P L D 1954 Federal Court 123 (PLP)

AKRAM, J.--‑This appeal with our leave is from a judgment of the High Court of Judicature at Lahore. Appellant Imran Ullah (also known by several other names) and four others were put upon their trial before the Additional Sessions Judge of Lyallpur, for the murder of two persons, Muhammad Umar Charsi and Tajwar Khan, and for causing injuries to certain other persons at about 8‑30 p.m. on the 6th of June, 1950. The case for the prosecution was that on the night of occurrence, Imran Ullah with several companions came to the house of P. W. 17, Mst. Tajbaro, a woman of ill‑fame, with the object of carrying her away by force ; that on her raising an alarm a number of people were attracted to her house and on their seeking to rescue her were attacked by the appellant and his companions with knives with the result that two men were killed while several others were seriously injured, as stated above. The case fur the defence was that the accused were falsely implicated on account of ill‑will and enmity. The learned Sessions judge convicted Imran Ullah and sentenced him to death under section 302 P. P. C., for the two murders and to three years' rigorous imprisonment under section 326 P. P. C., for causing hurt to P. W. 18, Sher Bahadur ; of the remaining four accused, he convicted and sentenced two of them to rigorous imprisonment for three years under section 326/149.P. P: C., and acquitted the' other two, namely, Badshah Khan Tambaknowala and Siraj, on giving them the benefit of doubt. The three convicted persons preferred appeals to the High Court of Judicature at Lahore, but their appeals were dismissed and the sentence of death passed upon Imran Ullah was confirmed. Imran Ullah thereupon obtained our leave to prefer the present appeal on the ground that at the hearing of the appeal in the High Court, his counsel Syed Mohsin Shah was not given a fair and full hearing with the consequence that he was not able to present his case before the Court properly and adequately. Counsel for the appellant stated to us that while the evidence of some of the witnesses still remained to be read and comments and arguments to be made, the Court passed the order dismissing the appeal. This statement of the appellants counsel has not been seriously challenged or controverted before us by the respondent. Section 423 of the Cr. P. C. is imperative in its terms and, provides amongst other matters that "after perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears‑the Court may if it considers that there is no sufficient ground for interference dismiss the appeal "

". In the circumstances of the present case I do not think it can be reasonably said that section 423 Cr. P. C. had been sufficiently complied with. The statutory right of appeal confers a right of re‑hearing of the whole dispute unless expressly restricted in scope and the appellate Court is not confined to the reasons which have been given by the Court below as the ground of its decision. The appeal Court has to consider the controversy entirely afresh, both as regards facts and as regards law, and can substitute its own opinion in place of the decision taken by the lower Court. The right of a counsel to being heard adequately, in a trial or in an appeal given by statute, is an indefeasible right which cannot be transgressed by Courts of justice. It is one of the universal rules of natural justice the breach of which renders a judgment inoperative, irrespective of there being or not being a miscarriage of justice. It has been said and perhaps too often that it is necessary "that justice should not only be done but should manifestly and undoubtedly be seem to be done". In Wood v. Wood ((1874) L R 9 Ex. 190.) Kelly C. B. observed :‑ "But they (committee of an Insurance Society) are bound in the exercise of their functions by the rule expressed in the maxim audi alteram pariem, that no man shall be condemned to consequences resulting from alleged misconduct unheard and without haring the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals". In Dal Singh v. The King‑Emperor (26 C L J 13 at p.23.), it was remarked by Viscount Haldane :‑ "Now it is true that error in procedure may be of a character no grave as to warrant the interference of the Sovereign. Such error may, for example, deprive a man of a constitutional or statutory right to be tried by a jury, or by some particular tribunal. Or it may have been carried to such an extent as to cause the outcome of the proceedings to be contrary to fundamental principles which justice requires to be observed. Even if their Lordships thought the accused guilty, they would not hesitate to recommend the exercise of the prerogative, were such the case". The following quotation is from "Constitutional Law" by Wade and Phillip, 3rd Edition, p. 276 :‑ " An equally elementary principle of justice is that no party ought to have his case decided without being afforded an opportunity of hearing the case which he is to meet as well as stating his own case. Even God himself did not pass sentence upon Adam before he was called upon to make his defence'. 