P L D 1966 Supreme Court 531 (PLP)

CORNELIUS, C. J.-The appellant Mst. Rabia Bibi is the widow of one Mehrab Khan Paleeja, who was killed on the night of the 11 th June 1961, while sleeping in his house in Model Town, Bahawalpur. He received seven heavy blows with a cutting weapon. There were also sleeping in the house at the time, .his wife Mst. Rabia Bibi, their small child Ghulam Mohyuddin, Mst. Rabia's mother, named Mst. Amina and Mst. Rabia's sister's daughter, named Mst. Nasim. Of these, the small child Ghulam Mohyuddin received a blow on his head, which killed him, and each of the other three received incised wounds on the head. There were other injuries as well in the cases of Mst. Nasim and Mst. Rabia. The three women, however, survived and gave evidence in the case to the effect that the culprits were the respondent Rasool Bakhsh, and his friend and associate Muhammad Khan, also a respondent. Rasool Bakhsh was married to Mst. Nasim, who had left his house on account of maltreatment and lack of means, and was living with her grandmother in Mehrab Khan Paleeja's house. Rasool Bakhsh had attempted on more than one occasion to take her back, but she had refused, and this had led to Rasool Bakhsh issuing threats of vidlence to all the inmates of the house. Khan Muhammad had been visiting the house in the company of Rasool Bakhsh, and was known to the inmates. The motive for the crime was the resentment felt by Rasool Bakhsh at being deprived of the company of his wife. Rasool Bakhsh and Khan Muhammad being put on trial were convicted and sentenced to death. They appealed in the High Court where they succeeded in obtaining an order of acquittal on the ground that "the conviction of the appellants cannot safely be maintained." On the 29th June 1964, this Court granted to Mst. Rabia Bibi leave to appeal against the order of acquittal. Mr. Sardar Ahamad appearing for the appellant took us through the record of the case, and presented arguments in reply to those on which the High Court had thought fit to acquit the two accused persons, despite the clear evidence of three inmates of the house, who could not but have been awakened by the noise of the blows to Mehrab Khan Paleeja, with which the attack commenced. They deposed that there was a light burning in the house, which the accuracy with which the blows were delivered would appear-to support. At a fairly early stage of Mr. Sardar Ahamad's argument, Mr. C. M. Siddiq, Attorney, appearing by special permission on behalf of the accused persons, raised the objection that the petition for special leave was barred by time by 79 days when it was presented, the period of limitation being only 30 days. At the close of Mr. Sardar Ahamad's arguments, he presented this argument in somewhat greater detail, giving the following facts. The High Court judgment was announced on the 23rd January 1964, and an application for a copy was made on the 19th February 1964 at the Bahawalpur Registry of the High Court. It was returned on the 25th February 1964, for presentation at Lahore, where the record had been sent. The petition was not submitted at Lahore until the 2nd April 1964. A copy was ready on the 7th April 1964. The petition was filed in this Court on the 11th May 1964. Mr. C. M. Siddiq stressed that between the date of return of the application by the Bahawalpur Registry and the date of its presentation at Lahore, more than 30 days elapsed and again between the date on which a copy was ready and the date of filing of the petition, more than 30 days elapsed. There was an application presented with the petition for condonation of delay in which the only grounds stated were of illness and pennilessness and these besides being unsupported by proof were in themselves insufficient to account for such lengthy delays. No order had been made on this petition when leave was granted. The respondents were not represented at that stage. They had been acquitted at proper proceedings, and they were entitled to be secured against further jeopardy to their lives through judicial process. It cannot be denied that the right to life being the most important that a human being can possess, when once a charge for a capital offence has been duly tried and there has been a acquittal, the law which enables judicial interference with the acquittal must be strictly applied in favour of the accused persons. An acquittal by a subordinate Court may only be called in question in appeal on motion by the Provincial Government before the High Court, to be brought within a limited time. The power of the Federal Court and its successor the Supreme Court, to interfere with acquittals by the High Court has been examined in a number of cases. In the Federal Court in the case of Matlub Hussain v. Gaman (P L D 1951 F C 115) the view was expressed that in a murder case, no person other than the accused, being prosecuted and the Crown at whose instance he is being prosecuted appear to be parties, and accordingly leave to appeal against refusal by the High Court to interfere in revision with an order of a Session Judge acquitting the private respondents was refused. The point came up for consideration in 1957 in the case of Muhammad Ashiq v. Allah Bakhsh (P L D 1957 S C (Pak.) 293). Muhammad Ashiq was a son of the murdered man. The accused persons had been convicted at trial, but had been acquitted on appeal by the High Court, and Muhammad Ashiq sought special leave to appeal against that order. It was observed in the judgment that although Muhammad Ashiq was clearly not a party to the proceedings in the High Court, yet there are circumstances, some of which were indicated, in which an appeal against an acquittal by the High Court may be competently entertained by the Supreme Court. The requirements were that the circumstances should indicate that there had been a grave miscarriage of justice by some disregard of the forms of legal process or some violation of the principles of natural justice. It was said that conceivably these circumstances might be found to exist in a case in which the State