F L D 1963 Supreme Court 226 (PLP)

CORNELIUS, C. J.-This judgment deals with the following matters :- (1) Criminal Appeal No. 12 of 1963, by Muhammad Rafique, (2) Petition No. 279 of 1962, by Muhammad Sadiq, (3) Petition No. K-28 of 1962, by Muhammad Murid, (4) Petition No. 27 of 1963, by Rehmat, and (5) Petition No. 37 of 1963, by Niamat Khan. Each case is one in which a sentence of death awarded by a Sessions Judge had been referred to the High Court for con?firmation under section 374, Criminal Procedure Code, and at the same time, the convict had filed an appeal. In each case the reference was accepted, and the appeal being dismissed, the sentence of death was confirmed. The first case was presented as an appeal on the presumption that an appeal lay as of right under Article 58 (2) (b) of the Constitution, but in case that presumption be not correct, it would fall to be treated as a Petition for Special Leave to Appeal on the same footing as the other four matters. It has been urged before us by Dr. Nasim Hasan Shah in the first and the third of these cases, by Mr. Altaf Sikaudar in the second case, by Mr. Abdul Shakoorul Islam, in the fourth case, and by Kazi Ahmad Khan in the last case that the effect of the new wording of the relevant provision in Article 58, when contrasted with the wording of the corresponding provision in the Constitution of 1956, should lead to the conclusion that the intention of the Constitution is that whenever the High Court in any of its jurisdictions confirms a sentence of death, or alters a sentence of death to one of transportation for life, an appeal would lie as of right in this Court. The relevant provisions in the 1956 Constitution and the present Constitution read as follows:- "

159. An appeal shall lie to the Supreme Court from any judgment, final order or sentence of a High Court in criminal proceedings, if the High Court- (a) has on appeal reversed an order of acquittal of an, accused person and sentenced him to death or to transpor?tation for life ; or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority, and has in such trial convicted the accused person and sentenced him as aforesaid; or . . . . ." "An appeal to the Supreme Court from a judgment, decree order or sentence of a High Court shall lie as of right where- (a) . ?.. . . . . (b) the High Court has sentenced a person to death or to transportation for life ; or (c) . . . . . (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." There is no question but that the wording of the new provision shows a considerable variation from that of the 1956 Constitution, but in our opinion, the mere omission of certain words, or of a certain mode of specification adopted in the earlier Constitution cannot be construed to signify enlargement of the right of appeal. The precise effect of the new provision is not to be judged merely by evaluation of such omissions or any change of language, when compared with the 1956 Constitution, since the new Constitution is not in any sense an amendment of that of; 1956. In our opinion, the proper method of interpretation of g the new provision is by reference to the relevant provisions in the Criminal Procedure Code. In section 31 of the Criminal Procedure Code, subsection (1) empowers the High Court to "pass any sentence authorized by law," and subsection (2) gives similar power to a Sessions Judge or Additional Sessions Judge adding the condition that "any sentence of death passed by any such Judge shall be subject to confirmation by the High Court." The wording of these two provisions clearly indicates that there is a substantial difference between the passing of a sentence and the confirmation thereof in the eye of the framers of the Code, and subsequent provisions appearing in Chapter XXVII serve only to strengthen this impression. Chapter XXVII deals with the confirmation of death sentences, and section 374 provides that a sentence of death passed by a Court of Sessions shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court. Section 375 gives power to the High Court to obtain further evidence and make further enquiry before dealing with the reference, and it was argued that this provision should be construed as having the effect of making the sentence when confirmed by the Court, a distinct sentence from that passed by the Sessions Court, since further evidence has been obtained. That result, however, does not at all follow from the wording of section

