P L D 1958 Lahore 271 (PLP)

RAHMAN, J.‑

We announced on the 17th of March 1953, that we regarded this appeal as incompetent and dismissed it as such. We promised to give our reasons for that view later. We proceed to do so now. The relevant facts are as follows:‑ Sultan Mahmood, Fateh Mohammad, Khanu, Mutalli, Haider, Saee, Bahawal and Malkhu were tried by the learned Additional Sessions Judge, Gujranwala at Gujrat, for offences falling within the purview of sections 148 and 302 read with section 149, P. P. C. Along with them Jahan Khan and Manak were tried for abetment of murder under section 302 read with section 109, P. P. C. The first eight accused were alleged to have killed Baqri deceased on the 12th of April 1951, at about evening time, within the area of village Jhand Bosal in the Gujrat District with gunshots. The other two accused, it was suggested, had abetted the murder by means of a conspiracy with the other eight accused, precedent to the commission of the offence. The trial ended in acquittal of all the accused persons. Wali Muhammad, the brother of the deceased Baqri, presented a revision petition in this Court against the order of acquittal on the 19th of May 1952 (Criminal Revision No. 506 of 1952). Before that, however, he seems to have moved the District Magistrate, Gujrat, for getting the acquit tal set aside by an appeal under section 417, Cr. P. C. The revision petition was admitted to a hearing by the learned Chief Justice and the accused persons were given notice to show cause why they should not be retried. Some time after that, the Provincial Government rejected the District Magistrate's recommendation to appeal against the acquittal. The learned Chief Justice sent for the Advocate‑General, Punjab, to ascertain the Government's attitude in the matter. The latter informed the learned Chief Justice that after fully examining the case, Government had decided not to appeal. He made no request for adjournment of the hearing of the revision petition to enable the Government to consider the matter any further. By order dated the 21st of July 1952, the learned Chief Justice came to the conclusion that the judgment of acquittal pronounced by the trial Judge was open to exception to his reasoning in several respects was faulty, but decided not to order a retrial because, in the circumstances of this case, such a retrial would not have been fair to the accused. The revision petition, therefore, was dismissed. On the 1st of August 1952, Mr. C. M. Sharif, Public Prosecutor, Punjab, put in Criminal Appeal No. 525 of 1952 in this Court, challenging the acquittal of the accused persons in the case. The grounds of appeal taken were that during the hearing of the private revision petition against the acquittal the Honourable Chief Justice had expressed the view that the acquittal was improper and that the limitation for an appeal against the acquittal had not yet expired. On behalf of the accused respondents, Mr. Manzoor Qadir raised a preliminary objection that the appeal was not competent. He contended that section 369, Cr. P. C., would operate as a bar against the entertainment of the appeal as its hearing would involve a review of the order passed in the revision petition. He invited our attention in this connection to Rule 1‑A of part (b) of Chapter 1‑A of High Court Rules and Orders Volume V, which reads as follows: "With reference to section 439 (5), Criminal Procedure Code, the Deputy Registrar will not receive any petition for revision of an order of acquittal unless it is accompanied by a copy of an order of the Magistrate of the district, refusing to move the Provincial Government to appeal under section 417, Criminal Procedure Code." He points out that under this Rule, revisional jurisdiction will not be allowed to be invoked, unless the appellate jurisdiction is first excluded. Having definitely adopted the position that the acquittal did not require to be set aside in appeal, the Crown, it is argued, should not be permitted to shift its position and to withdraw from its representation which led to the exercise of the revisional jurisdiction by this Court. The right accruing to the Crown to appeal under section 417, Cr. P. C. was, according to the learned counsel, exhausted by the option having been exercised once in favour of refusal to appeal. Mr. Manzoor Qadir even suggested that there may have been no valid order passed by the Provincial Government authorizing the appeal as we have in this case merely the certificate of the Public Prosecutor, Punjab, to the effect that the appeal was being filed under the orders of the Government. The last objection was not pressed when it was pointed out that the certificate given by the Public Prosecutor was in accordance with past practice, and that unless a definite allegation was made that the appeal was not authorized by competent authority, the ordinary presumption in favour of regularity of official