P L D 1969 Supreme Court 241 (PLP)

"Save as otherwise provided in this Order, the provisions of this Order shall be in addition to and not in derogation of the Proclamation and shall be read and construed accordingly." Then follows paragraph 6 which reads thus "6. (1) No appeal shall lie to the Supreme Court from any judgment, final order of sentence of a High Court in criminal proceedings except when the High Court‑ (a) has on appeal reversed an order acquittal of an accused person and sentenced him to death or to transportation for life ; or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority, and has in such trial convicted the accused person and sentenced him as aforesaid ; or (c) certifies that the case involves substantial question of law as to the interpretation of the said Constitution ; or (d) has imposed any punishment on any person for contempt of the High Court. (2) Save as provided in clause (1), the Supreme Court, a High Court and all other Courts and tribunals shall have and exercise the same powers and jurisdiction as they had immediately before the issue of the Proclamation." In view of the language employed in clause (1), namely ; that "no appeal shall lie to the Supreme Court from any judgment, final order or sentence of a High Court in criminal proceedings" except in the circumstances mentioned in sub -clauses (a) to (d), and again in clause (2) that "save as provided in clause (1), the Supreme Court . . . . . shall have and exercise the same powers and jurisdiction as they had immediately before the issue of the Proclamation," the question arises as to whether, after the promulgation of Martial Law on the 25th March 1969, this Court continues to retain its jurisdiction to entertain petitions for special leave to appeal in criminal proceedings, in spite of the fact that the Proclamation itself continues all the powers and. jurisdiction which this Court would have exercised bad the Constitution not been abrogated and paragraph 2 of the. Provisional Constitution Order itself declares that the provisions of the said Order are in addition to and not in derogation of the Proclamation. The learned Attorney‑General, appearing in pursuance to the notice issued to him, has stated at the Bar that he has written instructions to inform the Court that when the authors of the Provisional Constitution Order said that no appeal shall lie to the Supreme Court from any judgment, final order or sentence of a High Court in criminal proceedings, except in certain circumstances enumerated therein, they only intended that Article 58(2)(b) of the abrogated Constitution should stand amended, as indicated in clause (1) of paragraph 6 of the Provisional Constitution Order. There was not intention at all to repeal clause (3) of Article 58 or in any way to curtail the jurisdiction conferred thereby. The word "appeal" referred to in paragraph 6 of the Provisional Constitution Order, it is said, means and was intended to mean only an "appeal as of right" and not an appeal by the special leave of this Court. It is urged that the words "as of right" were omitted inadvertently or accidentally. The mistake, if any, is of the draftsman of the Order and it should not, it is contended, be allowed to stand in the way of giving effect to the manifest intention of the law‑maker. Learned Attorney‑General argues that it is now well established that there is a strong presumption that the jurisdiction of a superior Court can only be taken away by express words particularly, where the result of such an interpretation would be to disturb an established state of the law or to create manifest injustice or hardship or to interfere with vested rights. As pointed out by Maxwell in his book on the Interpretation of Statutes, 11th Edition at page 122, "so strong a leaning now exists against construing a statute so as to oust or restrict the jurisdiction of the superior Courts" that unless very explicit words are used in the statute itself in that behalf such an intention Would not normally be imputed to the Legislature. It is no doubt true that in construing a statute the Courts are normally reluctant to attribute to the Legislature an intention of introducing a radical or sudden change of policy unless they are A compelled to do so by the express and unequivocal manifestation of the intention of the Legislature, but at the same time it has to be pointed out that there is always a strong presumption that the Legislature does not make mistakes. "If blunders are found in legislation, they must be corrected by the Legislature, and it is not the function of the Court to repair them." (Vide Halsbury 's Laws of England, 3rd Edition, Volume 36 page 390). "As a general rule a Court of law is not authorised to supply a cassus omissus, or to alter the language of a statute for the purpose of supplying a meaning, if the language used in the statute is incapable of