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Petitioner: THE STATE VS Respondent: ASIF ADIL And Other
Court Name: Supreme Court of Pakistan Judge(s): Nasir Aslam Zahid, Abdul Hafeez Memon, Ajmal Mian Title: THE STATE vs ASIF ADIL And Other Case No.:Criminal Acquittal Appeals Nos.81/92Criminal Appeals Nos.231/92 and
211/92 Date of Judgment:1996-11-20 Reported As: 1997 SCMR 209 Result: Leave refused Judgment ORDER AJMAL MIAN, J. ---By this common order, we intend to dispose of the above petitions which are directed against the omission on the part of the learned Judges of the Division Bench of the High Court of Sind to record reasons in support of the short orders. 2. The brief facts are that pursuant to F 1. R. No. 1144 of 1991 registered on 29-4-1991 at 9-50 p. m. At Bahadurabad Police Station, Karachi, under section 365-A/34, P.P.C., inter alia private respondents in Criminal Petitions Nos.61,62,64 and 65 of 1994 were tried by the learned Judge III for Suppression of Terrorist Activities, Karachi, hereinafter referred to as the Special Court. It seems that after the conclusion of the trial, five of the accused persons, namely, Pir Mehboob Shah, Muhammad Saeed, Nisar Ahmed, Noor Khan and Arshad Ali were convicted and sentenced. Whereas to accused, namely, Asif Adil and Ali Hassan Dhari were acquitted. It seems that the above convicts, filed appeals against their convictions and sentences, whereas the State filed acquittal appeals. It appears that the aforesaid appeals were heard by a Division Bench of the High Court of Sind comprising Muhammad Aslam Arain and Shoukat H. Zubedi JJ on 24-2-1994 and the following to short orders were passed in respect of the above convicts' appeals and the State acquittal appeals:--- "Convicts' appeals-Arguments concluded. For reasons to be recorded separately, we accept this appeal set aside the conviction and sentence and acquit the appellant. He shall be released forthwith unless required in any other case. State's acquittal appealsArguments concluded. For reasons to be recorded separately, the appeal is dismissed."
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Whereas Criminal Petition No. 71-K/94 related to the acquittal through a short order dated 20-3- 1994 by the above Bench in respect of conviction and sentence of three years' R.I. For the offence under section 13-D of Arms Ordinance awarded to the respondent, Abdul Majid. Whereas Criminal Petition No.72-K of 1994 pertains to the acquittal by a short order dated 20-3-1994 of the five respondents, namely, Abdul Majid, Mughal, Ghulam Mustafa, Mukhtar and Abdul Razzaq by the above Division Bench against the convictions and sentences under section 302/149, P.P.C. i.e. Life imprisonment and to pay a fine of Rs.5,000 each or in default, to undergo further R.I. For one year. 3. It appears that before the reasons could have been recorded in the above matters, Shoukat H. Zubedi J., who was an Additional Judge, was not confirmed and, therefore, he ceased to be the judge with effect from 23-3-1994. It was open to Muhammad Aslam Arain, J. To have recorded reasons in support of the above short orders in terms of Rule 3 in Chapter 4-H under the sub-- heading "Rules of Procedure in Appeals" in Volume V of the Rules and Orders of the High Court, which can be treated as minutes and not a judgment. The above Rule 3 reads as under:--- "3. When an appeal has been heard by a Bench of the Court, the written opinions of the Judges who heard the appeal, but have ceased to be attached to the Court before delivery of judgment, shall, unless delivered by another Judge of the Bench which heard the appeal, be deemed to be minutes merely and not judgments." However, Muhammad Aslam Arain, J. On 7-7-1994 passed the following order:--- "Short Order passed in the above appeals (on 24-2-1994 be treated as final orders." Muhammad Aslam Arain, J. Retired from service with effect from 11-5-1995 on attaining the age of superannuation. 4. The State has, therefore, filed the above petitions for leave to appeal against the above short order dated 7-7-1994. 5. The above petitions have been pending since over to years. In spite of best efforts, the private respondents could not be served with the notices of the above petitions which were ordered. We have, therefore, decided to dispose of the same. 6. In support of the above petitions Mr. Rashid Akhtar Qureshi, learned A.O.R. Appearing for the petitioner, has vehemently contended that the order of Muhammad Aslam Arain; J. Dated 7-7-1994 was illegal as he was required to record reasons in support of his above short orders as he was the only Judge available instead of making the short orders as the final orders. 