P L D 1962 Supreme Court 465 (PLP)

B. Z. KAIKAUS, J.‑

This judgment will dispose of a petition for special leave filed by Syed Ali Nawaz Gardezi against the order of the High Court of West Pakistan holding that it had jurisdiction to hear the appeal filed by Lt. Colonel Muhammad Yusuf Khan under section 411‑A of the Criminal Procedure Code against his conviction under sections 497 and 498 of the Pakistan Penal Code by Mr. Justice Shabir Ahmad in spite of the promulgation of the Central Ordinance L of 1962, dated the 7th June, 1962. The question raised was one of importance and the case may well have been heard after leave to appeal was granted, but in view of the fact that the appeal filed by Lt. Colonel Muhammad Yusuf Khan respondent had already been fully argued before a Full Bench of the High Court and l delay in its disposal was undesirable we thought it proper to hear a full argument at the stage of grant of leave. Central Ordinance L of 1962 came into force on the 7th of June, 1962. At the time when it was promulgated there existed two provisions which enabled appeals against the judgment b of a single Judge of a High Court to be heard by a Division Bench of the High Court, one relating to civil and the other relating to criminal cases. The provision relating to civil cases was contained in the Letters Patent of the Lahore High Court and of the Calcutta High Court, the former being applicable by virtue of the Governor‑General's Order No. XIX of 1955 to the High Court of West Pakistan and the latter being applicable by virtue of the High Courts (Bengal) Order 1947, that is, Governor‑General's Order No. 4 of 1947, to the High Court of East Pakistan. In accordance with clause 10 of the Letters Patent of the High Court of Judicature at Lahore and clause 15 of the Letters Patent of the Calcutta High Court an appeal lay to a Division Bench of the High Court against an order passed by a single Judge in the exercise of original or appellate jurisdiction in a civil case. The provision as to criminal cases was contained in section 411‑A of the Criminal Procedure Code by virtue of which an appeal lay against a conviction by a single Judge, as of right on matters of law, and with the permission of the single Judge hearing the case on matters of fact. By Ordinance L of 1962 admittedly the jurisdiction of the Division Benches of the High Courts of West Pakistan and East Pakistan to hear appeals in civil cases against judgments of a single Judge was abolished. The question is whether the Ordinance covers criminal appeals also. It will be convenient to reproduce here the whole of Ordinance L of 1962 which is not a lengthy document:‑-- "An Ordinance to abolish the jurisdiction of the High Courts to hear appeals from the judgments of a single Judge and to confer the said jurisdiction on the Supreme Court. Whereas it is expedient to abolish the jurisdiction of the High Courts to hear appeals from the judgments of a single Judge of the High Court and to confer the said jurisdiction on the Supreme Court: Now, therefore, in pursuance of the Proclamation of the seventh day of October, 1958, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance :‑

1. Short title and commencement.‑(1) This Ordinance may be called the Appellate Jurisdiction (High Courts and Supreme Court) Ordinance, 1962. (2) It shall come into force at once. (2) Appeals from single Judge of High Court to Supreme Court.‑ Notwithstanding anything contained in the East Pakistan High Court Order, 1947 (G. G. O. No. 4 of 1947), and the West Pakistan High Court Order, 1955 (G. G. O. No. 19 of 1955), or in the Letters Patent applicable to the High Court of East Pakistan or to the High Court of West Pakistan, a High Court shall not have any jurisdiction to hear an appeal from the judgment of a single Judge of that High Court and all such appeals, subject to the conditions and limitations as applicable to them before the promulgation of this Ordinance, shall lie to the Supreme Court.