375. It merely enables the High Court to have further enquiry made and if necessary additional evidence taken "upon any point bearing upon the guilt or innocence of the convicted person," and it is clear that the evidence or enquiry in contemplation is such as is thought necessary by the High Court to enable it to perform its function upon the reference. That function is set out clearly in section 376 where it is laid down that the High Court may confirm the sentence, or "pas any other sentence warranted by law" or in the alternative it may annul the conviction and record a conviction of any other offence of which the convict might have been found guilty, or order fresh trial on the same or on an amended charge or finally may acquit the accused person. Here, we are concerned with the first-mentioned powers, namely, of confirming the sentence or passing any other sentence warranted by law, upon the same or on an altered conviction, and it seems to us to be quite clear that when the High Court confirms the sentence, it does not pass a sentence but when it does not confirm the sentence, but replaces it by some other sentence which is warranted by law, whether with or without alteration of the conviction, it may be said to be passing a sentence. From this, the conclusion clearly is that where the sentence of death is submitted to the High Court for confirmation, and the High Court exercises no power other than provided by section 376, if the High Court does not confirm a sentence, but upon the same conviction or an altered conviction passes any other sentence warranted by law, and that sentence is a sentence of transportation for life, it is conceivable that an appeal may lie as of right under Article 58 (2) (b). But that is not the case here, for in each case there was also an appeal. Reference may also be made here to section 377, which speaks of the mode of authentication of an order of confirmation of the sentence, or of "any new sentence" or such alternative order as the High Court may pass. This makes it further clear that when upon the same conviction or an altered conviction, the sentence of death is not confirmed, but it is replaced by another sentence warranted by law, such sentence is deemed to be a new sentence, and if it is a sentence of transportation for life, it may fall within Article 58 (2) (b) as furnishing a right of appeal. When there is an appeal along with the reference, such appeal cannot be dismissed summarily, i.e., the reference, at any rate, would require to be dealt with in full under Chapter XXVII. In the result the sentence may be confirmed, and the appeal might conceivably be dismissed simultaneously, although it cannot be said to be dismissed summarily, and indeed the requirements of Chapter XXVII and of the provisions relating to appeal are both adequately met by hearing the appellant and the State in every such proceeding. On the appellate side, under section 423, Criminal Procedure Code, the High Court may dismiss the appeal or it may do one of several things including alteration of the finding, but as to the sentence, its powers are to reverse the sentence, or to maintain the sentence, or to reduce the sentence or to alter the nature of the sentence, but not so as to enhance it. Enhancement is only possible under the revisional power given by section 439 of the Code. In an appeal from a sentence of death, the sentence may not be confirmed, but it may be altered, in the appellate power, to transportation for life. Although none of the cases before us is of that character, we deem it advisable, since the question is one of frequent occurrence, to state our opinion on this matter as well. It is this, that bearing in mind that there is nothing in the wording of the new provision in Article 58 to give the impression that enlargement of the right to appeal to this Court was intended, we would incline to the view that such an action by the High Court is to be regarded as an action under the appellate power of altering the sentence while maintaining the conviction, and is not to be thought to fall, exclusively, within the jurisdiction derived from section 376 of) the Code, so as to attract an appeal as of right. Only two cases were cited at the Bar. One was from the Indian jurisdiction, i.e., the case of Juman and others (AIR 1957 S C 469), where the principle was stated that the High Court, in dealing with a murder reference, should take account of the opinion of the Sessions Judge. We do not imagine, that by using that expres?sion the effect was produced of reducing a sentence duly passed by the Sessions Judge under the Criminal Procedure Code to a mere expression of opinion. The second case is from the Azad Jammu and Kashmir jurisdiction and is cited as P L D 1951 Azad J & K

20. The case is of unusual, not to say, of unique, character. Apparently in that jurisdiction, it is possible under law to compound even an offence of murder. There had been a trial on capital charges and death sentences had been awarded. An appeal had been dismissed by the High Court, and, under the law there obtaining, the Government had confirmed the death sentence. Thereafter, an application for composition was made, which was referred by the President of the country to the High Court for decision. Abdul Majid, C. J., observed that the final sentence in such cases is passed by the Government, which, in confirming the death sentence, must be thought to exercise judicial functions. The other learned Judge said, disagreeing with the Chief Justice that the final sentence was passed by the High Court. It is not necessary to consider this judgment, in any great detail, since the conflict of views is clear, and the circumstances were of a wholly different character from anything arising in the cases before us or likely to arise in such cases in the Pakistan jurisdiction. On proper appreciation of the relevant provisions we consider that in its true meaning Article 58 of the Constitution does not enable an appeal as of right from judgment of the High Court confirming a death sentence by a Sessions Court, and we direct that the first-mentioned of the cases before us should be treated as a petition for special leave to appeal from the order of the High Court and that all the five cases should now go before a petition Bench for disposal in the ordinary course. A. H. ?????????????????????????????????????????????????????????????????????????????????????? ??????????? Order accordingly.