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Confirmation Case No. 56 of 1952 and Criminal Appeal No. 247 of 1952, decided in 1952.

, S. 271 (i) Commencement of trial‑Words "claims to be tried"‑Indica tion of.

The words "when the Court is ready to commence the trial" in section 271 subsection (i), indicate the stage when the trial is about to begin, and the words "claims to be tried" indicate that the trial is to take place thereafter, for a trial does not become necessary until the accused claims‑ to be tried.

, S. 272‑Judge sitting with a Jury‑Constitution of Court when complete ---Reading of charge‑Whether commences trial.

The constitution of a Court when a judge sits with a jury is not complete until the jurors have been chosen according to law, and the Court cannot proceed to try the case until it is duly constituted. The trial therefore begins at the stage under section 236, Criminal P. C. "when the jurors .have been choosen" with which that section opens.

A trial does not commence when the charge is read out to the accused. Conviction of a person upon his pleading guilty is not a conviction upon the trial of the case, but upon the plea of the accused because section 272, Criminal P. C. lays down what is to happen if the accused "refuses or does not plead or if he claims to be tried".

, Rule 511 Whether Chief Judge can nominate himself to try a case--- Criminal Procedure Code (V of 1898), S. 537 (a).

Rule 115, Chief Court Rules, Original Side are wide enough to cover a case in which the Chief judge nominates himself as the judge to try a case, because the Chief judge is also a judge of the Chief Court of Sind.

On 26th August a judge of the Chief Court impanelled a jury to try a Sessions Case but being busy that day with another case, he adjourned the former to the following day. As he had not finished the case before him the Chief judge himself set with the jury which the judge had impanelled and adjourned the case to 28th August 1952, on which date he proceeded to try the case with that jury. In the appeal it was contended by the appellant that under the circumstances there had been an irregularity in the trial, Held, there had been no irregularity.

Khaliluddin Ahmed for Appellant.

H. T. Raymond for the Crown.

---‑The appellant has been convicted by Constantine, C. J. of the murder on the 6^th May 1951, of Ahmed Hussain son of Gulab Khan under section 302, P. P. C. upon the unanimous verdict of guilty returned by the Jury, and sentenced to death. He has appealed from jail, and his appeal and the confirmation of his death sentence are now before us.

The jury which sat with the learned Chief Judge was empanelled by Agha, J, on Tuesday, 26th August 1952 He was then occupied with Sessions Case No. 29 of 1951, so he adjourned this case to Wednesday, 27th August 1952, at 2‑00 p.m. As he had not by then finished the case before him, the learned Chief Judge himself sat at 2‑00 p.m. with the Jury Agha, J. had empanelled, and adjourned the case to 28th August 1952, when he proceeded to try the case with that jury. The question is whether in these circumstances there has been any irregularity in the proceeding or trial. Reference has made for the Crown to tithe opinion of Fawcett, J., in A I R (1927), Bom, 161.

Trials of Sessions cases in this Court take place under Chapter XXIII of the Code of Criminal Procedure the heading of which reads : "Of trials before High Courts and Courts of Session". The chapter is divided in 11 parts being parts (A) to (K). Part (A) is headed "Preliminary", part B is headed "Commencement of Proceedings", part C is headed "Choosing a Jury", part D is headed "Choosing Assessors" and part E is headed "Trial to close of cases for Prosecution and Defence".

Under part B appear sections 271 and 272 which read as follows :‑

"271 (1). When the Court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried.

(2) If the accused pleads guilty, the plea shall be recorded, and he may be convicted thereon.

272. If the accused refuse to, or does not, plead, or if he claims to be tried, the Court shall proceed to choose jurors or assessors as hereinafter directed and to try the case.

"Provided that subject to the right of objection herein after mentioned, the same jury may try, or the same assessors may aid in the trial of, as many accused persons successive ly as the Court think fit".

In section 271, subsection (i), the words "When the Court is ready to commence the trial" indicate the stage when the trial is about to begin, and the words "claims to be tried "indicate that the trial is to take place thereafter, for a trial does not become necessary until the accused claims to be tried. The words "the Court shall proceed to choose jurors. . . . . as hereinafter directed and to try the case" section 272 indicate that the proceedings necessary to constitute the Court of a judge sitting with a jury are then to take place so that the case may proceed to trial for until that is done the Court cannot "proceed . . . . . to try the case". Part C prescribes how the jury is to be chosen, and Part E lays down the provisions relating to the trial, up to the close of cases for the Prosecution and the Defence.

Section 286 which appears under Part E reads :‑

286 (1) When the jurors or assessors have been chosen, the prosecutor shall open his case by reading from the Pakistan Penal Code or other Law the description of the offence charged, and stating shortly by what evidence he expects to prove the guilt of the accused.

(2) The prosecutor shall then examine his witnesses.

The constitution of a Court when a judge sits with jury is not complete until the jurors have been chosen according to law, and the Court cannot proceed to try the case until it is duly constituted. The trial, therefore, begins", when the stage under section 286, Criminal P. C. Ls been reached. That is clearly the implication of the words "when the jurors . . . . . . . have been chosen" with which that section opens.

It may be said that the trial commences when the accused is brought before the Court and a charge is read out to him because, if he pleads guilty, he may be convicted. Such a conviction is not upon the trial of the case, but upon the plea of the accused because section 272 lays down what is to happen if the accused "refuses to or does not plead or if he claims to be tried".

Under section 554, subsection (2) clause (c), this Court may make rules for regulating its own practice and pro ceedings, and Chapter XXIX of the Original Side Rules of this Court prescribed Crown Side Rules, inter alia for the constitution of the Court in Sessions cases triable by the Chief Court of Sind.

Rule 511 prescribes

"Cases to be tried by the Chief Court shall be tried on the Crown Side according to the provisions of the Code of Criminal Procedure, 1898, before such judge or judges as the Chief Judge shall nominate".

The rule is a wide one and cannot be held not to cover a case in which the Chief judge nominates himself as the Judge to try the case, because the Chief judge is also a judge of the Chief Court of Sind. For a similar provision, reference may be made to section 11, subsection (3) of the Sind Court Act, 1926, which says that the Chief Judge may determine which judge in each case shall sit alone, and which Judges of the Chief Court shall constitute any bench.

In these circumstances, there has been no irregularity and it is not necessary to consider whether the provisions of section 537. Criminal Procedure Code have any application to the case. If it were, one of the questions which might arise for consideration might well be whether the irregularity was not in the constitution of the Court and, therefore, outside the purview of section 537, Criminal Procedure Code.

[The Court then considered the facts of the case]

K. B. A. Order accordingly.

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