3. Transfer of pending appeals.‑All such appeals as aforesaid pending before a High Court immediately before the promulgation of this Ordinance shall stand transferred to the Supreme Court." The main reason which influenced the High Court in reaching the conclusion that criminal appeals were not covered by this Ordinance was that whereas Letters Patent was mentioned in section 2 of the Ordinance, section 411‑A of the Criminal Procedure Code was not mentioned. This omission according to the learned Judges of the High Court, pointed to an inference that the Ordinance did not contemplate abolition of the appeal provided for in section 411‑A and in any case the omission raised a doubt as to whether the abolition of this appeal was intended and the jurisdiction vesting in a High Court could not be taken away except by clear words. Before proceeding to consider the contentions raised on behalf of the petitioner, we will state the precise argument in support of the interpretation accepted by the High Court. The draftsman of section 2 of the Ordinance, it is said, was referring in the opening words of this section to the provisions which were being repealed. The Letters Patent were referred to as they contained the clauses by which the jurisdiction of Division Benches to hear appeals against judgments was created and the Governor General's Orders were referred to as the Letters Patent were by themselves not applicable to the High Courts and had become applicable only by virtue of those Orders. The Letters Patent of the High Court of Calcutta became applicable to the High Court of East Pakistan by virtue of Governor‑General's Order No. 4 of 1947 and the Letters Patent of the High Court of Judicature at Lahore became applicable to the High Court of West Pakistan only by virtue of Governor‑General's Order No. 19 of 1955. As the intention was to refer to the provisions which were being repealed and section 411‑A which confers jurisdiction to hear appeals in criminal cases was not referred to there is a reasonable inference that the repeal of section 411‑A was not contemplated. In any case this omission raises a doubt as to whether the intention was to abolish the jurisdiction created by section 411‑A. The main reply on behalf of the petitioner to this argument is that the sources of the jurisdiction of Division Bench of the High Courts of West Pakistan and East Pakistan to, hear appeals against the orders of the single Judge are the Governor‑General's Orders Nos. 19 of 1955 and 4 of 1947 and by, 'a reference to such Orders section 411‑A was sufficiently referred to. This reply, it will be observed, recognises the fact that a reference to the provision which created the jurisdiction which was being abolished was essential in the opening part of section 2 of the Ordinance and the contention is not that on account of generality of the operative part of the section it was not necessary to refer in the opening words of the section to all the provisions which created jurisdiction though such a contention if put forward would deserve consideration. We will refer here in brief to the Governor‑General's Orders by which the two High Courts of Pakistan were constituted. So far as the High Court of West Pakistan, is concerned, provision was made for its creation in section 7 of the Establish ment of West Pakistan Act, 1955. By the Establishment of West Pakistan Act a number of Provinces, States and Tribal Areas were incorporated into what was called the Province of West Pakistan and a provision was at the same time made that a High Court may be constituted by the Governor‑General for the Province of West Pakistan to take the place of the highest Courts functioning in the different areas which were integrated. The Governor‑General by his Order No. 19 of 1955 constituted the High Court of West Pakistan to be a successor to the different Courts functioning in the different areas and by section 3 of the Order a provision was made that this High Court was to exercise the same original, appellate and other jurisdiction as was vested in the High Court of Judicature at Lahore at the time of integration. Section 3 of the Order ran as follows:‑

