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Criminal Appeal No. J‑223/58/Confirmation Case No. 44 of 1958, decided on 20th November 1958.

S. 309‑‑Questions not put to assessors on each charge against accused‑--Non‑compliance of S. 309 causing prejudice to accused‑Grave violation of procedure prescribed for ascertaining opinion of assessors‑Con viction set aside and case remanded to trial Court for resuming hearing from stage of irregularity.

Shah Nawaz and others v. The Crown P L D 1953 Lah. 598; Prem Nath v. The State of Delhi P L D 1956 S C (India) 4; Arbab v. The State P L D 1957 Kar. 170 and Ghulam Hyder v. The State P L D 1958 Kar. 441 ref.

S. Muhammad Sadly for Appellant.

Abdul Kadir Shaikh, Asstt. A.G. for the State.

Date of hearing: 20^th November 1956

--The appellants have been convicted and sentenced under various sections of the Penal Code. They have been convicted under sections 302, P. P. C., 307, P. P. C. and 19 (e), Arms Act and have been sentenced to death, 7 years' R. I. and 2 years' R. I. respectively. The appellants have also been convicted under section 333, P. P. C. for 5 years' R. I. The matter is also before us for confirmation of the death sentence.

In view of the contention of the learned Advocate for the appellant, it is not necessary to give the facts of the case in detail. It is sufficient to mention that the appellants were under trial prisoners and confined in sub‑jail, Tando Adam. On 3rd June 1957, at about 6‑10 p.m. Ghulam Kadir Head Constable who was on guard duty, opened the door of the cell to deliver a lamp to the prisoners. Ghulam Kadir prisoner, who is since dead, pounced upon him. The present four accused and Sumar escaped with 6 rifles, 350 rounds of cartridge and a few other articles, while the other prisoners returned to the cell. The police was informed about the incident. Qurbanali, S. I. P. picked up a police force including Shah Muhammad and Sohrab and proceeded towards Nazikabad. During the pursuit by the police party and before the appellants could be arrested they had shot Kamber, Piaro and Sono.

Mr. Sadiq, the learned Advocate for the appellants contended that the provision of section 309, Cr. P. C has not been complied with. The non‑compliance of section 309, Cr. P. C., he urged, has prejudiced the appellants. We find that there is much force in this contention.

Section 309, Cr. P. C. requires that the Court shall require each of the assessors to state his opinion orally on all the charges on which the accused has 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 answers to them shall be recorded. In the present case, for a correct appreciation of the point raised, it is desirable to set out the actual charges on which the appellants were put up for trial before the learned Sessions Judge. The charges are as under:

"That you on 5th June 1957, in Tapo Khan Deh 94, Taluka Mirpurkhas committed murders by intentionally causing the death of Kamber son of Rahimdad, Piaro son of Darhun and Sono son of Tiku by means of bullet shot and thereby you committed an offence punishable under section 302, P. P. C.

You are further charged that at the same time and place you voluntarily caused grievous hurt with a bullet shot to A. S. I. Police, Sandey Khan, Guldad Khan when he was discharging his duties as a public servant and thereby you committed an offence punishable under section 333, P. P. C.

You are further charged that at the same time and place you fired rifles at H. C. Shah Muhammad, Abdul Ghani A. S. I. P., Sandhey Khan and others members of the party under such circumstances and with such intention that had Shah Muhammad, Abdul Ghani, Sandhey Khan been killed, you would have been liable to have murdered them and thereby you committed an offence punishable under section 307, P. P.C. You are further charged at the same time and place you were found going armed with rifles without licence and thereby you committed an offence punishable under section 19(e) Arms Act."

The case against the appellants was tried with the aid of three assessors. The questions put by the learned Judge and the opinion of the assessors is as under:

"1. Mr. Sultan Ahmad.

Q.--‑You have heard the entire evidence, what is your opinion

A.‑--Guilty.

2. Mr. Sirajuddin.

Q.--‑You have heard the entire evidence, what is your opinion

A.‑‑‑Guilty.

3. Mr. Jalaluddin.

Q.‑--You have heard the entire evidence, what is your opinion

A.‑--Guilty."

It would appear from the charges already reproduced above that the appellants were charged under various provisions of the Penal Code and section 19‑(e) Arms Act. To our mind, the question put to the assessors, in order to obtain their opinion, was not sufficient compliance of section 309, Cr. P. C. The non-compliance of section 309, Cr. P. C., to our mind, has caused prejudice to the appellants. From the question put to the assessors it dies not appear that the assessors were called upon to give their opinion on the various charges against the appellants. The learned Advocate in support of his contention that non‑compliance of section 309, Cr. P. C. is a grave violation of the procedure prescribed for ascertaining the opinion of assessors, relied on Shah Nawaz and others v. The Crown (P L D 1953 Lah 598), Prem Nath v. The State of Delhi (P L D 1956 S C (Ind.) 4), Arbab v. The State (P L D 1957 Kar. 170) and Ghulam Hyder v. The State (P L D 1958 Kar. 441).

We would, for the reasons given above, set aside the convic tions and the sentences in this case and direct the learned Sessions Judge to resume the hearing of the case from the stage of the irregularity. He will recall all the three assessors and take their opinion regarding each of the appellants on each charge. If he comes to the same conclusion as he did in the judgment under appeal, he need not write a different judgment' and the judgment under appeal may be written with such modifications as he ma consider necessary in the light of the opinion of the assessors. The assessors so require, the learned Judge may read out the evidence of the witnesses and hear the arguments of the parties. The case to be disposed of within three weeks fro the date of the receipt of the record. The office to send the record of this case immediately to the Sessions Judge.

Case remanded.

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