'Adam' says God, 'Where art thou ' ? Hast thou not eaten of the tree thou shouldst not eat" ? In Cooper v. Wandsworth Board of Works (1863, 14 C. B. (N. S.) 180 ; K. L. 194,), the Court quashed a demolition order justifiable in itself which was made by the Board (adminis trative Board) without giving notice to the owner of the property or affording him an opportunity of being heard". Such being the legal position I was minded to remit the case to the High Court for a rehearing of the appeal, but as counsel has taken us through the entire evidence and we have carefully listened to the elaborate arguments on the merits by either side, it would now be to no purpose to adopt that course. Counsel for the appellant urged inter alia that in the F. I. R. no specific act was attributed to the appellant ; that the evidence of P. W. 21 given before the Committing Magistrate should not have been transferred to the sessions record on the bare statement of P. W. 20, footconstable, that he could not trace the where abouts of P. W. 21 ; that C. W. 1, Tehmas Khan and C. W. 2, Muhammad Bashir, having been given up by the Public Prosecutor should not have been examined as Court witnesses at the trial ; that the identification of the appellant by P W. 19, in Karachi jail having taken place nearly six months after the occurrence before a Magistrate not authorised to investigate, the report Exh. C.W. 3/A could not be used for corroboration under section 157 of the Evidence Act ; that as the appellant and the acquitted accused Siraj had each given a knife injury to. Muhammad Umar Charsi (deceased) and according to' the doctor's opinion the injury No. 1, could be fatal, the conviction of the appellant under section 302 P. P. C., could not be sustained in the absence of any evidence to show that the injury No 1 was inflicted by him ; that P. W. 17 and P. W. 18 not having stated that they had seen the appellant stabbing Tajwar deceased, the High Court had misread and mis‑apprehended the evidence in making the following observation in the judgment :‑ "The evidence of P. W. 15, P. W. 16, P. W. 17, P. W. 18 and P. W. 19, who are all residents of the chakla at Lyallpur, shows that the three appellants along with some others had, on the morning of the 6th June, 1950, made an abortive attempt to carry away Mst. Tajbaro (P. W. 17) but had run away when people came to her rescue. About the evening incident which resulted fatally the above witnesses are unanimous in saying that Imran Ullah appellant besides causing an injury to Sher Bahadur (P. W. 18) stabbed both the deceased with the knife that he carried, and that the other two appellant caused injuries to some of the injured prosecution witnesses. Imran Ullah appellant caused fatal injuries to two persons who attempted to prevent him and his companions from carrying out their nefarious design

‑‑" ; that the night was dark, the witnesses were terror‑stricken and their evidence, so far as at least some of the accused were concerned, was found to be unreliable ; that in the circumstances the Court should have held that the charge against the appellant had not been satisfactorily established. On the other hand, the Advocate‑General of the Punjab, appearing for the Crown, pointed out to us that the appellant's name finds mention in the F. I. R. as Badshah and although no specific injuries have been attributed to him and it is stated in general terms‑‑ " Then they (accused) injured Sher Bahadur, Tajbaro and Charsl Muhammad Umar with knives. Tehmas alias Chaka Choor also turned up and tried to disengage, but they gave knife blows to him on his flank and belly. Tajwar fell down on the ground‑‑

" ; that Court witnesses Nos. 1 and 2 were examined at the instance of the co‑accused Badshah Khan and Siraj respectively ; that even if Exh. C. W. 3/A was to be kept out of view there is ample evidence to establish that the appellant was the person who gave the solitary fatal injury to Tajwar and one of the two stab wounds to Umar Charsi ; that the objection of long delay raised by the appellant with reference to section 157 Evidence Act was made possible by the conduct of the appellant himself in abscond ing and eluding arrest for nearly six months ; that the dimension of injury No. 1 on Muhammad Umar Charsi‑-- "an incised wound 1" x " transverse penetrating into the chest" and the fatal injury on Tajwari "an incised wound 1" x " transverse penetrating into the chest" clearly indicates that the weapon used was one and the same in both the cases, so that the hand which had inflicted the injury on Tajwar was also the hand which stabbed Umar Charsi causing the injury No. 1 ; that the evidence against the appellant regarding the fatal injury to Tajwar was overwhelming and nothing could be legitimately urged in favour of the appellant in that respect ; that even assuming that the conviction of the appellant for the murder of Muhammad Umar Charsi under section 302 could not be sustained and the appellant was liable under some other section of the Penal Code, no real benefit could come to him by altering his conviction and sentence in connection with the death of Muhammad Umar Charsi, if his conviction and sentence for the murder of Tajwar was to be maintained ; that the witnesses had given a candid and consistent story and there is no reason to doubt their testimony. Without discussing the evidence in its minute details and dealing only with the salient aspects of the case, it appears to me that the objections raised by the appellant's counsel are neither sound nor substantial. There is nothing which can be reasonably urged against the conviction and the sentence of the appellant for the murder of Tai war deceased. In this respect the evidence is ample and overwhelming‑sea P. Ws. 1.5, 16 and 19. and C. Ws. 1 and 2, no real benefit, therefore, can be conferred upon the appellant even if his conviction and sentence for the murder of Muhammad Umar Charsi were to be altered for an offence under section 307 or section 326 of the Penal Code. As pointed out by the Advocate‑General, it seems to be very likely that the injury` No. 1, on Muhammad Umar Charsi was inflicted by the same hand which inflicted the fatal injury on Tajwar deceased. It is a question of fact and in respect to it the trial Court also appears to have taken the same view. On the whole I am of opinion that there is no such ground as can justify our interference in the case. I would accordingly dismiss the appeal. SHAHABUDDIN, J.