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Criminal Appeal No. 383 of 1961 decided on 15th March 1962.

--Each specific charge to be separately put to assessors --Non‑compliance‑--Prejudice to accused‑Retrial‑From point where illegality crept in -‑ With help of same assessors, advocate for accused and Public Prosecutor‑Fresh judgment after hearing fresh arguments and putting questions to assessors on each charge separately.

[Case‑law referred]

---‑Accused neither deaf nor dumb but unable to make replies possibly due to unsoundness of mind‑Trial Judge to proceed according to Ch. XXXIV.

S. S. Shaikh for Appellants.

Murtaza Hussain for A. A.‑G. for the State.

Date of hearing : 12th March 1962.

The four appellants in this matter along with four other accused since acquitted were tried by the learned Additional Sessions Judge, Sukkur, at Khairpur Mirs (Mr. Ghulam Hussain A. Shaikh) for offences under sections 147, 325 and 323 read with section 149, P. P. C. Only the present four appellants were convicted under sections 325 and 323 read with section 34, P. P. C. Three of the present four appellants, namely, Kouro, Dino and Allah Rakhio were sentenced to undergo rigorous imprisonment for eighteen months under section 325, P. P. C. and to undergo rigorous imprisonment for six months under section 323, P. P. C, both the sentences to run concurrently. With regard to the appellant Ghani, he has also been found guilty under sections 325 and 323 read with section 34, P. P. C., but the learned Judge has not imposed any sentence upon him. Instead, he has referred his case to this Court and this reference forms the subject‑matter of Criminal Reference No. 469/61 which will be dealt with later in this judgment.

2. It is unnecessary to set out the facts of this case because I am deciding this matter on a preliminary point raised by Mr. S. S. Shaikh, the learned Advocate, appearing on behalf of the appellants. This point is that the assessors have not been separately questioned on each charge framed against the appellants. As mentioned above, the charge framed against these appellants is in respect of offences under sections 147, 325 and 323 read with section 149, P. P. C. The question put by the trial Judge to each assessor is in very general terms and has not invited the attention of each assessor to each of the charges framed against the appellants. The first question put by the trial Judge to each of the assessors is in these words:‑

"

.--‑What is your opinion

Is the accused guilty or not "

To this there is also added a second question in these words

"

.‑What are your reasons "

3. It has been contended by the learned Advocate on behalf of the appellants that prejudice has been caused to his clients in so far as the opinions of the assessors have not been taken specifically on each of the charges framed against the appellants In this case. Thus, it does not appear from the two general questions put by the trial Judge to the assessors whether they were questioned specifically on the charge relating to unlawful assembly or on the question whether the appellants had a common object or a common intention or on the charges relating to simple and/or grievous hurt. The learned Advocate appearing on behalf of the State concedes this position.

4. I myself am inclined to agree with the Advocate on this point. In so far as each specific charge was not put to the assessors, the appellants may well claim that their case has been prejudiced. The very first charge in this case against the appel lants was that they were members of an unlawful assembly possessing the necessary common object as defined in section 141, P. P. C. A charge under section 147, P. P. C. lets in the theory of Constructive Liability and it seems to me that a question ought to have been put to the assessors as to whether the appellants at the time of the incident in question did possess the necessary common object or the necessary common intention. Nor have the assessors been specifically asked any question under the charges relating to grievous and to simple hurts so that they could bring in verdicts against each of the appellants. Such questions, according to me, would be of importance particularly if the theory of Constructive Liability should disappear. In these circumstances, therefore, I am of the opinion that the non‑compliance with the provisions of section 309, Cr. P. C. In this case is not only of a minor part of the case but of a major part resulting in prejudice to the appellants.

5. In view of this position it has become necessary for me to set aside the judgment and the conviction of the three appellants in the matter and to order a retrial. The important question now before me is as to the stage from which the retrial should be ordered. I am well aware that there is a wealth of case‑law and a number of decisions of our own High Court of West Pakistan on the question of non‑compliance with the provisions of section 309, Cr. P. C. There is my own judgment sitting singly In Ahmad Khan and others v. The State (Cr. App. Nos. 533‑537/60), decided on 5th February 1962 and the decision of a Division Bench of this High Court of which I was a member in Haji Jamal v. The State (Cr. App. No. 314/61), decided on 2nd February 1962. There are also the decisions of a Bench of this High Court composed of Inamullah and Khamisani, JJ. In Allu alias Allah Bakhsh v. The State (Contir. Case No. 9/61/Cr. App. No. J‑109/61) decided on 20th September 1961 and of the Lahore Bench reported in Noor Hassan v. The State (P L D 1961 Lah. 175). In each of these cases the High Court while setting aside the conviction and the sentence imposed by the Sessions Court has returned the case to that Court for a retrial which should commence from the stage where the illegality crept in, i.e., from the stage of the questioning of the assessors. Of course, mention should also be made here of the Locus Classicus on this subject, namely, the decision of our own Supreme Court in the case of Muhammad Sajjad v. The State (P L D 1961 S C 13).