7. The above contention does not seem to be correct as according to the above-quoted Rule 3 the reasons which might have been recorded by Muhammad Aslam Arain, J. Before his retirement in support of the above short orders of the Division Bench, could be treated as minutes and not judgments. 8. It may be pertinent to observe that Chapter XXVI of the Code of Criminal Procedure, 1898, inter alia contains sections 366 and 367, which provide the mode of delivering judgments and the contents of judgments respectively. The above sections read as follows:--- "366. Mode of delivering judgment_---(1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced or the substance of such judgment shall be explained--- (a) in open Court either immediately after the termination of the trial or at some subsequent the of which notice shall be given to the parties or their pleaders, and (b) in the language of the Court, or in some other language which the accused or his pleader understands: Provided that the whole judgment shall be read out by the Presiding Judge, if he is requested so to do either by the prosecution or the defence. (2) The accused shall, if in custody, be brought up, or, if not in custody, be required by the Court to attend, to hear judgment delivered, except where his personal attendance during the trial has
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been dispensed with and the sentence is one of the fine only or he is acquitted, in either of which cases it may be delivered in the presence of his pleader. (3) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notices of such day and place. (4) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 537. 367. Language of judgment: Contents of judgment.---(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the Presiding Officer of the Court or from the dictation of such Presiding Officer in the language of the Court, or in English; and shall contain the points for determination, the decision thereon and the reasons for the decision; shall be dated and signed by the Presiding Officer in open Court at the the of pronouncing it and with his own hand, every page of such judgment shall be signed by him. (2) It shall specify the offence (if any) of which, and the section of the Pakistan Penal Code or other law under which the accused is convicted, and punishment to which he is sentenced. (3) Judgment in alternative.--When the conviction is under the Pakistan Penal Code and it is doubtful under which of to sections, or under which of to parts of the same section of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative. (4) If it be a judgment of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty. (5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed. (6) For the purposes of this section, an order under section 118 or section 123, subsection (3), shall be deemed to be a judgment." 9. A perusal of the above-quoted section 366, Cr.P.C. Indicates that it provides a detailed procedure as to how a judgment by a Criminal Court shall be pronounced; whereas section 367 thereof provides as to the contents. It is not necessary to deal in detail the above sections as they are not applicable to the High Courts which is evident from the contents of section 369, Cr.P.C. Which provides that "Save as otherwise provided by this Code or by any other law for the the being in force or, in case of a High Court by the Letters Patent of such High Court no Court when it has signed its judgment, shall alter or review the same, except to correct a clerical error". It is evident that in case the judgment in a criminal matter is delivered by a High Court, it is to be regulated by the Letters Patent of such High Court and not by the Code of Criminal Procedure. In this regard, reference may be made to the case of Anwar Ahmad v. Abdullah Ahmad and others PLD 1963 (W.P.) Karachi 313 and the case of Ali Akbar v The State 1969 PCr. LJ 1307. In the first case, a learned Single Judge of the erstwhile High Court of West Pakistan has held that sections 366 and 367, Cr.P.C. Are not applicable to the High Courts, whereas in the second case, another learned Single Judge of the erstwhile High Court of West Pakistan has concluded that principles of sections 366 and 367, although not applicable to the High Courts, nevertheless, they are accepted principles of jurisprudence and practised by the High Courts and, therefore, judgments must be pronounced in open Court and a draft sent by one Judge after his retirement to his companion Judge on the Bench, could not be pronounced as a judgment. 10. We may now refer to some case-law on the subject:--- (i) Firm Gokal Chand-Jagan Nath v. Firm Nand Ram Das-Atma Ram AIR 1938 Privy Council 292 in which the facts were that the matter came up before the Privy Council in the form of an appeal against the judgment of a Division Bench of the Lahore High Court. The appeal was heard by a
