by the Chief Court. The Clerk of the Crown is mentioned in the Cr. P. C. only in connection with the trials before the High Courts. In support of his contention, Mr. Rizvi relied also on the practice of appeals from judgments of the Chief Court in sessions cases being heard and death sentences passed by it being con firmed by a Division Bench of the same Court. But this is so, be cause section 265 of the Code since the amendment of 1923 has included the Chief Court in the expression 'High Court' only for the purpose of Chapter 23 with the exception of sections 276 and

307. In other respects, in view of the Special Act, it is a Court of Session exercising the powers of a Sessions Judge. In other words, it exercises the same jurisdiction which a Court of Session constituted under the Code would exercise, but follows the procedure applicable to the trials of sessions cases before High Courts. I therefore consider that the practice in question is warranted by law. Even if I were in doubt as to its legality I would still up hold this practice as this is a fit case for the application of the rule of stare decisis. The utmost that can be said in favour of the position taken by Mr. Rizvi is that the provisions of Sind Courts Act are ambiguous. The practice has been uniformly followed for nearly 30 years and in more than one decision the highest Court of the Province of Sind proceeded on the basis that the practice it was following was in accordance with law. In Haji Khudabux v. Emperor (A I R 1925 Sind 249) a Full Bench of the Judicial Commissioner's Court had to consider whether an appeal lay from the judgment of a Judge of the Court passed in a sessions case. It was held that in all sessions trials the procedure must be similar to that of Bombay High Court, but that for the purpose of appeal such trials were trials by a Sessions Court notwith standing the amendment of section 266 Cr. P. C. In the same volume on page 34 a decision of a single Judge is reported where the point for consideration was whether the Judicial Commissioner's Court trying a sessions case with a jury could act under section 307, Cr. P. C. It was held that section 305 applied and not section 307, as under section 266 the Court of Judicial Commissioner was a High Court for the purposes of Chapter 23 with the exception of sections 276 and

307. The same question came up for decision before a Full Bench of four Judges of the Judicial Commissioner's Court of Sind in Emperor v. and another (A I R 1928 Sind 149). Percival J. C. and De Souza A. J. C. were of the opinion that their Court while trying a sessions case should follow the procedure provided for a Sessions Court and could therefore make a reference under section 307, while the other two Judges, Aston A.J.C. and Roopchand A.J.C. held that section 305 applied to such cases and that the Court had no power to act under section 307 as it was a Court of Session following the procedure of a High Court trial. The opinion being equally divided the existing practice of Judges of that Court not to submit cases under section 307 was allowed to continue. In Shewaram Jethanand Shivdasam and another v. Emperor (A I R 1939 Sind 209) the opinion of Aston and Roopchand A.J.Cs. in A I R 1928 Sind 149 was preferred. In Emperor v. Lachiman and another (A I R 1944 Sind 65) the point for determination was whether the Chief Court could transfer a Sessions case on the file of that Court for trial to another Court. The question was not decided though it was discussed ; and the transfer was refused on merits. The Full Bench decision in A. I. R. 1925 Sind 249 was however referred to as good law, and it was observed that the Chief Court was a Court of Session though it followed the procedure prescribed for trials by a High Court. I would therefore decide point No. 3 against the appellant. On the other two points however, Mr. Rizvi was on firmer ground. These points may conveniently be dealt with together. Mr. Rizvi's contentions In this respect are (a) that either under section 302 or section 305 clause (4) the learned Judge could ask the jury to reconsider their opinion only once and (b) that when giving such a direction he had no power to recharge the jury, that the language he used in his recharges indicates that he wanted to make the jury return an unanimous verdict or a verdict of at least six in favour of the prosecution, and that therefore grave prejudice was caused to the appellant. In view of the conclusion that the High Court procedure of trial adopted in this case was warranted by law it follows that Bachal, J. could ask for an unanimous verdict under section 302 or for a verdict of at least six against three under section

305. But he did not have under either of the sections power to insist on the jury returning an unanimous verdict or a verdict of six to three. Section 301 clearly gives the jury the right of expressing the verdict after it has been addressed by the Judge, and section 302 gives the Judge only the power to ask the jury to return an unanimous verdict if possible. Similarly section 305 gives him the power to ask the jury to reconsider their opinion so that if possible at least six of them may be of one opinion. But a Judge cannot repeatedly ask the jury to consider their opinion till they are unanimous or six of them are of one opinion, as such a course is against the language and spirit of these sections. Under section 302 the jury may, when asked to reconsider their verdict to see if they could not be unanimous, deliver it even if they have failed to become unani mous. The word "after such a period as the Judge considers reasonable" indicate to my mind one period and not a total of several periods allowed on each occasion for reconsideration, Under section 305 the Judge shall discharge the jury if "after the lapse of such time as he thinks reasonable" there are not so many as six who agree in opinion. The language of this section also does not indicate that the reasonable lapse of time is the total of the several periods of time. The Legislature could not have intended that the jury could be asked to reconsider more than once, insistence on their becoming unanimous or at least six of them holding the same opinion, after they had expressed the inability to do so, would amount to forcing them to change their views. Mr. Inamullah could not draw our attention to any provision of law under which a Judge can recharge the jury when the Foreman has announced that they have arrived at the decision but are divided in opinion. Section 303 empowers a Judge to put questions to the jury to ascertain what their verdict is. In Hamid Ali Haldar v. King Emperor (57 Cal. 61.) the Judge had recharged the jury as the verdict as expressed by them was unintelligible. It was held by the Calcutta High Court that the Judge could if he liked have asked questions of the jury, but that if he thought it