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Petitioner: HAYAT BAKHSH AND Other, MUHAMMAD SADIQ VS Respondent: THE STATE MUHAMMAD ALI AND Other Link 1
Court Name: Supreme Court of Pakistan Judge(s):Sheikh Anwarul Haq, Muhammad Afzal Zullah, Muhammad Haleem, Karam
Elahi Chauhan, Abdul Qadir Sheikh Title:HAYAT BAKHSH AND Other, MUHAMMAD SADIQ vs THE STATE MUHAMMAD ALI AND Other Link 1 Case No.:Criminal Appeal No. 53 of 1976 Criminal Appeal No. 130 of 1976 Criminal Appeals Nos. 53 and 130 of 1976 Criminal Appeal No. 53 of 1976 Criminal Appeal No. 130 of 1976 Date of Judgment:1980-07-26 Reported As: PLD 1981 Supreme Court 265 Result: Order accordingly Judgment ORDER MUHAMMAD APZAL ZULLAH, J.-Question relating to the right of an accused person to hearing in criminal appeals against conviction as also ----against acquittal when he has not surrendered his person in pursuance of the processes issued under the authority of law, has arisen in these two cases (Criminal Appeals 53 and 130 of 1976) in the following circumstances; Criminal Appeal No. 53 of 1976 This appeal arose out of murder case. The accused were acquitted by the trial Court in 1972. The State appeal against acquittal was admitted by the Lahore High Court in 1973. A Division Bench of the said Court allowed the appeal and convicted the accused. They preferred direct appeal in this Court on 5th July 1976. It came up for hearing before a Bench of three Judges on 5th of February 1980, when the following order was passed;-- "In an appeal against acquittal the Lahore High Court convicted all the four appellants under sections 302, 364 and 460 read- with section 34, P. P. C. All have been awarded long sentences of imprisonment and Muhammad Afzal has been sentenced to death. This appeal was filed in July 1976. The case could not be completed due to non-surrender of the appellants except Muhammad Afzal. It is noted in the order of the Court dated 9-4-1979 that Mr. Kasuri learned counsel for the appellants had then stated that the High Court had not issued warrants of arrest. While observing that the appeal could not be heard "until such time as the appellants surrender themselves in
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obedience to the judgment of the High Court", the case was adjourned for a month to enable the A. O. R. To make available all the remaining appellants. In the meanwhile it was directed that enquiries should be made from the High Court as to why warrants of arrest had not been issued. The Registrar of the High Court informed that directions for the arrest of the appellants were issued on 21st June 1976. The District Magistrate reported that although Allah Bux son of Sikandar had also been arrested, the two remaining convicts/appellants were still at large-having gone abroad. These developments were reported to the Chief Justice by the office, with the proposal that the appeal of Muhammad Afzal and Allah Bux son of Sikandar be heard and that of the two absconding accused might remain pending. This proposal was accepted by the Chief Justice on 25-2-1979. The, appeal came up for hearing before the Court on 19-6-1979 but was adjourned. Today, under the assumption that the appeal is complete in every respect, the hearing commenced. After some time the Court Associate brought to our notice that two appellants have not yet surrendered. The A. O. R. Stated that he took all necessary steps to inform them about today's hearing. It is agreed by all the learned counsel that on account of their connections in Pakistan the absconding appellants were presumed to be aware of today's hearing ; yet they have not surrendered. Mr. Kasuri did not consider this circum--stance as in any way prejudicial to the interest of the absconding appellants. According to him, despite this Court having waited for such a long time (which from all standards of justice is more than seasonable) they can stay away. He went to the extent of saying that if a situation had arisen he might as well have advised them to stay away till the decision of the appeal of their co-convicts, because as he thought, their appeal in any case has to be kept pending and cannot be dismissed without hearing. Even on account of the conduct. We, prima facie, considered this matter to be covered by the ruling in the case of Chan Shah v. The Crown PLD 1956 FC 43 and thus the appeal of the absconding appellants could be dismissed without further 'hearing. Learned counsel seeks time to address the Court on this point. We in the interest of justice adjourn further hearing of the appeal. Date in office." It is in pursuance of the said order that the question posed therein has come up for consideration. Criminal Appeal No. 130 of 1976 "In pursuance of issuance of non-bailable warrants of arrest against the three respondents, only two of them, named above, have been arrested and the third respondent, Bakhsha, is still at large. Mr. S. M. War appearing for the applicants has applied for bail on the ground of delay to the disposal of the appeal. At this stage, a question has