P L D 1960 (W (PLP)

ABDUL AZIZ KHAN, J.‑

The Thal Development Authority bad to auction agricultural land at Leiah on the 29th and 30th of August 1958. Fazal Muhammad P. W. intended to bid for some land in Chak No 147 at this auction. Accordingly he left Chak No. 521 for Leiah on the 28th of August 1958 accompanied by Muhammad Bashir deceased. Fazal Muhammad P. W. took with him a sum of Rs. 5,910 in currency notes which he had placed in a canvas bag. On the way to Leiah, Abdul Majid appellant and Zahur Mehdi (who has been discharged by the committing Magistrate) joined them, and all four stayed in the Zamindara Hotel at Leiah. Next morning they all went to the auction, but as the bidding was very high, Fazal Muhammad P. W. gave up his idea of purchasing land. All four of them then left Leiah by train reaching Daira Din Panah in the afternoon, and after staying there for a short time, they left for Chak No. 521 in a tonga. They alighted from the tonga near the Bhagal Canal at Ishawela and began to walk towards Chak No.

521. Muhammad Bashir deceased and Fazal Muhammad P. W. were walking ahead of the appellant and Zahur Mehdi. On the way the appellant fired a short from a revolver hitting Fazal Muhammad P. W. in the neck. When Fazal Muhammad fell down on the receipt of the injury, the appellant snatched the bag containing the currency notes. He then fired two shots at Muhammad Bashir who dies instantaneously. Later the appellant fired two more shots at Fazal Muhammad one of which hit him in the forehead. There after the appellant and Zahur Mehdi ran away.

2. The appellant was tried by Mr. Muhammad Saleem, Additional Sessions Judge, Muzaffargarh, with the help of four assessors on charges under sections 302 and 394 of the Pakistan Penal Code. The learned Additional Sessions Judge accepted the prosecution case and convicted the appellant on both the charges and sentenced him to death under section 302 and to five years' rigorous imprisonment under section 394 of the Pakistan Penal Code. Abdul Majid has now come up in appeal to this Court against his conviction and sentences. The case is also before us under section 374 of the Code of Criminal Procedure for the confirmation of the death sentence.

3. This appeal has to be accepted on the short ground that the mandatory provisions of section 309 of the Code of Criminal Procedure have not been complied with. In order to appreciate the point, it would be advantageous to set out the actual charges on which the appellant was put up for trial before the learned Additional Sessions Judge as also the opinion expressed by the assessors on them. The charges are as follows :‑ "First.

That you, on 29‑8‑1958, at isha‑time, at Chak No. 147, Police Station Dera Din Panah, intentionally caused the death of Muhammad Bashir deceased and thereby com mitted an offence punishable under section 302, P. P. C. and within Sessions cognizance. Secondly.‑That you, on 29‑8‑1958 at isha‑time, at Chak No. 147, Police Station Dera Din Panah, voluntarily caused hurt to Fazal Muhammad P. W. 1 in committing robbery by snatching canvas bag belonging to P. W. 1 Fazal Muhammad which contained Rs. 5,910 and thereby, committed an offence punishable under section 394, P. P. C. and within Sessions congnizance." The opinion of the assessors was recorded as under :‑-- "(1) Sh. Fida Husain‑In my opinion the accused has been fully proved guilty of the murder of deceased and inflicting injuries upon the person of Fazal Muhammad P. W. by firing shots at them. (2) Qazi Bashir ud‑Din‑In my opinion the accused has been fully proved guilty of the murder of the deceased and inflicting injuries upon the person of Fazal Muhammad P. W. by firing shots at them. (3) Nasir‑ud‑Din‑In my opinion the accused has been fully proved guilty of the murder of the deceased and inflicting injuries upon the person of Fazal Muhammad P. W. by firing shots

4. It is clear from the above that the assessors were not asked to express their opinion in respect of the charge under section 394 of the Pakistan Penal Code. Section 309 of the Code of Criminal Procedure reads as follows :‑ "(1) 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)* * * * ** * (3) * * * * * * The provision requiring the opinion of each assessor on all the charges on ‑which the accused has been tried was specifically inserted in section 309 by section 82 of the Criminal Procedure Code Amendment Act (XVIII of 1923). The language of the section is so clear that there can be no doubt that the Court has A to take the opinion of each assessor on all the charges on which the accused has been tried. The provisions of section 209 of the Code of Criminal Procedure are imperative. Khanu v. The State (P L D 1958 Lah. 330) supports this view.

5. In the present case, the assessors' opinion was obtained on the charge under section 302 of the Pakistan Penal Code. Their opinion, however, was not obtained in respect of the charge under section 394 of the Pakistan Penal Code. Thus, the con viction and sentence of the appellant under section 394 of the Pakistan Penal Code, the charge in respect of which the opinion of the assessors was not taken, are illegal. The question, however, remains whether the conviction and sentence of the appellant under section 302 of the Pakistan Penal Code, for which he was jointly tried and in respect of which the assessors' opinion was obtained, are legal or not. All the acts which constitute the subject‑matter of the two charges, namely the murder of Muhammad Bashir and robbery, not only constitute one transac tion but took place in such quick succession and are so connected with each other that the truth or falsity of one is bound to re‑act on the other. In the circumstances, it cannot be said that the failure to obtain the opinion of the assessors in respect of the charge under section 394 of the Pakistan Penal Code has not prejudiced the appellant. See Prem Nath v. The State of Delhi (P L D 1956 S C (Ind.) 197).

6. We, therefore, set aside the convictions and sentences of the appellant under sections 302 and 394 of the Pakistan Penal Code and return the record to the learned Sessions Judge, Multan, for a fresh trial of the case according to law. The sentence of death passed on the appellant under section 302 of the Pakistan Penal Code is not confirmed.

7. We would like to point out to the learned Additional Sessions Judge that no specific charge for the attempted murder of Fazal Muhammad P. W. was framed. The attention of the learned Additional Sessions Judge is drawn to section 227 of the Code of Criminal Procedure for future reference.

8. Fazal Muhammad P. W. was robbed of his money after he had been fired at with a deadly weapon, i.e., a revolver. The conviction of the appellant, therefore, should have been under section 394 read with section 397 of the Pakistan Penal Code. The learned Additional Sessions Judge failed to apply his mind to this aspect of the case also. K.B.A. Retrial ordered.