simpler to recharge the jury there was nothing against it in the Code. Here, the verdict was not returned and there was no reason to think that the verdict would be unintelligible or that the jury needed further elucidation. The learned Judge recharged the jury merely because the Foreman said that they were divided five to four. Recharging the jury only to get an unanimous verdict or a majority verdict of six to three is open to the same objection as asking the jury more than once to reconsider their opinion. As for the effect of these recharges Mr. Rizvi's contention that the appellant was prejudiced thereby has in my opinion to prevail. The language of the first recharge indicates that the learned Judge addressed the jury at that stage because he thought that the majority of the jurors were in doubt about the guilt of the accused as there was no eye-witness and the evidence was circumstantial; otherwise there was no necessity for charging the jury on the value of circumstantial evidence once again. They had been told about it in the original charge and they had) not asked for further elucidation. The second recharge gives the impression that the learned Judge thought that the majority were inclined to acquit, influenced by sentiment and not reason, and that he wanted to avoid such a verdict. It is the effect that al charge has on the minds of the jury that matters and in the context in which these recharges were made the probability of the jury having felt that the learned Judge wanted them to return a verdict of guilty cannot reasonably be excluded, specially when their rider for mercy is taken into consideration. In these circumstances it is clear that the appellant has not had a fair trial and that his case was gravely prejudiced. I therefore agree with My Lord the Chief Justice that the conviction and sentence of the appellant be set aside and a retrial ordered. CORNELIUS, J.-I agree with my Lord the Chief Justice that the trial of the present appellant is not vitiated by the circumstance that the Judge (Mr. Justice Mohammad Bachal of the Sind Chief Court) purported to act under section 305 of the Code of Criminal Procedure, but there has been an illegality in his exercise of the limited power conferred upon him by the Code of requiring reconsideration of their verdict by the jury. I also agree that the latter illegality is of such a nature as renders it necessary to set aside the judgment passed by the learned Judge upon the final verdict of the jury, and that in the circumstance of the case, it is proper to direct a re-trial. The material facts are not in doubt. The petitioner Ghulam Mohi-ud-Din was tried by Mr. Justice Mohammad Bachal with a jury of nine, for the offence of murder, alleged to have been committed in the City of Karachi. By a Notification of the Bombay Government of the year 1884, appearing in Part I of the Bombay Gazette for that year at page 708, the Government of Bombay directed that offences punishable with death or trans portation for life or imprisonment for 10 years committed in the area of Karachi City should be tried by jury. At that time, and upto the year 1940 when the Sind Courts Act, 1926, was enforced, offences in Karachi City triable by a Court of Session were com mitted for trial to the Court of the Judicial Commissioner. The statutory provisions bearing upon this matter were contained in the Sind Courts Act No. XII of 1866 of which the relevant provisions reads as follows :- "There shall be for the Province of Sind a Court of the Judicial Commissioner of Sind ...which shall be the highest Court of Appeal in civil and criminal matters in the said Province, and which shall be the District Court and Court of Session of Karachi. The Court of the Judicial Commissioner shall consist of three or more Judges, one of wom shall to the Judicial Commissioner of Sind . . . . . . and the others Additional Commissioners". "The Judicial Commissioner and Additional Judicial Commissioners shall be appointed by the Local Government by whom alone they shall be liable to be suspended or removed. They shall, within the District and Sessions Division of Karachi, each of them exercise all the jurisdiction and have all the powers of a Judge of a District Court and of a Sessions Judge .." It appears clearly from these provisions that for the purposes of Sessions trial of offences committed in Karachi City, each of the Judicial Commissioners was separately empowered as a Sessions Judge, although the Court collectively was given the powers of the highest Court of criminal and civil appeals in the Province of Sind, which at that time included Karachi City. It is important to notice that there are material differences between the provisions relating to jury trials before a High Court, and such trials before a Court of Session. The particular provisions requiring examination in the present case are those contained in sections 301 to 307 of the Code. Sections 301 to 304 apply indifferently and equally to jury trials before a High Court as well as to jury trials if a Sessions Court. They provide that when the jury have considered their verdict the Foremen shall communicate the verdict of them all or of a majority, to the Judge who may, if the jury are not unanimous, require them to retire for further consideration. When such a time has elapsed as the Judge considers reasonable, the jury " may deliver their verdict, although they are not unanimous". If it becomes necessary to do so for the purpose of elucidating the meaning of the verdict, the Judge may ask proper questions and such questions and their answers shall be recorded. In section 304, provision is made for amendment of the verdict, but this is confined to instance where a wrong verdict is delivered by accident or mistake and the power of amendment is given to the jury, exercisable only either before the verdict is recorded or immediately after it is recorded. The provisions under section 305 apply exclusively to trial before a High Court. The section is divided into four sub sections. By the first sub-section, the Judge is obliged to give judgment in accordance with the opinion of the jury if they are unanimous. Where the jury are divided in their opinions, for Foreman is required, so soon as six of them are of one opinion, to inform the Judge. If the Judge agrees with the opinion of the six or more jurors. he shall give judgment accordingly. But in case he should disagree with them, he shall once discharge the jury. The same action, viz., the discharge of the jury, is to be taken if there are not as many as six jurors who agree in opinion. The Code provides that before taking such action, the Judge shall allow such time to elapse as he thinks reasonable, and the object obviously is that so much time shall be allowed as may be reasonably sufficient to enable the requisite number of jurors to reach the same conclusions on the