arisen as to how the case of the third respondent should be dealt with as he has not yet surrendered in obedience to the orders of this Court. " As a similar question is also involved in Criminal Appeal No. 53 of 1976, let both these matters be put up for consideration of this question before the Court during this week." Before dealing with various aspects of the controversy it is necessary to note an explanation offered by Mian Mahmud A.I Kasuri with regard to what he had stated on 5-2-1980 and is noted in the order passed on that date lift Criminal Appeal No. 53 of 1976). He explained his position and stated that he had answered the question with regard to the (so-called) right of convict-appellant not to surrender and stay away till the appeal of his co-convicts is decided, only in a hypothetical manner; otherwise he affirmed his own view that the convict-appellant should surrender to the processes of this Court. Not only this, he further stated, that he has informed and advised his clients that surrender must be made, otherwise they might have to find a different counsel. Apart from other related questions, the two main questions involved in these two matters for determination are: (1) in Criminal Appeal 53, which has been filed as of right by the accused who, after acquittal by the trial Court, have been convicted by the High Court-whether Hayat Bakhsh and Allah Bakhsh son of Muhammad Bakhsh appellants, who did not surrender despite the orders of this Court, are entitled to the hearing of their appeal on merits in their absence without surrender
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and whether the same cannot be dismissed on the short ground of their non-surrender; and (2) in Criminal Appeal 130, which is not an appeal as of right but is on account of grant of leave to appeal by this Court to the complainant against the acquittal of the respondents by the High Court,- whether the appeal of those accused/respondents who have not surrendered in obedience to the orders of this Court can be heard and disposed of on merits or otherwise on the basis of the negative conduct of the non-surrendering respondent, namely, Bakha. Mian Mahmud A.I Kasuri, learned counsel for the accused/appellants in Criminal Appeal No. 53, has contended: that it would be dangerous to make one or the other assumption regarding defiance of the two defaulting appellants in so far as the warrants of their arrest are concerned-he tried to show that there was no intentional disobedience on their par!; that the practice of this Court has been to separate the appeal of absconding convict/accused and hear the same after the surrender; that there is no precedent that the absconder's appeal was ever dismissed on ground of non-surrender; that in this case also there is an order of the learned Chief Justice wherein the office was directed to separate the appeal of the two absconders; that the appeal filed by the non- surrendering convicts in this case is the creature of the Constitution having been filed us a matter of right-there is nothing in the Constitution to direct its disposal in any manner other than by a decision on merits thereof; that although in England the practice is that a criminal appeal can be dismissed in convict's absence and it cannot be denied that every accused/convict can be required to appear or be produced in Court, the higher principles of criminal justice demand that the disposal of appeal, notwithstanding the disobedience of the orders of the Court, should be on merits. Mr. S. M. Zafar (learned counsel for respondents in Criminal Appeal No. 130) submitted that the controversy could not be resolved without analysis on a full canvas. In this behalf he visualized cases: where a convict becomes a fugitive from law before filing a petition for leave to appeal- -in that case, according to him, the petition may not be properly constituted; where, after filing the petition, the convict becomes an absconder and being himself the mover of the petition fails to assist the Court by his presence-- in that case he might deprive himself of any relief which could have been obtained by him; where after the presentation of a petition for leave to appeal the convict succeeds in obtaining an order granting him leave and thereafter either absconds without surrendering, or after having surrendered obtains a bail order and becomes an absconder--in such a case the Court can either keep the appeal pending and bear it when the absconder surrenders; or when there are more than one convicts/appellants, the appeal of the absconder be separated only if on hearing the appeal of his co-convict no benefit can be given to him (absconder) on account of the said hearing in his absence; otherwise if he becomes entitled to acquittal, this benefit should not be withheld from him; where the High Court having acquitted or having maintained the acquittal of an accused he is re-arraigned before the Supreme Court as a respondent, if he is a single accused in the matter his presence must be secured so that the appeal against acquittal