P L D 1969 Supreme Court 362 (PLP)

ABDUS SATTAR, J.--‑The present appeal by right has beer filed by the two appellants who along with Nawab and Sanaullah were placed on trial before the learned Sessions Judge, Rahimyar Khan, for offences under sections 302/34 and 307/34, P. P. C. Rashid Ahmad appellant was also tried for an offence under section 14 of the Arms Ordinance, 1965. The charge against the accused was that they had, on 3‑11‑1964, at about 7 a.m. in the house of Abdul Hafiz P. W. in Chak No. 158/P, District Rahimyar Khan, committed the murders of Badam Thori and. Ghulam Mustafa and had also caused an injury to Ghulam Muhammad P. W. in an attempt to murder him. The charge under the Arms Ordinance against Rashid Ahmad related to the recovery from his possession of an unlicensed rifle which he was alleged to have used in the above‑mentioned transactions of murder and attempted murder. The learned trial Judge convicted the two appellants and, Nawab for offences under section 302/34, P. P. C. for the two murders and also under section 307/34, P. P. C. for the murderous assault on Ghulam Muhammad P. W. The appellants were sentenced to death and Nawab, who is an old man, was sentenced to transportation for life under section 302/34, P. P. C. In respect of the charge under section 307/34, P. P. C. the appellants and Nawab accused were each sentenced to rigorous imprisonment for a period of seven years. Rashid Ahmad appellants was also convicted for the offence under the Arms Ordinance and sentenced to rigorous imprisonment for two years. Sanaullah accused was acquitted of all the charges against him. The three convicted persons filed in the High Court of West Pakistan, a joint appeal in respect of their convictions under sections 302/34 and 307/34 of the Pakistan Penal Code. Rashid ?Ahmad accused challenged, by a separate appeal, his conviction under section 14 of the Arms Ordinance. The High Court had also before it a reference under section 374, Cr. P. C. for confirmatior of the sentence of death passed on the two appellants and also a revision petition filed by the State praying for enhancement of the sentence of Nawab under section 302/34, P. P. C. All these matters came up for hearing before a Division Bench of the High Court. The learned Judges maintained the convictions of the appellants under sec?tion 302/307 read with section 34, P. P. C. but their sentence of death was altered to transportation for life. The conviction of Rashid Ahmad appellant under the Arms Ordinance was set aside. The convictions and sentences of Nawab, however, were maintained. It has already been noticed that the present appeal has been filed as of right and it is claimed that the case of the appellants falls under Article 58(2)(b) of the Constitution as the High Court set aside the sentence of death of the appellants and in its place passed a new sentence of transportation for life. The first question that falls for determination, therefore, is whether this appeal as of right is maintainable. The relevant portion of Article 58 of the Constitution reads as follows:- "An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court shall lie as a right where:- (2) (a) ........... (b) the High Court has sentenced a person to death or to transportation for life." . The learned Judges of the High Court did not pass any specific order disposing of the reference under section 374, Criminal Procedure Code. The learned counsel for the appellants has argued that as the High Court "sentenced" the appellants to transportation for life their case falls under Article 58(2)(b). The acceptance of this contention will obviously result in some anomalies. Because while in a case where the High Court confirms the death sentence there will be no appeal as of right to this Court but in a case where the death sentence is altered to transportation for life an appeal as of right will lie. Mr. M. Saleem has contended that to avoid anomalies the plain language of a statute cannot be modified. The language used in it must be given its fair and reasonable meaning. Reliance in this connection has been placed on the decision reported as Mohindar Singh and another v. The King (1950 A C 345). In this case one of the questions that came up for consideration was whether under section 310 of the Straits Settlements Criminal Procedure Code, 1910, an appeal against adequacy of sentence lay. The words used in the section were "any person who is dissatisfied with any judgment, sentenced, or order pronounced by any District Court . . . . . in a criminal case . . . . . . . . may prefer an appeal to the High Court against such judgment, sentence or order in respect of any error in law or in fact . . . . ." The contention put forward on behalf of the appellants was that the words "any error in law or in fact" must be taken in their ordinary meaning and could not apply to a case of adequacy of sentence. On behalf of the respondent it was argued that this contention, if accepted, would lead to inconsistencies and anomalies. Lord Greene, who delivered judgment in this case, observed:- "They fully appreciate the importance of avoiding, so far as the words and context fairly and reasonably permit, a construction which would lead to anomalous or patently unreasonable results. On the other hand, it is to be remembered that the desirability of avoiding such results must not be allowed to give to the language used a meaning which it cannot fairly and reasonably bear. If the Legislature has used language which leads to such results it is for the Court to give effect to it. The function of the Court is interpretation, not legislation. The limits thus imposed on the Court prevent the twisting of words and phrases into a sense that they cannot fairly and reasonably bear. Words having a technical meaning, words which are in effect words of art, are in essence more recalci?trant than words which do not possess that character. Where the Legislature selects technical words to convey its meaning it is not in general to be supposed that it uses them in any but their technical sense or that their technical sense was unfamiliar to it. It will be seen that in this case it has been recognised that anomalies should be avoided as far as possible. It has, however been observed that if the plain language of the statute necessarily leads to anomalies it cannot be helped. The next case to which reference has been made in this connection is reported as Pakala Narayana Swami v. Emperor (A I R 1939 P C 47). In this case the Judicial Com?mittee was concerned in a murder case, with the admissibility of the statement of the accused made to the police admitting that the deceased had come to his house on or about the date of the murder in view of section 162, Criminal Procedure Code. The learned Judges have observed that the words "any person" in the section in their plain meaning would include any person though he may thereafter become an accused. It has then been observed that "when the meaning of words is plain it is not the duty of the Courts to busy themselves with supposed intention." In the instant case we are concerned with the words "the High Court has sentenced" in Article 58 of the Constitution. In our view the meaning of these words is not so plain as to exclude an inquiry as to the intention with which the framers of the Constitution used them. It is true that if the words used are plain and unambiguous they are to be construed in their ordinary sense even though it may lead to an absurdity or anomaly. If, however, the import of the words is doubtful or obsecure it is permissible to enquire into the intention with which they have been used. The cardinal rule of interpretation of statute, no doubt, is that the words used should be read in their ordinary, natural and grammatical meaning. But it is also well known that where two meanings are possible the one which avoids absurdity or anomaly should be adopted. In this connection the following passage from Craies on Statute Law (6th Edition), p. 87 is worth noticing:- " . . . . if a too literal adherence to the words of the enact?ment appears to produce an absurdity or an injustice, it will be the duty of a Court of construction to consider the state of the law at the time the Act was passed, with a view to ascertaining whether the language of the enactment is capable of any other fair interpretation, or whether it may not be desirable to put upon the language used a secondary, or restricted meaning or perhaps to adopt a construction not quite strictly grammatical." In the present case the High Court had before it a reference under section 374, Criminal Procedure Code, and, an appeal preferred by the appellants against their conviction and sentence of death under section 302,134, P. P. C. The powers of the High Court in a reference under section 374, Criminal Procedure Code are enumerated in section 376 of the Criminal Procedure Code. It reads as under:-‑ Section 376.‑In any case submitted under section 374, whether tried with the aid of assessors or by jury, the High Court‑ (a) may confirm the sentence, or pass any other sentence warranted by law, or (b) may annul the convictions, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on the same or an amended charge, or (c) may acquit the accused person Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period until such appeal is disposed of. Section 423, Criminal Procedure Code enumerates the power of the appellate Court in disposing of an appeal. In regard to an appeal from a conviction the power are stated in section 423(l)(b) which is as follows:- "Section 423 (1)(b).