one, even though they may be of opinion that a mistake has been made in drawing the Act" (Vide Caries on Statute Law, 6th Edition, page 520). The purpose of construction or interpretation of a statutory provision is no doubt to ascertain the true intention of the Legislature, yet that intention has, of necessity, to be gathered from the words used by the Legislature itself. If those word are so clear and unmistakable that they cannot be given any meaning other than that which they carry in their ordinary grammatical sense, then the Courts are not concerned with the consequences of the interpretation however drastic convenient the result, for, the function of the Court is interpretation, not legislation. In construing an enactment, passed by a legislative authority, it is not also permissible for the Courts to rely upon oral declarations of the intention of the law‑giver, made at the Bar of the Court, if the language used in the legislative enactment is not reasonably capable of bearing such a meaning. But what is permissible is this that "where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, of to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence", because, "where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used" (Maxwell, 11th Edition, page 221). Our preliminary task, therefore, in the present case is to find out what exactly the law‑giver intended to do under the provisions quoted above. One may intend many things, but where one has expressed his mind in written words, his intention has to be gathered, primarily, from those words. For this purpose, there fore, we have endeavoured to first ascertain the sense in which the word `appeal', in relation to the jurisdiction of the Supreme Court, had been used in earlier Constitutional provisions in this country. The scheme of the Constitution of 1956 was that the Supreme Court was given original jurisdiction by Article 156, appellate jurisdiction in matters involving interpretation of the Constitution by Article 157, appellate civil jurisdiction by Article 158 and appellate criminal jurisdiction by Article 159, and then Article 160 dealt with the jurisdiction to grant special leave to appeal from any judgment, decree, order or sentence of any Court or tribunal in Pakistan. In Article 160 the word `appeal' did not occur, but in Articles 158 and 159 the word `appeal' meant an "appeal as of right" in the circumstances enumerated in those Articles. It has also to be noticed that both under Articles 158 and 159, such appeals lay only from judgments decrees, sentences or "final orders" whereas under Article 160 the word "final" did not qualify the order from which special leave to appeal could be granted. Again in the Constitution of 1962, Article 57 dealt with the original jurisdiction of the Supreme Court but Article 58 dealt leave to appeal Article 59 dealt with the 'advisory jurisdiction of the Court. There was another very important difference between the provisions of the Constitution of 1956 and the Constitution of 1962. In the Constitution of 1956 the word "as of right" did not occur and an "appeal" meant an "appeal as of right". In the Constitution of 1962, however, clause (2) expressly provided that an appeal to the Supreme Court "shall lie as of right" in the circumstances enumerated in sub‑clauses (a), (b) and (c) thereof. In other cases, an "appeal" lay, as provided in clause (3) of Article 58, from any judgment, order or sentence of a High Court only if the Supreme Court granted leave to appeal. In Article 160 of the 1956‑Constitution, as already pointed out, the word `appeal' did not occur at all. In Article 58, therefore, the word `appeal' had not been used in the special or technical sense of an appeal as of right. With regard to Article 58 of the 1962 Constitution, however, a serious doubt arose, just before the promulgation of Martial Law, as to its precise nature and scope, particularly under sub‑clause (b) of clause (2), in a case, in which it was argued before this Court that an appeal would lie as of right to the Supreme Court from a judgment, order or sentence of a High Court even if the High Court had not confirmed a sentence of death but actually reduced it to one of transportation for life. This Court had earlier, when considering this very sub‑clause, in the case of Muhammad Rafique v. The State (P L D 1963 S C 226) taken the view that "where the sentence of death is submitted to the High Court for confirmation, and the High Court exercises no power other than that provided by section 376, then even if the High Court does not confirm the sentence but upon the same conviction or an altered conviction passes any other sentence warranted by law, and that sentence is a sentence of transportation for life, it is conceivable that an appeal may lie as of right under Article 58(2)(b)." At the same time, however, this Court had also observed "that