is beard against him, if he cannot at all be benefited without hearing him-the principle underlying section 512, Cr. P. C. Was relied upon; and if there are more than one accused, the case of the absconding accused should tie seperated and postponed while that of others should be heard and decided; or if on hearing the appeal of the co-accused of the absconder, it becomes clear that he cannot be convicted, it should be so held and declared so as to benefit him as well, even though he remains fugitive throughout. In presenting the foregoing analysis, the learned counsel emphasised that it is not only the function but duty of the Court to do complete justice in every matter that comes before it. Sh. Shaukat A.I (learned counsel for appellant/complainant in Criminal Appeal No. 130) made a distinction between an appeal by a convict as of right and appeal on grant of special leave to appeal. In the former cue, according to him, it is the demand of justice that the appeal should not
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be dismissed on account of the conduct of the appellant in becoming a fugitive from justice, while in the latter case his appeal could be so dismissed. He, however, conceded that in an appeal against acquittal an absconder can be convicted even in his absence, but not without examining the case on merits. Kh. Shaukat A.I, learned counsel for the State, adopted the arguments advanced by Sh. Shaukat A.I. The following precedents were I cited at the Bar, or otherwise noticed: Khalil acrd others v. The Crown (1). Lmanullah v. The Crown (2), Chan Shah v. The Crown (3), Abdul Razik v. State (4), Slate v. Muhammad Nawaz (5), Sadiq v. The Stale (6), Gul Hassan v. State (7), Ghulam Nabi Shah v. The Crown (8), Muhammad Aslam v. State (9), Sher Khan alias Mammi v. State (10), Muhammad 1qbal v. State (1 I ), Khanan Khan v. State (12), Babulal Agarwala v. State (13), R. v. Flower (Richard) (14), Fakir Muhammad v. Emperior (15), Bansi Mirdha and others v. Brojeswar Dutt (16), Muhammad Aslam v. State (17), Sikandar Hayat v. Atta (18), Mushtaq Ahmad v. Siddiqullah (19), Farid v. Aslam and others (20), Muhammad Latif v. Muhammad Farvoq (21) and King-Emperor v. Drhu (22). Four basic principles need to be highlighted with reference to the views expressed thereupon by this Court: (1) It was held by majority in the case of Imranullah that in a criminal case, an appeal is not a rehearing; but only a hearing by a Court of error, and the expression "rehear--ing" used in section 423(1) of the Cr. P. C. Compendiously indicates both the right of address possessed by the appellant and the duty of listening to the address, imposed upon the Court and as it is an expression of the simplest kind, it must be given the wider connotation. It must be read into the word "hearing anything in the nature of an obligation, as to its form and "any suggestion that observance of any kind of ritual is involved would be, in my opinion, obnoxious to its true meaning"; (2) the principle that the Court would not Act in aid of a person who is fugitive from Justice, was affirmed in the case of Chan Shah and a universal rule was reiterated that it is an essential condition of the administration of justice, in a case affecting an individual or individuals. That the persons concerned should submit to the due process of justice.. While administering a caution to the Attorneys and Advocates, the Court observed that steps should be taken to secure the appearance of the prisoner before this Court on the first day that the petition comes up for hearing and it is at that time that a move can be made through counsel for an order suspending the execution of the High Court decision; (3) a fugitive from law has no right of hearing before an appellate forum was affirmed in the case of Gut Hassan in such strong terms that he was treated as a continence and even if he had been condemned to death by the trial Court, in a reference for confirmation of death sentence under section 374, Cr. P. C., the High Court could justifiably refuse to heal anything against confirmation of death sentence on behalf of the convict, who "decamps and thereby forfeits the right of audience", in that eventuality the "sentence of death may be confirmed in his absence". It was further held that in such a case the appeal filed by the counsel on the basis of the power of-attorney executed by the absconder in favour of a person before his absconsion was not properly constituted and the Court could ` dismiss the appeal filed on the basis of such a power-of-attorney on this ground alone; and (4) the theory that a criminal appeal once filed has to be heard and disposed of on merits even if the appellant desires other wise or requests for its withdrawal, was rejected in the case of Muhammad Aslam. It was held that an appeal is the creation of statute, essentially in the nature of a right. A convicted person is not bound to appeal even where the law gives him such 'a right and that being so, there appears to be no general principle which stands in the way of his withdrawing the appeal If he can accept the finding and sentence by electing not to file appeal, there is no reasons why the mere fact of his having filed an appeal should in the absence of some principle akin to estoppel, be considered to be a bar to his subsequently waiving the right. At the same time it way observed that an appeal by a prisoner creates no right in any one else and gives to the High Court no higher power otherwise than what