points for decision, by resolving their differences through discussion. In the case of jury trials by a Sessions Court the Sessions Judge is not bound to enter judgment in accordance with the verdict either of the whole body of the jurors or of a majority, if he thinks it "necessary to express disagreement". This is provided by section 306, Cr. P. C., and the following section viz., section 307 provides that where the Sessions Judge think is necessary to express disagreement with the unanimous or majority verdict of the jury, and considers it necessary to submit the case for the ends of justice to the High Court, he shall do so with an expression of his opinion. (The further provisions of the section are not relevant for this discussion). In the present case, after the jury had been charged, they retired and after an absence of 50 minutes, returned to the Jury Box and intimated through their Foreman that they were divided in opinion, five against four. The Judge thereupon gave them "further directions" which may be reproduced in full:- "Verdict of 5 to 4 is no verdict. You are therefore given time for further consideration and asked to give as far as possible an unanimous verdict or a majority verdict. You are again informed that in cases where there is circumstantial evidence the testimony of an eye-witness is not necessary and if from all or any circumstantial pieces of evidence that the prosecution have adduced against the accused you can be of the opinion that the one and the only inference to be drawn from the proved facts will be that it is the accused who com mitted the offence, then you have to return a verdict of guilty but if you have any doubt or think that any other inference is possible or can be taken then you have got to return, if you choose to do so, verdict of not guilty against the accused." The jury retired and returned after an hour and again through their Foreman intimated that they were still divided in opinion in the same proportion, Le., five against four. The Judge there upon gave them "further direction" as below : "In this case gentlemen you should not give verdict by your heart but by your head. The Law has imposed upon you the duty of giving a true verdict according to the evidence in the case. You should not be led away by any feeling of the result in this case in case of the conviction of the accused or the acquittal of the accused, but the sole consideration of your verdict should be by head and not by heart. I will therefore again give you time for consideration and ask you to give, as far as possible an unanimous verdict or a majority verdict, after basing your verdict on considerations by the head and not by the heart." The jury retired again and returning after an absence of forty minutes, announced through their Foreman that they were unani mous and declared their verdict as follows : "The accused is guilty of the offence of murder. We recom mend for mercy of sentence in this case". Two principal questions have been raised, challenging the legality and validity of those proceedings by the Judge. The first question is based on the contention that the Chief Court of Sind which replaced the Court of the Judicial Commissioner in 1940 under the provisions of section 3 of the Sind Courts Act, 1926, is not a High Court for the purposes of trials of the specified offences committed in Karachi City, but is to be regarded as a Court of Session, exercising the powers and performing the duties of a Sessions Judge. Consequently, the duty of the Judge in the present case was, if he disagreed with the majority verdict of the jury, to act in compliance with section 307 of the Code and submit the case to the Chief Court with his opinion thereon. For the purpose of this argument, reliance was placed upon the terms of section 8 of the Sind Courts Act, 1926, which reads as follows : "The Chief Court shall be the highest Civil Court of Appeal and Revision and the highest Court of Criminal Appeal and revision for Sind and the principal Civil Court of original jurisdiction for the Civil district of Karachi and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi." On this basis it is urged that the repeated insistence of the Judge upon a verdict by at least six of the jurors, if not all of them, was in excess of the powers vested in him. The second point urged was that, within the terms of section 302, Cr. P. C., it was not open to the Judge, on learning that the jury were divided in their opinion, to require them to retire for reconsideration more than once, and that his action in requiring them to retire twice, and on each occasion giving them "further direction" had caused a miscarriage of justice, inasmuch as the Judge's proceeding and the effect of imposing his view of the case upon the jurors and at the same time of interfering with the exercise of the right vested in them to declare such a division of opinion, as would have necessitated their discharge under the provisions of law. As a subsidiary argument related to the second point it is urged that the "further directions" given by the Judge on the two occasions on which he required the jury to retire for further consideration amounted in each case to a fresh charge, which was contrary to law and in excess of the Judge's powers. In regard to the first question, the trial Judge in adopting the particular procedure applicable to a jury trial before a High Court, clearly acted in accordance with the view maintained by the judicial Commissioner's Court, and thereafter by the Sind Chief Court, since the year 1923. That view may be conveniently expressed in the words of Davis, C. J., in the reported case of Hundraj Lachiram (A I R 1944 Sind 65 at 66.), vie., "The question of the relation of the Sessions Court at Karachi to the Judicial Commissioner's Court was considered by a Full Bench of the Sind Judicial Commissioner's Court in Haji Khuda Bakhsh v. Emperor (A I R 1925 Sind 249). The amendment of section 266, Cr. P. C. to accord with the provisions of the Government of India Act, 1935, and the reconstitution of the Judicial Commissioner's Court as a Chief Court does not affect the reasoning or the decision of the Full Bench in that case. Chapter XXX1, Cr. P. C. provides for appeals from Courts of Session to the High Courts, and it is as from a Sessions Court to a High Court that appeals lie from a trial by a Judge and jury in the Sessions Court to Karachi to this Court. This Court, however, con tinues as the Court of Session in jury trials, though it follows the procedure prescribed for trials by a High Court. This is a matter of procedure. For purpose of appeal and revision, the Court of Session is subordinate to this Court exercising High Court jurisdiction." "It does not appear to have been doubted in Emperor v. Jumo (A I R 1917 Sind 42), that the Sessions Court at Karachi was a Court, sub ordinate to the Judicial Commissioner's