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Criminal Appeal No. 620 of 1962, decided on 18th April 1963.

S. 309‑Mere failure to record questions put to assessors on each charge‑Irregularity and not illegality vitiating trial‑Non‑compliance with provisions of section in respect of minor part of case‑‑Whether and when vitiates conviction.

Muhammad Sajjad v. The State P L D 19 61 S C 13 ref.

M. Saleem for Appellants.

M. Zaffar Ullah for A. G. for Respondent.

Dates of hearing : 17th and 18th April 1963.

Akbar (46) Jalal (35), Muhammada (50) and Barkat (25) have been sentenced to transportation for life under section 302/34, P. P. C. and to pay Rs. 200 each as fine or, in default, to suffer one year's further R. I. each. The offence is alleged to have been committed at about 3‑30 p.m., on the 22nd of July 1961 at Chah Dhoraywala. There is also a petition for enhancement of the sentence by Qadar Bakhsh. The appeal and the revision petition will be disposed of by this order.

2. Before dealing with the merits of the case, it is necessary to state that the appellants were also charged under section 342/34, P. P. C., by the learned Additional Sessions Judge, Multan, but were acquitted of this charge.

3. Mr. Saleem, learned counsel for the appellants, contended to begin with that as the statements of the assessors were not recorded on each of the charges the trial was vitiated. We find from the record that at the conclusion of the trial the learned Additional Sessions Judge did not record the questions which he asked from the assessors to ascertain what their opinions were on each of the charges, as required by section 309(1) of the Criminal Procedure Code, but recorded their answers, from which it has to be decided whether they were questioned on the charge under section 342/34, P. P. C., or not. In our opinion, mere' failure to record the questions is an irregularity in procedure's and is not such an illegality as affects the validity of the trial. Therefore, what remains to be decided is whether the assessors were in fact questioned about both the charges or not. Karam Khan, the first assessor, stated that in his opinion the accused were not guilty of the murder of the deceased and that he placed no reliance on the testimonies of the prosecution witnesses. Malik Muhammad Hassan, the second assessor, agreed with the first assessor, and in his opinion the prosecution had failed to make out any case against the accused. The third assessor, Sh. Rafi‑ud‑Din, agreed with the first two assessors. Mr. Saleem argued that it was not shown by their answers that they had been questioned about the charge under section 342/34, P. P. C. We do not, however, agree with this contention. The assessors have stated that they placed no reliance on the testimony of the pro secution witnesses and that the prosecution had failed to make out any case against the accused. Their opinion, therefore, can be taken as amounting to this that the prosecution evidence was not reliable and the prosecution had failed to make out any case against the accused on both the charges. There is no therefore, no such illegality as would vitiate the trial.

3‑A. It has been held by the learned Judges of the Supreme Court in Muhammad Sajiad v. The State (P L D 1961 S C 13) that non‑compliance with the relevant provision of section 309, although, it might have the full aspect of illegality, if no opinions at all were obtained from the assessors on any of the charges, yet if the non‑compliance is in respect only of a minor part of the case, the contravention would amount ordinarily to an irregularity, and as to an irregularity of procedure, the principle is clear, namely, that it does not vitiate a conviction unless there has been consequential prejudice to the person convicted. Where the failure of compliance is directly connected with the formation of a correct opinion as to the credibility of the evidence given by the witnesses, and upon the answer to that question the decision in the whole case must naturally turn, prejudice from the failure to question the assessors with respect to the charge under section 323/34, P. P. C., though their opinion had been elicited on the charge under section 302/34, P. P. C., was perfectly plain, as this omission had a bearing on the credibility of the witnesses. In this view, if the assessors give a verdict of guilty on one or more charges, and are not questioned on another charge, which omission may also affect the credibility of the eyewitnesses on the main charge, prejudice is inherent, and the conviction is vitiated, i.e., the prejudice to the accused from the failure to question the assessors even on a minor charge is perfectly plain. In the present case, however, the assessors had given the opinion that the prosecution evidence was unreliable and the prosecution had failed to make out any case against the accused, and, therefore, the omission, even if any, to question the assessors on the charge under section 342/34, P. P. C., cannot affect the credibility of the witnesses on the main charge and is not material. As the opinion on the main charge is in the negative, no question of prejudice to the accused arises. For these reasons, we are of the opinion that the trial of the case is not vitiated.

[Paris. 4 to 16 omitted being not approved for reporting].

K. B. A.

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