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ha: been conferred on it in its revisional jurisdiction, and there being no implied or express prohibition against abandoning or withdrawal of appeal; such a right must be conceded to a convicted person. In adopting such a course, there would be no injustice to any one or deprivation of an3 right or power because none is involved in the mere withdrawal of at appeal. (1) PLD 1953 FC 133(2) PLD 1954 FC 123 (3)PLD1956FC43(4)PLDI965SC151 (5) PLD 1966 SC 481(6) PLD 1967 SC 356 (7) PLD 1969 SC 89(8) 1969 SCMR 629 (9) 1972 SC M .R 194(10) 1975 P Cr. L J 655 (i 1) P L p 1963 Lah. 279(12) PLD 1966 Pesh. 232 (13) PLD 1961 Dacca 523(14) 1965 All E L R 69 (15) AIR 1930 Lah. 953(16) AIR 1924 Cal. 95 (17) PLD 1959 SC 119(18) PLD 1970 SC 224 (19) PLD 1975 SC 160(20) PLD 1977 S- C 4 (21) 1978 SCMR 374(22) AIR 1935 P C 39 Apart from the cases of Imranullah, Chan Shah, Gul Hassan and Muhammad Aslam, the case-law cited at the Bar, or otherwise noticed above does indicate as to bow the questions arising in these two matters have been dealt with. In the English case of Flower (Richard) the Court of Criminal Appeal noticed that although the practice of that Court where are appellant had escapej6 from prison and so was not present on the hearing of the appeal, was to adjourn the appeal or dismiss it according to the justice of the case; yet in a given case if all the points to be raised b5 the absent appellant had been raised and argued on behalf of other appellants and there was no conflict of interest, the Court, in the circumstances of the case, would not consider it proper to adjourn the appeal of the absent appellant and thus keep it alive, but would consider the common point on the argument raised by the counsel of the other appellants who, it was noted in the cited case, was an experienced counsel. It is true that in that case the merits were examined; but it is not clear from the report as to how the rules relating to. The appearance of the convict at the hearing of appeal have been reconciled in the departures made therefrom The law at the relevant time on the point, as is apparent from Paragraph 967 note (i) and paragraph 975 note (p) at pages 526 and 531 of Volume 10 of Halsbury's Laws of England, Third Edition, was that "!f the appellant is not present at any hearing of his appeal, the Court may decline to consider the appeal and may summarily dismiss it and issue a warrant for the apprehension of the appellant, or it may consider the appeal in his absence or make such other order as it thinks right. A warrant for the apprehension of an appellant issued by the Court of Criminal Appeal is deemed to be for all purposes a warrant issued by a justice of the peace for the apprehension of a person charged with an indictable offence . . An appellant who is not in custody must whenever his case is called on before the Court surrender himself to such persons as the Court may from time to time direct and must thereupon be searched by them, and is deemed to be in their lawful custody until further released on bail or otherwise dealt with as the Court may direct." (See also Criminal Appeal Rules, 1908, Rules 29, 31 and 47). It appears that the normal practice for dealing with the appeal of a fugitive from justice, is not different from what is prescribed in the rules governing criminal appeal. It is not necessary to comment any further on the case, of Flower (Richard). The law and practice in England has no bearing on the larger questions which have been raised in the controversy in the cases before us. It is true that a learned Single Judge had held 'in the pre-Independence Lahore case of Fakir Muhammad, that it was not the duty of an accused person to produce his absconding co-accused before the Court, and s; Court of Justice was not justified in exercising any pressure upon him with the object of coercing him to produce persons who were fugitive from justice, but as held in some recent case, if it is found that the abscondenee of the co-accused is contrived or otherwise