acts would be raised and it would be assumed in the absence of evidence to the contrary that the appeal had been sanctioned by proper authority. The question whether orders passed in revisional jurisdiction are within the ambit of section 369, Cr. P. C., has been the subject of decision in several reported cases cited before us but the current authority is not uniform on the point. In Banwari Lal v. Emperor (A I R 1935 All. 466 (D B)). Nandlal Chunilal v. Emperor (A I R 1946 Bom. 276 (F.B)) and Nga Than v. Emperor (13 Cr. L J 301 S B), the view was expressed that when once a case has been decided on the revision side, the order passed cannot be reviewed or altered, in revisional jurisdiction, because of the provisions of section 369, Cr. P. C. A Special Bench of three Judges of this Court in Emperor v. Ata Muhammad (A I R 1945 Lah. 130) held that when a convicted person is called upon to show cause why his sentence should not be enhanced, he is entitled to challenge his conviction on the merits, notwithstanding the fact that his petition for revision of the order by which he was convicted, has already been dismissed in limine under section 435, Cr. P. C. It was laid down that an order passed under section 439 (6) acquitting the accused cannot be regarded as a review of a decision under section 435 and that in any case, the power given by section 46 (6) is saved by the opening words of section 369 "Save as otherwise provided by the Code." A similar conclusion was reached by a Division Bench of this Court (though on somewhat different reasoning) in Crown v. Ghulam Muhammad (P L D 1950 Lah. 479). The Madras High Court in Re. Sayyed Anif Sahib (A I R 1925 Mad. 993 (D. B.)) appears to have gone even further to hold that except for the limitation imposed by subsection (4) to section 435, the discretion of the Court to pass suitable orders in revision is unfettered though practice of the Court might curtail the privilege of redress sought by repeated petitions in revision the contrary view was taken in Emperor v. Jorabhai (A I R 1926 Bom. 555) and Emperor v. Batubai Ganeshu (A I R 1927 Bom. 666 (D. B.)). It is conceded, however, that none of these cases is directly in point in the present case. In a different category fall two cases cited before us from the Nagpur Judicial Commissioner's Court reported as Emperor v. Modkia (A I R 1932 Nag. 73 (D. B)) and Muhammadi Gul v. Emperor (A I R 1932 Nag. 121 (F. B.)) in which conflicting views were expressed on the question whether an appeal under section 417, Cr. P. C. can be preferred, after an appeal presented by the accused against his conviction of a lesser offence than that he was charged with, has been heard and decided by the High Court. They are of no assistance for the decision of the question under consideration. There is a decision of the Calcutta High Court given under the old Cr. P. C. In Re: Chundu Nath Deb (5 Cal L. R. 372 (D. B.)), in which it was ruled that a right to appeal was a privilege given by the law and that the party concerned was at liberty to insist upon or abstain from the exercise of that right. The actual point decided in the case was that an appeal can be withdrawn by the party concerned before it is admitted by the Court. The case was referred to in Emperor v. Ghulam Muhammad (A I R 1942 Lah. 296), in which a Full Bench of this Court refused to permit the Crown to withdraw an appeal preferred under section 417, Cr. P. C., after it had been admitted to a hearing. No question of the withdrawal of a pending appeal arises in the present case and these decisions cannot be pressed into service for the extraction of a principle of universal application. It does not seem to be necessary to resolve ire judicial conflict revealed by the above authorities for the purpose of this case as none of the cases noticed is on all fours with the present one. The distinguishing feature of this case is that a notice was issued to the Crown in the previous revision proceedings and the Crown after mature consideration adopted the definite and unequivocal stand that no appeal against the acquittal was called for. The special circumstances of this case therefore indicate the necessity of a somewhat different approach. I would rest my judgment in the present case on the broad and general principle embodied in tile well‑known maxim, aliegans contraria non est audiendus‑--he is not to be heard who alleges things contradictory to each other. In the words of Lord Kenyon, a person cannot be permitted to blow "hot and cold" with refer ence to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations, according to the pro mpting, of his interest. This is a fundamental principle of law which has in great measure led to the development of the doctrine of estoppel at any rate, by deed and in pais. I do not mean to suggest that in the present case, the bar of estoppel can be raised, in the strict sense, against the Crown. There