Court as a High Court under section 526, Cr. P. C The decision turned upon the question whether a case could be transferred from a jury district, Karachi, to a non jury district, Hyderabad. Hyward J. C., pointed out that it was open to Government under section 269, Cr. P. C. to create and to abolish jury districts in exercise of their statutory powers, but that decision was given before section 266, Cr. P. C., was amended in 1923, and the Judicial Commissioner's Court was made a High Court for the purpose of Chapter XXIII, Cr. P. C. Before that, the Sessions Court at Karachi was an ordinary Sessions Court. Now under section 267, Cr. P. C., all trials before the Sessions Court at Karachi must be by jury. This aspect of the case, among others, was considered in the Full Bench case in Haji Khuda Bakhsh v. Emperor (A I R 1925 Sind 249). Nevertheless, it was decided that a Judge of the Judicial Commissioner's Court, sitting on the original side, disposes of criminal matters as a Sessions Judge and not as a Judge of a High Court, Section 8, Sind Courts Act, 1926, which defines the jurisdiction of the Chief Court, follows with only verbal alterations the corresponding section of the Sind Courts Act, 1866, defining the jurisdiction of the Judicial Commissioner's Court, and the decision in Haji Khuda Bakhsh v. Emperor, applies as much today to the Chief Court as to the Judicial Commissioner's Court of that day" The case before the learned Chief Judge raised the question of the power of the Chief Court to transfer a case out of the Chief Court which, it is of interest to note, had been tried before the same Judge of that Court and a jury, three several times, On the third occasion also, a retrial had been ordered on failure of the jury to return a "legal verdict," i.e. by a majority of six or more. It does not appear that any objection had been taken at the two earlier retrials, to the same Judge sitting to decide the case, although with a different jury each time. The Local Government applied for the transfer of the case to some other district, on the ground that it had been "conclusively proved that a fair and impartial trial cannot be held in Karachi". In the result, the Division Bench chose to leave undecided the point whether for the purposes of section 529, Cr. P. C., the Sessions Court of Karachi constituted by a Judge of the Chief Court sitting with a jury, was subordinate to the Chief Court. In so doing, they followed the course adopted by the Judicial Committee of the Privy Council in an earlier case of 1935 pub lished as Hari v. Emperor (62 Ind. App. 174). The Division Bench, however, made certain observations which are directly in point in the present case, regarding the effect of a divided verdict in a trial in the "Sessions Court of Karachi", which may be reproduced with advantage: "The learned Judge (trial Judge) in his order of 16th September, 1943, ordering a third re-trial, laments the fact that there is no "legal verdict" before him. The verdict is five to four ; truly an unsatisfactory verdict because under section 305, Cr. P. C., it is not a verdict the Judge can agree with or accept, but it is nevertheless a legal verdict though an unsatisfactory and inconclusive verdict. It is a verdict contemplated by section 305 (4), Cr. P. C., and for which provision is made in section 308, Cr. P. C. But it is not as if, when a difference of opinion exists between a Judge and jury, the law does not provide a means whereby the proceedings can be concluded. If the verdict be unanimous, the Judge has no option but to give judgment in accordance with this verdict. He cannot, as the Sessions Judge in Karachi, refer the case to the High Court under section 307, Cr. P. C." , The opinion of Davis, C. J. quoted at length above follows three earlier published rulings of the Judicial Commissioner's Court, one of which has already been cited. I shall notice these earlier authorities presently, but will here pause to deal with the changes effected in section 4(l)(j), and section 266, Cr. P. C., in the year 1923, as a result of which, the anomaly was created that the Court of the Judicial Commissioner of Sind, although expressly created a Sessions Court for trials of offences of the specified kind in Karachi, was held, as a result of these amend ments, to be obliged to follow the procedure for such trials applicable to a High Court. In section 4(1)(j), Cr. P. C., will be found the general definition of the expression "High Court" applicable to the interpretation of the entire Code, except where specifically excluded. Prior to the amendment of 1923, the expression "High Court" meant, in reference to proceedings against European British subjects or persons jointly charged with them, the Chartered High Courts and tile Chief Court of Lower Burma, and in other cases, it meant "the highest Court of Criminal Appeal or Revision for any local area" or where no such Courts had been legally established, "such officer as the Governor General-in-Council may appoint in this behalf". By the amend ment, the Court of the Judicial Commissioner of Sind was included among those Courts which were designated as "High Courts" for the purpose of the trial of European British subjects, and this innovation was clearly of limited effect for the Judicial Commissioner's Court was already "the highest Court of Criminal Appeal or Revision" for the Province of Sind. Section 266 of the Code, as it stood before the amendment of 1923 provided that in Chapter XXIII of the Code excluding sections 276 and 307 and in Chapter XVIII, the expression "High Court" should (i) mean a High Court under the Indian High Courts Act, 1861, or the Government of India Act, 1915, and (ti) include also the Chief Court of the Punjab, the Chief Court of Lower Burma, and such other Courts as may be notified as High Courts by the Governor-General-in-Council for the purposes of Chapter XXIII, Cr. P. C. By the amendment, the Court of the Judicial Commis sioner of Sind was expressly included in the Second Part of the definition. Chapter XVIII of the Code relates to inquiries by Magistrates into cases triable by the Court of Session or a High Court. Chapter XXIII, relates to trials before High Courts and Courts of Session. Section 276 which falls in Chapter XXIII provides for summoning and choosing of jurors, and lays down, obviously for both Courts of Session as well as High Courts, that the manner of the choosing of the jury shall b: such "as the High Court may from time to time by rule direct." It also provides specifically with reference to High Courts that in a trial before any High Court in the town which is the usual place of sitting of such High Court, the jurors are to be chosen from a special jury list, in two cases, namely, where the accused person is charged with an offence punishable with death or where a Judge of the High Court so directs. The precise