bearing in mind that there is nothing in the wording of the new provision in Article 58 to give the impression that enlargement of the right to appeal to the Supreme Court was intended, it would incline to the view that such an action by the High Court is to be regarded as an action under the appellate power of altering the sentence while maintaining the conviction and is not to be thought to fall, exclusively, within the jurisdiction derived from section 376 of the Code, so as to attract an appeal as of right." The view of the Court was, however, clear that Article 58 in its true meaning "does not enable an appeal as of right from a judgment of the High Court confirming a death sentence by a Sessions Court." This decision had clearly created an anomaly, for, if the highest sentence was confirmed there was no appeal as of right but if that sentence was reduced to transportation for life, there would be an appeal as of right. Again, according to the view taken by this Court in the said case it was not clear whether An appeal would lie as of right to the Supreme Court even if an acquittal had been altered into conviction, in an appeal, by the High Court, and the sentence of death or transportation imposed. A reconsideration of this decision was sought in Criminal Appeal No. 6 of 1968 Rashid Ahmad and another v. The State, ‑which was heard towards the end of February 1969, but the judgment had not been announced when the Provisional ‑Constitution Order of the 4th April 1969, was promulgated. Paragraph 6 of this Order, we notice, substantially re introduces the provisions of Article 159 of the Constitution of 1956. We say substantially, for, sub‑clause (c) of clause (I) of paragraph 6 of the Provisional Constitution Order is different from clause (c) of Article 159 and the proviso to Article 159 has been totally omitted. Again, Article 159 commenced with the words that "an appeal shall lie to the Supreme Court" but clause (1) of paragraph 6 opens with the words "no appeal shall lie to the Supreme Court". Notwithstanding this slight difference in terminology the learned Attorney‑General has sought to contend that the intention by the introduction of clause (1) of paragraph 6, was merely to reintroduce Article 159 of the Constitution of 1956 and thereby to remove the anomalies created by sub‑clause (b) of clause (1) of Article 58 of the Constitution of 1962, and, therefore, the word `appeal' in clause (1) of paragraph (6) of the Provisional Constitution Order was patently intended to be read as "an appeal as of right", without, in any way, affecting the jurisdic tion of the Court to grant special leave to appeal even in criminal proceedings. The learned Advocates‑General of East Pakistan and West Pakistan and also Mr. Mahmud Ali, the learned counsel for the petitioners, have all supported the learned Attorney‑General and have all urged that clause (1) of paragraph 6 of the Provisional Constitution Order has not affected the jurisdiction given to this Court by clause (3) of Article 58 of the 1962‑Constitution. The word "appeal" does not, by itself necessarily connote, in the ordinary or grammatical sense, an "appeal as of right", although there can be no manner of doubt that the word `appeal', when used in Articles 158 and 159 of the 1956‑Constitution, clearly meant an "appeal as of right". In the 1962‑Constitution, however, the draftsman had introduced the words "as of right" to distinguish those cases where the appeal would lie as of right from those cases in which the appeal would lie only upon special leave by this Court. In the circumstances, there appears to have crept in an obscurity or doubt as to the meaning of the word `appeal' in clause (1) of paragraph .6 of the Provisional Constitution Order. We are now called upon to resolve this doubt by ascertaining the true and patent intention of the law maker. From what has been stated above, there can be no manner o doubt that the true intention of the law‑maker was to remove the anomalies created by the unhappy language in which the provisions of sub‑clause (b) of clause (2) of Article 58 of the[ 1962‑Constitution were couched by replacing it substantially wit ~h what was contained in Article 159 of the Constitution of 1956. It is unfortunate that in giving effect to this intention the draftsman should have made an inadvertent omission by not expressly clarifying ; in view of the change of meaning introduced by the 1962‑Constitution ; that the word "appeal" in clause (1) ional Constitution Order had the of paragraph 6 of the prove same meaning as in Article 159 of the 1956‑Constitution which was clearly being sought to be reintroduced. Learned counsel, appearing before us, have all submitted that in the circumstances, it would be permissible for us to give effect to the true and patent intention of the law‑maker and to avoid a manifest injustice, by supplying the omission. There is