can indeed be no estoppel against a statutory provision, such as that embodied in section 417, Cr. P. C. I he principle, however, which underlies the maxim is of general application. It is also exemplified in the English doctrine of election which is known in Scotland as "approbate and reprobate". In the present case, the Crown gave out in words of no uncertain import in the course of the private revision peti tion that they did not regard this as a fit case for an appeal against the acquittal. It was after this assurance, given through the Advocate‑General of the Punjab, that the learned Chief Justice proceeded with the hearing of the revision petition in accordance with the practice of this Court. These circumstances invest the order already passed in revision, with finality in this case. The decision of the Crown as communicated to the Court must be regarded as irrevocable. The Crown cannot now be permitted to turn round and urge that their previous position was ill -advised. Supposing for the sake of argument, the learned Chief Justice had ordered a retrial of the accused‑would it have been open to the Crown to come within the limitation prescribed under section 417, Cr. P. C. to the Court, and claim that in view of their statutory right, the order of retrial should be set aside and the accused convicted, as they had changed their mind '' The answer, I think, should clearly be in the negative. The fact that the order was different in the revision petition, would provide no warrant for a different conclusion in the circumstances of the present case. After all, section 417, Cr. P. C. lays no inescapable obligation on the Crown to appeal against an acquittal in every case. It confers a power to be exercised at discretion though of course that power ought not to be governed by mere caprice but by the interests of collective security of society represented by the State. I am disposed to agree with the learned counsel for the respondents that when the Crown elected not to appeal, the power to appeal was exhausted and cannot be revived by the mere fact that the advisers of the Provincial Government have changed their opinion. The practice of the Court is the law of the Court‑ cursus curiae est lex curiae. In accordance with that practice, the revision petition was entertained only after a clear elucidation of the position and but for the attitude adopted by the. Crown the revision petition would not have been entertained. It would be an abuse of the process of the Court to humour the changeful moods of the prosecution in these circumstances. I am, therefore, firmly of the view that the appeal under consideration is not competent in law and must be thrown :gut on that ground alone. The position would have been vastly different if the Crown had not committed itself to a final opinion in the course of the revision proceedings. I would, therefore, hold that we were justified in dismissing the appeal and declining to go into the merits of the case. SHABIR AHMAD, J.‑--I agree, but will add just a few remarks of my own. If it were a case of the Provincial Government undertaking to appeal before the period of limitation prescribed by the Limitation Act and appealing within the period allowed by that Act but beyond the period mentioned in their undertaking the argument addressed by Ch. Nazir Ahmad Khan that there could be no estoppel against a statute would have had force. But the present case is of an entirely different nature. The Limitation Act prescribes six months as the maximum period for an appeal by the Provincial Government against an order of acquittal but does not enjoin that Government cannot appeal, before the last day of limitation. If, therefore, long before the last day of limitation the Provincial Government informs the Court that it has considered the order of acquittal and does not want to appeal against it, I do not see on what reasonable ground the Provincial Government can subsequently say that it has changed its mind and wants to appeal. In the present case when the Advocate‑General was asked during the hearing of the revision petition if the Provincial Government intended to appeal against the order of acquittal, he replied that it did not so intend. I have no doubt in my mind that the learned Chief Justice asked the learned Advocate‑General that question so that if an appeal was to be presented the revision petition should, according to the practice of this Court which safeguards against two conflicting orders being passed in a case, ire ordered to be beard with the appeal. Having through the Advocate‑General taken the stand that it did not intend to ques tion the order of acquittal, the Provincial Government cannot now claim its statutory right to present an appeal against that order. If the Provincial Government were to be allowed to change its mind in matters to be dealt with by Courts, the results will generally be startling. A. H. Appeal dismissed.