reason for the exclusion by the terms of section 266 of the application to section 276 of the definition of "High Courts" contained therein, (which included Chartered High Courts as well as a Court such as that of the Judicial Commissioner in Sind) is not easy to see. If the definition in section 266, Cr. P. C , is not to apply to this section, it seems obvious that for the interpretation of the section, recourse must be had to the definition in section 4(1)(j) of the Code, anti it might be thought that the Chartered High Courts as well as such other Courts as the Court of the Sind Judicial Commissioner would acquire necessary power to make directions governing the manner of choosing all jurors by lot, from their capacity as "the highest Court of Criminal Appeal or Revision" within their res pective jurisdictions read with section 554(2)(c) of the Code. In relation, however, to the second provision, viz., the employment of the special jury list, it would appear prima facie that the application of the definition in section 4(1)(j) of the Code would limit this provision to trials of European British subjects or persons charged along with them, before a High Court, I am aware that this question has been asjudicated upon in a contrary sense by a Division Bench of the Sind Chief Court in Shewaram v. Emperor (A I R 1939 Sind 209). The learned Judges of the Division Bench came to the conclusion that a Judge of the Judicial Commissioner's Court, sitting as the Sessions Court of Karachi has power to empanel a special jury under section 276, Cr. P. C., in a case against a person who was not either a European British subject or charged along with a European British subject. This conclusion was reached by Davis C. J. on the consideration that the provi sions in Chapter XXIII relating to preparation of lists of assessors and summoning of jurors for the "High Court" were by expression, applicable to the Judicial Commissioner's Court. In order to reach the conclusion mentioned above, the learned Judicial Com missioner was obliged to conclude that:- "Section 276 in section 266 must be read as referring to the section itself and not to the provisos. It matters not that this jurisdiction is exercised, owing to the peculiar constitution of this Court through a Sessions Court." I express no opinion as to the correctness of this conclusion recorded by the learned Judicial Commissioner. It seems to me, however, in view of what I have already said, that it is difficult to accept as correct a further conclusion recorded by him in the following words:- "Moreover, if we accepted the argument advanced on behalf of the accused, this Court would have no power to empanel a special jury even in the case of European British subjects in relation to whom in criminal trials it is by virtue of section 4(I) (j), a High Court." As to the other excluded section, viz., section 307, Cr. P. C. whose provisions have already been considered, it is clear that the reference to a "High Court" in this section is not a reference to a High Court in the exercise of original jurisdiction, but to a High Court in its reversionary jurisdiction or as a Court of reference, and I see no great difficulty in regarding the Court of the Sind Judicial Commissioner as being a High Court for the purposes of this section, in its capacity as the highest Court of Criminal Appeal or Revision in the Province of Sind. Were it not for the difficulty created by the provision in section 276, Criminal Procedure Code, relating to the empanel ling of a special jury in trials before High Courts, the exclusion of sections 276 and 307 from application of .the definition in section 266 might appear to be intended to indicate no more than that the references to the High Court in these sections were addressed to the capacity of such High Courts otherwise than as Courts of original Criminal jurisdiction. I now proceed to examine the three Sind authorities which are relevant to the first question before this Court. The earliest of these cases is that of Mitho (A I R 1925 Sind 39), where Kennedy, A. J. C., who had tried a case with a jury considered the question whether he should act under section 305 or 307 In case he wished to disagree with the jury. He thought that each member of the Judicial Commissioner's Court was a Sessions Judge in the Sessions Division of Karachi, and prima facie the trial was governed by sections 306 and 307, but it seemed to him that the procedure had been modified In this respect by virtue of the provisions of section 266, Cr. P. C., that the Court was not acting as a Sessions Court and the Judge presiding over the Court of Session, therefore, did not have power to make a reference under section

307. The conclusion reached by the Additional Judicial Commissioner is clear enough although the same cannot be said of the argument upon which it is based. In particular, it is necessary to express disagreement with one of his observations viz., where he appears to hold that by the exception of section 307 contained in section 266, the expression "High Court" in that section does not mean a Judicial Commissioner's Court. As has been pointed out above, the Judicial Commissioner's Court would appear to be invested with the status of a High Court for the purposes of section 307 by virtue of the definition of "High Court" in section 4(1)(j) of the Code. The second case is that of Haji Khudabaksh; published as A I R 1925 Sind 249, which was heard by three Judges each of whom recorded a separate opinion. There the question was whether an appeal lay from a judgment of a Judicial Commis sioner holding a Sessions trial with a jury, and the argument raised was that since, by virtue of section 266 of the Code, the Court of the Judicial Commissioner of Sind was included within the meaning of the expression "High Court", it must be held that no appeal lay from its decisions in the original criminal jurisdiction. (The amendment by which section 411-A was added to the Code was effected only in 1943). Each of the three learned Judicial Commissioners held, repelling this contention that, while by virtue of the amendment of section 266 which had been effected in 1923, the procedure to be adopted by a Judicial Commissioner of Sind in a Sessions trial must be the procedure prescribed for High Courts, that did not mean that " the pre-existing right of appeal against a conviction recorded at such a trial was also taken away. In the words of Rupchand Bila Ram, A. J. C. "the only change which is intended by the Legislature by the inclusion of this Court in the definition of the expression `High Court' in section 266 is to apply the procedure of a High Court to this Court in the proceedings held before the trying Judge, without affecting the status or the powers of this Court as a Court of Session." The absence of express provision constituting the Court as a High Court was remarked