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3. Establishment of the High Court of West Pakistan.‑ (1) As from the commencement of this Order there shall be established a High Court of Judicature for the Province of West Pakistan, to be called the High Court of West Pakistan (hereinafter referred to as the High Court), and the High Court of Judicature at Lahore, the Chief Court of Sind, the Judicial Commissioners' Courts in the North‑West Frontier Province and Baluchistan, and any other Court functioning as High Court in relation to the territories or areas now included in the Province of West Pakistan shall cease to exist. (2) The High Court shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories included in the Province of West Pakistan as the High Court of Judicature at Lahore had, immediately before the commencement of this Order, in respect of the territories in relation to which it exercised appellate jurisdiction. (3) The High Court and the Judges and divisional Courts thereof shall sit at Lahore, but the High Court shall have Benches at Karachi and Peshawar and Circuit Courts at other places within the Province of West Pakistan, consisting of such of the Judges as may from time to time be nominated by the Chief Justice." So far as the High Court of East Pakistan is concerned, by Governor‑General's Order No. 4 of 1947 a High Court of East Pakistan was constituted and it was granted the same jurisdiction with respect to the territories included in East Pakistan as was vested in the High Court of Calcutta in respect of such territories immediately before the Partition of India. Section 5 of this Order ran:‑-- "The High Court of East Bengal shall be a Court of record, and shall have, in respect of the territories for the time being included in the Province of East Bengal, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of the said territories by the High Court in Calcutta." We are of the opinion that the sources of the various appellate jurisdictions of the High Courts are the particular provisions by which those jurisdictions have been created and not the Governor‑General's Orders the effect of which is more or less like the Letters Patent by which the High Courts in India were created. The Governor‑General's Orders did no more than create High Courts that were to be successors to the jurisdiction vested in Courts whose jurisdiction had terminated. They did not create jurisdictions but created the institutions on which jurisdictions were by law conferred. Even if the Governor General's Orders simply created the High Courts and did not say that they would have the jurisdiction possessed by their predecessors, the High Courts would still have all the jurisdiction which the law confers on a High Court. Section 411‑A of the Criminal Procedure Code is one of the provisions which confers jurisdiction on every High Court and had the Governor‑General's Orders simply created the High Courts without referring to the powers which they would possess the High Courts would have the jurisdiction conferred by section 411‑A. The Letters Patent too contain a provision that the High Courts shall have such power and jurisdiction as may be conferred on it by law but those words really only state a fact and their absence would not have affected the jurisdiction of the High Court. The Governor‑General's Orders therefore cannot be said to be the of jurisdiction of the High Courts. In any case the question before us is whether by referring to the Governor General's Orders the intention was to refer to section 411‑A which was being repealed and to this question an answer in the affirmative is not possible. If the intention in the opening words of section 2 was to mention the provisions which were being repealed it would be section 411‑A which would be mentioned and not the Governor‑General's Orders which created the High Courts. The argument on behalf of the petitioner is also open to objection on the ground that it is not quite consistent with the mention of the Letters Patent. If the Governor‑General's Order was being mentioned because it was the source of all jurisdictions and a reference to it implied a reference to all appellate jurisdictions why were the Letters Patent mentioned in the opening words of section 2 ? The reply on behalf of the petitioner is that this is by way of abundant caution. We are unable to accept that abundant caution called for a reference to the Letters Patent but not to section 411‑A. If the draftsman was exercising abundant caution, then if he intended a repeal of section 411‑A, there is no reason why he should not mention it. Appeals under section 411‑A are of rare occurrence and it is to such a provision that reference would be needed and not to the Letters Patent which would prima facie be included when the power of Division Benches to hear appeals against judgments of Single Judges is abolished. It will be observed that while the petitioner is unable to give any satisfactory explanation of the mention of the Letters Patent the respondent gives a proper explanation of the reference to the Governor‑General's Orders. The intention according to the respondent was to refer to the specific provision which created jurisdiction and which was being repealed and therefore the Letters Patent were mentioned and the Governor‑General's Orders were mentioned because it h as by virtue of those Orders that the Letters Patent became applicable. It is contended on behalf of the petitioner that had the intention been to exclude section 411‑A from the operation of the Ordinance, section 2 of the Ordinance would not have been worded as it is. In that case it would have been sufficient to say that appeals provided for under the Letters Patent were abolished and it would not have been necessary to adopt a circuitous method of in the first place using general and unlimited words in the operative part of the section and then limiting those general words by the opening words of the section by referring to the particular provisions which were being repealed. It is urged that the draftsman should be presumed to have knowledge of section 411‑A and if he had such knowledge and had the intention to exclude it from the operation of the Ordinance he would not have used the words which now appear in section

2. There is a presumption that the, legislature knows the law but in the present case it will e difficult to contend that section 41.1‑A could have been present to the mind of the framer of Ordinance L of 1962. If it was so present then whether he wanted to abolish the jurisdiction conferred by section 411‑A or whether he wanted' to preserve that jurisdiction the wording of section 2 of the Ordinance would have been different from what it is If he wanted to abolish that jurisdiction he would have clearly mentioned section 411‑A in the opening words of section 2 and if he wanted to preserve that jurisdiction he would simply have abolished the jurisdiction granted by the Letters Patent and would not have used general words appearing in the operative part of the section and in the preamble: There can be little doubt that the drafting of section 2 is open to serious criticism. Whichever of the two alternative intentions was entertained by the legislator the section could very well have been drafted in a manner which left no doubt whatsoever But the fact that the section has not been properly drafted does not help the petitioner for inappropriate language help:, in the creation of doubts as to intention. If the intention was to take away every jurisdiction to hear appeals against judgments of single Judges it should have been quite easy to omit the opening words of the section and to say that henceforth no appeals would lie against an order of a Single Judge of the High Court to a Division Bench of the High Court, or the opening words instead of referring to the Governor‑General's Orders and the Letters Patent may simply have said "Notwith standing any other law to the contrary". The opening words should not be regarded as redundant and if they are not to be redundant the operation of the section has to be limited to what is referred to therein. By pre‑fixing the clause containing words "Notwithstanding anything contained . . . the draftsman has created a doubt as to the intention of the Ordinance and the jurisdiction of a superior Court like a High Court cannot be taken away except by clear and express words or by necessary intendment, While some argument can be put forward on behalf of the petitioner in support of the proposition that if the intention were to preserve, the jurisdiction under section 411 section 2 would have been differently worded, it is not possible for us to come to a positive conclusion that such was not the intention. We cannot say what conclusion as a matter of construction we may have reached if there was a similar provision not relating to the jurisdiction of a superior Court, but considering that the provision relates to the jurisdiction of a superior Court we will not hold in favour of the abolition of such jurisdiction unless the words used are clear and unambiguous. This petition is dismissed. A.H Petition dismissed.