P L D 1970 Karachi 737 (PLP)

16. Let us next consider the other alternative, namely, that we accept the State appeal, find the respondent guilty of an offence under section 302, P. P. C. and sentence him to transportation for life. Would it not amount to sentencing him twice on the same set of facts constituting the offence? And would such a course be permissible under the law in spite of the provisions of section 26 of the General Clauses Act?

17. Further complications which may arise in such cases, have been ably illustrated as follows by Niyogi, A. J. C. in the minority judgment in the case of Mohammadi Gul Rohilla v. Emperor "If an appeal is preferred subsequent to the decision by the High Court of the convict's appeal relating to the minor offence, the Court dealing with such appeal cannot exercise its full powers. I shall explain the position by an illustration: A man is convicted of offence punishable under section 304, but acquitted of offence under section

302. Both the Local Government and the convict have the right of appeal. I shall now examine the effect of the High Court's decision in the convict's appeal relating to a minor offence. The Court hearing this appeal can exercise all powers mentioned in (b) of section

423. It may either (i) acquit the accused, or (U) order a retrial, or (iii) affirm the conviction. Whatever the decision, it cannot be set aside or altered by any Court and it is, there fore, final. (a) If the High Court, acquits the accused of the minor offence (e.g., culpable homicide), is the Local Government's appeal against the subordinate original or appellate Court's order of acquittal competent? I think not; for this reason that the Court dealing with appeal against acquittal cannot exercise all the powers defined in (a) of section

423. Can it convict the man of murder in the face of the High Court's order of acquittal on the same facts? If it can, which of the two decisions is to prevail? (b) If the High Court dealing with the convict's appeal orders a retrial, is it open to Court hearing the appeal against acquittal to convict the accused and pass a sentence of death? Can such a sentence be carried out while the High Court's order of retrial in the convict's appeal stands and is being given effect to? (c) If the High Court in the convict's appeal affirms the conviction, can the Court hearing the appeal under section 417 order a retrial? If so, how can this be effective in the face of the other judgment already passed by the same Court? Moreover, section 403, Criminal P. C. debars such a trial."

18. The learned Assistant Advocate‑General appearing on behalf of the State adopted the reasoning of Macnair, J. C. in the same case and contended that the conflict if any in the two contradictory judgments of the High Court can be resolved by the Government under section 401 of the Criminal P. C. by remission of one of the two sentences. This contention is also answered by Niyogi, A. J. C. and we can do no better than to quote his words :‑ "The competency of the appellate Court to hear appeals depends upon its power to enforce its orders; any circumstance which takes away or restricts this power must affect the competency of the Court. It must follow that any appeal fled in such circumstance will turn out to be futile. In other words the appeal itself will be incompetent. In Cox v. Hakes (1891) 15 A C 506 at page 534 Lord Herschell in delivering his opinion upon an analogous question stated the principle in these terms: `I. think it is impossible to read the section. Your Lordships have to construe without seeing that the power to hear and determine an appeal, and the power to enforce the judgment of the Court of appeal in case it should differ in opinion from the Court below, were intended to be co‑extensive. And 1 cannot think that it was ever contemplated that an appeal should be entertained from any class of orders when that which was effected by them could never be effectually interfered with . . . . . . and if it had been intended that an appeal should lie against such an order, I think that provision would have been made to enable the Court of appeal to restore to custody the person erroneously discharged. In the absence of such a power the appeal is futile, and this appears to me to be a sufficient reason for holding that the Legislature did not intend the right to hear and determine appeals to extend to such cases. This principle was stated in connexion with a case where the Legislature did not make any provision for enforcing the appellate Court's judgment, but it will apply with equal force to a case where the appellate Court, as in the present case, is unable to enforce the powers conferred on it by law. In fact the Criminal Procedure Code has made no provision for resolving the conflict between the decisions of the High Courts of the nature already indicated. The very fact that the learned Judicial Commissioner finds it necessary to invoke powers of the Local Government under section 401, Criminal P. C. is itself an argument to prove the incompetency of appellate Court to hear and determine the appeal. It must be noticed that the Local Government has no power to reverse the judgment, but only to remit the sentence. It must therefore follow that the Legislature could not have intended to give a right of appeal in case where the appellate Court which is supposed to hear the appeal is unable to exercise its powers vested in it by law and enforce its own orders, by reason of another judgment of same Court having become final and effective." We are in respectful agreement with these observations of Niyogi, A. J. C. and would venture to differ with great respect with the conclusions expressed by Macnair J. C. in the majority judgment.

