Appellate System: Vertical or Horizontal

APPELLATE SYSTEM: VERTICAL OR HORIZONTAL <!--[if gte mso 10]> APPELLATE SYSTEM: VERTICAL OR HORIZONTAL? By Justice S.A. Rabbani, Ex-Judge Sindh High Court and Federal Shariat Court Section 3 of the Law Reforms Ordinance 1972, provides for an appeal from orders and decrees of a High Court before the High Court itself. Reproduced below is the text of the section in its up to date shape:-- "3. Appeal to High Court in certain cases.--(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction. (2) An appeal shall also lie to a bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) or Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub-paragraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order. (3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the Court. (4) Nothing contained in this Ordinance shall be construed as affecting: (a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908) which was pending immediately before the commencement of this Ordinance, or (b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972" 2. The Ordinance was promulgated by publication in the gazette on14th April, 1972. The Constitution of the Islamic Republic of Pakistan, 1973, was passed in April, 1973 and was enforced on 14th August, 1973. The Ordinance continued in force by virtue of Article 268(1) of the Constitution, but subject to the provisions of the Constitution. 3. Under the Scheme of the Constitution 1973 a vertical appellate system for judicial cases has been provided with the Supreme Court at the apex. The Constitution, 1973, itself prescribed the jurisdiction of the Supreme Court but left the ordinary jurisdiction of the High Courts and other courts to be regulated by law. 4. The appellate jurisdiction of the Supreme Court has been defined in Article 185, which is as under:-- "185. Appellate jurisdiction of Supreme Court.--(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgment, decrees, final orders or sentences of a High Court. (2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court:-- (a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; or (b) if the High Court has withdrawn for trial before itself any case from any court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or (c) if the High Court has imposed any punishment on any person for contempt of the High Court; or (d) if the amount or value of the subject-matter of the dispute in the court of first instance was, and also in dispute in the appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of [Majlis-e-Shoora (Parliament)] and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or (e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below: or (f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal." 5. This is unambiguous that by virtue of clause (1) of this Article, it is the Supreme Court that has jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court. This edict is not `subject to law', but it is subject, to the same Article i.e. clauses (2) and (3) of the Article. A law cannot, therefore, vary, affect, alter or take away this jurisdiction. 6. Sub-clauses (a), (b) and (c) of clause (2) of Article 185 describe categories of criminal cases where an appeal lies. Sub-clauses (d) and (e) give the categories of civil matters where such appeal lies, and sub-clause (f) relates to a question of law involving interpretation of the Constitution. Clause (3) is about appeal in the cases not covered by clause (2). Article 185 of the Constitution 1973 absolutely leaves no scope for a parallel forum for hearing of appeals - from judgments, decrees, final orders or sentences of a High Court. Although the appellate jurisdiction of a High Court is to be regulated by law, such law cannot give a jurisdiction to a High Court, which the Constitution has given to the Supreme Court. 7. Section 205 of the Government of India Act, 1935, adopted in Pakistan, came into force on 1st April, 1937 through Government of India (Federal Court) Order, 1936. Under this section, an appeal from a judgment, decree or final order of a High Court lay before the Federal Court, but it was maintainable only in cases where the High Court certified that the case involved a substantial question of law as to the interpretation of this Act or any order in Council made thereunder. Thus, the Federal Court was not an ordinary court of appeal. 8. In the Constitution given to the Country in 1956, the appellate jurisdiction of the Supreme Court was provided in Articles 158, 159 and 160. Article 158 of the Constitution, 1956, was about the appellate jurisdiction of the Supreme Court, established under Article 148 of that Constitution. Under clause (1) of Article 158 of the Constitution, 1956, an appeal from a judgment, decree or final order of a High Court, falling in the categories mentioned in sub-clauses of this clause, lay before the Supreme Court. Text of this Article was as under:- "158. (1) An /appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in civil proceedings--- (a) if the amount or value of the subject-matter of the dispute in the court of first instance was, and also in dispute on appeal is, not less than fifteen thousand rupees or such other sum as may be specified in that behalf by Act of Parliament; or (b) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) if the High Court certifies that the case is a fit one for appeal to the Supreme Court. (2) Notwithstanding anything in this Article, no appeal shall, unless an Act of Parliament otherwise provides, lie to the Supreme Court from the judgment, decree or final order of a Judge of a High Court sitting alone." 9. Clause (2) of this Article expressly barred an appeal, to the Supreme Court, from a judgment, decree or final order of a Judge of a High Court sitting alone. This was, however, subject to an Act of Parliament, that could provide for such an appeal before the Supreme Court in certain cases. This clause was not, in any way, a licence for creation of a parallel forum for appeal in such cases. 10. In the Constitution promulgated in Pakistan in 1962, Article 58 described the appellate jurisdiction of the Supreme Court. This Article was worded as under:-- "58. (1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a High Court. (2) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court shall lie as of right where--- (a) the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution; (b) the High Court has sentenced a person to death or to transportation for life; or (c) the High Court has imposed punishment on a person in 'pursuance of the power conferred on the Court by Article 123. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) of this Article does not apply shall lie only if the Supreme Court grants leave to appeal." 