P L D 1962 (W (PLP)

ORTCHESON, J.‑On the 18th of June, 1962, the concluding day of arguments in Criminal Appeal No. 368 of 1962 In re Gt.‑Col. Muhammad Yusuf Khan v. Syed Ali Nawaz Gardezi, which had occupied the time of this Bench for one month, the complainant‑respondent filed an application drawing our attention to Central Ordinance No. L of 1962 (hereinafter referred to as the Ordinance) which, according to the applicant, barred the jurisdiction of this Court to hear the appeal, and asking for necessary orders.

2. The Ordinance in dispute runs: ‑ "Whereas it is expedient to abolish the jurisdiction of the High Court to hear appeals from the judgments of a Single Judge of the High Court and to confer the said jurisdiction on the Supreme Court: Now, therefore, in pursuance of the Proclamation of the seventh day of October, 1958, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance :‑

1. Short title and commencement.‑(1) This Ordinance may be called the Appellate Jurisdiction (High Courts and Supreme Court) Ordinance, 1962. (2) It shall come into force at once.

2. Appeals from Single Judge of High Court to Supreme Court.‑Notwithstanding anything contained in the East Pakistan High Court Order, 1947 (G. G. O. No. 4 of 1947), and the West Pakistan High Court Order, 1955 (G. G. O. No. 19 of 1955), or in the Letters Patent applicable to the High Court of East Pakistan or to the High Court of West Pakistan, a High Court shall not have any jurisdiction to hear an appeal from the judgment of a Single Judge of that High Court and all such appeals, subject to the conditions and limitations as applicable to them before the promulgation of this Ordinance, shall lie to the Supreme Court.

3. Transfer of pending appeals.‑All such appeals as afore said pending before a High Court immediately before the promulgation of this Ordinance shall stand transferred to the Supreme Court." It may be noted here that although the Ordinance purports to have been promulgated on the 7th of June, 1962, no copy of it was received in this Court until the 16th of June, several Letters Patent appeals having been decided in the interval.

3. As the application appeared to us to be without substance, we dismissed it. In the ordinary course, our reasons for doing so would have been recorded in our appellate judgment, but as an order has meanwhile been received from the Supreme Court of Pakistan staying the pronouncement of judgment, we are recording this separate order.

4. The short point for decision is whether the effect of the Ordinance is to bar the jurisdiction of this Court to hear an appeal from the order of a Single Judge passed in the exercise of original criminal, as opposed to civil, jurisdiction, or whether its scope is limited to what are known as Letters Patent appeals, i.e., appeals filed under the provisions of clause 10 of the Letters Patent constituting the former High Court of Judicature at Lahore. It will be seen that so far as this Court is concerned, clause 2 of the Ordinance refers to only two enactments, namely, the West Pakistan High‑ Court Order, 1955 (Governor‑General's Order No. 19 of 1955) (hereinafter referred to as the Order) and the Letters Patent applicable to the High Court of West Pakistan. Dealing first with the latter, a perusal of the Letters Patent reveals that they make no provision for appeal to a larger Bench from an order of a Single Judge on the original criminal side, the jurisdiction to hear such appeals being conferred by section 411‑A of the Code of Criminal Procedure. It is, there fore, obvious that no supersession of the Letters Patent can have the effect of abolishing or curtailing the jurisdiction in question.

5. The question next arises whether, assuming for the sake of argument (without expressing at this stage any final opinion) that the scope of the Ordinance is intended to be confined to Letters Patent appeals, it was necessary or, at least, expedient, to refer to the Order. In our opinion, the answer is in the affirmative. The Letters Patent governing the High Court of West Pakistan are those of the former High Court of Lahore, which were made applicable to the newly constituted High Court by section 9 of the Order. It runs :‑ "The Letters Patent constituting the High Court of Judicature at Lahore for the Provinces of the Punjab and Delhi dated the 21st March, 1919, shall apply to the High Court and the jurisdiction, powers and authority conferred by the said Letters Patent on the High Court of Judicature at Lahore shall be deemed to have been conferred on the High Court of West Pakistan, and the said Letters Patent shall in their application to the High Court of West Pakistan be read subject to such modifications and alterations as the provisions of the Establishment of West Pakistan Act, 1955, or any order made thereunder, or any other law for the time being in force may warrant." A reference in the Ordinance to the Order was, therefore, necessary, or at least desirable, to indicate the authority under which the Letters Patent of the former High Court of Lahore had been made applicable to the new High Court of West Pakistan.

6. We are, therefore, of the view that it is by no means necessary to read into the reference to the Order an intention that the scope of the Ordinance should be wider than that of merely overriding the provisions of the Letters Patent relating to appeals from the orders of a Single Judge, and it is a well -settled principle that enactments purporting to abolish or curtail the jurisdiction of a superior Court are to be strictly construed. In Craies' "Treatise on Statute Law", 5th Edition at page 116,1 the learned author, after referring to the dictum of Lord Westbury in R. v. Hanson ((1821) 4 B & Ald. 519) that the creation of a new right of appeal is plainly an act which requires distinct legislative authority, goes on to observe: ‑ "Similarly as to ousting the jurisdiction of a superior Court `The general rule undoubtedly is', said Tindal, C. J. in Albon v. Pyke (1842) 4 M & G 421 `that the jurisdiction of superior . Courts is not taken away except by express words or necessary, implication'. * * * * * * * Lord Salvesen said : `A general rule applicable to the con struction of statutes is that there is not to be presumed without express words, an authority to deprive the Supreme Court of a jurisdiction it had previously exercised or to extend the privative jurisdiction of the Supreme Court to the inferior Courts'. Dunbar v. Scottish County Investment Company (1920) S C 210."