‑In an appeal from a conviction, (() reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but subject, to the provisions of section 106, subsection (3), not so as to enhance the same." A comparison of the provisions of the two sections clearly indicate that the powers of the High Court under section 376 and section 423(1)(b) in a case of death sentence are more or less co?extensive. In the case of Muhammad Rafique v. The State (P L D 1963 S C 226) this Court observed:-- "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 tray 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)(6) as furnishing a right of appeal." It is then said:-- "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 378 of the Code, so as to attract an appeal as of right." In this decision a distinction has been made between a case of death sentence in which the High Court is concerned only with a reference under section 374, Criminal Procedure Code and a similar case in which there is a reference under section 374 and an appeal by the condemned prisoner. It has been found that if the death sentence is commuted to transportation for life in exercise of the powers under section 376, the case will fall under Article 58(2)(b) but not so if the same result follows from the exercise of the appellate power. Subsection (5) of section 36i, Criminal Procedure Code lays down that if the accused is convicted of an offence punishable with death and the Court has sentences', him to any punishment other than death the Court shall in its judgment state the reason why the sentence of death was not passed, Section 402, Criminal Procedure Code empowers the Provincial Government, without the consent of a person sentenced to death, to commute his sentence to transportation for life, These provisions clearly point to the conclusion that a sentence of transportation for life B is a lesser sentence compared to a sentence of death and the argument of Mr. Saleem that it is not necessarily so cannot be accepted. I am, therefore, of the view that when a sentence of death is commuted to transportation for life be it in exercise of the powers under section 376, Criminal Procedure Code or the appellate power under section 423, Criminal Procedure Code, the case is one of reduction of sentence and not of the High Court sentencing the accused to transportation for life, Whenever] there, is an alteration of sentence by the High Court the substituted sentence is, no doubt, a new sentence but from that it cannot be concluded that this is a case where the High Court "has sentenced" the accused to the new sentence. The argument that the order of the High Court is the only operative order and the order of the trial Court is merged in it is of no avail in this connection. If we accept the argument of Mr. Saleem we must also hold that in a case where the sentence of death is confirmed by the High Court the case will fall under Article 58(2)(b) because the sentence passed by the Sessions Judge remains inchoate and it is only after confirmation by the High Court that the sentence becomes complete. I, therefore, with respect, point out that a case of commutation of a sentence of death to a sentence of transportation for life does not entitle the convict to file an appeal as of right to this Court under any circumstance. The learned Attorney‑General has rightly pointed out that while a constitutional provision should be liberally construed it is permissible in order to determine the true intention to refer to the ,previous state of law for tile purpose of ascertaining whether there has been a departure from the same. If it be found that there has been departure then it must be concluded that it was deliberate and has to be given effect to. The provisions in the, 1956‑Constitution were 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 transportation 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 .. ..." These provisions clearly contemplated cases where a sentence of death or transportation for life was imposed by the High Court followed by a conviction made by it. Previous to the coming into force of the 1956‑Constitution there was no appeal as of right, in a criminal case, to the Privy Council or after the abolition of its jurisdiction to the Federal Court. This right became available only in cases where the High Court after taking a different views of the evidence and setting aside an order of acquittal imposed the serious sentence of death or transporta?tion for life or as the Court of first instance imposed such a sentence. In this connection Cornelius, C. J. in the case of Muhammad Raficiue v. The State, observed:- "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‑Con?stitution, since the new Constitution is not in any sense an amendment of that of 1956. In our opinion, the proper method of interpretation of the new provision is by reference to the relevant provisions in the Criminal Procedure Code." I am in respectful agreement with these observations. In my view it is only in a case where after setting aside an order of acquittal the High Court passes a sentence of death or transportation for life or as a Court of first instance passes such a sentence that an appeal as of right lies to this Court under Article 58(2)(6). The present appeal is not maintainable. I would, therefore, direct that this case should be treated as a petition for special leave to appeal and should be posted for hearing along with Criminal Petition No. 68 of 1968, filed by Nawab against his conviction and Criminal Petition No. 41 of 1968 filed by Muhammad Hussain, the complainant. MUHAMMAD YAQUB ALI, J.‑I agree. SAJJAD AHMAD, J.‑I agree. HAMOODUR RAHMAN, C. J.--‑I have had the advantage of reading the judgment proposed to be delivered by my learned brother Abdus Sattar, J. in these matters. He has taken a view which is different to the view taken earlier by this Court in the case of Muhammad Rtrfique v. The State (P L D 1963 S C 226), to which I also then subscribed. On the fuller arguments now advanced before us with respect to the interpretation of Article 58(2)(6) of the 1962?Constitution I must, however, confess that the view taken in Muhammad Rafique's case does not create an anomaly, namely; that if the higher sentence of death is just confirmed by the High Court under section 376 of the Criminal Procedure Code, no appeal as of right lies to this Court but if the High Court does not confirm that sentence but reduces it to transportation for life then "it is conceivable that an appeal may lie as of right under Article 58(2)(6)." Similarly, if a sentence of transportation is enhanced and a sentence of death is imposed under section 439, Cr. P. C. even then an appeal as of right would lie or again if under section 423, Cr. P. C. the High Court allows the appeal of a convict, acquits him of the charge under section 302 of the Pakistan Penal Code, convicts him under section 304, Part I and imposes the sentence of transportation for life, no appeal would lie as of right although the same result under section 376, Cr. P. C. would permit an appeal as of right. Nothing was furthermore said in the said judgment about an appeal from acquittal under section 417, Cr. P. C. although by parity of reasoning it might be argued that since the High Court' in such case also exercises its powers under section 423, Cr. P. C. no appeal as of right would lie. In endeavouring to remove these anomalies my learned brother has proposed that we should real Article 58(21(6) in such a wav that it substantially re‑enacts Article 159 of the Constitution of 1956. The question is whether this can be done is view of the language employed in Article 58 of the Constitution of 1962 I propose to examine this question and give my own reasons for departing from the view taken in the case of Muhammad Rafique v. The State. While I am in agreement that in construing a statutory provision any construction "which would lead to anomalies or patently unreasonable results" should, as far as possible, be avoided, I must point out, that this is always subject to the overriding principle that the function of the Court is interpretation and not legislation. The object of interpretation is, no doubt, to ascertain the true intent of the Legislature, but this intention has of necessity to be gathered primarily from the words used by the Legislature itself. As a general rule, it is not permissible for a Court of Law to alter the language of a statute for the purpose of supplying a meaning. As observed in Halsbury's Laws of England, Volume 36, page 390, "if blunders are found in legislation, they must be corrected by the Legislature and it is not the function of the Court to repair them". Thus, if the words used by a Legislature, in their primary sense, do not mean what the Legislature intended then it is for the Legislature to amend the statute and not for the Courts to attempt the necessary amendment by speculating as to the true intent of the law maker. It is only where the words of a statute are obscure or doubtful or the literal construction would involve the creation of unintended anomalies that a departure from this rule is permissible. Keeping this principle in view, as also the principle that in construing a Constitutional provision conferring a right the Courts ought not to adopt a construction which 'would unduly restrict that right, for, a constitutional provision is riot to be construed "in any narrow and pedantic sense." The Courts must, therefore, lean in favour of a construction which would render the right conferred by the Constitution effective and operative in its fullest amplitude rather than the one which would make it nugatory. It is also important to remember, as pointed out by Munir, C. J. in Presidents' Special Reference No. 1 of 1957 (P L D 1957 S C (Pak.) 219) that it would be wrong to start with any a priori idea of the intention of the Constitution and then "to try by construction to wedge it into the words" of the Constitution. Again, as Lord Greene has observed in his opinion in the case of Mohinder Singh and another v. The King (1950 A C 345) "where the Legislature selects technical words to convey its meaning, it is not in general to be supposed that it uses them in any but their technical sense or that their technical sense was unfamiliar to it". With these preliminary observations I now proceed to consider the words of Article 58(2)(b). They are as follows:- "58(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) . ........... (b) the High Court has sentenced a? person death or to transportation for life." Article 159 of the Constitution of 1956 on the other hand read thus "