19. We may also mention in this connection that a Division Bench of the Nagpur Judicial Commissioner's Court itself had expressed the same opinion in an earlier case, namely, Emperor v. Modkia (A I R 1932 Nag.73) and it was held that no appeal under section 417 can be preferred by the Local Government against an order of acquittal when an appeal preferred by the accused against his conviction had already been heard and decided by the High Court. Subhedar, A. J. C. who was a party to this decision, however, later agreed with Macnair, J. C. in Mohammadl Gul Rohilla v. Emperor.

20. The opinion of Niyogi, A. J. C. has also been followed by a Full Bench of the Madhya Bharat High Court in State v. Kalu (A I R 1952 Madh. Bharat 81) Chaturvedi, J. delivered the leading judgment, referred to the observations of Niyogi, A. J. C. and went on to express his opinion in paragraph 24 of the judgment in the following terms:‑ "If the Division Bench's judgment is final and not open to review, it is argued, how the Government appeal under section 417, can be entertained? If it is heard on merits, it might lead to a disturbance so far as the finality of the judgment is concerned. The difficulty arises from the difference in the period of limitation prescribed for filing appeals by the accused and by the State. In the case of the accused it is 30 days while the limitation for the State to appeal against acquittal is six months. It is possible that an appeal by an accused person may be heard and decided before the State has determined whether to prefer an appeal or not. Where there has been an acquittal on a graver charge, both State and accused have a right of appeal. If the appeal of accused person is heard and decided before the State appeals under section 417, the decision is final under section

430. Under the circumstances the State appeal is barred and cannot be entertained. This was the opinion of the Division Bench in Emperor v. Modkia." Later in paragraph 46 of the same judgment the learned Judge summed up his conclusions thus:‑ "For reasons stated above, I hold that once an appeal preferred by the accused against his conviction of a minor offence is dismissed either summarily or after hearing arguments, the High Court cannot alter or review the judgment and the Government Appeal against an order of acquitting the accused of a major offence will then become futile by reason of the previous judgment having become final and effective."

21. The views expressed by Niyogi, A. J. C. have also been followed by the East Punjab High Court in the State v. Mansha Singh Bhagwant Singh (A I R 1958 Pb. 233). In addition, Gurnam Singh, J. and A. N. Grover, J., pointed out how section 425, Cr. P. C. also stood in way of the maintainability of the appeal filed by the State. In the words of Gurnam Singh, J.‑ "This aspect of the case does not necessitate any comments as it is self‑explanatory. Section 425 requires the High Court to certify its judgment or order to the Court by which the finding, sentence or order appealed against was recorded or passed. The Court to which the High Court certifies its judgment etc., then makes such order as is conformable to the judgment or order of the High Court. If necessary that Court shall amend its record in accordance with the decision of the High Court. In the event of conflicting decisions of the High Court on the same set of facts in the same case unsurmountable difficulty of certification required by this provision of law would naturally arise. This again is a strong indication against the competency of the State appeal against acquittal after the appeal of the convict had already been decided by the High Court. I am, therefore, clearly of the view that an appeal against acquittal in such circumstances is barred." A. N. Grover, J. dealt with this aspect of the case in paragraph 13 of the judgment as follows :‑ "Apart from these considerations, the provisions of section 425 of the Code of Criminal Procedure cannot be ignored. According to that section, whenever a case is decided on appeal by the High Court it shall certify its judgment or order to the Court by which the finding, sentence or order appealed against was recorded or passed, and the Court to which the High Court certifies its judgment or order has thereupon to make such orders as are conformable to the judgment or order of the High Court, and if necessary, the record has to be amended in accordance therewith. In the present case, according to the judgment of the High Court, the previous order passed by Kapur, J. in August 1956, must have been certified. Now, if the State appeal is entertained and a conviction is recorded under section 302 and punishment awarded according to law, another order will have to be certified by this Court which will mean a clear conflict between the decisions of the High Court on the same set of facts. If Kapur, J. had acquitted the respondent in the appeal filed by him, then he would have been entitled to be set at liberty and the record of the Court below would have been amended in accordance with the provisions of section

425. In such a case, if the present appeal had been entertained and decided against the respondent, another order would have to be certified which would involve either a sentence of death or one for transportation for life. This would be on the same set of facts and the question would at once have arisen which judgment is to be executed. The Legislature could never have intended such results, and, therefore, it is exceedingly difficult to hold that the State appeal could have ever been intended to be capable of being proceeded with if once a final judgment has already been given by this Court on the same set of facts." The learned Judge also considered at length the general principle of law that a person cannot be convicted, twice on the same facts and held that on this basis as well the State appeal was incompetent.