upon, and it was felt that since it had not been declared to be a High Court for the purposes of Chapter XXXI, in which provisions relating to the right of appeal were contained, and in the absence of any express provision to that effect, there could be no presumption that by a mere interpretation clause such as section 266, the valuable right of appeal had been taken away. The judgment in Mitho's case was announced on the 13th December 1923, and that in Haji Khudabaksh's case on the 15th April 1924. Up to that time, there was no divergence of opinion regarding the anomaly created by the 1923 amendment of section 266, viz., that a Court which had been created a Court of Session by the constituent statute, was obliged by the provisions in Chapter XXIII of the Cr. P. C. to adopt the procedure of a High Court in respect of certain trials. The question again arose in 1928, in the case of Rand (A I R 1929 Sind 149) which was heard by a Bench of four Judicial Commissioners. There, one of the Judicial Com missioners had, at the conclusion of a trial under Chapter XXIII of the Code, made a reference to the High Court under section

307. This was Aston, A. J. C., who however appears to have altered his opinion as a result of arguments before the Full Bench, for he expressed himself in his judgment in favour of the view that the "Sessions Court of Karachi" was a special Court, being, by Constitution a Court of Session, but following the procedure of a High Court. He agreed with Rupchand Bilaram, A. J. C., in holding that if full effect were given to the amended section 266, the anomalous but not incongruous effect indicated above would necessarily follow. Of the dissenting members, De Souza, A. J. C., considered that by virtue of section 266, the Judicial Commissioner's Court became a High Court for limited purposes only, and was not given co-extensive powers with the Chartered High Courts. Opening that for a Court which was constituted as a Sessions Court to follow the High Court procedure was an absurdity, De Souza, A. J. C., considered that the absurdity was avoided by restricting the meaning of "High Court" in section 266, by reference to section 4(1)(j), and holding in consequence that the Judicial Commissioner's Court was "converted into a High Court in reference to pro ceedings against European British subjects or persons jointly charged with European British subjects". Speaking with respect, such a construction does not remove the supposed absurdity, but at the best can only be deemed to minimise it. Moreover, it is difficult to suppose that the intention of the framers of the Code in providing one definition viz., that in section 4 (1)(j) which should apply to the whole Code and another specific definition in section 266 which should apply to only two Chapters of the Code (omitting two sections in one of those Chapters) could have intended that the two definitions should be read and applied together in any particular case. Percival, J. C., whose conclusion coincided with that of De Souza, A. J. C., viz., that the Judicial Commissioner's Court was to be a High Court only for the trials of European British subjects and persons charged along with them, but was otherwise a Sessions Court, following in all respects the procedure of a Sessions Court, similarly declined to give full effect to the defini tion in section 266, so far it affected his Court. His opinion was based upon the assertion that the intention of the Local Government was to constitute the Judicial Commissioner's Court, a High Court for the trial of European British subjects and others charged along with them, exclusively, but he admits in his judg ment that this intention had not been carried into effect in 1923, and even in the Act of 1926 (enforced in 1940) which was intended to create a Chief Court for Sind, such a provision had not been included and the Court was constituted as a Court of Session. The result of the case was that, on account of the Judges being equally divided in opinion, it was held that the view which had prevailed for five years should stand. It is impossible to deny that by the various amendments which were effected in the Code and in the Special Acts relating to the Judicial Commissioner's Court and its successor, the Chief Court of Sind, a situation of considerable complexity was created. and therefore, although I prefer the majority opinion, I am unable altogether to withhold sympathy from the learned Judges who expressed and attempted to maintain the minority view. Speaking with great respect to that view, I find it impossible to avoid the impression that it tended rather to aggravate than to obviate the difficulties which had arisen. I have already stated that in my opinion, the terms of the amended section 266, Cr. P. C. do not support the view that the intention of the Legislature was to the confine application of High Court procedure in the Sind Judicial Commissioner's Court to trials of European British subjects and persons charged with them. It seems to me that on a true con struction of the various sections which have been examined in the course of the present argument, the only provision which can be held to apply, in the Sind Judicial Commissioner's Court or the Chief Court of Sind, exclusively to trials of European British subjects or persons charged along with them, is that relating to em panelling of a special jury contained in section

276. But as to the remaining provisions in Chapter XXII1, and in particular, those of sections 305 and 307, I am clearly of the view that the interpre tation adopted by the majority of the Judges of these Courts is one which gives full effect to all the provisions contained in the Cr. P. C. relevant to the matter under discussion, and has thus the merits of consistency as well as practicality. The apparent anomaly whereby a Court constituted by statute as i a Court of Session is required in certain respects to follow the procedure of a High Court may be explained as has been done by Rupchand Bilaratu, A. J. C., in the case of Jiand, by holding that the Sind Judicial Commissioner's Court and its successor, the Sind Chief Court, is in this respect constituted, by the combined effect of the special Act read with the general procedural statute, viz., the Cr. P. C., as a Special Court not within any of the categories enumerated in section 6 of the Cr. P. C. Examples of similar anomalies are not uncommon in systems governed by statute law where new Courts are frequently set up under novel legislation having some characteristics and powers of more than one of the categories of Courts exercising general criminal jurisdiction. In my opinion, the majority view maintained in the superior Courts of Sind since the year 1923 is both reasonable and practical. Even if I were not so clear on this point I would be very reluctant to hold in a different sense, for to do so would