159. An appeal shall lie to the Supreme Court from any judgment, final order of 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 transportation 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 (c) certifies that the case is a fit one for appoal to the Supreme Court; or (d) has imposed any punishment on any person for contempt of the High Court Provided that where a certificate is issued under para?graph (c) of this Article an appeal shall lie subject to such rules as maybe made in that behalf under paragraph 3 of the Third Schedule, and to such other rules, not inconsistent with the aforesaid rules, as may be made in that behalf by the High Court." It will be observed that there is a radical difference between the language employed in these two Constitutional provisions. The language of Article 159 was clear, unambiguous and explicit. It left no room for doubt as to the circumstances in which an appeal would lie as of right to the Supreme Court. Article 58 (2)(b) however, merely says that an appeal will lie as of right where "the High Court has sentenced a person to death or to transportation for life" This Article 58 (2)(b) has, it appears, adopted only partially the language employed in clause (a) of Article 159 of the 1956‑Constitution without repeating the words preceding the said words in that clause. The High Court, under section 31, Cr. P. C. is entitled to pass any sentence authorized by law. So far as the sentence of death is concerned, it may also be passed by a Sessions Judge or an Additional Sessions Judge. But in such a case it does not become operative until confirmed by the High Court under section 376, Cr. P. C. Under the latter section the High Court has the power either to confirm the sentence or to pass any other sentence warranted by law or to annul the conviction and convict the accused of any other offence or order a new trial on the same or an amended charge or acquit the accused. It will thus be observed that under this section when the High Court refused to v, confirm the sentence of death and reduces the sentence, it is said to pass a new sentence under section 377, Cr. P. C. Similarly if the High Court were to acquit the accused of the charge of the murder and to convict him only of culpable domicile not amounting to murder, it would again be passing a new sentence permissible by law, which may also be transportation for life, under section 377, Cr. P. C. In an appeal, on the other hand, section 423, Cr. P. C. provides that only in an appeal from an order of acquittal the High Court may find the accused "guilty and pass sentence on him according to law", but in an appeal from a conviction the High Court may reverse the finding and sentence, alter the finding without changing the sentence or reduce the sentence without altering the finding, or without reducing the sentence or latering the finding alter the nature of the sentence. It has been observed in the case of Mohammad Rafique v. The State, that under clause (b) of section 423, Cr. P. C., the High Court does not "pass a sentence". Thus, if in an appeal from a conviction for murder and sentence of death the High Court, without altering the finding of conviction, reduces the sentence, it would not be passing a sentence but if it did the same thing in a reference under section 374, Cr. P. C., it would be passing a sentence under section 377, Cr. P. C. Similarly an enhancement of a sentence under section 439, Cr. P. C. would not, in this technical sense be passing a sentence although for all intents and purposes it would be imposing a different sentence. The question that arises, therefore, is as to whether the words "has sentenced a person" in clause (b) of Article 58(2) have been used in the technical sense of passing a sentence under the Criminal Procedure Code as under section 376 or clause (a) of section