abundant authority to support this contention. Even though, as a general rule, a Court of law is not authorised to supply a, cassusomissus or to alter the language of a statute for the purpose of supplying a meaning, but where it is clear, as in the present case, from a comparison of the various enactments, introduced by the Martial Law authorities, that there was, at no stage, any intention to take away or abridge or curtail any of the jurisdic tions of this Court except where the Chief Martial Law Admini strator or the Deputy Chief Martial Law Administrators or any other Martial Law authority, exercising powers or jurisdiction, under the authority of either, or the Proclamation of a Martial Law Regulation or any sentence, finding or order of a Military Court was concerned. It would be legitimate, therefore, to accept that what was sought to be done by the introduction of clause (1) of paragraph 6 of the Provisional Constitution Order was merely to reintroduce the provisions of Article 159 of the 1956‑Con stitution. There can thus be no manner of doubt that under the provisions of the said paragraph an `appeal' meant and was manifestly intended to mean an `appeal as of right. This Court itself has, in the case of Muhammad Amir Khan v. Controller of Estate Duty (P L D 1961 S C 119) followed this principle and supplied certain omissions in a statute, relying on a dictum of the Privy Council in the case of Salmon v. Duncombe and others (11 A C 634). This principle was reaffirmed by this Court again in review from the same judgment in the case of Muhammad Amir Khan v. Controller of Estate Duty (P L D 1962 S C 335) and there the then learned Chief Justice of this Court observed The laws come in an infinite variety, and the use of the language, even of the simplest and commonest terms, is so kaleidoscopic and subject to delicate shades of meaning and emphasis that the duty frequently falls upon the Superior Court to establish principles whereby effect may be given to the laws, according to the intention of the legislators, and that despite ambiguity or deficiency in the language they have employed. The task is frequently complicated through ineptitude on the part of the Legislature and its legislative draftsman in the use of words or in the thorough delineation, by the machinery of at statutory instrument, of the whole meaning and purpose of the legislation. Applying this principle we have, in the present case too, come to the conclusion that the language employed by the draftsman of the Provisional Constitution Order does not accurately express the true intention of the law‑maker, although it is clear beyond any doubt as to what that intention was. In order to give effect to that intention and to avoid any hardship as a result of a drastic change in the jurisdiction of this Court, we feel justified in supplying the omission in the present case and holding that, in clause (1) of paragraph 6 of the Provisional Constitution Order, `appeal' means only an appeal as of right. Having come to this conclusion, we now proceed to deal with the petition on merits. Learned counsel has, of course, pointed out that the sentence imposed by the learned Sessions Judge under section 342, P. P. C. is clearly illegal, for, under the law the maximum sentence for an offence under that section is only one year. The sentence of 2 years was, therefore, illegal but this does not alter the fact that the conviction under section 395, P. P. C. is quite legal and that is for a period of three years. The petitioners have been convicted by a competent Court. As long as that conviction stands, they cannot claim to be enlarged on bail as of right, although the High Court could have, under section 426 of the Criminal Procedure Code, in its discretion granted bail to the petitioners. It has not done so. The question is whether its discretion has been exercised either fancifully or arbitrarily or whimsically or upon unsound principles. We are unable to say that the order of the learned Judge of the High Court suffers from any such defect. The learned Judge of the High Court was quite conscious of the fact that the sentences were short sentences and it is for this reason that he specifically directed that the appeal should be heard within four months. The manner in which the learned Judge has furthermore dealt with the bail applications, is sufficiently indicative of the fact that he had applied his judicial mind to the question of granting bail to the petitioners upon sound principles. There is no reason, therefore, to interfere with his order. This petition is, accordingly, dismissed, but the petitioners may, if their appeal is not heard within four months, as directed by the learned Judge, renew their prayer for bail in the High Court. We have no reason to think that then the High Court will not consider their application more sympathetically. K. B. A. Petition dismissed.