--‑I agree that the appeal should be dismissed for the reasons expressed in the judgment of my learned brother Cornelius. J., and I have nothing to add. CORNELIUS, J.--‑This appeal by special leave has been preferred by one Imran Ullah from convictions under sections 302 and 326 P. P. C , the sentences being death and three years' rigorous imprisonment respectively, which were confirmed on appeal by the High Court. The facts are simple and may be shortly stated. The incident, which involved the death of two persons namely, Tajwar Khan and Muhammad Umar Charsi, occurred at about 8‑30 p. m. on the evening of the 6th June 1950, in the prostitutes' quarter of Lyallpur Town. The opposing parties were composed of Pathans, whose profession was that of pimps and procurers for different prostitutes or group of prostitutes in the Chakla. The accused persons, five in number, were alleged to have joined with three others in attempting to abduct one lust. Tajbaro, a prostitute under the influence of the complainant's group, which included the two deceased persons. The latter, along with their companions, several of whom were injured in the process offered resistance while Mst. Tajbaro fled from the scene. The accused party delivered an assault with knives and brickbats. Tajwar Khan sustained a single incised wound on the left chest, where the instrument penetrated into his body and pierced his heart. Death was instantaneous. Muhammad Umar received two incised wounds, both on the back of the right chest, one of which penetrated into the thorax injuring the right lung and thus causirg death, although not immediately, yet within the short period that was necessary for taking him to the hospital. Four other persons sustained injuries, all of whom were examined as witnesses in the case and deposed in favour of the prosecution. These are Sher Bahadur who sustained two incised wounds, one a flesh wound on the left upper arm and the second a very serious penetrating wound in the abdomen which kept him in hospital for some 25 days. Tahmas Khan received an incised wound muscle deep above the left hip. Jan Muhammad, Amir Zaman and Sharif Khan received between them a scratch, an abrasion and two contusions all simple in nature, and allegedly the result of being struck with brickbats. The matter was reported at a police station in Lyallpur City within 15 minutes of the occurrence, and no time was lost in commencing investigation, but there was considerable delay in arresting three of the accused persons, notably Imranullah, who was captured at Karachi six months after the incident. Identification parades were conducted for testing the capacity of the eye‑witnesses to pick out some of these accused persons, and nothing has been said to suggest that these were not fairly or properly conducted. Concerning the infliction of the principal injuries, the prosecution examined five witnesses to prove that the fatal injury to Tajwar Khan was caused by Imran Ullah, and that the two knife blows received by Umar Charsi were struck by Imran Ullah and Siraj, but at a different place, after a short chase. Consequently Mst. Tajbaro and Sher Bahadur who was seriously injured, saw and deposed only to the attack on Umar Charsi, but Sharif Khan, Jan Muhammad and Amir Zaman testified concerning both the fatal assaults. These three persons bore injuries to attest their involvement in the incident. Three other witnesses cited in the calendar were Tahmas Khan who had sustained injury, Ghulam Qadir and Muhammad Bashir. Ghulam Qadir's evidence before the Committing Magistrate was transferred to the sessions record after a police constable had testified that he had been unable to find Ghulam Qadir at the address given on the summons which was in Peshawar. This evidence was excluded from consideration at the hearing in the High Court, on the ground that the mere inability of the police constable to find Ghulam Qadir was not sufficient to establish beyond reasonable doubt that he could not be found. As for Tahmas Khan and Muhammad Bashir, they were given up by the Public Prosecutor on the ground that they bad been won over, but were examined later under the description of "Court witnesses" at the instance of two of the accused persons. This request seemingly lent support to the Public Prosecutor's plea, but their depositions gave the lie to this suggestion. The learned Sessions judge justifiably observed concerning them: "These two Court witnesses have also supported the prosecution version to the great disappointment of the accused and their statements are exactly in accordance with those of the prosecution witnesses named above." The record shows that at the trial these witnesses were cross examined by several counsel on behalf of individual accused persons and points of difference between their evidence and their earlier testimony before the Committing Magistrate were brought out. If this cross‑examination was moderate in content, that may reasonably be put down to the apprehension that ‑the witnesses might, if further questioned, cause even greater damage to the case of the parties at whose instance they were being examined. All the accused persons denied complicity in the case, and no defence evidence was produced, but in the result the learned Sessions judge thought that there was room for reasonable doubt regarding the guilt of Badshab Khan Tambakuwala and Siraj, and accordingly acquitted them. The other three were convicted under section 326149 P. P. C., and Imranullah also under' section 302 P. P. C. The