P L D 1964 (W (PLP)

SHAKIRULLAH JAN, J.‑Shafqat Husain Shah, aged 25 years, and Arshad Husain Shah, aged 20 years, sons of Abbas Ali Shah, Tufail Husain Shah, aged 26 years' and Azhar Husain Shah, aged 18 years, sons of Muhammad Husain Shah, residents of Moenuddinpura, Police Station Sadar Gujrat, were tried along with Ahmad Hasan Shah, aged 25 years, son of Fazal Shah, and Fazal Shah alias Kake Shah, aged 65 years, son of Ahmad Shah, under sections 148 and 302/149, P. P. C. for being members of an unlawful assembly and in the prosecution of the common object of that assembly they committed the murders of Afzal Shah and Iqbal Shah, sons of Nawab Shah, on the 26th of May 1961 at chhahwela near Bolianwala Bridge on Gujrat Jalalpur Jattan Road in the area of village Moenuddinpura, Police Station Sadar Gujrat. The learned Additional Sessions Judge acquitted Ahmad Hasan Shah and Fazal Shah but con victed Shafqat Husain Shah, Tufail Husain Shah, Arshad Husain Shah and Azhar Husain Shah under section 302/34, P. P. C. on two counts and sentenced each one of them to death on each of the two counts, by his order dated the 19th of December 1962. The four convicts have preferred a joint appeal against their convictions and sentences. The reference for confirmation of the death sentence is also before us and we propose to dispose of the appeal and the reference by this judgment.

2. Ahmad Hasan Shah, the acquitted accused, is the son of Fazal Shah, the acquitted accused. Abbas Ali Shah, father of Arshad Husain Shah and Shafqat Husain Shah appellants, is the brother of Ahmad Hasan Shah. The mother of Tufail Husain Shah and Azhar Husain Shah appellants is the sister of the mother of Shafqat Husain Shah and Arshad Husain Shah appellants.

3. Briefly the facts of the case are that three years before the occurrence, Nawab Shah (P. W. 15), his wife Mst. Sakina Bibi and their two sons, Akram Shah and Aslam Shah, were pro secuted for committing theft in the house of Abbas Ali Shah, father of Arshad Husain Shah and Shafqat Husain Shah appellants. They were challaned. Akram Shah was convicted and sentenced to two years' rigorous imprisonment while the remaining three were acquitted. In June 1960, Nawab Shah (P. W. 15) and his son Abid Ali Shah were beaten by Fazal Husain and Ahmad Hasan Shah, the acquitted accused, and Arshad Husain Shah appellant along with four others. A case was registered against them under sections 148 and 323/149, P. P. C. on the basis of first information report Exh. P. W. 17/C. During the pendency of the above‑mentioned case, Nawab Shah (P. W. 15), father of the two deceased, and his three sons, Ifzal Husain, Ali Haidar and Ali Abid Shah, are alleged to have assaulted Mst. Sakina Bibi, mother of Tufail Husain Shah and Azhar Husain Shah appellants, and caused her grievous injuries and a report was made in the police station copy of which is Exh. P. W. 17‑D. Mst. Sakina Bibi was admitted in the hospital as an in‑door patient, and thus the relations between the parties became strained.