have the effect of invalidating a great number of trials held and judgments pronounced and carried into effect in cases arising in Karachi City over a period of approximately thirty years. On the facts of the present case, I consider that the safe course would be to allow the communis error, if error it be, to prevail, on the principle that where a decision of a superior Court has been fol lowed for a long period of time in a matter of legal procedure, it will generally be followed by a Court of higher authority even though the latter Court might not have given the same decision had the question some before it originally (Halsburys Laws of England, Hailsham Edition, Vol. 19, p. 257 in the monograph on `Judgments and Orders'). Here, the statutes whose interpretation has given rise to the present controversy are marked by sufficient doubt as to their meaning, to justify application of the rule, viz., that the construction laid down in 1923 which has been accepted, by the Sind Judicial Commissioner's Court and the Sind Chief Court ever since, for a period of nearly thirty years, should not be altered unless this Court can say positively that it is wrong and productive of inconvenience. Reference in this connection may be made to the considered conclusions of Lord Buckmaster in the case of Boure v. Keane (1919 A C 815 at p. 874) with which I am in respectful agreement. I am accordingly clearly of the view that in purporting to act under section 205, Cr. P. C. Mr. Justice Bachal acted on al correct view of the procedure applicable to him, sitting with a jury at a Sessions trial of an offence committed in Karachi City. The gravamen of the second criticism levelled against the learned Judge's procedure is that in effect, he imposed his own view of the case upon the jury. Mr. Rizvi, for the appellant, contended with force that the terms of section 302 of the Code do not permit a Judge to require the jury to retire for further consideration, when he finds that they are not unanimous, on more than one occasion. If this were the intention of the Legislature it would have been made clear by the use of some such words as "after such period or periods" in place of expression "after such period" which conveys clearly the impression of singularity. This view was also supported by a further consideration, namely, that a provision whereby the Judge can interfere with the delivery of its verdict by a jury, being in restraint of the legal right and power of the jury, must be narrowly construed. It would tend to create inconvenience and confusion, and in a great many cases to injustice, if a Judge were able to deny the right of a jury to pronounce its verdict, for an unlimited numb-,r of times. Moreover, it is not correct to think that a verdict of a jury under Chapter XXIII of the Code, in a trial before a High Court, must be either unanimous or by a majority of at least six, in order to be "a legal verdict". When the jury have applied their minds to the matters before them for a sufficient period of time, and they are satisfied that they cannot agree, and that less than six of them are of one opinion, they are entitled to appear before the Judge and state that to be the case, and thereupon the legal consequence should follow viz., that under sections 305 and 308, the Judge should discharge the jury and decide whether he will order a re-trial, or not. In the present case, the jury were divided five against four when they first returned to the Jury Box to deliver their verdict, and it was not denied that the Judge acted within his powers in requiring them to retire for further consideration. But when they next appeared in the Jury Box, and again declared that they were divided five against four, the Judge was bound to accept this verdict as "a legal verdict" and to take action there on as provided by lays. The opinion expressed by the Judge that "verdict of five to four is no verdict" was not correct. Finally it was urged that the further directions given on each occasion by the Judge to the jury were in the nature of a fresh charge which was not contemplated by the Code and as such, constituted an illegality which vitiated the ultimate verdict. For this contention reliance was placed upon the judgment of the Allahabad High Court published as Dori v. Emperor (A I R 1935 All. 1020). In Dori's case, an unanimous verdict was given by a jury 9n a Sessions trial, that the offence was not proved. The Judge thereupon put a number of questions to the Foreman and gave further directions to the jury and asked them to retire to reconsider the points which he had laid before them. The jury then returned a verdict of guilty, after reconsideration. It was held by the learned single Judge of the Allahabad High Court that the Judge had no jurisdiction, after the delivery of the original and unanimous verdict of not guilty, again to discuss the facts and to ask the jury to reconsider that verdict. In the present case, it appears from the record that the Judge took the precaution of not obtaining from the jury an expression of their opinion on the case until they were unanimous. Under section 302 of the Code. the power of requiring a jury, to recon sider their verdict is confined to a case in which the verdict which they proposed to deliver is not unanimous, and therefore, while the conclusion reached in the Allahabad case is clearly and indubitably correct, it has no bearing upon the considerations applicable to the present case. I find it difficult to deny the force of the arguments of Mr. Rizvi relating to the true construction of section 302 of the Code. In my opinion, if regard be had to the incidents and circumstances of a trial by jury, the words of this section cannot bear the meaning contended for by the learned counsel appearing for the Province of Sind, namely, that because it is a general rule of construction of statutes that the singular includes the plural, therefore, the words "a period" may be legally interpreted as including "a succession of periods." In my opinion, the words "after such a period" are designedly used to convey the sense of a single period, and the reason for this limitation is to be found in the consideration that the right of delivering a verdict on the facts belongs by law exclusively to the jury, and the Judge has no power to interfere with the exercise of this right, except as expressly permitted by statute. Repeated inter ference, amounting to uncontrolled interference, is not, in my opinion, within the contemplation of section 302 of the Code. Therefore in my view, the Judge acted in excess of his powers in requiring the jury to retire a second time of recon sideration. I have found it a little difficult to understand the basis upon which he addressed directions to the jury on each of the two occasions in question. On the first occasion, he enjoined upon them that where there is sufficient