P L D 1955 Federal Court 20 (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal by special leave from an order of a Division Bench of the High Court of Lahore. One Baqri was shot dead on the evening of 12th April 1951, just outside the village of Bosal in the District of Gujrat. For this murder the ten respondents to this appeal were committed to the Court of Session at Gujranwala, eight of them on the charge of murder and two on that of abetment of murder. They were tried by the Sessions Judge of Sialkot as ex‑ofclo Additional Sessions Judge for Gujranwala. The trial ended in the acquittal of all on 31st March .1952, The District Magistrate, Gujrat, recommended an appeal by the Provincial Government against the order of acquittal, whereas Wali Muhammad, brother of the deceased, put in a petition in the High Court for revision of that order. On the petition coming up before me as Chief Justice of the Lahore High Court on the 22nd May 195 , I issued notice which was served on the respondents and the District Magistrate. A few days later, namely, on the 17th June, 1952, the District Magistrate's proposal to appeal was rejected by the Provincial Government. In response to the notice on revision the Advocate -General appeared at the bearing on the 14th and 15th July 1952. In reply to my enquiry whether the Government intended to appeal against acquittal, he stated that the case had been fully examined by the Law Officers of the Crown and that the Provincial Government had decided not to appeal. I, therefore, proceeded to hear the petition for revision on the merits and announced my order on 21st July 1952. There was also a hearing on the 16th July but the Advocate- General did not appear on that day; nor up to the date of my order did he make any request that orders on the revision petition be reserved to enable the Provincial Government to reconsider the matter or that the Provincial Government, in view of the notice issued by the High Court, was reconsidering the matter. In my order I discussed the whole evidence in the case and for the reasons stated therein found that the order of acquittal was wrong and that on almost every important part of the case the learned Additional Sessions Judge had misdirected himself. I pointed out that if the case had been approached from a correct point of view, the learned Sessions Judge would have come to a different finding and concluded by saying. "I am, therefore, satisfied that the judgment of acquittal pronounced by the learned trial Judge was wrong. In fact, it was conceded by Mr. Manzur Qadir, who has opposed this petition on behalf of the acquitted accused, that he cannot subscribe to most of the reasoning on which the judgment is based." As I could not convict the respondents in revision, I considered the question whether I should order a retrial. Dealing with this point I said, "And if I order a retrial, my judgment will undoubtedly be taken by the Sessions Judge who retries the case as an implied direction to convict because, however conscientious and independent the Judge, his opinion is bound to be effected by what I have said. The retrial will therefore be a farce and the accused persons will in fact not have a fair trial to which they are entitled under the law". I therefore declined to order a retrial and dismissed the petition remarking that the obvious miscarriage of justice and the helpless situation in which for and myself were entirely due to the decision of the Government not to appeal, which had been taken after the High Court had indicated that there was a prima facie case for review of the evidence by it. Ten days later the Assistant Advocate‑General put in an appeal on behalf of the Provincial Government against the acquittal of the respondents. The only reason stated for this appeal was that it was within limitation and that the order of acquittal was improper because in my order on revision I had expressed the view that there was sufficient material for the conviction of the respondents. This appeal was heard by Rahman and Shabir Ahmad, JJ., who by their order of 24th March 1953, dismissed it on the ground that it did not lie. The sole question that falls for decision in the appeal before this Court is whether the learned Judges were right in dismissing the appeal of the Provincial Government as being incompetent. We have heard Mr. Nazir Ahmad Khan on behalf of the Government and Mr. Manzur Qadir for the respondents and after hearing them I am convinced that the order of the High Court dismissing the appeal was right in the circumstances. The High Court of Lahore has been consistently observing the practice of not entertaining a petition by a private party for the revision of an order of acquittal in the absence of a certified copy of the order of the District Magistrate declining to move the Provincial Government to appeal from the acquittal. This practice is based on Rule 1‑A of Part B of Chapter 1‑A of the High Court Rules and Orders, Volume V, which says :‑ "With reference to section 439 (5), Cr. P. C., the Deputy Registrar will not receive any petition for revision of an order of acquittal unless it is accompanied by a copy of the order of the Magistrate of the District, refusing to move the Provincial Government