6. Therefore, while setting aside the conviction and the sentences of the three appellants excluding Ghani, I am of the opinion that it is not necessary to direct a full de novo trial in the case of the three convicted appellants but only from the stage where the illegality in not questioning the assessors on all charges separately was committed. This case will, therefore, go back to the learned trial Judge for the rectification of this illegality so far as the three convicted appellants are concerned. The learned trial Judge will send for the same assessors as well as the Advocate for the appellants and the Public Prosecutor. He will, then, hear fresh arguments, and after putting questions to the assessors on each charge separately and after obtaining their opinions on these questions, he will consider those opinions and the evidence on the record and write a fresh judgment. However, as was directed by a Bench of Muhammad Munir, C. J. and Shabir Ahmad, J. in Shah Nawaz v. The State (P L D 1953 Lah. 598), if the learned Judge comes to the same conclusions as he did in the judgment under appeal he need not write an entirely different judgment and the judgment under appeal may be re‑written with such modifications as he may consider necessary in the light of the proceedings taken. The case will be disposed of within a month from the date of the receipt of the record.

7. There remains the reference made by the trial Judge to this High Court with regard to the appellant Ghani. Somewhat strangely, this reference has been made under the provisions of section 341, Cr. P. C. though, so far as I can see, there is nothing on the record of this matter to indicate that the appellant Ghani is deaf or dumb or both. The learned trial Judge in his letter of reference states:‑

"Accused Ghani son of Bachal Mehar has also been con victed under sections 325 and 323/34, P. P. C. When the charge was read over and explained to this accused he shook his hands. He is unsound and could not reply to questions."

8. I find from the record of this case that when the charge was read over to the accused on the opening day of the trial in the Sessions Court below, the learned Judge put a note in these words :‑

"The accused Ghani is unsound and could not reply to questions put to him. He only shook his head when charge was explained to him.

Again, when this accused Ghani was examined by the trial Judge under section 342, Cr. P. C. he answered each and every question put to him. His examination in the committal Court also disclosed the same thing. Yet, at the end of his examination in the Sessions Court, there appears the following note of the trial Judge :‑

Note.‑"The accused is suffering from paralysis of right hand and partly of right leg. He replied the question with difficulty that be has not committed an offence. He is also not able to stand properly and understand properly."

9. To me it seems from the fact that the appellant Ghani was able to answer questions put to him both in the committal as well as in the Sessions Court that he is not deaf and dumb. Whether he is of unsound mind is a totally different matter. The trial Judge has said of him :‑

"He is not able to stand properly and understand properly."

By this cryptic expression what the learned Judge really means to say is that the appellant Ghani could not understand the proceedings. In fact, I find that in the penultimate paragraph of his judgment, the trial Judge when dealing with this appellant Ghani has stated that he was not able to understand the pro ceedings. Moreover, on the very day the trial commenced and the charge was read over to the accused, the trial Judge noted that the accused Ghani is unsound and cannot reply to questions put to him. This inability to reply to questions put to him was quite obviously not due to any impediment in his speech, heaviness of tongue or to his being dumb; but due to his mental condition. The fact that this accused ultimately did speak both in the Committal and in the Sessions Court when questioned under section 342, Cr. P. C. proves this conclusively. If, therefore, the appellant was unsound in mind and consequently incapable of making his defence, it was the clear duty of the learned trial Judge to proceed in accordance with the provisions of section 465 Cr. P. C. Et Sequentes and to postpone the trial of this accused until such time as he was satisfied that he was capable of making his defence.

10. In the circumstances of this case, therefore, I set aside the conviction of appellant Ghani and direct that the papers in this case be returned to the trial Judge with a direction to comply with the provisions of section 465 and Chapter XXXIV of the Code of Criminal Procedure, and thereafter to dispose of the case against this appellant Ghani according to law.

S. B./A. H.

Order accordingly.

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