had not chosen to move this Court against an order of acquittal by the High Court, and therefore, "we should not be understood to pronounce an absolute bar against motions of the present kind." However, on examination of the case brought by Muhammad Ashiq, it was found that the points raised were concluded by findings of facts on the evidence, reached in relation to the general circumstances of the incident by the High Court, which findings were "both possible as well as natural." Since the publication of the decision in Muhammad Ashiq's case cited above, this Court has entertained a number of appeals against acquittals pronounced by the High Court in appeal. The point of limitation in relation to petitions for special leave to appeal against acquittals by the High Court came up for consideration in .the case of Abdul Qayyum v. Ghulam Yasin (P L D 1963 S C 151). The delay in that case was of only 15 days. The following order was made:-- "Although this is a petition in a criminal case, the fact that it is out of time by 15 days cannot be condoned. It seeks enhancement of a punishment of transportation for life awarded in a murder case, to the capital punishment. The convict might be placed, once again, in peril of his life, by a petition of this kind, and it is for this reason that the technical requirement of limitation assumes importance. It is not too much to ask that he who seeks to place his fellow-citizen's life in peril, by legal process, should satisfy all the technical requirements of that process. Delay would scarcely ever be condoned, and certainly not on the grounds here advanced, namely, that the petitioner was misinformed about the period of limitation, and that he was delayed in his village through the serious illness of his wife. The petition is dismissed as barred by time." In a case decided a month later, namely, Criminal Appeal No. 115 of 1962, the Court was presented with an objection to an appeal by the State against the acquittal of no less than 11 persons, by leave granted on a petition, which was barred by time by 76 days. The Court dealt with the matter in the following way: "As the respondents to the State petition were not heard at the time that leave was granted by this Court, it was open to them to raise this objection at this stage. There is a good deal of force in the contention that the persons who had secured acquittal from the High Court should not be put in jeopardy of their lives by a petition for leave to appeal filed out of time. The State petition therefore was liable to be rejected on this ground." The principle that lapse of time is, in a criminal matter, sufficient to provide protection to a person who has been acquitted, against further judicial process by way of a formal petition for leave to appeal was thus rearmed. However, in that case, this Court reversed the acquittals of four of the respondents to that appeal, purporting to exercise the power given by Article 61 of the Constitution to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it. This was possible because at the same time, the Court was dealing with an appeal by seven of the accused persons, who had been convicted, and thus was seized of the entire case. As a result of the State motion against the 11 accused persons whose matter came up for hearing at the same time as the appeal of their co-accused, they had duly received notice of the jeopardy in which they were placed. The view of the Court in regard to the jurisdiction thus exercised was expressed in the following words:- "However, this does not conclude the matter. The High Court purported to adopt two criteria for convicting some of the accused persons. They held that six of the accused who had admitted their presence during the occurrence and had raised the plea of self-defence, should be convicted along with those who were named by the injured P. Ws., as their own assailants. While giving effect to these findings, however, the High Court committed an error in so far as, inadvertently, it failed to record convictions against three of those six who had admittedly been present at the spot at the relevant time and two others who bad been named by Raja P. W. as his own assailants, these five being included among those who were convicted by the trial Judge. This Court has power to issue such directions, orders or decrees as may be necessary for doing complete justice in any cause or matter pending before it, vide Article 61 of the Constitution. The error being patent on the record in this case, this Court could have suo motu issued notices to those of the respondents who had secured an acquittal from the High Court as the result of the above mentioned error. These respondents are represented by Mr. Saleem before us and he accepts notice on their behalf. The position therefore is that the case against these five respondents calls for consideration by us along with the appeal of the seven convicts." In the present case, the power under Article 61 of the Constitution cannot be exercised, as the question of the guilt or innocence of the two private respondents does not arise before us in any cause or matter other than the petition filed by Mst. Rabia Bibi in which) leave to appeal was granted. Having heard Mr. Sardar Muhammad on the merits of the case, we may say that the grant of such leave was amply justified by considerations arising out of the merits of the matter, but, however, that may be, the rule laid down by this Court in the case of Abdul Qayyum v. Ghulam Yasin cited above is one which is clearly in accordance with right) principle and no circumstances appear out of the relevant facts D in the present case to justify any departure from that rule. Accordingly, the order which we make in this case is that the leave granted to Mst. Rabia Bibi to appeal against the acquittal of Rasool Bakhsh and Khan Muhammad is rescinded and the order by which that leave was granted on the 29th June 1964, is hereby withdrawn. The result is that this appeal which was entertained in consequence of the grant of leave also fails. A. H. Order accordingly.