trial Court found that there was an unlawful assembly ; but the causing of death was in excess of the common object of that assembly and 1mranullah, who was found to have caused the deaths of both Tajwar as well as Umar Charsi, was individually liable for murder. Since it has been held that the single and immediately fatal injury to Tajwar was caused by Imran Ullah, any doubt regarding his responsibility for the fatal injury to Umar Charsi is without effect on his liability under section 302 P. P. C. All the three convicted persons appealed to the High. Court, and the case of Imranullah was argued by Mr. Mohsin Shah who has also appeared for him before us. The learned judges in the High Court dismissed all the appeals, 'and confirmed Imranullah's sentence of death. Imran Ullah's petition for special leave to appeal before this Court was founded on the allegation that "there has been no proper trial of the case" as counsel for Imranullah had not concluded his arguments when the appeal was dismissed ; on the facts it was urged that the evidence of the so‑called "Court witnesses" was unreliable and worthless, and the judges had erred in relying on it, and that all the alleged eye‑witnesses were partisan in character and no conviction could be based on their evidence. Leave to appeal was granted on the submissions that Mr. Mohsin Shah had only been able to read and comment upon the evidence of twenty out of twenty‑five witnesses in the case when the order dismissing the appeal was announced, and conse quently he had been denied an opportunity to criticise the evidence of five witnesses who included the two "Court witnesses", and moreover, bad not been able to sum up the case, and the procedure adopted, which had caused these defaults was illegal and was in itself a failure of justice. In the concise statement, the further detail is added that Mr. Mohsin Shah had reached the evidence of Ghulam Qadir (P. W. 21) at the hearing in the High Court and was contending that Ghulam Qadir's testimony was not admissible when the learned judges of the Division Bench "began to confer with one another on the point urged and instead of giving a ruling on that point dismissed the entire appeal." Emphasis is particularly laid in the concise statement on counsel having been prevented from reading and commenting upon the evidence of the two "Court witnesses." and from summing. up the case. The reply to these allegations in the concise statement of the Crown is that at the hearing in the High Court: "The learned counsel must have acted in a manner to give an impression to the Hon'ble judges that he had finished his arguments. It is not alleged in the petition that the learned counsel brought it to the notice of the Hon'ble Judges that he had not finished his arguments. The appeal had evidently been argued at length and arguments concluded. The material evidence has been considered by the Hon'ble judges and no prejudice has therefore resulted." It may be mentioned here that this Court directed that a copy of its order granting special leave to appeal be sent to the High Court "for information and for making such observations as it may deem necessary." No comment has been offered by the High Court. In view of the complaint that he was not fully heard in the High Court, Mr. Mohsin Shah was allowed full liberty to address us on every aspect of the case. He read and criticised the entire prosecution evidence from every possible angle, and at the close, summed up his arguments. The case is not one of those in which this Court is required to examine the evidence afresh, and it is therefore sufficient for me to say that, despite all these elaborate arguments, no ground for interference with the findings of fact recorded by the High Court was shown to arise out of the record of the case. Special reference has been made to the testimony of the "Court witnesses," who have been relied upon by the trial Court as well as by the High Court. The language employed in the two judgments makes it clear that, while the trial Court treats the evidence of these witnesses on a par with the evidence of the five persons who were examined for the prosecution, in the High Court judgment their evidence is referred to as supplementary to the latter evidence. For example, in stating on what evidence the prosecution relied to prove their case, the learned judges in the High Court have mentioned the five prosecution eye‑witnesses, as well as Ghulam Qadir (P. W. 21), and finally have observed as follows: "Besides the above witnesses Tahmas Khan and Muhammad Bashir, who were examined as Court witnesses Nos. 1 and 2 respectively, also supported the prosecution case against the appellants." In another place, where the substance of the statements of the five prosecution eye‑witnesses is mentioned the following obser vation occurs: "Tahmas Khan (C. W. 1) and Muhammad Bashir (C. W. 2) also made almost similar statements". This manner of treatment has a bearing upon Mr. Mohsin Shahs principal contention of "illegal procedure" in the hearing of his arguments in the High Court. Mr. Mohsin Shah also attempted a general criticism of the case on grounds such as the degree of visibility, the distance between the places where Umar Charsi and Tajwar were brought down, the ignorance of certain witnesses concerning the names of certain of the assailants etc. These, and other points of criticism concerning individual witnesses appear to me to have received sufficient consideration at the hands of the learned Judges in the High Court. Moreover, such matters relating to the appraisal of evidence only attract the jurisdiction of this Court in exceptional circumstances, which are not shown to exist in this case. At the