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Criminal Appeal No. 555 of 1957, decided on 28th January 1958.
S. 309‑Omission to record opinion of assessors on all charges‑Illegality‑Trial vitiated.
Failure of the Sessions Judge to record the opinion of each assessor in respect of all charges on which the accused was being tried amounts to an illegality which vitiates the proceedings.
Where the findings of assessors did not necessary lead to the conclusion that in the opinion of the assessors the accused was guilty of the offence with which he was charged and the Additional Sessions judge stated by implica tion in his judgment that the assessors had expressed the opinion that the accused had been proved guilty of offences under which he was being tried:
Held, that the provisions of section 309, Criminal Procedure Code were not complied with.
Case was remanded for trial according to law.
Lal Behari Singh v. Emperor A I R 1934 Oudh 354 agreed.
Bhikhari Singh v. Emperor A I R 1934 Pat. 561 and Subramania Ayyar v. King‑Emperor I L R 25 Mad. 61 (P C) ref.
Feroze‑ud‑Din for Appellant.
K. B. Mushtaq Hussain for Respondent.
This murder reference and criminal appeal arise out of the order of Chaudhri Fazl‑i‑Ilahi, Additional Sessions Judge, Lahore, dated the 20th of May 1957, convicting Khanu, aged about 35 years, under sections 302 and 392, P. P. C. and sentencing him for the former offence to death and for the latter to five years' rigorous imprisonment.
2. It is unnecessary to enter into the facts of the case at this stage, since the appeal must unfortunately be accepted on a technical ground.
3. Section 309 of the Code of Criminal Procedure prescribes that 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 has been tried, and shall record such opinion. The order of the learned Additional Sessions judge in this case states by implication that the assessors had expressed the opinion that the appellant had been proved guilty of offences under sections 302 and‑ 392, P. P. C., the relevant portion running:‑
"Consequently, I would agree with the unanimous opinion of the assessors, hold the. accused guilty of murder and robbery and convict him under sections 302 and 392, P. P. C."
The opinion of the assessors, on the other hand, was recorded as follows:‑
"The trial having been concluded, the assessors give their opinion as under:‑
Muhammad Sharif‑
Q.‑Was the accused arrested by the police at Pull Gandhianwala, as alleged by the prosecution, or was he arrested in the circumstance explained by the accused
A.‑In my opinion, the accused was arrested from Pull
Ganddianwala.
Q.‑Whether the amulets P. 1 and P. 2 and other articles were recovered from the accused or not
A.‑These recoveries were made from the possession of the accused as alleged by the prosecution.
Q.-Whether the skeleton and bones and bloodstained earths and leaves and toka P. 5 and clothes P. 3 and P. 4 .were recovered on pointing out by the accused or not
A.‑These recoveries were also made on pointing out by the accused.
Ch. Fateh Muhammad.‑I agree with Assessor No. 1.
Ch. Muhammad Din.‑I also agree with Assessor No. 1.
Malik Inayat.‑I am also in full agreement with the other Assessors."
4. It will be seen from the above that the only points on which the assessors gave their opinion were: (1) whether the accused was arrested at a particular place, (2) whether certain articles were recovered from him, and (3) whether other recoveries were made at his instance. It is clear that these findings do not of necessity lead to the conclusion that in the opinion of the assessors the appellant was guilty of the offences with which he was charged, and the position there fore is that the provisions of section 309, Criminal P. C., were not complied with.
5. The next question for decision is whether the dis regard of the above provision of law amounts to an illegality which vitiates the proceedings or is a mere irregu larity curable under section 537 of the Code. One authority on the point is Bhikhari Singh v. Emperor (A I R 1934 Pat. 561). In that case the learned judges declined to commit themselves on the question of whether non‑compliance with the section would vitiate the conviction in all cases. In Lal Behari Singh v. Emperor (A I R 1934 Oudh 354), on the other hand, it was held that the learned.' Sessions judge was bound to record the opinion of each assessor in respect of all charges on which the accused were being tried, that his failure to do so meant that he had B virtually tried the case without the aid of the assessors, and that such a trial was void in toto. A reference is made in the same case to Subrahmania Ayyar v. King‑Emperor (I L R 25 Mad. 61) a Privy Council decision, in which their Lordships laid down that the disregard of an express provision of law as to the mode of trial was not a mere irregularity such as could be remedied by section 537 of the Code of Criminal Procedure.
6. With great respect I agree with the view expressed in the Oudh ruling cited above, and would hold that the failure of the learned Additional Sessions judge to observe the mandatory provisions of section 309, Criminal P. C., consti tutes an illegality and that the convictions and sentences of the appellant must be set aside.
7. I would accordingly accept the appeal, quash the convic tions and sentences of the appellant, and return the record to the successor of the learned Additional Sessions Judge or to the learned Sessions Judge, Lahore, himself for fresh trial of the case according to law.
8. The sentence of death is not confirmed.
---I agree.
Z. A. S./A. H. Re‑trial ordered.
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