to appeal under section 417 of the Cr. P. C." The reason of the Rule is that if the District Magistrate has recommended an appeal against an acquittal, the petition for the revision of that acquittal is not heard until it is known that the Provincial Government has delined to appeal. If, however, the Provincial Government puts in an appeal, then the revision becomes infructuous, and the case is heard on the appellate side. There is an important difference between the revisional jurisdiction of the High Court and the juris diction that it exercises in an appeal against acquittal. In revision the High Court can exercise all the powers that it can exercise in appeal except that it cannot convict. But when the High Court is seized of a case on an appeal by the Provincial Government against an order of acquittal, it can order a retrial or convict the acquitted accused. Thus its powers on such appeal are larger than and include all the powers which may be exercised on a petition for the revision of an acquittal. It is obvious that if the Advocate‑General had stated before me that the question of an appeal against acquittal was being considered by the Government I would not have heard the petition for revision and would have postponed its hearing to such time as the Government had taken a final decision in the matter. I was, however, told that the Government did not intend to appeal and had taken a final decision not to do so. It was on this assurance that I proceeded to hear the petition for revision. In other words, I was invited by the Government to exercise a jurisdiction which was contingent on the Government's refusal to appeal, and I do not see how the Government could subsequently change their mind and say that the condition on the existence of which the High Court exercised that jurisdiction should be considered as not having existed at all. The principle applicable to such cases is that where any authority is given by statute the right to do or not to do a thing, and the subsequent course of litigation depends upon whether that act is done or not done, such course being different when the act is done from that which would be followed if the act is not done, and the authority concerned communicates to the Court that it has taken a decision not to do the act and the Court has exercised a jurisdiction which it would not Lave exercised if it had been told that the act has been done ors will be done, that authority cannot be permitted to say that\the act has subsequently been done and that, therefore, the alternative course in litigation should also be followed. B In other words, the rule is that where an authority is permitted by law to function only once and it communicates to the Court that it has functioned in a particular way it will not be permitted by the Court to say that subsequently it functioned in a different manner as ,it subsequently did. This rule which insists on finality and consistency in litigation is not "estoppel" as enacted in section 115 of the Evidence Act which only applies to civil cases, but is much wider in its scope and application than mere estoppel. Of course the rule applies only in the absence of a statutory provision to the contrary but such provision will itself be interpreted as recognising the rule and will be given effect to only where there can be no doubt as to its intendment. In the present case since I would not have heard the petition for revision for full three days and would not have given the judgment that I did if I had known that the Crown intended to exercise its right to appeal,' the Crown cannot now ask the High Court to ignore what has happened and to hear the appeal as if the matter was still res integra. If a similar situation had arisen in a High Court presided over by a single Judge, and that Judge in the course of hearing the petition for revision had expressed himself against the accused as strongly as I did in my judgment, and subsequently the Provincial Government put in an appeal against acquittal, the Judge could never be expected to take an unbiased view of the case in appeal, and the accused could never have the feeling that the Judge would take a different view of the evidence from the one he expressed on the previous occasion. In such a case, the Judge would be completely disqualified from hearing the appeal after he had expressed his view on the evidence in the case in a revisional order. There is no reported decision on the precise point involved in the present case, presumably because no Provincial Government ever acted or thought of acting in the manner in which the Government acted in the present case, though there is a converse case in Emperor v. Ghulam Muhammad (A I R 1942 Lah. 296) where a Full Bench held that once an appeal against acquittal is put in by the Crown and admitted, the Crown cannot subsequently withdraw that appeal. The case in Q. E. v. Kanhiala (10 A W N 225), however, is somewhat analogous to the present case because there an appeal by an accused person was held to have become incompetent after a petition for revision had been heard on the merits and his sentence enhanced. In the present case two of the powers of the appellate Court, namely, judgment on the facts and the power to refuse a retrial have already been exercised and the Crown appeal now is no more than an ex post facto authority to convict. I have, therefore, no doubt in my mind that the communication of the Government's decision not to appeal was final, and that after the exercise of revisional jurisdiction the Government could not by the filing an appeal A ask the Court to adjudicate upon the same matter once again. I would, therefore, dismiss this appeal which appears to me to be nothing short of a contumacious step taken by the Government to get out of an obvious embarrassment in which it had deliberately placed itself. AKRAM, J.