same time, while this Court's interest must always be thought to be attracted towards proved irregularities of procedure, yet a long course of practice in the Privy Council, which has been examined and approved in the considered judgment delivered by Sir Abdur Rahman in the case of Sarfraz Ali Khan (F C R 1951 p,78 = P L D1951 F C 41.) makes it clear that interference with the decision of the Courts below will not necessarily follow upon the ascertainment of every irregularity of procedure. The principles accepted and followed by this Court in this respect will appear with sufficient clearness from two short passages which I propose to cite, the first from Dillet's case (12 App. Cas. 459.) and the other from the case of Sarfraz Ali Khan (supra) In the former case, Lord Watson laid down the practice words of unmistakable import: "The rule has been repeatedly laid down and has been invariably followed that Her Majesty will not review or interfere with the course of criminal procedure, unless it is shown that by a disregard of the forms of legal process or by some violation of the principles of natural justice, or otherwise substantial and in the following grave injustice has been done". In Sarfraz Ali Khan case (supra). Sir Abdur Rahman has observed as follows: "It would appear that special leave to appeal was not, as a matter of practice, generally granted by the judicial Committee in criminal matters when a petitioner or an appellant was faced with a finding of fact, unless it was felt by their Lordships that there has been a miscarriage of justice due either to a disregard of the forms of legal process or to the violation of the principles of natural justice. But in the absence of a statutory bar, this practice could have been and was occasionally relaxed and was deviated from in special cases which were found to have been of a very unusual nature and of public and general importance: but never as far as we are aware unless the justice was found to have miscarried as a result of either there not being a proper trial at all or on account of admission or reception of evidence which was not legally admissible or something so shocking or outrageous or so gross as to shock the very basis of justice." It is therefore necessary, in order to justify interference by this Court with the decision of the High Court in this case, to establish not only that there has been irregularity of procedure, but also that' in consequence of this irregularity substantial and grave injustice has been done. Now, what is the irregularity alleged ? It is that the counsel was not allowed the opportunity to read and criticise the evidence of the two so‑called "Court witnesses" and finally to sum up his case. The allegation is one of curtailment, and concedes that opportunity to make an opening statement of the case and to read and criticise the remaining evidence was allowed and was utilised. This evidence includes the statements of the five prosecution eye witnesses, on whose direct ocular testimony, the findings of the learned judges are squarely and most strongly based. Their reference to the "Court witnesses" show clearly that this evidence was regarded by them as additional and supplementary in character and it may reasonably be presumed that the special nature of this evidence which' was Prima facie of a doubtful character, had been indicated in the opening statement. In his lengthy argument before us Mr. Mohsin Shah never made the slightest attempt to show that any part of the evidence of the "Court witnesses" if accepted, would render any part of the evidence of the prosecution witnesses doubtful in any respect. The testimony of the "Court witnesses" might have had the effect of further strengthening the evidence of the prosecution eye‑witnesses, if it could have any effect at all. and it follows that the result of the case could not be affected by the acceptance or otherwise of the evidence of the Court witnesses'. Consequently when Mr. Mohsin Shah had utilized his opportunity to read and criticise the evidence of the prosecution eye‑witnesses and had failed to create in the minds of the learned judges any doubt regarding its acceptability, it was immaterial to the result of the case whether or not he subjected the supplementary evidence of the "Court witnesses" to similar treatment. The decision of the case, or in other words, the substantial justice of the case depended wholly upon the appreciation of the evidence of these eye‑witnesses. I take it also that Mr. Mohsin Shah did not conclude his argument with the usual summing up, but the very pertinent question arises is a summing up, an essential part, a kind of sine qua non of an argument before an appellate Court ? For the resolution of this question, it is necessary to consider with some degree of closeness, the duties and rights of a counsel preferring an argument for an appellant before a Court of appeal. I am conscious that my equipment for the task of scrutinizing the relevant considerations, and thus arriving at a considered opinion in the matter, is not equal to that of persons who have had the advantage of practice at the Bar. My experience in the matter is confined to work in the capacity of an appellate judge, and although it is by no means of short duration, covering as it does a period of some 20 years, I confess that I should have come with greater confidence to the examination of the question, had I possessed first hand knowledge of the nature of the task in the capacity of a lawyer. For that reason, I have thought it proper to search for the opinions of learned lawyers expressed in published works for the guidance of other lawyers, and I have been able to discover relevant passages in two