22. The learned Assistant Advocate‑General next relied on the proviso to section 430, Cr. P. C. This section reads as follows:‑ "Judgments and orders passed by an appellate Court upon appeal shall be final, except in the cases provided for in section 417 and Chapter XXXII." Section 417, Cr. P. C. however, contemplates an appeal against "original or appellate order of acquittal passed by any Court other than a High Court". Since no appeal lies against the order B of the High Court we consider that it would tantamount to questioning the judgment of the High Court itself if an order of the Sessions Judge which it had earlier maintained is set aside. In other words, we would be attempting to do something indirectly what we were forbidden to do directly.

23. The learned Assistant Advocate‑General for the State also invited our attention to another case from the Indian jurisdiction, namely, State v. Diwanji Gardharji and others. The judgment in that case, however, proceeds on the assumption that the right of appeal provided under section 417, Cr. f'. C. is absolute anal that "this right cannot be interfered with and cannot be taken away by anything other than a substantive provision of law". This position cannot be accepted as correct in view of the observations of their Lordships of the Supreme Court in the case of Crown v. Sultan Mahmood and others referred to in para. 8 of this judgment. Moreover, in the same judgment in respect of what the learned Judges referred to as unfettered powers "which cannot be interfered with" they had to concede that some of the powers conferred on the Court cannot be exercised in such a case. This has been admitted in paragraph 5 of the judgment in the following words:‑ "It is next contended that if the present appeal from the acquittal is heard, the appellate Court would not be competent to exercise all the powers given to it under section 423 (1) (a), Criminal Procedure Code, which provides that‑ (1) The appellate Court shall then send for the record of the case, in such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears and in case of an appeal under section 411‑A, subsection (2), or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may‑ (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made or that the accused be retried or committed for trial as the case may be, or find him guilty and pass sentence on him according to law." There is some substance in this argument because if the convic tion of the accused under section 304, Indian Penal Code is confirmed by the High Court, then subsequently the High Court cannot order a retrial of the accused, although the subsequent matter before the High Court is an appeal from the acquittal of the accused under section 302, Indian Penal Code, because by ordering a retrial, the Court will have to set aside the conviction of the accused. The conviction of the respondents which has been confirmed by the Division Bench of the High Court cannot be set aside and unless the conviction is set aside, a retrial cannot be ordered. A retrial cannot be ordered generally in respect of the conviction which is final by reason of the judgment of the High Court in the appeal from a conviction, in view of the provisions of section 403, Criminal Procedure Code. But the circumstances that the appellate Court hearing the appeal from an acquittal may not be able to exercise some of the powers mentioned in section 423 (1) (a), Criminal Procedure Code is no ground for arguing that the appeal itself is incompetent and cannot be heard." Moreover, after cashing to the conclusion that such an appeal was competent, the learned Judges have in effect agreed with the contrary view as can be seen from paragraph 16 of the judgment of Raju, J. reads as follows:‑ "As already observed, while so doing, we must bear in mind the provisions of section 430, Criminal Procedure Code. We, therefore, have to see what were the points for determination b.‑fore the Division Bench which decided Criminal Appeal No. 645 of 1960 and what were its decisions. The Sessions Judge convicted the accused under section 304, Indian Penal Code and this finding was confirmed by the High Court in appeal. Tots finding is, therefore, that the accused was guilty of the offence of culpable homicide not amounting to murder. That finding is final under section 430, Criminal Procedure Code and in this view of the matter, we cannot hold that the accused was guilty of the offence of culpable homicide which amounts to murder. Although two views are possible, technically and strictly speaking the two findings would be contradictory. We cannot therefore allow the appeal against acquittal under section 302, I. P. C. because the accused were convicted under section 304, I. P. C. and the conviction is conformed. The appeal against the acquittal under section 302, Indian Penal Code of accused No. 2 who was convicted under section 304, Indian Penal Code must be dismissed." This case cannot, therefore, support the contention of the learned Assistant Advocate‑General.