‑I agree in the order dismissing the appeal in the special circumstances of the case. CORNELIUS, J.‑This is an appeal by the Crown against an order of a Division Bench of the Lahore High Court, dismissing an appeal brought before the High Court under section 417, Cr. P. C. against the acquittal of Sultan Mahmood and nine other persons by an Additional Sessions Judge of Gujrat district. The Crown appeal was dismissed without going into the merits of the case. In the leading judgment it was declared that the appeal was "not competent in law and must be thrown out on that ground alone". Both the learned Judges expressed the view that the Crown had, at an earlier stage, declared its intention not to appeal in the case, and that by reason of such election, the power of appeal was lost. The actual words used in the leading judgment are as follows:‑ "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." In his concurring judgment, Shabir Ahmad, J. observed as follows:‑ "Having through the Advocate‑General taken the stand that it did not intend to question the order of acquittal, the Provincial Government cannot now claim its statutory right to present an appeal against that order." S. A. Rahman, J. who wrote the leading judgment also observed as under :‑ "It would be an abuse of the process of the Court to , humour the changeful moods of the prosecution in these, circumstances." The circumstances of the case were altogether special. The judgment of acquittal was pronounced on the 31st March, 1952, and on the 20th May, 1952, a petition for revision under section 439, Cr. P. C. was filed by one Ch. Wall Muhammad citing the ten accused persons as respondents, in which the judgment was criticised in detail on various grounds, and on the basis that the prosecution case was fully established by the evidence and even received strength from the defence evidence, it was prayed that the trial Court's order should be upset and that the respondents should be "dealt with according to law". Notice was issued to the respondents as well as to the Crown through the Deputy Commissioner of Gujrat, who reported to the Advocate‑General that Crown representation was necessary. It appears that the question of an appeal against the order of acquittal was at that time engaging the attention of the authorities, and that the District Magistrate had reported in favour of attempting an appeal. It is stated 'that on the 17th June, 1954, the Provincial Government decided against filing an appeal, and although this is not proved upon the record, it would appear to be confirmed conclusively by the fact that when, during the hearing of the revision case on three days in the month of July, 1952, the Advocate‑General of the Punjab was questioned in the High Court whether the Crown intended to appeal, he replied unequivocally in the negative. It is stated at the Bar that the Advocate‑General went so far as to say that the case had been examined by all the law officers of Government., and their unanimous opinion was that it was unsuitable for appeal. The record of the revision case shows that the Advocate‑General appeared for the Crown. The Crown is both a necessary and a proper party in every cognizable case and particularly so in cases involving serious crimes such as murder. The judgment under appeal contains a reference to a rule made by the Lahore High Court which lays down that no petition for revision of an order of acquittal shall be received unless it is accompanied by a copy of the District Magistrate's order refusing to move the Provincial Government to appeal under section 417, Cr. P. C. The intention of this r1he is obvious. It is intended to emphasise that the principal mode by which acquittals may be called in question in the High Court is that of appeal under section 417, and to ensure that the statutory right of appeal against an acquittal conferred upon the Provincial Government should not be prejudiced by previous treatment of the case in the revisional jurisdiction. Reference to the statutory provisions relating to powers by the High Court in appeal and in revision will show that with two exceptions, powers exercisable in the two modes are in all respects similar. The exceptions are that in an appeal, a sentence may not be enhanced whereas this may be done in revision and secondly that in revision an acquittal shall not be converted into a conviction, whereas this may be done in an appeal against an acquittal. Every other power, whether procedural or final, is equally exercisable in appeal as it may be exercised in revision by the High Court. No restriction is placed upon the High Court's power in