books written by distinguished advocates of the Madras High Court, which I propose to reproduce at some length. The first book is entitled "Professional Ethics" by Mr. Justice Sundara Aiyar, who was an Advocate of the Madras High Court before being raised to the Bench. The relevant observations commence on p. 438, from which I reproduce the following extracts: "The object of the appellant should, of course, be to show that the judgment of the lower Court is wrong, and in appear ing for an appellant you should always remember that you cannot afford to neglect the judgment of the lower Court, that the appellate Court will insist on your showing at some stage or other, that that judgment is wrong. It may not do merely to place the evidence before the Court. You must get at the standpoint of the first Court, and show, if you can, that that standpoint is wrong. If you can show that the aspect from which the case has been viewed is erroneous, it will not perhaps he necessary for you to go into all the detailed observations of the lower Court. You must, therefore, have a very clear grasp of the judgment of the lower Court, and have ready in your head every point that the Court below has made against your client" ... "If you succeed in impressing upon the appellate tribunal your own aspect of the case, or, as I put it in an earlier lecture in getting that tribunal to view the picture from a certain angle, you would probably succeed in getting the tribunal not to pay attention to other aspects, in making the tribunal believe that a view from a different angle does not show its real shape.'. ............ "You must make a clear analysis of the judgment of the lower Court, demonstrate its unsoundness, and go further, if possible, and say how the judge happened to commit the mistake by proving that he looked at it from an altogether wrong point of view, that he made one or two assumptions which vitiated his whole judgment. It is very seldom possible to induce the appellate Court to differ, by differing from the lower Court on a number of independent points. You must be able to seize points which will strike the appellate judge as materially vitiating the general reasoning of the lower Court. I need hardly say that you should not tax the patience of an appellate judge overmuch. You must so arrange your argu ments clearly as to be able to place material points before him in a brief compass and it would be bad policy to read too much of the record. Attention should of course be drawn to important passages in the papers. But always if possible, state things in your own language instead of merely reading from documents in the case. If you begin to read, the attention of the Judge is likely to flag." ....... . "And another suggestion I may make is, don't beat out the argument very thin. In fact it would be a skill on your part if you can get the judge to draw the conclu sion which you want. Carry the argument through and leave it there.' The learned author makes no attempt, to lay down any pattern for a proper argument on behalf of an appellant: His observations are entitled to the greatest respect, particularly because he had enjoyed direct experience of the nature of the task from both sides of the Bar, that is, as a lawyer as well as in the capacity of a judge. The emphasis which he lays upon the duty of showing that the judgment of the lower Court is wrong is clearly of the highest importance, for an appeal is not, at least in the sense relevant for the present discussion, a rehearing, but only a hearing by a Court of error. The expression "hearing" is employed in section 423 (1) of the Cr. P. C to indicate compendiously both the right of address possessed by the appellant as well as the duty of listening to the address imposed upon the Court. It is an expression of the simplest kind, and consequently must be given the widest connotation. I find it impossible to read into the word "hearing" anything in the nature of an obligation as to the pattern of an argument, or the form which it is to follow, and any suggestion that observance of any kind of ritual is involved would be, in my opinion, obnoxious to its true meaning. In consonance with its simplicity, the word carries no suggestion except such as are related to matters of substance. The contrast with the prescribed steps of a trial at law is emphatic. Such importance is attached to the taking of most of the steps so prescribed that non‑compliance carries the sanction that the trial is vitiated thereby. But as regards in appeal, no steps Whatsoever are prescribed, and the position as totally different. The appellant should be heard, but nothing is said as to how he shall present, or be allowed to present the matter which he wishes to have heard, nor is any duty laid upon the Court to conduct the hearing of his argument in any Particular manner. The widest possible scope is thus left to the Advocate for the appellant as to his choice of manner in presenting his client's case, and this brings me to the second strong impression created by the extracts from Mr. justice Sundara Aiyar's book reproduced above, namely, the high import ance he attaches to correct tactics in relation inter alia to the nature of the case, and of the judgment to be attacked. The important thing is to convey to the Court the counsel's "own aspect of the case", to induce the Court "to view the picture from a certain angle": How that is done, or whether any particular steps have been taken in bringing about that result is totally unimportant, subject, of course to the requirements of decorum and discipline in Court. The learned author goes so far as to say that it is "bad policy to read too much of the record" and at this point, I