P L D 1965 Supreme Court 179 (PLP)

CORNELIUS, C. J.‑There are eight appellants in this case and it is common ground that they are all important members of the Hwirly Paid Employees Association pertaining to the industrial establishment of Lever Brothers (Pakistan) Ltd., at Rahimyar Khan. It is also agreed that the principal appellant Riaz Haider Zaidi is the President of this Association. The case arises indirectly out of labour disputes between the said Association and the employers which are of some duration and have led to criminal cases earlier. The incident on which the criminal charges in the present case were based took place on the 21st March 1957, when it is said that the eight appellants with some 30 or 40 others, attempted to break up a dramatic performance arranged by the Sports Club of the factory. It seems that there was some resistance to their entry into the enclosure and the crowd then entered by force and raised slogans and demanded that the drama should be stopped. Certain officers intervened, and the crowd then left the enclosure, but stayed outside shouting slogans and then started throwing stones. As a result, a few persons were slightly injured and some damage was done to a microphone and musical records which were in use at the performance. Originally, 14 persons were complained against of whom 9 were discharged, and there was then a petition moved before the Sessions Judge who directed the trial of all the 14 under sections 323, 427 read with section 149, P. P. C. The result was the acquittal of six and conviction of the present eight appellants. There was an appeal before the Sessions Judge, which was accepted without examination of the facts, on the following ground, viz.:‑ "The learned Public Prosecutor has made a statement before me that he concedes the point raised on behalf of the accused and cannot support the judgment of the lower Court." The Sessions Judge forthwith accepted the appeal and acquitted all the accused persons. It is not known whether the Provincial Government was moved to file an appeal against the acquittal, under section 417, Cr. P. C. The matter being of some importance to the employers, namely, Lever Brothers, (Pakistan) Ltd., on the labour side, they moved a revision before the High Court, which was heard by two Judges, viz., Shabir Ahmad, A. C. J. and S. A. Mahmud, J., and on the 14th September 1961, the petition was accepted and an order was made remanding the case to the Sessions Judge, Rahimyar Khan, to re‑hear the appeal. It was pressed before the Division Bench that the case was not of a serious nature, but the learned Judges thought that harmful results would ensue if "the case were to be allowed to rest where it is" on that ground. They went on to observe that if the acquittal were allowed to stand, "Lever Brothers will have to treat seven of them in service for the last four and a half years, and to pay them their usual remuneration." As to this, it may be said that it is accepted before us that the question of remuneration, etc., is one which is separately justiciable under the laws governing labour relations, and is not necessarily concluded by the order of acquittal. Immediately after accepting the petition and making the above order, a further order was made by Mr. Justice Shabir Ahmad as Acting Chief Justice, from which the following is extracted:‑ "The appeal of Syed Riaz Haider Zaidi and others which has today been remanded to the Sessions Judge‑is transferred to this Court. The records of the case are here and shall not be sent back. The appeal will be registered in this Court and heard by S. A. Mahmud, J., on 2nd October 1961, a date which suits S. M. Iqbal, Advocate and Mr. A. S. Kirmani, Advocate." These were the Advocates who had represented Messrs Lever Brothers (Pakistan) Ltd., and the present appellants respectively before the Division Bench. The mention of their names suggests a more or less direct connection in time between the hearing of the revision petition and the making of this order. As a result of this order, the appeal having been withdrawn into the High Court was heard by S. A. Mahmud, J., who on the 10th November 1961, made an order dismissing the appeal. There was also a petition for enhancement of the sentence which was dismissed at the same time on the ground that the incident was now more than four years in the past. It is against this order that special leave to appeal was given to the convicted persons by this Court. The order granting leave formulated the following grounds‑.‑ "(1) as to whether an order of transfer could, under section 526 of the Criminal Procedure Code, be made by the Chief Justice in his administrative capacity? (2) Whether by adopting such a procedure the express bar created by subsection (4) of section 439 could be got over, particularly, since by the adoption thereof the petitioners had A been deprived of a right of revision to the High Court from the appellate order of the Sessions Judge? (3) Whether the High Court was competent to make the said order under section 423 of the Criminal Procedure Code in the absence of any appeal under section 417 of the said Code?" We have heard Mr. Mahmud Ali for the appellants, while the case for Lever Brothers (Pakistan) Ltd., was presented by Mr. Tufail Ali A. Rahman, and the State was represented by Mr. M. A. Zullah. The order granting leave to appeal also gave permission "to re‑examine the evidence on the record to see if the chances of false implication have been adequately excluded". This question 8 was not fully examined in the course of the arguments, as the central contention turned upon the competency of the appeal before the learned Single Judge. The main effort of Mr. Mahmud Ali has been to show