either case to examine all the facts and circumstances as well as the entire evidence, either in appeal or in revision, for the purpose of teachings the findings necessary for the disposal of the case. This makes it clear that the rule referred to above is both necessary and salutary. Since the jurisdiction in revision is almost exactly concurrent with that in appeal there is a danger that if the High Court were to deal with a revision petition against an order of acquittal, without waiting to be assured that the Provincial‑ Government did not intend to appeal against the same order, such an appeal, if brought at a later stage; would be rendered infructuous, and a valuable right conferred upon the Government in the public interest, would thereby be lost. The reason for the action of the learned Chief Justice in sending for the Advocate‑General during the hearing of the revision petition, and obtaining from him a categorical statement regarding the intention of the Provincial Govern ment, is thus obvious. It should have been obvious to the ,Advocate‑General as well, and there is no reason to suppose that the point was overlooked by him, that by making the declaration that the Crown after due legal examination of the case, had decided not to appeal, the consequence would be that the full powers of the High Court as a final Court of criminal . jurisdiction would be exercised in the case in pursuance of Ch. Wall Muhammad's revision petition. In a case where the High Court might have dealt with such a petition without waiting for the Crown to appeal, or to declare its intention not to appeal, the Crown would at least be able to urge that the prejudice to its power of appeal had not resulted, to any extent, from any act of the Crown itself. But where it was made known to the Crown that a petition was proceeding in which every matter of fact or law which could be urged in, or might be relevant for the purposes of, an appeal by the Crown would be fully investigated, and a final adjudication would be made, and the proper agent of the Crown declared that a decision had been taken not to appeal, the plea of prejudice to the right of appeal could hardly be taken bona fide on behalf of the Crown at a latter stage. The High Court exercises final jurisdiction in criminal cases, and the Crown must be deemed to be aware that finality would attach to the order of. the High Court made in the revision, after a full hearing of the case, which was attended by the Advocate‑General. The Crown could only) come up later, for the case to be heard again on the appellate) side, in pursuance of an appeal filed under section ‑ 417.1 Cr. P. C. in conscious violation of the universally recognised) principle that "it is in the interest of the State that there should be an end to litigation". It is on this principle that I would rest my conclusion that the Crown appeal was rightly dismissed by the High Court. In view of the finality attaching to judgments of the High Court pronounced on the criminal side, in appellate or revisional jurisdiction, it is impossible to conceive of the High Court making more than one order in respect of the same case an( in relation to the same questions arising thereout. The declaration of the Advocate‑General operated in the circumstances as an invitation to the High Court to make a final adjudication in the case, in the revision petition, which would necessarily have the effect of destroying the Crown's own right of appeal in the same case. It was pressed before us by Mr. Nazir Ahmad Khan for the Crown that the Crown's statutory right under section 417 Cr. P. C., could not be taken away by any doctrines similar to those of estoppel or waiver in civil law, based upon the statement of the Advocate‑General made at the hearing of the revision petition. That statement was not binding upon the Provincial Government, even if at the time when it was made, a decision had in fact been taken not to appeal, for the reason that at any time up to the expiry of limitation, which was six months, the Provincial Government was at liberty to re‑examine the case and in the light of fresh facts or considerations, or even otherwise, to reach a decision in favour of instituting an appeal. In the present case, the circumstance which had led the Provincial Government to alter its decision was that the learned Chief Justice, in his judgment dismissing the revision petition, had given strong expression to his views regarding the probable guilt of a number of the respondents before him. This circum stance, in the view of the Provincial Government, was a sufficiently powerful factor to induce it to re‑consider its previous decision, and to direct the institution of an appeal. Under the law the High Court was bound to hear the appeal. The contention that when an appeal is filed under section 417 Cr. P. C. in accordance with law, the High Court is obliged in all circumstances to hear it on the merits cannot) be upheld. In view of the clear terms of section 561‑A! Cr. P. C. the mere institution of the appeal cannot "limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court o ,9r otherwise to secure the ends of justice." I have already quoted a passage from the judgment of S. A. Rahman, J which refers to "an