cannot restrain the observation that, for reasons which have already been indicated, it might indeed have been "bad policy" for Mr. Mohsin Shah in his argument before the learned judges in the High Court, to read the evidence of the "Court witnesses". The caution expressed by the learned author against beating out the argument "very thin" is also opposite to the present circumstances. If it be a "skill", in relation to an argument of merit, for a counsel merely to hint at it, and thereafter leave the judge to draw the desired conclu sion, in the opposite case, where the argument is not meeting with approval, it would be consistent with common sense at any rate, if not a proof of any higher faculty, to exercise the same restraint, and cut one's argument short. The second book which I propose to quote from is entitled "Professional Conduct and Advocacy" by Mr. K. V. Krishnaswamy Aiyer, an Advocate of the Madras High Court. The following extracts will be sufficient for my present purpose‑-- "The first thing to know is that counsel for the appellant most present the whole case for both parties in his argu ments."............. "In another place I have adverted to the fact that, being in possession of the Court, appellant's counsel has a unique opportunity to ask the Court to look at the facts on the other side through his glasses and thereby give them the colour that he would prefer to give them." ............ "It is well that the opening statement should as far as possible contain every thing necessary to understand the whole evidence, and herein lies the scope for the display of your skill in making the Court to see the facts through the same glasses as yours." ............ "To continue the method of argument for the appellant, you should then state the pleadings to Court and follow it up by dealing with the documentary evidence on both sides in chrono logical order. Then you should read the oral evidence to the judge."............ "By the time you finish the evidence, you would have dealt with the case in all its aspects. If you fail to produce any impression before them, there is an end of your case. You have done your duty. Otherwise, you may read the judgment and comment on it relying on matters already placed before the Court." ............ "Or if you satisfy the Judge in the first few minutes that you have a presentable case, as I have said that you should do, you will always be allowed to deal with it in your own way. Let me conclude by drawing your attention to the significant words of Lord Macmillan. "It is a well‑known fact", he says, "that a skilful exposition of a case often largely supersedes the necessity for arguments." He adds that an artist in advocacy never argues his cases; he merely states them. So orderly and adroit is the arrangement of his statement that the conclusion, which he wishes to be drawn should appear inevit able." ............ This book is composed of lectures delivered to "apprentices at‑law and it is to be expected that the learned author should advocate and delineate a methodical presentation of an appellate argument`. Some such method is essential for the eventual success of a lawyer who is commencing his practice at the appellate Bar. It is, however, common experience that counsel, as they gain in seniority and knowledge of the ways of Courts and, in particular, of the minds of judges, cease to be bound by any strict rules in the presentation of their arguments. That is not to say that if desired by the Court, they will not proceed in a particular fashion, but that they ordinarily exercise a personal and unfettered choice as to the manner in which they will deal with a particular case, and that this choice is governed by the exigencies of the case, by its peculiar nature, and by the expectation concerning the acceptability of the argument, there can be no doubt. It is probably entirely true to say that it is only counsel of experience who can be said to appreciate to the full that the essence of advocacy, particularly before an appellate Court dealing with facts as well as law, is to make "the Court see the facts through the same glasses as yours", and from this point of view, it is relevant to mention that Mr. Mohsin Shah is one of the most senior Advocates practising at the Bar of the Lahore High Court, and that he was prepared to agree that he had ample experience of work before the learned Judges who composed the Bench in this particular case. But, despite the emphasis on defined method, the views of this learned author also lead to the same conclusion as those of Mr. Justice Sundara Aiyar, viz. that it is necessary for an appellants Advocate, in order that he should succeed, to establish that the judgment of the Court below is erroneous, that for the purposes of doing so it is necessary that he should use to the full, his opportunity of making the Court see the facts in his way, and with the colour that he wishes to give them, and that the opening statement is as important as any part of his argument for the purpose of achieving this result. Any judge with experience of the relevant kind will be willing to testify to the truth of Lord Macmillan's view that the skilful exposition of a case is what often compels the desired conclusion, important though the arguments on various parts of the case may be, and particularly so in reference to points of law. Here the matter was purely one of fact, and I think I may safely conclude on the basis of what has been said in this case, and my own experience of the manner in which the process of conveying to the minds of the judges, the special aspect of the facts on which an appellant's counsel relies for the success of his case, that at the material stage of