that by the procedure adopted in the High Court there has been violation of a statutory provisions which has been authoritatively interpreted and pronounced upon by the Federal Court of Pakistan in the case of Shera (PLD1954FC141=(1954) FCR76). Section 439, Cr. P. C., while enumerating the powers which the High Court may exercise in revision expressly provides that the High Court may not convert an acquittal into a conviction. In the case of Shera, the proceeding before the High Court was an appeal from a judgment of a Sessions Judge, who had acquitted a number of the accused persons of the charge under section 302/149, P P. C., but had convicted them only under section 148, P. P. C. In the High Court, notice was issued to these convicts to show cause why they should not be convicted under section 302/149, P. P. C., and the sentence enhanced. The result of the case was that the High Court purporting to act in its appellate powers as provided by section 423, Cr. P. C., altered the finding in relation to these persons to one of guilty under section 302/149, P. P. C., and again purporting to act under a power provided by section 439, Cr. P. C., to enhance a sentence, imposed upon them a sentence of transportation for life. This had been done following a practice of some duration in the Lahore High Court, and accordingly the law on the subject including a number of decisions by the Privy Council as well as by other High Courts in India was examined at considerable length. By a majority judgment of three Judges against one, it was held that the view of its powers upon which the High Court had acted was incorrect. As the judgment of Abdul Rashid, C. J., shows, the conclusion was that findings of acquittal are dealt with only under clause (a) of subsection (1) of section 423, Cr. P. C., and these are not to be confused with the findings in appeals against conviction which are dealt with in clause (b) of the same subsection. The following passage from the judgment of the learned Chief Justice may be reproduced with advantage:‑ "Sections 417 and 423 (1) (a) prescribe the method of securing a reversal of an order of acquittal. Such a reversal cannot be allowed to be secured by resorting to the provisions of section 423 (1) (b) read with section 439 of the Code. Section 439 of the Criminal Procedure Code authorises the High Court to enhance a sentence. This is, however, subject to the qualification that the High Court cannot convert a finding of acquittal into one of conviction. It appears to me to be illegal to alter the finding in exercise of the powers under section 423 of the Code and disregard the qualifications attached to the words `alter the findings' and then to resort to subsection (4) of section 439 to enhance a sentence in such a manner as to convict a person of an offence of which he has been acquitted. Such a procedure is in complete violation of the provisions of sections 417 and 423 (1) (a) of the Code. The provisions of sections 423 and 439 of the Code cannot be availed of in such a manner as to reverse the finding of acquittal under the cloak of merely altering it." In the judgment of the learned Chief Justice and the two supporting judgments reliance has been placed on the case of Kishan Singh (55 I A 390) where in the Allahabad High Court Kishan Singh's conviction by the trial Court under section 304, P. P. C., On the charge under section 302 P.P.C. being brought up on a revision petition the High Court had altered the conviction to section

302. The Privy Council held that there had been in fact an acquittal on the charge of murder punishable under section 302, P. P. C., and the local Government could have appealed to the High Court against that acquittal in pursuance of the provisions of section 417 of the Code of Criminal Procedure" and further observed that such an acquittal could not be converted into a conviction on a revision petition in view of tire provisions of subsection (4) of section 439, Cr. P. C., which debarred ~t High Court from altering an acquittal into a conviction. The majority judgments in the case of Shera are clearly to be interpreted in the sense that the only means available for obtaining reversal of an acquittal is by appeal to the High Court under section 417, Cr. P. C. In the present case, since by the exercise of tile power of ordering a retrial, under section 439, Cr. P. C., coupled with exercise of the power under section 526, Cr. P. C., to N>v ithdra4~ an appeal from an inferior Court and to decide it in the High Court itself, a certain result has been achieved, namely, that the acquittal has been eventually replaced by a conviction, Mr. Mahmud Ali submitted that there had been a perverse use of the powers conferred by the Criminal Procedure Code. He urged that the special jurisdiction of this Court was attracted on the basis that it was necessary to avoid an "evil precedent" and reference was made to the case of George Staunton Clifford (40 I A 241) in this connection. Mr. Mahmud Ali stressed that no grounds have been given for the order of transfer, and pointed out that section 526, Cr. P. C., was furnished with an enumeration of the grounds upon which a High Court may order transfer of a case from one Court to another. He also raised what was in effect a plea of disqualification qua the hearing of the appeal by S. A. Muhmud, J. Although the judgment of the learned Judge under appeal states that at the hearing of the revision petition "we were not referred to and did not go into the merits of the case and did not form or express an opinion on the merits while setting aside the acquittal," yet there was a document on the record, namely, an earlier order of the 4th April 1961, by S. A. Mahmud and A. R. Khan, JJ., saying