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Bench comprising Harrison and Agha Haider JJ, The judgment was delivered on 22-2-1933, but Harrison, J. Went or leave before signing the judgment, which was signed by Agha Haider, J. The Deputy Registrar of the High Court appended a note that Harrison, J. Had gone on leave before signing the judgment he delivered. It was urged before the Privy Council that since the High Court failed to comply with the provision of Order 41, Rule 31, C.P.C. Inasmuch as one of the Judges of the Division Bench had not signed the judgment, the judgment was liable to be set aside. The above contention was repelled by the Privy Council as under:--- "The Rule does not say that if its requirements are not complied with the judgment shall be a nullity. So startling a result would need clear and precise words. Indeed the Rule does not even state any definite the to which it is to be fulfilled. The the is left to be defined by what is reasonable. The Rule from its very nature is not intended to affect the rights of parties to a judgment. It is intended to secure certainty to the ascertainment of what the Judgment was. It is a rule which Judges are required to comply with for that object. No doubt in practice Judges do so comply, as it is their duty to do. But accidents may happen. A Judge may die after giving judgment but before he has had a reasonable opportunity to sign it the Court must have inherent jurisdiction to supply such a defect. The case of a Judge who has gone on leave before signing the judgment may call for more comment, but even so the convenience of the Court and the interest of litigants must prevail. The defect is merely en irregularity. But in truth the difficulty is disposed of by sections 99 and 108, Civil P.C. Section 99 provides that no decree shall be reversed or substantially varied nor shall any case be remanded in appeal on account of any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court. That section comes in the part dealing with appeals from original decrees. But section 108 applies the same provision to appeals from appellate decrees and it is always in the discretion of the Board to apply the principle on appeal to His-Majesty-in-Council. In their lordships' judgment the defect here was an irregularity not affecting the merits of the case or the jurisdiction of the Court, and is no ground for setting aside the decree." (ii) Amin Sharif v. Syeda Khatoon and another PLD 1962 SC 97: In the above case the facts were that the appellant was convicted of an offence under section 406 of the Penal Code, 1860. Before this, the Magistrate who was trying the case, at one stage had written out a judgment of acquittal with the intention of delivering it, but before it was delivered the complainant put in an application for the stay of proceedings on the ground that he wanted to apply for a transfer of the case. The Magistrate thereupon stayed the proceedings without delivering the judgment the matter eventually came up in appeal before this Court. It was urged on behalf of the appellant/convict that under section 369 of the Criminal Procedure Code, 1898, once a judgment has been signed by a Magistrate, it cannot be altered and henceforth the Magistrate ceased to have any further jurisdiction in the case. It was further urged that the acquittal of the accused in the judgment drafted by the Magistrate was a bar to any further proceedings and that his subsequent conviction was not maintainable. The above contention was not accepted inter alia for the following reasons:--- "As already stated on the strength of this section it is contended by learned counsel for the appellant that the signing of the judgment makes a judgment unalterable. But the judgment which is referred to in this section means a judgment which has been delivered in accordance with section 366. Sections 366, 367 and 369 of the Criminal Procedure Code are to be read together. At the same the, the signing which is referred to in section 369 is the signing in open Court at the the of the pronouncement of the judgment and not a signing at home. In fact, it can be argued that the signing at home is not a signing in accordance with law and is therefore of no effect. If the contentions of learned counsel for the appellant were accepted a judgment signed long before the date of hearing fixed in a trial would conclude the trial and any stay order issued by a