11. Although the Constitution, 1962, materially curtailed the appellate jurisdiction of the Supreme Court, it did not create a legal justification for another appellate forum for the left over cases of judgments, decrees and final orders of High Court. 12. In the India Constitution, Articles 132, 133 and 134 deal with the appellate jurisdiction of the Supreme Court. For convenience of reference they are reproduced below:-- "132. (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceedings, if the High Court certifies under Article 134A that the case involves a substantial question of law as to the interpretation of this Constitution. (2) Omitted. (3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided. Explanation.--For the purpose of this Article; the expression "final order" includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case. 133. (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Article 134A--- (a) that the case involves a substantial question of law of general importance, and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court. (2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided. (3) Notwithstanding anything in this Article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court. 134. (1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court--- (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or (c) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court: Provided that an appeal under sub-clause (c) shall lie' subject to such provisions as may be made in that behalf under clause (1) of Article 145 and to such conditions as the High Court may establish or require. (2) Parliament may by law confer on the Supreme Court any further power to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law. 13. It may be noted that nowhere in the various constitutional provisions reproduced above "judgment, decree or final order of a High Court" has been defined to exclude any sort of judgment, decree or final order passed by a High Court. It cannot therefore, be assumed that the decrees or orders passed by a High Court in exercise of original civil jurisdiction are not covered by those mentioned in Article 185 of the Constitution 1973. Similarly, an order passed by a Single Judge in exercise of jurisdiction under Article 199 of the Constitution, 1973, is not beyond the purview of Article 185(1). 14. Moreover, the system of judicature in this Country, as well as the Scheme of the Constitution, 1973; envisages a vertical appellate structure. A horizontal appellate system would be fatal to this structure and the concept of horizontal appellate system destroys the justification for a vertical appellate system. There can be absolutely no logical reason why an appeal from a judgment, decree or final order passed by a, Civil Judge cannot be heard and decided by two or more civil Judges sitting together in case this can be done in the case of a High Court where section 3 of the Law Reforms Ordinance, 1972 provides that appeal from a judgment, decree or final order passed by a Single Judge of a High Court can be heard and decided by a Bench of two or more High Court Judges. 15. Article 175(1) of the Constitution provides for "a High Court for each Province". Thus, a Province has only one High Court. An order passed by a single Judge of a High Court .is an order of the High Court like the order passed by all the Judges of the High Court sitting together. Thus, an appeal from an order passed by a forum, to the same forum would be against the concept of appeal itself. 16. If an appeal can be heard and decided, in this way, in a horizontal structure, there would be no justification for existence of District Courts, High Courts, and Supreme Court in their capacity as an appellate authority. 17. On the criminal side, section 411-A, Code of Criminal. Procedure, 1898 is a similar provision. This section was not there in the original Code. It was inserted through the Criminal Procedure Amendment Act, 1943 (Act XXVI of 1943). It was introduced because the Letters Patent of various High Courts prohibited appeals in criminal cases against decisions of High Court exercising original jurisdiction, but provided a restricted power of review. 18. In the case of Malik Feroz Khan Noon v. The State (PLD 1958 Supreme Court (Pak.) 333) it was observed by Muhammad Monir, C.J., that "the Court that functions in exercise of the original criminal jurisdiction or in exercise of the appellate jurisdiction under section 411-A is the same Court viz: the High Court, and not two different courts, the respective powers possessed by the Judges while functioning in two different capacities being the powers of the same court and the distribution of those powers being no more than an internal arrangement among the Judges of the same court." It was further observed that since the original Bench is not subordinate, the case cannot be remitted to it for retrial. 19. The question of this provision being repugnant to the Constitution was not directly before the Supreme Court in that case. Notwithstanding appellate jurisdiction of the High Court under section 411-.A, the Supreme Court entertained the appeal. 20. Two of the observations reproduced above are material here; first that the High Court is one court and, secondly, that exercise of original and appellate jurisdiction in such matters is an internal arrangement of a High Court. An internal arrangement by a High Court for rectification of errors in its order is unexceptionable but it cannot include an appeals which in its legal parlance, is a prayer before a higher authority. 21. In all the Constitutions referred to above, the appellate jurisdiction of a High Court has been left to be regulated by law. A law conferring appellate jurisdiction on a High Court can neither transgress the appellate jurisdiction of the Supreme Court conferred by the Constitution, nor can provide it one to hear an appeal against its own judgment, decree or order. 22. A long life span of the provisions providing for an appeal in High Court against its own judgments, decrees and orders, may be an argument in favour of such provisions. If a realistic view is taken, the answer is simple. Unfortunately, we have an individual as well as collective tendency to sacrifice law on convenience. Since such an arrangement is to the convenience, of a vast majority, if not every one concerned, nobody questioned it. 23. From what has been discussed above, there can be no escape from the conclusion that section 3 Law Reforms Ordinance, 1972, as well as section 411-A Code of Criminal Procedure are repugnant to Article 185 of the Constitution, 1973. 24. Since the continuance of the existing laws in force under Article 268(1) of the Constitution, 1973, was "subject to the Constitution", those two provisions, being repugnant to Article 185, ceased to continue by virtue of the enforcement of the Constitution itself.