Law: Criminal Procedure Code, 1898

Section: Ss. 309 & 537

(a) Criminal Procedure Code (V of 1898),------   ------- Ss. 309 & 537 --Omission of Judge to ask assessors their opinion with regard to one of the charges-Whether curable under S. 537.   Non-compliance with the relevant provision in section 309 of the Criminal Procedure Code, 1898, 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 one of the several charges a trial cannot be held to have been vitiated and the contravention would amount ordinarily to an irregularity curable under section 537 of the Code unless there has been consequential prejudice to the person convicted. It is only in exceptional circumstances that omission to question assessors with regard to an offence for which the accused person had been tried would not be curable under section 537 of the Code. Seven accused were tried under sections 302/149 and 148 of the Pakistan Penal Code, 1860 and when the evidence at the trial finished the trial Judge took the opinion of the four assessors, who were assisting him in the trial, but while doing so he did not ask the assessors their opinion with regard to the offence under section 148, Penal Code, 1860. The answer of each of the assessors was that only three out of the seven accused were guilty of the murder of deceased. The Judge, however, convicted all the seven accused under sections 148 and 302/149 of the Penal Code, 1860. In appeal against the order of conviction it was argued that the trial was vitiated by reason of the omission of the trial Judge to ask the assessors their opinion with regard to the offence under section 148 :   Held, that the case was not of the type in which omission to comply with the provisions of section 309 of the Criminal Procedure Code, 1898 with regard to one of the offences would nullify the proceedings of the trial Judge. The assessors having expressed the opinion that only three persons had taken part in the offence of murder and, therefore, section 149 of the Penal' Code, 1860 was not applicable, their opinion about the offence under section 148 of the Penal Code…