24. There is yet another aspect of the case which needs consideration. The judgment of the trial Court in this case was pronounced on 30‑6‑1967. Ordinarily, if the decision was so erroneous as pointed out by Khamisani, J. the learned Assistant Public Prosecutor incharge of the case should have immediately moved the Provincial Government through the District Magistrate for filing an appeal under section 417, Cr. P. C. but this does not appear to have been done. In fact, the observations of Khamisani, J. which we have reproduced in paragraph 5 would show that this was not done on account of pressure from the learned Additional Sessions Judge. We find no material on record to support such a conclusion. The fact, however, remains that the State took no action in this behalf for over five months and by its inaction allowed the appeal filed by the respondent to be heard and decided by, the High Court. It was only after Khamisani, J. expressed himself strongly against such a lapse on the part of the State that they felt compelled to file the acquittal appeal. We feel that in the peculiar circumstances of this case and specially in view of the very strong opinion expressed by a learned Judge of this Court on the merits of this appeal, before it was even filed, it would not be proper to permit such an appeal to be argued before us. To quote the words of Cornelius, J. (as his Lordship then was) in the case of Crown v. Sultan Mahmood and others:‑ "I have already quoted a passage from the judgment of S. A. Rahman, J. which refers to `an abuse of the process of the Court and I feel no doubt in my mind that in the circumstances which have been considered in detail above, it would be a clear abuse of the process of the Court to permit a party to press an appeal which involves the determination of the same matter which that party had consciously allowed the High Court to determine, in the course of a proceeding in a different form, which nevertheless involves in substance exercise of the full powers of the High Court for securing such determination. It is immaterial in the relevant respect that in the former proceeding the High Court could not follow up its determination with an immediate order giving effect to its own view in regard to the facts of the case and that its powers extended only to the making of an order for retrial of the respondents on the same charge. An order for retrial would have placed the respondents in peril of their lives once again, on a charge of murder. Such a direction being within the strict provisions of law no objection could be taken against it on the basis of the maxim that `no person ought to be vexed twice in the same cause'. But when that peril was over-passed as a result of the order of the learned Chief Justice, dismissing the revision petition and refusing to direct a retrial, the motion by the Crown by way of appeal against the same respondents, in respect of the same cause, was clearly in violation of the maxim against repeated vexations in the same cause."

25. While pointing out that rehearing of the same matter by the High Court would result in conscious violation of the universally recognized principle that "it is in the interest of the State that there should be an end to litigation," his Lordship observed as follows:‑ In view of the finality attaching to judgments of the High Court pronounced on the criminal side, in appellate or revisional jurisdiction, it is impossible to conceive of the High Court making more than one order in respect of the same case and in relation to the same questions arising there out. In this case, the Advocate‑General had upon, notice from the High Court in a pending revision petition from acquittal in a murder case preferred by private party, indicated the Govern ment's final decision not to appeal from the order of acquittal. The revision petition was, consequently, disposed of by the High Court declaring that the order of acquittal was wrong and yet refusing to order a retrial, whereupon, Government put in an appeal from acquittal in which the only grounds stated were that the appeal was within time and that the order of acquittal was improper because the High Court in its order on revision had expressed the view that there was sufficient material for the conviction of the respondents. It was held that the communica tion of the Government's decision not to appeal was final, and that after the exercise of revisional jurisdiction the Government could not by filing an appeal ask the Court to adjudicate upon the same matter once again.

26. Although the facts of this case were somewhat different from those of the present one; the principle laid down by their Lordships can nevertheless be extended to the present case, where as we have already explained, the State by its own inaction and conduct allowed an impression to be created, namely, that they were not interested in challenging the acquittal of the respondent. Applications under section 426, Cr. P. C. for suspension of sentences were also filed by the respondent on three different occasions and according to the practice o: the Court, a copy of the judgment of the trial Court was supplied to the Additional Advocate‑General at least alongwith the first application. There was, therefore, not much difficulty in filing the acquittal appeal earlier. We, accordingly, feel that on this ground also the appeal filed by the State ought to be dismissed.

27. For the reasons given above, we are of the opinion that the decision by a Judge of the High Court after full hearing and with notice to both parties, of an appeal against conviction on a minor charge bars the hearing by the High Court of a pending appeal by the State against the acquittal of the convict on a graver charge based on exactly the same evidence. Besides it is a clear abuse of the process of the Court to permit a party to press an appeal which involves the determination of the same matter which has been already considered by the High Court in a different form, which nevertheless involves in substance exercise of the full powers of the High Court for securing such determination. This appeal is, therefore, incompetent; and is accordingly dismissed. As the respondent is in jail pursuant to the order dated 5‑12‑1967 of this Court, he shall be released forthwith unless required in some other case. K. B. A. Appeal dismissed.