7. An examination of the Order shows that its primary purpose is not to confer any new jurisdiction on the High Court of West Pakistan but to declare the new High Court to be the successor of the Lahore High Court and the other superior Courts formerly functioning in various regions of the newly integrated Province of West Pakistan. In this connection section 3 may be cited with advantage: ‑ "

3. Establishment of the High Court of West Pakistan. (1) As from the commencement of this Order there shall be established a High Court of Judicature for the Province of West Pakistan, to be called the High Court of West Pakistan (hereinafter referred to as the High Court), and the High Court of Judicature at Lahore, the Chief Court of Sind, the Judicial Commissioners' Courts in the North‑West Frontier Province and Baluchistan, and any other Court functioning as a High Court in relation to the territories or areas now included in the Province of West Pakistan shall cease to exist. (2) The High Court shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories included in the Province of West Pakistan as the High Court of Judicature at Lahore and, immediately before the commencement of this Order, in respect of the territories in relation to which it exercised appellate jurisdiction. (3) The High Court and 'the Judges and divisional Courts thereof shall sit at Lahore, but the High Court shall have Benches at Karachi and Peshawar and Circuit Courts at other places within the Province of West Pakistan, consisting of such of the Judges as may from time to time be nominated by the Chief Justice." It appears to us clear that subsection (2) of the above section relates to the territorial jurisdiction of the new High Court and nothing more. The use of the words "Notwithstanding anything contained in the West Pakistan High Court Order, 1955" in clause 2 of the Ordinance cannot, therefore, in our opinion, have B the effect of repealing section 411‑A, Cr: P. C. Subsection (1) of that section is in the following terms :‑ "(1) Without prejudice to the provisions of section 449 any person convicted on a trial held by a High Court in the exercise of its original criminal jurisdiction may, notwithstanding anything contained in section 418 or section 423, subsection (2), or in the Letters Patent of any High Court, appeal to the High Court‑ (a) against the conviction on any ground of appeal which involves a matter of law only ; (b) with the leave of the appellate Court, or upon the certificate of the Judge who tried the case that it is a fit case for appeal, against the conviction on any ground of appeal which involves a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the appellate Court to be a sufficient ground of appeal ; and (c) with the leave of the appellate Court, against the sentence passed unless the sentence is one fixed by law." It will be seen that the above subsection is not only completely independent of the Letters Patent of any High Court, but specifically provides that in the event of any repugency between such Letters Patent and the subsection, the latter is to prevail.

8. The matter may also be considered from another point of view. If it was the intention of the Ordinance to override section 411‑A, Cr. P. C., as well as the Letters Patent, why were only the Letters Patent singled out for specific mention ? In other words, if the mere use of the phrase : "Notwithstanding anything contained in the West Pakistan High Court Order, 1955" was sufficient to override section 411‑A, Cr. P. C. It was also sufficient to override the Letters Patent. In our opinion, however, it can scarcely have been the intention of the Ordinance to effect what is in substance the repeal of section 411‑A, Criminal Procedure Code, merely by the use of the phrase in dispute.

9. Finally, we may call attention to the well known case Sheikh Haji Wahid‑ud‑Din v. Lala Makhan Lal (A I R 1944 Lah. 458), a Full Bench decision, in which the majority of the learned Judges held that there is an important distinction between the status of a Single Judge sitting on the original side of the High Court and that of a Judge sitting in the exercise of appellate jurisdiction. The relevant passage runs : "A Judge sitting on the original side is merely discharging the functions of a trial Court and to all intents and purposes, therefore, he is a Court of first instance and when an appeal is lodged against his order, as a Court he is immediately below the Court which hears the appeal. Such an appeal is provided for even in the Code of Civil Procedure itself as an appeal from an original decree. This, however, is not the case when the same Judge sits on the appellate side and for the purposes of that appeal is the High Court in himself. Neither the Code of Civil Procedure nor the Punjab Courts Act contemplates an appeal to another Court from an order made in the High Court whether by one Judge or more than one and consequently the same analogy cannot apply. The point now before us was directly involved in 43 Cal. 90 and there Sir Lawrence Jenkins, C. J., as stated above, definitely explained that there being no provision in the Code of Civil Procedure for appeal within the High Court and the right being dependent on the Letters Patent only, the judgment of the Judge sitting singly and that of the Letters Patent Bench in fact constituted one single judgment of the High Court." For the reasons given in the above passage, with which we respectfully agree, it is clear that different considerations apply in the case of Letters Patent appeals from those relating to appeal under section 411‑A, Criminal Procedure Code, and the fact that it may have been considered desirable to abolish the former type of appeal does not by itself indicate that it was considered expedient to abolish the latter.

10. We are accordingly of the opinion that clause 2 of the Ordinance is at least open (to put the matter no more strongly) to the interpretation that its scope is confined to Letters Paten appeals, and where doubt exists, the principle that the jurisdiction of a superior Court can only be taken away either expressly or by necessary implication applies, and the contention of the petitioner that this Court has no jurisdiction to hear the present appeal is, in our view, without substance. A. H. Order accordingly.