423. It is possible to contend that if that was the intention then the words "has passed a sentence" should have been used instead of merely saying "has sentenced". It is also possible to argue, as pointed 'out by my learned brother in his judgment, that even where the High Court confirms a sentence of death it may be said to be passing a sentence, even though it is not a new sentence within the meaning of section 377, Cr. P. C., for, the sentence passed by the Sessions Judge is only an inchoate sentence. I am, therefore, inclined to think that the words "has sentenced" in Article 58 (2)(b) have not been used in the technical sense of passing a sentence under the Criminal Procedure Code. These words in Article 58 (2)(b) are, in my view, equally capable of bearing the ordinary grammatical meaning of imposing a sentence. The mere fact that the jurisdiction of the Supreme Court in Civil matters has been curtailed by the Constitution of 1962, does not also, in my view, necessarily lead to the inference that the jurisdiction in criminal matters has also been curtailed. It may well be that because the jurisdiction in civil matters was curtailed, the makers of the Constitution may have thought it fit to enlarge the jurisdiction in criminal matters. A reference to the previous state of the jurisdiction of this Court does not, in my view, furnish a clear indication of the true intent of the framers of the 1962‑Constitution. I can also see no justification for restricting the words "has sentenced" either to only a new sentence within the meaning of section 377, Cr. P. C. as done in the case of Muhammad Rafique v. The State, or only to the sentence passed under clause (r,) of section 423 or in a case withdrawn for trial before itself by the High Court from a subordinate Court, under section 526 (2), Cr. P. C., as has been done by my learned brother. In either event the anomaly is not removed. I would, therefore, prefer to give the words "has sentenced", occurring in Article 58 (2)(b), their natural and ordinary grammatical meaning and read them in a literal sense, as being applicable to any case in which, whether under section 376 or under section 423, Cr. P. C., the High Court has itself imposed a sentence of death or transportation. Such a sense would remove the anomalies by extending the right of appeal even to cases of confirmation of a sentence of death under section 376, Cr. P. C., enhancement of a sentence to death or transportation for life ‑and conviction of an accused person, after acquittal on a charge of murder, under section 304, Part I and the imposition of a sentence of transportation for life either under section 376, Cr. P. C. or under, section 423, Cr. P. C. Such a literal construction would also include the cases specified in clauses (a) and (b) of Article

159. The distinction drawn, in Mohammad Rafique's case, between cases dealt with under section 376, Cr. P. C. and those dealt with under section 423 (b), Cr. P. C. appears to me, on maturer consideration, to be highly technical and somewhat anomalous. They also seem to create and apparent injustice. I would therefore, depart from that view, particularly, since the words of Article 58 (2)(b) appear to me to be equally susceptible of l bearing a wider meaning which not only removes the anomalies but also gives the same rights to accused persons similarly treated. In this view of the matter I regret my inability to agree with my learned brother. I would, therefore, allow the appeal to be registered as an appeal as of right. QADEERUDDIN AHMAD, J.--‑I have the benefit of having read, if I may say so, with respect, the pithy and lucid judgment proposed by my learned brother, Abdus Sattar, J. I am inl agreement with his final conclusion that this appeal be treated as a petition for leave to appeal. I am also in full agreement with the observation that "when a sentence of death is commuted to transportation for life, be it in exercise of the powers under section 376, Criminal Procedure Code or the appellate power G under section 423, Criminal Procedure Code, the case is one of reduction of sentence, and not of the High Court sentencing the accused to transportation for life". But the reasons of my agreement with the above views are basically different from those which have appealed to my learned brother. I shall endeavour to elaborate them with due emphasis on the differences.

2. I may begin by stating that the appellants claim the right to prefer this appeal on the ground that the High Court has altered the sentence of death, which was awarded by the Sessions Judge, to that of transportation for life. Their claim rests on Article 58 (2)(b) of the Constitution of 1962, and raises a pure question of law which can be expressed as follows : ‑ Whether an appeal lies to this Court as of right under Article 52 (2)(b) of the Constitution of 1962, when the High Court alters a sentence of death to that of transportation for life? The provision, which is to be examined, runs as follows:-? "58.‑

(1).......... (2) Appeal to the Supreme Court from a judgment, decree, order of 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."

3. The law has changed since the judgment was proposed by my learned brother and the new provision which is embodied in Article 6(1) of the Provisional Constitution Order dated 4‑4‑1969, is as follows :? "6(1) No appeal shall lie to the Supreme Court from any judgment, final order of sentence of a High Court in criminal proceedings except when the High Court?. (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation 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 (c) certifies that the case involves substantial question of law as to the interpretation of the said Constitution; or (d) has imposed any punishment on any person for contempt of the High Court." But the change does not reduce the importance of the decision of this appeal, firstly, because it is still governed by the law which was in force at the time of its institution, particularly in view of the fact that the jurisdiction conferred on this Court by the Constitution of 1962 was preserved on the abrogration of that Constitution by the proclamation of the Chief Martial Law Administrator dated the 25th of March 1969, and secondly, because not only this appeal but a large number of other appeals are likely to be influenced by the principles of interpretation laid down by this Court. It is not the decision of this appeal, but the principles which govern it, that call for attention because they should serve as a guide for interpreting constitutional provisions whatever their origin. As observed by E. McWhinney in his book "Judicial Review in the English Speaking World":

"Even when amended (or replaced) a constitution will be still subject to judicial interpretution." In the words of Marshall, C. J. of U. S. A. used in 1819 in his famous judgment of the case known as McCulloch v. Maryland (1819) 17 U S 4 Wheat 316): "The question respecting the extent of the powers arising, and will probably continue to arise, so long as our system (in which constitutional powers are enumerated in writing) shall exist." Thus the basic problem of determining the correct principles for interpreting a written Constitution is not affected by constitutional changes.

4. In this case central theme of Mr. Saleem?s argument was that the words:-- "The High Court has sentenced" which occur in Article 58 (2)(6) of the Constitution of 1962, are unambiguous and have been us‑.d as words of the ordinary English language ; they should be understood as such without attempting to extract a meaning from them which they do not have. Starting with this proposition, he nevertheless proceeded, owing to his mastery of the Cr. P. C. to apply the different shades of thought which originate from the difference of the expressions which have been used in that Statute. He felt that without them the meaning of the plain language of the Constitution could not be fully comprehended. He conceded that the expression "the High Court has sentenced" is not to be found in the Cr. P. Code but was apparently not impressed by the fact that the draftsman bad made the language of the Constitution different from that of the Cr. P. C. owing to his command of the Code, counsel could see implicit in the language of the Constitution the possible interpretations that the High Court has convicted and sentenced an offender (i) after an original trial, or (it) after he was acquitted by the trial Court or (iii) or alteration or redaction of sentence with or without, reversal or alteration of a finding of conviction, which possibilities reflect the same ideas that are embodied to the Cr. P. Code; therefore, according to counsel, the provision of the Cr. P. Code must of necessity be our guide in fully comprehending the meaning of the language of the Constitution. This exposition of the relationship between the provision of the Constitution and the Cr. P. Code is, I believe, the genesis of the view which was expressed by this Court in Muhammad Rafique v. The State and others (P L D 1963 S C 226), as follows:‑ "In our opinion, the proper method of interpretation of the new provision (Art. 53 (2)(b) reproduced above) is by reference to the relevant provision in the Criminal Procedure Code." The above view has far reaching consequences in respect of Constitutional interpretation but was expressed in the judgment without setting out any reason for supporting it, perhaps on the assumption that the relationship, explained above, did exist between the constitutional provision and the statute. The same view has been briefly endorsed by Abdus Sattar, J. in the proposed judgment as follows:‑‑ "I am in respectful agreement with these observations".