4. On the 26th of May 1961, which was the Id‑uz‑Zuha day, the two deceased along with their brother Zulfiqar Shah P. W. left their house and were taking meals for their father and brothers who were detained in the judicial lock‑up in connection with the case under section 324, P. P. C. After passing the Bolianwala Bridge on Gujrat‑Jala1pur Jattan Road, they were attacked by the four appellants and the two acquitted accused. Fazal Shah, the acquitted accused, shouted a lalkara from the bridge and the four appellants and Ahmad Hasan Shah, who were biding behind some sorutes plants on the bank of the Nullah near the western end of the bridge came out. Of these Ahmad Hasan Shah, the acquitted accused, and Tufail Husain Shah appellant were armed with knives (chhuris), Arshad Husain Shah, Shafqat Husain Shah and Azhar Husain Shah had spears, and they attacked the two deceased from behind. Fazal Shah, the acquitted accused, with a hatchet in his hand, also attacked the deceased. Ahmad Hasan Shah with the chhuri and Shafqat Husain Shah with the spear are said to have given blows to Afzal Shah who fell on the embankment but was pushed to a close‑by low lying field where he has given chhuri blows by Tufail Husain Shah appellant and then all the six accused caused injuries on the two deceased with their respective weapons. Zulfiqar Shah (P. W. 20), aged about 12/13 years, however, managed to make good his escape, and ran towards the village. While on his way from the spot he was raising alarm. Akbar Shah (P. W. 19) was sitting on his well known as Wazirpurwala. On hearing the alarm, he started running in that direction and on reaching the eastern bank of the Nullah known as Ghaib he came across Zulfiqar Shah (P. W. 20) and on his enquiry he was informed that his brothers were being beaten. Zulfiqar Shah, however, did not disclose the names of the persons who were beating his brothers. Zulfiqar Shah P. W. then left for the village while Akbar Shah (P. W. 19) came to the spot. On reaching the centre of the Ghaib he saw the four appellants and the two acquitted accused. Three of the accused were beating Iqbal Shah while other three were beating Afzal Shah. Fazal Shah accused had a hatchet, Shafqat Husain Shah, Azhar Husain Shah and Arshad Husain Shah had ballam while Ahmad Hasan Shah and Tufail Husain Shah had chhuras. The accused were giving blows to the two deceased in the land adjacent to Gujrat Jalalpur Jattan Road, which is at a lower level from the road on account of a ghaib. Yusuf Shah (P. W. 21), who had reached the spot, had also witnessed the occurrence. The accused then ran away from the spot. Akbar Shah P. W. went to the spot and found Afzal Shah breathing his last while Iqbal Shah was lying injured. Soon after a truck came there from Jalalpur‑Jattan side which was stopped and Iqbal Shah, accompanied by Yusuf Shah P. W., was taken in it to the hospital while the dead body of Afzal Shah remained on the spot. Muhammad Sultan Khan, S. I. (P W. 25), then attached to Police Station Sadar Gujrat, was on IN duty at about 9‑30 a. m. when on reaching village Bolianwala he met Akbar Shah P. W. and recorded his statement Exh. P. J. and sent it to the Police Station Sadar Gujrat where it was incorporated in the first information report Exh. P. J./1. He went to the spot and found the dead body of Afzal Shah lying there. He prepared the injury statement Exh. P. W. 17/A and the inquest report Exh. P. W. 17/B and sent it for post‑mortem examination. From the spot he took into possession some bloodstained earth and made it into a sealed parcel vide memo. Exh. P. W. 6/A. He also took into possession tiffin carrier Exh. P. 3, some halwa in handkerchief Exh. P. 3/A and some chapatis lying at the spot vide memo. Exh. P. W. 6/C. He arrested Fazal Shah, the acquitted accused, on the 27th of May 1961 and Arshad Husain Shah appellant on the 6th of June 1961. Tufail Husain Shah appellant was arrested on the 27th of May 1961 by Adalat Husain Shah A. S. I. Shafqat Husain Shah appellant was arrested by Qazi Safdar Husain, Sub‑Inspector, on the 3rd of August 1961 and Azhar Hussain Shah appel lant was arrested by Abdul Aziz, Head Constable, on the 26th of April 1962, Ahmad Hasan Shah, the acquitted accused, surrendered himself in Court.

5. Iqbal Shah, as stated earlier, was taken in a truck to the Civil Hospital, Gujrat, reaching there at about 10‑40 a. m. Lady Doctor Z. Nusrat (P. W. 2), who was on duty, after examining him, sent information about the arrival of the injured in ‑a serious condition to the S. H. O. Sadar, Gujrat, per ruqqa Exh. P. F. and requested him to arrange for getting his dying declaration recorded. She removed Iqbal Shah to the operation theatre where she gave him first aid. As the condition of the injured was deteriorating, she asked Abdul Karim (P. W. 16), Male Dispenser, to write the statement of the injured in her presence. He recorded the statement in part which is Exh. P. D. The injured collapsed and could no longer talk on account of weakness. She made a note under it to this effect and stopped recording his statement. She read it over to the injured who admitted its correctness by nodding. She then took his thumb -impressions under it. Exh. P. D./1 is the certificate given by the lady doctor showing that the injured was in possession of his senses while making the statement. The dying declaration was recorded at about 11 a. m. In this dying declaration Iqbal Shah stated that he was taking meals from his house and was proceeding towards the canal when on the way he was caught by Muhammad Husain wald Tufail, Shafqat Shah son of Abbas Ali, Arshad son of Abbas Ali and Azhar Abbas Shah son of Muhammad Shah who were sitting on the bridge and gave him blows with knives and hatchets.