with respect to the appeal of Riaz Haider and others that it should go before Shabir Ahmad and S. A. Mahmud, JJ., who had previously heard a connected case. Enquiry was made as to what this connected case might be, but the reply finally given by Mr. Mahmud Ali was that the record was probably in Bahawalpur from which area this case also comes. No information could be given of the nature of the connection between the two cases. The reply of Mr. Tufail Ali A. Rahman was on the following lines. Upon the making of the order of remand for a re‑hearing, the appeal fell within the seisin of the Sessions Court and the order of transfer to the High Court must be treated as separate from and consequential upon the remand order. Although no reason had been given in the order of transfer why the case was being withdrawn from the Sessions Judge of Rahimyar Khan, it was evident having regard to the state of relation between Lever Brothers (Pakistan) Ltd., and the employees association of which the eight appellants were important members, and bearing in mind the consequence upon the public consciousness of the outright concession made by the Public Prosecutor, and its immediate acceptance by the Sessions Judge, leading to the necessary atmosphere for a calm and unprejudiced hearing of the appeal was not to be found in Rahimyar Khan. Mr. Tufail Ali dealt briefly also with a subsidiary argument, namely, that the order of the Acting Chief Justice as a Single Judge was in contravention of the direction of the Division Bench that the case should go back to the Sessions Judge for a rehearing. It was said that there would have been no difficulty in the way of the Division Bench itself making the order of transfer, since it was directed by that order that the appeal should be heard within the High Court by one of the members of that Bench, namely, S. A. Mahmud, J. The order of transfer was made in the presence of counsel for both parties, who, by accepting a date, must be taken to have given their consent to the withdrawal of the appeal into the High Court. The accused persons had not been placed at any particular disadvantage for .it was equally possible that upon a proper hearing of the appeal before the same or another Sessions Judge, the convictions may have been maintained, as they were in the High Court. There was no case of double jeopardy. The argument had also been raised that the parties were entitled to the exercise of all proper jurisdictions as provided by the Criminal Procedure Code, and here by the action of the High Court, they had been deprived of a hearing before the Sessions Judge following which, had they been convicted, they would have been able to move a revision before the High Court. Mr. Tufail Ali's reply was that, in a case involving minor crimes only, such a shortening of procedural steps could not be characterized as denial of justice, the more so as the Criminal Procedure Code clearly envisaged such a consequence, when it empowered a High Court to withdraw an appeal from a subordinate Court for disposal by the High Court itself. In the last resort he urged that should the Court find that there had been perversion of the powers in the procedure adopted by the High Court the case should be remanded for hearing by a Sessions Court. Mr. M. A. Zullah appearing for the State adopted the argument advanced by Mr. Tufail Ali. The question raised in this case is clearly not free from complexity. It is not a case of an acquittal having been directly converted into a conviction by the High Court, as was the situation in the case of Shera referred to above. But, on appearances alone, the strength of the suggestion cannot be denied that what could not be achieved in one step has, in this case, been achieved in three steps, viz. reversal of the acquittal, withdrawal c of the appeal into the High Court without reasons shown, and the dismissal of that appeal. The suggestion was re‑inforced by the statement that on the 2nd October 1961, the date fixed for the hearing of the appeal by the Acting Chief Justice, there were man other Judges available to hear the transferred appeal besides the nominated Judge, Mr. Justice S. A. Mahmud, who had heard a connected case, and was a party to the reversal of the acquittal. But on mature consideration of the facts and circumstances, have come to the conclusion that the appearances may well carry the judgment too far in this case. Certain circumstances stand out very clearly. One is that the acquittal by the Sessions Judge could not be allowed to stand, being plainly without foundation in law. Another is that sending the case back to Rahimyar Khan was, in all probability, inadvisable, in view of the atmosphere there being affected by the attitude taken by the Public Prosecutor] which may well have had the support of the executive authorities. A third is that to transfer the appeal to another Sessions Division would have involved the parties in as much expense, as disposal of the appeal in the High Court, and such disposal could be (and was) arranged to be made very promptly in the High Court,1 whereas the procedural steps and other delays involved in sending the case to another Sessions Division may have taken a great deal of time. The fourth reason is that counsel were prepared to argue the appeal on the merits in the High Court within three weeks of the making of the order. The case being comparatively trivial, the resultant omission of the usual appeal before a Sessions Court was not likely to interfere with the due dispensation of justice. Finally, as the merits of the case had not been presented before the Division Bench, Mr. Justice S. A. Mahmud was in no way disqualified from hearing the appeal The reference to a "connected