abuse of the process of the ‑Court and I feel no doubt in my mind that in the circumstances which have been considered in detail above, it would be a clear abuse of the process of the Court to permit a party to press an appeal which involves the determination of the same ~E matter which that party had consciously allowed the High Court to determine, in the course of a proceeding in a different form, which nevertheless involves in substance exercise of the full powers of the High Court for securing such determination. It is immaterial in the relevant respect, that in the former proceeding the High Court could not follow up its determination with an immediate order giving effect to its own view in regard to the facts of the case and that its powers extended only to the making of an order for re‑trial of the respondents on the same charge. An order for re‑trial would have placed the respondents in peril of their lives once again, on a charge of murder. Such a direction being within the strict provisions of law, no objection could be taken against it on the basis of the maxim that "no person ought to be vexed twice in the same cause". But when that peril was overpassed as a result of the order of the learned Chief Justice, dismissing the revision petition and refusing to direct a re‑trial, the motion by the Crown by way of appeal against the same respondents, in respect of the same cause, was clearly in violation of the maxim against repeated vexations in the same cause. The application of the inherent power of a superior Court to refuse a hearing in an appeal which is in all legal respects competent is not unprecedented. An instance of the exercise of such a power by the House of Lords may be found in the case Sun Life Assurance Company of Canada v. Jervis (App. Cas. 1944 p. 111.). There, a dispute between the parties having been litigated before a single Judge, an appeal was dismissed, and the Court of Appeal, on being moved for the purpose, granted leave to the company to appeal to the House of Lords on condition, inter alia, that the company would not "ask for the return of any money ordered to be paid by this order." An appeal may be taken before the House of Lords if leave to appeal is given either by the Court of Appeal or by the House of Lords, and in this, as in all other technical respects, the appeal of the company would appear to have been in proper form. At the outset, the House declared its desire to hear argument on the question whether the appeal was competent in view of the fact that "under the terms of the leave to appeal given to the appellants, they had no monetary interest in the result of the appeal". On behalf of the appellants arguments in favour of the competency of the appeal were advanced, and, in the alternative, it was prayed that if the House considered that the mistake could not be remedied, the appellant asked for leave to withdraw the appeal. In the result, leave to withdraw was granted, but Viscount Simon L. C. stated at length and with lucidity the grounds of his opinion that if the appellants had not applied to withdraw the appeal, the appeal would have been dismissed. The following observations of the learned Lord Chancellor are apposite in relation to the present discussion :‑ "I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellants hope to get decided in their favour without in any way affecting the position between the parties." "The research which has been given to the matter does not discover any previous decision in which the House of Lords has undertaken, on the petition of an unsuccessful appellant, to review the decision below when the opposite‑party has been finally settled with, and I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue." " there is nothing contrary to the statute In holding that the House should not hear argument on this appeal, having regard to the conditions imposed by the Court of Appeal which have deprived the matter before us of the quality of a live issue in this litigation." Although the case in the House of Lords was of a civil nature, there are points of resemblance between the grounds upon which the appeal was declared to be incompetent by the House and those which clearly militated against the High Court proceeding with the appeal placed before it by the Provincial Government. In the former case as a result of an order made by the Court of Appeal which was entirely within its powers, the dispute between the parties was finally determined so that the determination could not be affected by anything which the House of Lords could do in the exercise of its authority as the Court of ultimate appeal. In the present case, the action which has the effect of rendering the appeal incompetent was that of one of the parties, namely, the Crown, but the effect thereof is precisely the same, namely that a final adjudication was made in the revision petition, in regard to all the facts which could be the subject of decision in the appeal, and the Crown having by its act induced the Court to proceed to such final determination, cannot be heard to claim that its separate right of appeal under section 417 Cr. P. C. is not prejudiced thereby. For the reasons, I think this appeal should be dismissed. A. H. Appeal dismissed.