5. With utmost respect, I venture to express my dis?agreement with the above view, for reasons which appear to me of fundamental importance. To begin with, the above view appears to be based on an assumption, that the constitutional provision with which we are dealing can be interpreted with the help of only those concepts which are found in the Cr. P. Code; whereas the correct situation would appear to be that the Cr. P. Code is only one, although the most widely used, of those codes of procedure to which the Constitution may apply at a given time. Other procedures and codes may not be in existence, yet the possibility of the creation of other procedures is recognised in sections 1(2) and 5 of the Cr. P. Code itself. These sections run as follows:- "S. 1 (2). It extends to the whole of Pakistan but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. S. 5 (1) All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. (2) All offences, under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiring into, trying or otherwise dealing with such offences." An example of the special law contemplated by section 1 (2) is the Sind Suppression of Hur‑Outrages Act, 1942, section 16 of which provided for the creation of a single member tribunal which could sentence the accused person to death or transportation for life. The sentence of de4th was subject to confirmation by the High Court and the appeals also lay to the High Court. But the following differences in the procedure should be noted,:‑ 18 (1) A Special Tribunal may take cognizance of offences without the accused being committed to it for trial. (2) Save in cases of trial of offences punishable by death or transportation for life or imprisonment for a term of seven years or upwards, it shall not be necessary in any trial, for a Special Tribunal to take down the evidence at length in writing, but the Special Tribunal shall record in English a memorandum of the substance of what each' witness deposes and sign such memorandum. (3) A Special Tribunal shall not be bound to adjourn any trial for any purpose unless such adjournment is, in its opinion, necessary in the interests of justice. (4) A Special Tribunal shall not by reason of a change in its Presiding Officer, be bound to recall and re‑hear any witness who has given evidence, and it may act on the evidence already recorded by or produced before it. (5) After an accused person has once appeared before it, a Special Tribunal may try him in his absence if, in its opinion, his absence has been brought about by the accused himself for the purpose of impeding the course of justice, or if the behaviour of the accused in Court has been such as, in the opinion of the Special Tribunal to impede the course of justice." I may pertinently recall here that Cr. P. C. does not apply to this Court‑‑See Siraj Din v. Kala and another (PLD 1964SC26atp.47).

6. It is easy to envisage that in the future statutes may be enacted containing vastly different concepts from those which can be perceived in the plan of the Cr. P. C. and yet all such laws must conform to the imagery of the Constitution. Therefore, the trend of constitutional thought must be on a higher plane than that of subordinate statutes. The concepts of a constitution are intended to include and envelop future situation as well as future statutes which must of necessity be enacted to suit changing circumstances. In this sense, a constitution provides for society living principles and progressive guide‑lines of basic thought. If constitutional provisions are permitted to be restricted by applying to them the concepts of a subordinate statute, which by its very nature is conditioned by the limitations of its own subject, then the paramountcy of the constitution is bound to be violated. This harm is inherent in the error of equating the "paramount" legislation with a "subordinate" legislation and the certainty of this harm does not require to be supported by quoting opinions.

7. Let me, however, by way of elucidation, express the above idea in the language of one or two eminent Judges. Gawyer, C. J. of the Federal Court of India has observed In re: The Central Provinces and Berar Seles of Motor Spirit and Lubrirants Taxation Act, 1938 (AIR 1939FC 1) as follows:- "The rules which apply to the interpretation of other statutes apply, it is true, equally to the interpretation of a constitutional enactment. But their application is of necessity conditioned by the subject‑matter of the enactment itself; and I respectfully adopt the words of a learned Australian Judge: Although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting, the remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be; (1908) 6 Commonwealth L R 469, per Higgins, J. at p.

611. Especially is this true of a federal constitution, with its nice balance of jurisdictions . . . . . A Federal Court will not strengthen, but only derogate from its position, if it seeks to do anything but declare the law; but it may rightly reflect that a Constitution of Government is a living and organic thing, which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat." S. R. Das, J. of the Supreme Court of India has pointed out in A I R 1955 S C 58 that the provisions of a subordinate statute are narrow in comparison to the amplitude of a constitutional provision. The following observations of Marshall, C. J. in his above‑mentioned judgment are illuminating:- "A constitution, to contain an accurate detail of all the sub‑divisions of which its great powers will admit, end of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves." There is a contract between his approach and that of the Privy Council towards constitutional interpretation. T. M. Franek has noted it in his book "Comparative Constitutional Process" as follows:- "Chief Justice Marshall's statement in McCulloch v. Maryland, p. 136, that `we must never forget that it is a constitution we are expounding' suggests that a different standard should be used in interpreting constitutional as opposed to statutory language. While adhered to by the United States Supreme Court, this rule has not gained widespread acceptance among British jurists. The Privy Council's narrow interpretation of the British North American Act in Att.‑Gen. for Canada v. Att.‑Gen. for Ontario, p. 118, indicates that body's refusal to differentiate between constitu?tional documents and statutory law. Indeed, seen from the vantage point of a British bench, the Canadian `constitution' is just another British statute."

8. The Government of India Act, 1935 was also a British statute for the Privy Council, but when it came to a question of interpreting an Act with the help of the regulations made under the Act, the English Courts too have recognised the inaptness of doing so. Lord Oaksey was emphatic in Hales v. Bolton Leathers, Ltd. ((1951) 1 A E L R 643 at p. 651), when he said:- "I agree with your Lordships in thinking that the regulations themselves cannot alter the meaning of the words of the statute." In the case now before us, there is an additional reason against using the Cr. P. Code as a guide for comprehending Article 58 (2)(b). It is that Mr. M. Saleem as well as Mr. Sharifuddin the Attorney‑General, have conceded that the language of this provision is not that of the Criminal Procedure Code. It follows from the use of different language that the ideas of the Criminal Procedure Code are not to be imposed upon this constitutional provision. For some of us, it may not be easy to do so, since the ideas of the Code have become a habit of our thought. This habit itself can create a false sense of ambiguity when we read the different language of constitution. I feel that this is the explanation of the contradictory stands taken by Mr. M. Saleem who at one time contended that the language was plain and unambiguous; and later that it could not be comprehended without the help of the provisions of the Criminal Procedure Code. If we rid ourselves of the terminology and imagery of the Criminal Procedure Code, and still found the language ambiguous, then we would be inclined to remove the ambiguity with the assistance of the object, the context and the history of the provision, so that its constitutional significance would be preserved, rather than to depend on the limited concepts of a subordinate legislation.