case" can be allowed no weight, in relation to this matter. The learned Single Judge heard the appeal on the merits at length, and delivered a lengthy judgment in which the evidence was treated with thoroughness, thus establishing that) there was no denial of opportunity to the counsel to place the cases for their clients before him in full. So presented, there would appear to be no cause for complaint of misuse of procedural powers, or denial of due process, or that justice was not done on adequate examination of the merits of the case. But when that has been said, the comment cannot he withheld that greater regard may well have been paid to a basic requirement of justice, namely, that justice should not only be done, but should also be seen to be done. That essential requirement would have been fulfilled, if (a) reasons had been stated why it was appropriate in the circumstances that the appeal before the Sessions Judge should be withdrawn into the High Court, or better still, if the learned Acting Chief Justice had made the order at the request of counsel, who were clearly consenting parties to the appeal being heard promptly, and in the High Court, and (b) the appeal had not been, in advance, fixed to be heard before a Judge who had been a party to the earlier proceedings, but had been allowed to go on the list of the Judges hearing such appeals. There is no basis for the fear, expressed by Mr. Mahmud Ali, that if the steps employed in this case were to become a regular practice, the degree of finality attaching to acquittals, under the rule against double jeopardy, would be reduced to nothing. For interference with acquittals in revision is not permissible at large but only on limited grounds, e.g., that the executive authorities have refused to move an appeal, and the case presents strong features, requiring that the High Court should ensure its re‑examination, on correct lines, by exercise of its powers in this behalf. Here, there was a clear case for requiring that the order of acquittal should be set aside, so that there should be a proper hearing of the appeal, as required by law. And it is fairly clear that the executive authorities were not interested in appealing against the acquittal by the Sessions Judge: I find that there is no legal ground for interference by this Court with the proceedings in the High Court.. On the facts, there are concurrent findings by the trial Court and the learned Single Judge in appeal. Mr. Mahmud Ali took us briefly through the evidence in the case. He was unable to show that there were any grounds appearing to justify interference by this Court with those findings, within the limited jurisdiction which it exercises in criminal cases. As I have said already, the judgment of the learned Single Judge examines the evidence with thoroughness, and his findings are based upon due consideration thereof. No case has been made out for a fresh examination of the evidence by this Court. It remains to consider the question of punishment, which this Court ordinarily does not enter into. This is, however, a case presenting several unusual features which are relevant to the question. The incident out of which the case arose may have some importance from the angle of labour management, but the criminal law is not intended to be used in aid of either party to a labour dispute. There is. other provision by law for the resolution of such disputes. Regarded as a violation of law, inviting penal sanctions, the offences held proved were, in fact, of little importance. 'They were committed more than seven years ago. The accused persons have undergone no less than four separate proceedings before the Courts, which in itself is a heavy burden to have carried, in consequence of a fairly minor incident. Bearing these matters in mind, I consider that nothing is to be gained by requiring them to complete the short periods of imprisonment to which they were sentenced by the trial Court, and which were upheld in appeal by the High Court nearly three years ago. It would therefore direct that the convictions of the appellants being maintained, their sentences should be reduced to such period of imprisonment, however small, as they have undergone already, and would dispose of this appeal accordingly. S. A. RAHMAN, J.‑I agree. FAZLE‑AKBAR, J.‑I agree B. Z. KAIKAUS, J.‑I agree. HAMOODUR RAHMAN, J.‑The manner in which the learned Acting Chief Justice of the High Court of West Pakistan transferred this case to the High Court and assigned it for disposal to one of the learned Judges who had sat with him to hear a revision petition to agree with the order proposed by my Lord the Chief Justice in this case, because, to send back the case for re‑hearing after seven years would indeed result in greater hardship to the accused persons.. The power of transfer granted by section 526 of the Code of Criminal Procedure is a judicial power which has to be exercised in a judicial manner upon valid and sufficient reasons and by observing the established forms of judicial procedure. It is of the utmost importance that Superior Courts should not act in any manner which might have the effect of undermining the confidence of persons seeking remedy in such Courts, far less should they act in a manner which might give rise to the suggestion that they are attempting to do indirectly what they could not do directly. I do not wish, however, to say anything further, for, I find that my Lord the Chief Justice has also incorporated in the judgment proposed to be delivered by him necessary words of caution against the repetition of such a procedure and recorded his disapproval of the procedure adopted by the learned Acting Chief Justice in the present case. A. H. Order accordingly.