circumstantial evidence, ocular evidence is unnecessary, and made some further consequential precautionary observations. It does not appear from the record that the jury had expressed themselves to be in a difficulty on account of the case being based largely, as indeed it was, on circumstantial evidence. If that were the case, the natural conclusion would be that this factor had caused them to be left in a state of doubt as to whether the guilt of the accused had been proved, and making this assumption, it is natural also to infer that the effect of the directions given by the Judge was to strengthen in their minds those factors which tended in favour of holding that such guilt had been proved. Although the learned Judge used expressions to indicate that the decision whether or not the circumstantial evidence led was such as to exclude all inferences except the inference of guilt, was one entirely for the jury, it cannot be denied that by pressing upon the jury that in certain circumstances, circumstantial evidence was just as good as direct testimony, the Judge was in effect guiding the jury towards a verdict of guilty, although I have no doubt that nothing could have been further from his mind. Again, I find it difficult to see, since on the second occasion neither Foreman nor members had opened their mouths before the Judge except to say that the jury were divided five against four, on what basis the judge founded his observations to the jury directing them to give their verdict not by their hearts but by their heads. It might be said that such an observation is wholly devoid of tendency, on the view that if sympathy is sometimes attracted towards the accused person on a capital charge who is in danger of his life, an equal measure of sympathy cannot be denies to the deceased person and his bereaved rela tions. I hope I do not assume too much in saying, on the basis of such experience as I possess, that by the time a trial for murder approaches its conclusion it is usually many months if not a year or more since the murder was committed and unless it be attended by particularly revolting or harrowing circum stances, the tendency of the majority of persons taking an interest whether officially or otherwise in the trial, is to sympathies with the accused person. Consequently, although here again the language employed is free from apparent bias, and further although it was probably completely outside the intention of the learned Judge, his exhortation to the jury to be guided by cold reason and not by sympathy or emotion would seem to be a lead in the direction of a verdict of guilty. When read with the original charge, whose general tendency was in favour of the circumstantial evidence being sufficient to sustain the charge, these subsequent "directions" cannot but be regarded as having the tendency, and the possible effect, of taking the case outs of the jury's province and, in a way, imposing the Judge's own view upon the jury. Such a proceeding constitutes mis-directions, and it is also possible, in my view, to bring the "further directions on the second of the two occasions on which they were delivered, within the same category. For, as I read section 302, it is reasonable to construe it as permitting the Judge, when he requires the jury to retire for re-consideration, to offer them a limited degree of guidance, at least on a point of law. But the second occasion on which this was done in the present case is not warranted by any legal provision, and the directions given must therefore be regarded as being in the nature of a misdirection. It cannot be said, with any degree of certainty, that by the illegality of requiring the jury to retire for reconsideration a second time, and bearing in mind the nature of the impression likely to be created upon the minds of the jury by the second set of `.`further directions" read with the similar directions given on the first occasion, no prejudice was caused to the accused person, and no failure of justice has been occasioned. It is not possible for me to say what view the jury might have taken if they had not been advised on these two occasions in the manner adopted by the learned Judge. Even independently of this consideration, if the verdict by five against four which the jury attempted to return when they returned for the first time after retiring for reconsideration be deemed to be a "legal verdict", there would appear to have been a mistrial. In my opinion, the correct view on this point is that expressed by Davis, C. J. in the case of Hundraj Lachiram, the appropriate extract from which, has been reproduced in an earlier paragraph of this judgment. I accept the conclusion of the learned Chief Judge that a verdict of five to four is "nevertheless a legal verdict, though an unsatisfactory and inconclusive verdict", and that such a verdict is provided for by the Code, which contains other provisions enabling the proceedings to be concluded after delivery of such a 'verdict. There can be no manner of doubt that a Judge cannot refuse to accept a legal verdict, otherwise than within the limited scope of section

302. Authority to this effect is contained in the case of Dori cited above, and I may also quote with advantage the observations of Pollock C. B. in the early case of Yeadon (169 E R P 1312) where a similar question arose. The learned Chief Baron's judgment is short and may be quoted in extenso :- "In this case, the prisoners were charged upon an indict ment which contained three counts, one for inflicting grievous bodily harm, another for unlawfully wounding, and a third for an assault occasioning actual bodily harm. The jury however, returned a verdict of guilty of a common assault, thus negativing the circumstances of aggravation. The Chair man thought he could not receive such a verdict, and sent the jury back to reconsider it, wino thereupon found a general verdict of guilty. Here the Chairman was wrong. The first verdict was perfectly legal ; and he was bound to receive it. There has been a mistrial." In the view I take in this case, when the jury returned in a body to the Jury Box for the second time, they did so in order to deliver a verdict, by five to four, which would have been a legal verdict, upon which certain prescribed action would have been incumbent upon the Judge. He was bound to receive this verdict, and act thereon as required by law, and he was wrong in asking the jury to retire again for reconsideration. The right of retrial, although it is. the course less advantageous to the accused of the two courses open to the Judge under section 308, is nevertheless a valuable right, since it enables the accused once again to plead and attempt to establish his innocence. Denial of this right constitutes clear violation of a principle of natural justice, which this Court may, and must interfere to set right. A. H. Re-trial ordered.