9. Before proceeding to examine the context, object and history of the provision, I would like to pause here and ask:- Is the language really ambiguous? Mr. M. Saleem argued that the language is plain and includes reduction of sentence from death to transportation because the common man uses this expression to convey that sense. For instance, if a sentence of death by the Sessions Judge was altered by the High Court to transportation for life, he would say that the High Court had passed sentence of transportation for life. This being the plain meaning of the words: "the High Court has sentenced," an appeal as of right from such sentence must lie to the Supreme Court. I disagree with Mr. Saleem in this respect in that he uses for his model the remarks of those who either do not know the accurate language or do not care to use accurate expressions, because those who do would say that the High Court reduced the sentence of death to that of transportation for life, or similarly, that the High Court enhanced the sentence of transportation for life to that of death. The criterion of discovering the plain meaning of language is not that it should be interpreted with the help of imprecise or free usage, which permits a wide margin of inaccuracy. I, therefore, respectfully agree with my learned brother, Abdus Sattar, J. that the words "the High Court has sentenced", refer to a sentence imposed by the High Court itself, and not to a sentence altered by the High Court. The alteration of a sentence whether by enhancement or by reduction presumes, like the confirmation of a sentence, that the sentence which is so altered or confirmed, was already in existence.

10. The above interpretation is consistent with the context of the provision because it confers a restricted right of appeal on the Supreme Court, which body was not established primarily for dealing with criminal complaints or civil claims. Courts like the Supreme Court of our country are necessary where the constitutions are federal or even simply written, and their primary purpose is to ensure uniform interpretation of the Constitution and to secure the decisions of those question is, which even the highest Courts of territorial sub‑divisions would be unable to decide‑--See for instance Article 57 of the Constitution of 1962, which confers on this Court the jurisdiction to decide "disputes" amongst the Governments of the Country. Thomas M. Cooley has elucidated the necessity of such Courts for federal constitutions in his book, the Principles of Constitutional Law, on page 152, as follows:- "The reasons for conferring jurisdiction of cases upon the Federal Courts were manifest, and were also imperative. The alternative must be that the final decision upon questions of Federal Law must be left to the Courts of the several States, and this multitude of Courts of final jurisdiction of the same causes, arising upon the same laws, would, in the language of the Federalist, be a hydra in Government from which nothing but contradiction and confusion could proceed. Uniformity of decision could Seldom or never be expected, and never relied upon; and the federal law, interpreted and applied one way in one state and an other way in another, would cease to be a law for the United States; and the Constitution itself thus administered would lose its uniform force and obligation. Such confusion in the laws which constitute the bond of union for the States must be intolerable while it existed, but could not be of long duration, for a speedy dissolution of the Union must follow." Such are the basic reasons for the existence of this Court; and its powers must not be expanded by ambitious interpretation to make it a rival of the High Courts.

11. An argument is sometimes advanced that the extraordinary jurisdiction of doing "complete justice" in any case in which it may deem fit, has been conferred on this Court; therefore, it may examine facts, receive evidence, may any order and decree, and issue any directions. In other words, the argument is that this is not only an extraordinary Court in respect of its jurisdiction to settle disputes between the three Governments (one Central and two Provincial), to tender advice to the President and interpret the Constitution, but also in respect of its jurisdiction to do "complete justice" even, if necessary by inviting petitions for leave to appeal to itself

?See Sadiq v. The State (P L D 1907 S C 356). If this contention is correct, then it follows that Article 85 (2)(b) should be interpreted liberally so that the largest number of the inhabitants of the country may derive the benefit of complete justice. Another result of this view should be abolition of all distinction between appeals as of right, and applications for leave to appeal. This is why I inquired during the hearing of this appeal as to the nature of the appeals that lie to this Court. If they provide de novo hearings and are intended to make dispensation of complete justice practicable, then the jurisdiction of the Court is vastly different from that of the trial Courts and the provisions which confer the jurisdiction to hear appeals should be interpreted to allow as many appeals as may come to this Court. However, if the Civil and Criminal appeals to this Court are extensions of the trials that were held in the original Courts and the jurisdiction of this Court is to resolve differences of interpretation correct errors of principles and provide guide‑lines for a couple of hundred thousand trials that are held in the country every year, then the interpretation should be restricted, because such guidance can be given better by deciding only a few cases, and setting out in them firm guidelines.

11. The legislative history of this provision shows that before: the Partition of India, there was no criminal appeal as of right to the Privy Council. If the High Court convicted somebody or a trial held in exercise of its original criminal jurisdiction, then an appeal lay under section 411‑A, Cr. P. C. to a Divisional Bench of the High Court itself. This section was in accordance with the principle of British jurisprudence that there should be at least one chance of appeal for every aggrieved person, of questioning a decision that may be given against him, yet there was no appeal at all‑See Ismail A. Munshey v. The Crown (P L D 1956 Kar. 288) and Murray Gow Purdy v. Emperor.( A I R 1947 Bom. 184), if the High Court punished somebody for its own contempt, Civil Appeals could be preferred to the Privy Council as of right if the value of the property involved, was above the prescribed minimum. After the abolition of the jurisdiction of the Privy Council, the jurisdiction of the Federal Court was not enlarged. For the first time in 1956 a provision was made for one appeal as of right on the side of criminal jurisdiction by Article 159 of the new Constitution:- (i) if the High Court certified a case to be a fit one for this purpose (ii) or the High Court itself sentenced somebody in original trial or after acquittal, to death or transportation for life, or (iii) punished somebody for Contempt of Court. Thus the principle that there should be at least one appeal from an adverse decision was rationalised by providing an appeal from punishment by the High Court for its contempt. The right of civil appeals was maintained on the same principles as before‑‑?See Article 156 of the Constitution of 1956. The jurisdiction, to grant leave to appeal to itself not only in matters involving interpretation of the Constitution‑See Article 157 but also "from any judgment, decree, order or sentence of any Court or Tribunal" other than those constituted for Armed Forces, was conferred‑‑(See Article 160) on the Supreme Court. The jurisdiction to entertain Writ Petitions was made concurrent with that of the High Courts‑See Article

22. But the trend changed in 1962. The Constitution of that year eliminated the jurisdiction of the Supreme Court o grant leave to appeal from all Courts and Tribunals other than' the High Court, as well as abolished the jurisdiction to hear civil appeals preferred as of right, and to entertain Writ Petitions, concurrently with the High Courts.