Mr. Mohsin Shah's argument before the High Court, it had probably become clear that he did not have "a presentable case", and thereafter any amount of further reading of evidence or other formal steps such as summing up etc. would not have been of the slightest advantage either to his client or to the cause of justice. The whole purpose of his argument being to satisfy the High Court that the judgment of the lower Court suffered from error on a point of fact, once it was clear that the effort must fail, because the quantum of evidence necessary to support the conclusion under appeal was present, the argument was substantially at an end. Mr. Krishnaswami Aiyar has said at another place in his book (p. 121):‑ "The hearing of an appeal is not a re‑bearing, but only the hearing by a Court of error. But it should be said to the honuur of the Judge that they do not shut out any presentable argument. We were asked in this appeal to hold that Mr. Mohsin Shah's further arguments were shut out by the learned judges. While it is clear that he did not read the evidence of the last few witnesses, and did not sum up the case it is also clear that nothing fell from the judges which can be regarded as a direct injunction to him to discontinue his argument. He had' reached a stage in his argument at which it can reasonably be inferred that any further attempt to break down the trial Courts reliance on the prosecution eye‑witnesses was clearly of no avail. It was at this stage that the learned judges conferred amongst them selves regarding the admissibility of Ghulam Qadir's evidence, and having come to agreement, they looked up and announced that the appeal was dismissed, whereupon Mr. Mohsin Shah collected his papers and left the Court raising no protest of any kind. At the hearing before us, Mr. Mohsin Shah agreed that he had never undergone such an experience in the Lahore High Court before. He is an Advocate of sufficient experience and standing not to be deterred by anything said or done incautiously (I say so with all respect) by any Court before whom he may be appearing. He admitted having knowledge of cases in High Courts where the judges, having at the conclusion of a hearing stated their opinion and even their decision in the case, have subse quently found it necessary to review their conclusion and after taking proper steps, have recorded a judgment in terms different from the order already announced. Why then did he leave the Court in silence, if he had a good ground for a protest? He explains that he felt that such an immediate protest would be (or might be taken as) an act of discourtesy, but if so he could have moved formally for recon sideration of the decision before the judgment was signed. Even this he did not do. I think it may reasonably be inferred that he had, in substance, no grievance, He may well have felt that his effort to convey, by argument, his contention regarding the only possible error in the trial Court's judgment, viz. misappreci ation of the ocular evidence led by the prosecution, had reached the point of saturation, and nothing more could usefully be added. I feel wholly satisfied that his argument is not to be regarded as having been cut short, in my substantial sense. In this view of the matter the case is clearly not one calling for interference by this Court. The appeal would never have been admitted, had there been anything to show that, before announcing their order, the learned judges had asked Mr. Mohsin Shah if his Argument was concluded. That is the general practice in the Lahore High Court in cases of this kind. It is a source of satisfaction that the non‑observance of this small but necessary formality has not resulted in any diversion of the course of justice in this case. It remains to enter a caution against the possibility of this `judgment being construed in a narrow sense, such as is not intended, and so as to restrict the discretion of Advocates in the conduct of appeals, subject of course to proper directions from the Court. Cases of the present kind, in which an Advocate complains that he was not heard in full, and yet conducted himself in the lower appellate Court as if he bad nothing more to say, are fortunately of rare occurrence. Nothing which has fallen from me in this judgment should be interpreted as applying to appeals in general. I have already employed expressions to indicate the importance of maintaining the complete independence of an Advocate in his choice of method, before an appellate Court. His duty and function is to lay the case for his client before the Court to the best advantage, and such matters as the method of exposition of the case, or of the errors in the judg ment under appeal, or the order in which he shall deal with such errors, are entirely within his discretion. There are Advocates who habitually press their principal points of attack in the final stages of their argument. Such a course may be judged by any Advocate to be the best suited to a particular case It would be a disservice to the cause of justice, and it would detract enormously from the pleasure which the infinite variety of appellate arguments afford to judges, if anything which I have said in this judgment were understood and applied so as to limit Advocates in these or any similar respects. And I hope I have also made it clear that, in my opinion, consistently with their duty of control and discipline, appellate Courts should do nothing that might have the effect of terminating an Advocate's argument unless they have first satisfied themselves, by a direct question, that he cannot usefully add to what he has already said. For the reasons already given, I would dismiss this appeal. A. H. Appeal dismissed.