6. Learned counsel for the appellants raised a preliminary objection and contended that the prosecution evidence was concluded on the 7th of December 1962, the accused were examined and the opinion of the assessors was obtained and the case was fixed for the announcement of the judgment on the 8th of December 1962. On that date the Court recalled four witnesses, namely, Lady Doctor Z. Nusrat (P. W. 2), Abdul Karim Dispenser (P. W. 16), Adalat Husain Shah, A. S. I. (P. W. 14), and Muhammad Sultan Khan, S. I. (P. W. 25), for 14th of December and also resummoned the assessors. The witnesses were not served for that date and the case was adjourned to the 18th of December 1962. On the 14th of December 1962, however, the learned Sessions Judge inspected the spot in the presence of the accused, their counsel and the assessors. He recorded the supplementary statements of the witnesses mentioned above on the 18th of December 1962. Learned counsel for the appellants contended that after taking the opinion of the assessors, the Sessions Judge had to announce judgment and was not competent to re‑examine the witnesses. In support of this contention he relied upon section 309, Cr. P. C. which runs thus‑

"Delivery of opinions of assessors‑

(a) When, in a case tried with the aid of assessors, the case for the defence and the prosecutor's reply (if any) are concluded, the Court may sum up the evidence for the prosecution and defence, and shall then require each of the assessors to state his opinion orally on all the charges on which the accused had been tried, and shall record such opinion, and for that purpose may ask the assessors such questions as are necessary to ascertain what their opinions are. All such questions and the answers to them shall be recorded. "(2) Judgment.‑The Judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors. (3) * * * * The learned counsel also relied upon Muhammad Sadiq v. The Crown (P L D 1954 F C 104). At page 109 in second para it was observed by their Lordships‑ "In view of the testimony of the widow of the deceased the evidence of the Court witness is so superfluous and unneces sary that one marvels at the procedure adopted by the Sessions Judge in ordering that Muhammad Sadiq (C. W. 1) should be examined after the opinion of the assessors had been recorded. No finding had been based by the learned Sessions Judge on the evidence of the Court witness, and the learned Judges of the High Court have not relied on this evidence in arriving at their findings which have been reproduced above. In these circumstances, it must be held that the failure to record the opinion of the assessors afresh on the 12th November has not prejudiced the accused in any manner." In the last para. at the same page it was observed :‑ "Section 309 of the Code of Criminal Procedure lays down that after the opinion of the assessors has been recorded the Judge shall give judgment, but in doing so, shall not be bound to conform to the opinions of the assessors. If the accused is convicted, the Judge shall pass sentence on him according to law. It appears that when a sessions trial is held with the aid of assessors, the trial is at an end as soon as the Sessions Judge has taken the opinion of the assessors except for the purpose of giving judgment, and if there is a conviction, of passing sentence. After the opinion of the assessors has been recorded the Sessions Judge is not entitled to reopen the trial or to record any additional evidence." In the first information report Muhammad Tufail was mentioned as one of the assailants but in the dying declaration Exh. P. D. it was Muhammad Husain walid Muhammad Tufail who was mentioned as an assailant. While recording the judgment, the learned Sessions Judge came to the conclusion that there had been an interpolation as the word `pisar' had been cut and had been substituted by the word `walid'. In Muhammad Sadiq v. The Crown, relied upon by the learned counsel for the appellants, as pointed out above, it was held that the trial is at an end as soon as the opinion of the assessors has been recorded and the Sessions Judge is not entitled to take additional evidence. But in that case their Lordships of the Federal Court refused to interfere as there bad been no prejudice to the accused. In the present case the dying declaration of the deceased originally referred to Muhammad Husain son of Muhammad Tufail and as Muhammad Husain was not the son of Muhammad Tufail the prosecution could argue that the deceased really meant to refer to Muhammad Husain's son Muhammad Tufail and this has been actually held by the Sessions Judge. If, on the other hand, the deceased had really said Muhammad Husain father of Muhammad Tufail, there could be no doubt that he was naming Muhammad Husain and not Muhammad Tufail as one of the assailants. In line 31, page 121, the learned Additional Sessions Judge observed:‑ "It appears that some persons interested in spoiling the prosecution case had tampered with it (dying declaration) to benefit the accused party, and if this clarification had not been obtained by the re‑examination of these witnesses it could have reflected adversely on the document and materially diminished its value, rendering it a scrap of paper only." From the above remarks it is clear that the finding of the learned Additional Sessions Judge is partly at least based on the additional evidence. There has, therefore, been prejudice to the accused. We accept the appeal, quash the proceedings as illegal, set aside the convictions and sentences of the appellants and order a re‑trial by another learned Sessions Judge. The sentences of death are not confirmed. K. B. A. Re‑trial ordered.