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superior Court, after the signing would be wholly inoperative. We do not think this result was intended. We would, therefore, hold that the simple writing and a signing the judgment was wholly ineffective and did not operate as a bar to further proceedings." (i.e) Qazi Mehar Din (deceased) represented by Muhammad Rafig and others PLD 1964 SC 446: in which the facts were that a suit for possession of certain lands was instituted by one, Qazi Mehar Din, against the respondents. The suit was decreed by the learned District Judge, Rahimyar Khan. An appeal was taken by the respondents to the High Court at Baghdad-ul-Jadid, which was heard by Syed Ghulam Murtaza Shah, a Judge of that Court. The appeal was allowed, the decree of the learned District Judge was set aside and the suit of the plaintiff was dismissed. Qazi Mehar Din then presented a Constitutional appeal in the High Court. The appeal came up for hearing before a Division Bench of the High Court consisting of the Chief Justice and Sardar Mahmud Khan, J. A technical objection to the competency of the appeal, owing to a necessary party not being impleaded within the, prevailed with the Division Bench. Consequently, the appeal was dismissed on 27-2-1950. It may be pointed out that before We judgment was announced in that appeal, a regular Constitutional civil appeal was also presented on behalf of the plaintiff on 28-12-1949 alongwith an application under section 5 of the Limitation Act, praying for extension of the for the presentation of the appeal. Qazi Mehar Din also preferred an appeal to the Judicial Committee of the Bahawalpur State from the order of the Division Bench of the High Court dated 27-2-1950. The said appeal was still pending, when the parties were given notice to appear in High Court in connection with application and the Constitutional appeal preferred by the plaintiff on 28-12-1949. After hearing the parties, the said appeal was dismissed on the ground that it was not competent as the previous appeal of the plaintiff having been duly disposed of. An objection had been taken in the High Court that the judgment which was pronounced by the learned Single Judge, Mr. Ghulam Murtaza Shah, had been written and signed by him after he handed over the charge and had become a Minister of the Bahawalpur State and that consequently the judgment was not a valid judicial pronouncement. Mr. Ghulam Murtaza Shah was replaced by S. Mahmud Khan, J. The above factual position was not controverted, but the High Court while placing reliance on the case of Baramdeo Pandey v. Debi Dat Singh AIR 1931 All. 90 held that the judgment was not vitiated by the fact that the learned Judge had written and signed it after he had retired from the Court. The matter came up before this Court in the form of an appeal, which was allowed. It may be instructive to reproduce the following observations:--- "The cases, therefore, in which judgments written by a person after transfer or on leave, were held to be valid, would not be sufficient authority for the view that a judgment written by a Judge who had ceased to hold his office would also be immune from exception. Such a view has potentialities of great mischief and if by reasonable construction of the statutory provision it could be avoided, the result would .Most probably be in conformity with the intention of the Legislature. I am, therefore, disposed to think that the narrower construction of Order XX, Rule 2, C.P.C. Should be adopted and it should be held that a Judge who has become functus officio, after being relieved of his office, should not be allowed to have anything to do with the judicial work of the Court over which he previously presided. I would, therefore, allow the appeal with costs and set aside the orders passed by the Division Bench of the Bahawalpur High Court. The result would be that the first appeal in the High Court would still be deemed to be pending as it was not disposed of, in accordance with law. " (iv) Mahboob Ali v. Syed Oamar Ali and another 1972 SCMR 109; In the above case the facts were that one, Syed Qamar Ali i.e. Respondent No. 1, was prosecuted on a police challan under section 324, P.P.C. In the Court of Sub-Divisional Magistrate, Old Town, Karachi, on the charges that he had caused injuries to the appellant Mahboob Ali on 11-1-1967. The
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case was first tried by Mr. Azizuddin Ahmad, S.D.M., who recorded the evidence of some of the prosecution witnesses but died thereafter. He was succeeded by Mr. Jamaluddin Jumani, who concluded the evidence and also heard the arguments on 28-6-1967. On 30-6-1967 Mr. Jumani, without having written out his judgment in the case, announced the acquittal of respondent No. 1. He also died a few days later with the result that although the respondent was acquitted by him orally, there was no written judgment on record as required by law. The appellant-complainant took the matter to the High Court by a petition under section 561-A, Cr.P.C. For quashment of the oral acquittal order of the Magistrate. A