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motivated by the accused who has already surrendered or has been arrested, then at least, in case of a request for his bail, consideration of this aspect of the matter would not be irrelevant. In this connection it would not be out of place to note the case of Said Mian and another recently decided by this Court, and the Lahore case of Muhammad Iqbal, wherein some of the purposes for which an accused is taken into or kept into custody during the trial, or is supposed to remain in the custody of the Appellate Court during the pendency of the appeal, have been noticed and discussed. There are some cases starting from that of Sikandar Hayat and including those of Mushtaq Ahmad. Farid and Muhammad Latif, wherein it was held that an appeal against acquittal, after, leave to appeal had been granted, could not be effectively abandoned as of right by the appellant. Even if the counsel for the appellant withdrew, the case was heard and decided with assistance from other counsel appearing therein. As was noted in the case of Sikmdar Hayat, wherein the subject is discussed, this Court had rendered a decision much earlier in the case of Muhammad ..!Slam that an appeal being the creation of a statute is in the nature of a right and that being so, no general principle stayed in the way of an affected person to withdraw his appeal. This principle, it was further noted, did support the argument raised in the case of Sikandar Hayat by late Mr. Manzoor Qadir that right to abandon an appeal inheres in the right -to bring an appeal. As to what is the result of inter action of these two rulings of this Court and how the seeming conflict was or would be resolved is beyond the scope of present discussion. It would, however, be remarked that one way of looking at the so-called conflict would be to examine it in relation to the power of this Court as no complete -justice in a matter which comes before its. The foregoing subject of abandonment of appeal has been discussed and dealt with in the context that a convict/ appellant, if he has a right to abandon his appeal, may do so either in a formal manner or by his conduct; for example, that he becomes a fugitive from justice and is no more interested in pursuing the appeal. At this stage, it is necessary to notice another set of cases, cited at the Bar, with reference to which an attempt was made to show that even when an appellant absconds, it is the duty :of this Court to bear the appeal on merits of course the reliance is only indirect. In the case of Abdul Razik the appeal before this Court was only of one person. His co-accused Sharifullah had been acquitted at the trial. There were two absconders who had not been tried at all. While accepting the appeal of Abdul Razik on merits, it was observed in the concluding part of the judgment that the evidence relied upon by the prosecution could not be accepted for the conviction of four persons who were admittedly enemies of the deceased. It was further observed: "It is immaterial that only two of them could be brought to justice, for the findings in the Courts below affect the two absconding men equally with Abdul Razik." It would not be correct to say that the decision in the appeal of Abdul Razik was in any way indicative of the fact that the 'two absconding accused were no more required to be tried. The case of Muhammad Aslam and 5 other presents a different picture. The appeal of Muhammad Aslam and five others, who were represented by two learned counsel, was pending when Muhammad Aslam absconded. After hearing the appeal, the learned Judges came to the conclusion that the prosecution did not succeed in establishing the case. Accordingly the appeal, which was joint, was allowed. With regard to the question as to whether this decision could enure for the benefit of Muhammad Aslam also, it was remarked: ". Although appellant Muhammad Aslam has absconded during the pendency of the present appeal and has remained absconding uptill now, the benefit of our judgment should be given to him also in order to do complete jrcrtice in the case. We, therefore, do not find it necessary to postpone the hearing of the case of Muhammad Aslam until his presence before this Court." It would be noticed that in the circumstances of that case, the Court thought that the requirement of the rule with regard to complete justice demanded that the benefit of the judgment should also go to Muhammad Aslam.
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Yet in another case of Ghulam Nabd Shah, it was trot considered necessary to give direct benefit of a similar judgment of acquittal to a convict whose appeal was not before the Court, and instead a recommendation was made by the Court to the Provincial Government that the sentence .Imposed upon him may be fully remitted. But when a similar situation arose in the appeal of Sadlq a strict view was taken regarding the observance of the law and rules with regard to filing and hearing of appeals in this Court. Sadiq and his brother Khan Bahadur were both convicted and sentenced under section 302/34, P. P. C. Khan Bahadur did not challenge the' decision of the High Court whereby his conviction was upheld. His brother Sadiq having filed a petition was granted special leave to appeal, on hearing of one of the two co-convicts, it was found that he was entitled to a spatial relief-Exception IV to section 300, P. P. C. Was held to be attracted to the case and the offence thus fell under section 304, Part I with consequential substantial…
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