13. Articles 157, 158 and 159 of the Constitution Of 1956 have been consolidated in Article 58 of the Constitution of 1962, and the contents of Article 159 have been expressed laconically in Article 58 (2) (b) & (c5, The trend towards the curtailment of jurisdiction should discourage any inclinations towards enlarging it by interpretation, but apart from that, the reason for conferring jurisdiction of the High Court to hear appals as of right in criminal matters, including punishments by the High Court for its own contempt, should be kept in mind: The reason for making these provisions as explained above, was that there may be at least one appeal when the High Court itself sentenced a person to death or to transportation for life or for its own contempt. No such right was conferred before 1956. It is worth emphasizing that there were up to that year appeals from sentences of death and transportation for life when passed by the High Court, to the High Court itself under section 41 I‑A, Cr. P. C., and no appeal at all if the High Court punished for its own contempt. This lacuna was removed by Article 159 in 1956, and the same situation is maintained in Article 58 (2) (b) & (c) in the 1962‑Constitution. Providing one appeal from punishments given by the High Court itself is in essence the objective of Article 58 (2) (b) & (c). It would, therefore, be erroneous to determine its extent by taking into consideration the increase or decrease of this Court's jurisdiction in other fields.

14. There is nothing in the Constitution of 1962 to indicate that the jurisdiction of this Court has been enlarged, nor is there anything in the language of Article 58 itself to suggest such enlargement in respect of any of the categories of the appeals which are mentioned in it. This was found in Muhammad Rafique v. The State:- "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." Yet it was held that:- "When 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)." The words in italics are important, because they are in contrast with the finding that no appeal lies to this Court as of right, if the sentence of death is altered to that of transportation for life under the appellate power conferred by section 423, Cr. P. C. In other words, the right of appeal to this Court has been held to be dependent on the exercise of the power to reduce the sentence under section 376, Cr. P. C. only. The reason for this view is that this reduction of sentence is made under section 376(a) in exercise of the power to "pass any other sentence" as an alternative to the confirmation of the sentence of death. This alteration in the sentence is described in section 377, Cr. P. C. as a "new sentence". In the words "any other sentence" and "new sentence", a reason was found for concluding that reduction of sentence under section 376, Cr. P. C. was a sentence given by the High Court itself, therefore, there was an appeal as of right against such reduction in terms of Article 58(2)(b) of tile Constitution,. But when the sentence of death was similarly reduced to transportation for life under the appellate powers conferred by section 423, Cr. P. Code, there was no such appeal because the section mentioned altera?tion and reduction of sentence, and not "other" or "new" sentence. As I examine the reasoning which has arisen from the language of the two sections, namely sections 376 and 423, Cr. P. C., I am forced to the conclusion that merely by reason of the difference in the language used in the sections of the Cr. P. Code to describe the same change, the scope of Article 58(2)(b) of the Constitution has been determined as in the language of the Constitution has no meaning of its own. I beg to be executed for suggesting that this is interpreting the Cr. P. C. and not interpreting the Constitution, at all.

15. Mr. M. Saleem argued that the language of Article 58(2)(b) is plain and unambiguous, and that it should be given effect to, even should its plain and natural meaning lead to inconvenient, unexpected or anomalous results. The anomalous result to which he referred was that confirmation under section 376, Cr. P. Code of the sentence of death, originally given by the Sessions Judge, did not amount to sentence by the High Court; therefore, there was no appeal as of right to this Court, but if the sentence of death was reduced to trans?portation for life, it was sentence by the High Court; therefore, there was appal as of right to this Court against it. However, as explained above, this anomaly does not arise from the language of Article 58(2)(b), but from linguistic differences, in respect of the same situation, in sections 376 and 423, Cr. P. C. In so far as the language of Article 58(2)(b) goes, confirmation, reduction and enhancement of sentence are all equally different from the High Court sentencing a person to death or trans?portation for life.

16. Mr. Sharifuddin Pirzada was more consistent than Mr. M. Saleem in that he did not differentiate between reduction, enhancement and confirmation. But his consistency exposed, from the point of view of the plain language of Article 58(2)(b), the weakness' of his contention which was that in all three circumstances it was sentence by the High Court. In none of these circumstances can it be linguistically so, as explained above in paragraph

9. In order to regard reduction of sentence by the High Court as sentence by the High Court itself one has to fall back upon the terminology of section 376, Cr. P. C. bur as soon as one invokes tile concepts of the Criminal Procedure Code, differentiation between confirmation and reduction becomes inevitable owing to the difference in the terminology of sections 376 and 423, Cr. P. C., and the anomaly reappears. We cannot make Article 58(2)(b) dependent on the concepts and terminology of the Criminal Procedure Code.