learned Single Judge of the High Court declined the above petition. Reliance was placed by him on the case of Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317. This Court set aside the above judgment of the High Court and remanded the case to the S.D.M. For trial by holding as under:--- "The learned Single Judge, in his order, has refused to give relief under section 561-A, because, in his view, the alternative remedy of an application under section 350, Cr.P.C. Should have been invoked by the applicant. Section 350, Cr.P.C. Does not by itself give any right to the complainant to demand the resummoning of the witnesses by the successor Magistrate but leaves it to the option of the Magistrate himself, or, alternatively, to the choice of the accused person, if he so decides. Of course, there was no bar for the applicant-complainant to move an application to the Magistrate to exercise his duty in the matter and to conclude the case, which was still pending on the file of that Court. We feel that this was a case where the learned Single Judge should have given the direction under section 561-A in the ends of justice and to prevent the abuse of the process of the Court that the proceedings in this case should be continued by the trial Court in accordance with law, although the same purpose has been served by his directing the complainant-applicant to make an application to that effect before the trial Court. However, the result, even according to the orders of the learned Single judge in the High Court, is that the case against the respondent, which is still pending, has to be concluded, and we affirm that direction, with the variation that instead of the appellant making an application in this behalf, the trial Magistrate, in whose Court the case is still pending, i.e. S.D.M. Old Town, Karachi, should issue process for the appearance of the accused- respondent further proceedings, so that the case is concluded in accordance with law. Order accordingly." (v) Muhammad Ramzan v. The State and others 1979 SCMR 200 in which the facts were that a learned Single Judge of the Lahore High Court allowed petition for quashment of proceedings under section 561-A, Cr.P.C. Read with Article 199 of the Constitution in the absence of the respondent by an oral order. After that, the learned counsel for the respondent filed an application for re-hearing and reconsideration of the matter, which was allowed. The learned Judge in Chambers, after hearing the parties, at this the dismissed the above petition. The matter came up before this Court. It was contended that since the learned Judge in Chambers had pronounced the oral order, he could not have changed the same by re-hearing the above petition. The above contention was not accepted by this Court in the following words:--- "8. In this petition before us the learned counsel for the petitioner was unable to support his contention to the effect that the High Court was not competent to re-hear and re-consider the order orally passed by it on the 12th of April 1977. The pronouncement having been made orally and in (he light of the provisions contained in sections 366 and 369, Cr.P.C. The High Court was competent to have re-heard the case before the judgment was actually signed and sealed by the Court. (vi) Surendra Singh and others, Appellants v. State of Uttar Pradesh AIR 1954 SC 194 In the above case, a criminal appeal was heard by a Division Bench of the High Court of Uttar Pradesh. However, the Judge, who prepared the judgment, expired before its delivery. The question
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arose, as to whether the above-draft of judgment could be delivered by the other Judge. The Indian Supreme Court answered the above question in the following terms:--- "(12) Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of 'locus paenitentiae and indeed last minute alterations often do occur. Therefore, however, much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallise into full-fledged judgment and become operative. It follows that the Judge who "delivers" the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in Court but he must be in existence as a member of the Court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part. If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind but takes no steps to arrest delivery. " (vii) Abdur Rahim v. Tai Muhammad PLD 1970 Lahore 294 The facts of the above case were that Mr. Nabi Ahmed, Settlement Commissioner, heard a revision petition under the Displaced Persons (Compensation and Rehabilitation) Act and allowed the same by an order dated 16-9-1961. He recorded the following short order in Urdu saying: "The file has been put up for judgment today. As per…
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