17. Lastly, I should take note of Mr. Sharifuddin Pirzada's argument that confirmation, enhancement and reduction of a sentence by the High Court, all equally result in the merger of the judgments of a lower Court in those of the higher Court; therefore, confirmed, enhanced or reduced sentences are the judgments of the higher Court. This contention, to my mind, involves a play on the word "merger", which means to sink or disappear in something else. But to merge is not the same as to be dissolved in something, or to melt away or evaporate. For instance, a bond is merged in the judgment that is obtained on it (re : Barrow and Goddes, 1832, 2 Deac. and Ch. 155), which means that the bond has lost its independent force. A decree or order is merged in the order of the higher Court that affirms it, which means that the lower Court which passed it cannot review it Ram Bakhsh v. Mst. Rajeshwari Kunwar (A I R 1948 A11. 213), because it has lost its independent authority. This operation of law is different in nature from conceiving that rejection of an appeal converts the judgment of the lower Court into the judgment of the higher Court. The process which takes place is well explained in 1857 of Vol. 5‑B of Corpus Juris as follows:- "Where only part of a decree is armed, the effect of the affirmance obviously does not extend to the remainder of the decree; and where a judgment is reversed on cross‑appeals, the effect of an affirmance of the original appeal is simply that there was no error to the prejudice of appellant, and that he is not entitled to a reversal." A judgment which is affirmed by the highest Court remains the judgment of the original Court; therefore, such affirmation for example does not make it immune to attack for lack of juris?diction of the original Court‑See Muhammad Aslam Zai v. Yousaf Ali (P L D 1958 S C (Pak.) 104 at p. 117). But observations are found in some authoritative expositions on this subject which create an impression that judgments of the higher Courts extinguish the judgments of the lower Courts. The reason is that the right of appeal being statutory or constitutional, and not in equity, its nature is not uniform. It is determined by the actual legal provisions. Moreover, appeals in the sense of the continuity of the legal proceedings from those of the original Courts were originally unknown in England. There were originally writs of error by which new trials were commenced before the higher Courts, and the judgments of the higher Courts, given in exercise of the jurisdiction of de novo trials, replaced the judgments of the lower Courts. Two paragraphs from section 17 of Vol. 4 of Corpus Juris will explain my point of view:- "The word `appeal' is one of variable meaning. In its original and strictly technical sense, an appeal was a proceeding introduced into equity practice from the civil law by which the whole cause was removed from a lower to an appellate Court, and there tried de novo upon evidence newly introduced, being subjected to a new and final determination as if it had not been tried before, and without any reference to the conclusion of the inferior Court. Today, `appeal' may still be used in a technical or limited sense to designate a particular form or method of review similar to the appeal in equity whereby the whole cause is removed to a superior Court for a trial de novo and complete re‑examination; but it is not always used in statutes with its strict meaning, and it has become a term of general application in the law, which has various meanings in different jurisdictions and circum?stances, and no absolutely fixed and definite meaning. This is largely due to the diversity of statutory provisions relating to appellate procedure and the different senses in which the word `appeal' is used therein, although it has been said that without reference to any particular statutory provision the fundamental idea of the word is that of a review of the proceedings in a trial which has already been had and not a trial of the case de novo."

18. Since in our system of law appeals are a continuation of tile trial commenced before the original Court, it follows that the process goes on within the same framework which was set down by the law for the original Court. Only the process becomes more and more refined. The trial Court handles the crude clay and gives it shape by applying its own knowledge and training. Then the higher Courts hear the criticism, examine the model, remove defects and sometimes add masterly touches. Throughout these processes, the sculpture remains the handiwork of the original craftsman. There is a traditional division of functions among our graded Courts of law. The original Courts deal with all aspects of a case‑legal as well as factual. The First Appellate Court examines the judgments of the original Courts with a recognition of the superiority of trial Courts in respect of their appreciation of the evidence of witnesses‑See Sara Veeraswami v. Talluri Narayya (PLD 1948PC219). Then come revisions and Second Appeals which are limited to the final selection of appropriate principles of law and their application to the facts on record. In order to elucidate my point, I may reproduce below one sentence from 900 of Vol. 5 of American Juris?prudence 2nd Edn.:- "The traditional function of an appellate Court is merely to apply the law to findings of fact made below, and in the absence of statutory authority, the appellate Court is ordinarily without authority to make independent findings of fact, except to the extent to which questions of fact and law may merge in determining whether there was sufficient or any evidence to support a particular finding, or whether the evidence was such, as a matter of law as to require a particular finding."

19. The above are my reasons for respectfully agreeing with those views of my learned brother, to which reference has been made in the firs' paragraph of this judgment. I find from the dissenting judgment written by my Lord the Chief Justice and received by me on the 3rd of this month, that he considers that .‑ "The distinction drawn in Muhammad Rafique's case, between cases dealt with under section 376, Cr. P. C. and those dealt with under section 423 (b) Cr. P. C." Appears "to be highly technical and somewhat anomalous". I respectfully agree with him there. My reasons for taking this view are set out in paragraphs 5 to 8 and 16 above. His Lordship has further observed that he would prefer‑ "to give the words `has sentenced' occurring in Article 58 (2) (b), their natural and ordinary grammatical meaning and read them in a literal sense, as being applicable to any case in which, whether under section 376 or under section 423, Cr. P. C., the High Court has itself imposed a sentence of death or transportation." I cannot agree more with the above observations, and have endeavoured to explain in the foregoing paragraphs generally, and in paragraph 8 particularly, the same point of view, but when I read the practical application of the principle by his Lordship, I find, let me confess, that I am not able to agree to it. He says:- "Such a sense would remove the anomalies by extending the right of appeal even to cases of confirmation of a sentence of death under section 376, Cr. P. C., enhancement of a sentence to death or transportation for life and conviction of an accused person, after acquittal on a charge of murder, under section 304, Part I, and the imposition of a sentence of transportation for life either under section 376, Cr. P. C. or under section 423, Cr. P. C." To my mind, it would be disregarding the differences of the ordinary words of the language to treat reduction, enhancement confirmation and affirmation of sentences by the High Court a; sentences imposed by the High Court itself. The High Court can be said to have itself imposed a sentence only when it does not moderate, stiffen or approve an existing sentence; for instance, when it tries a case and sentences the accused person, or sentences a person who was acquitted or sentences an accused person, on submission of a case of it, under section 307; Cr. P. C. A suggestion has been thrown by the Chief Justice as follows:- "It may well be that because the jurisdiction in civil matters was curtailed, the makers of the Constitution may have thought it fit to enlarge the jurisdiction in criminal matters." It is true that the civil jurisdiction of this Court has been curtailed in 1962‑See the last Part of paragraph 12 above? but the right of appeal, which has been granted to the aggrieved persons by Article 58(2)(6) and (c) is not, in my humble opinion, related to or dependent on the overall dimensions of this Court's jurisdiction‑See paragraph 13 above. Article 58(2)(6) and (ca serve the purpose of supplying one chance of appeal to the aggrieved person when the High Court itself sentences a person to death or transportation for life, or punishes him for its own contempt‑See paragraph 12 above.

20. The final conclusion of the above discussion is that I respectfully agree with my Lord the Chief Justice, that the word's "has sentenced" be understood according to their ordinary and plain meaning, and equally respectfully agree with my learned brother, Abdus Sattar, J. that the words "has sentenced" refer to sentences imposed by the High Court itself; therefore the appellants have no right of appeal, but that this appeal may be treated as a petition for leave to appeal. According to the opinion of the majority this appeal is not maintainable and it is directed that this case be treated as a petition for special leave to appeal from the order of the High Court and that it should now go before a Petition Bench along with Criminal Petitions Nos. 41, 68 and 313 of 1968, for disposal in the ordinary course. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.