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Official Citation: 2023 LHC 5241
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-09-06
Parties: Muhammad Iqbal, etc. vs The State and another
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-09-06, officially reported as 2023 LHC 5241. In this matter between Muhammad Iqbal, etc. and The State and another, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023LHC5241
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title: Muhammad Iqbal, etc. vs The State and another Case No.: Criminal Appeal No.55/2013 Date of Judgment:2023-09-06 Reported As: 2023 LHC 5241 Result: Petition Dismissed
Judgment Crl.Misc.No.3200-M/2023. Through this petition under section 426 (2B) Cr.P.C. petitioners seek suspension of sentences i.e., imprisonment for life and compensation on two counts under section 302(b) read with section 34, PPC and rigorous imprisonment for ten years with fine under section 324 read with section 34, PPC; as altered by this Court vide judgment dated 09.05.2018 passed in Murder Reference No.27 of 2013 and the appeals filed against the judgment dated 22.01.2013 passed by learned Additional Sessions Judge, Dunyanpur, District Lodhran in a private complaint titled "Ghulam Farooq vs. Muhammad Iqbal, etc." arising out of case FIR No.295/2010 dated 26.07.2010 under sections 302, 324, 148/149, 109 PPC registered at Police Station City Dunyapur, District Lodhran. 2. The learned counsel for the petitioners submits that petition for leave to appeal filed against the judgment of this Court dated 09.05.2018 passed in Murder Reference No.27/2013 and the connected matters, was fixed before the Supreme Court of Pakistan on 03.03.2023, wherein leave has been granted, therefore, pursuant to section 426 (2B) Cr.P.C., the sentences of the petitioners may be suspended and they be released on bail. On the other hand learned Prosecutors opposed the exercise of jurisdiction by this Court under above section on the ground that petitioners were not on bail during hearing of their appeals and section 426 (2B) Cr.P.C. is meant for a situation when High Court grants a 'special leave to appeal' to the Supreme Court and not at the time when 'leave to appeal' is granted by the Supreme Court because such Court has powers to stay the execution of any sentence, pending the petition or appeal, under Supreme Court Rules, 1980. Divergent pleas and stances of proponents required us to probe and see the nature of sub-Section (2B) of 426 Cr.P.C.
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3. Heard, record perused: In order to view sub-section (2B) of section 426 Cr.P.C in its entirety, some relevant material including Acts, Constitutional provisions, rules and precedents were essential which were collected with the help of Mr. Muhammad Jaffar, Additional Prosecutor General and Mr. Ijaz Hussain, Civil Judge, working in research center at Multan Bench. Their effort for providing requisite assistance is highly appreciated. 4. It evinces that sub-section (2B) was inserted in section 426 Cr.P.C. for grant of bail to an accused in a situation when High Court has convicted him or maintained his sentence and a special leave to appeal to Supreme Court is granted against said conviction. Considering the stance of learned prosecutors, a question arises as to whether remedy in the form of "special leave to appeal" is availed from a High Court for filing appeal to the Supreme Court or it is directly granted by the Supreme Court and what connotes 'special leave to appeal' when it has not been defined anywhere in law. This is the core point of our discussion in this case, because Constitution of the Islamic Republic of Pakistan, 1973 and Supreme Court Rules, 1980 talk about 'leave to appeal' and not 'special leave to appeal'. We were also concerned about the situation that when after decision, no lis remains pending with High Court and it becomes functus officio, then how it can grant bail to the accused whom leave to appeal is granted by the Supreme Court in such case. In order to find the true spirit of this sub-section, we went into recitation of relevant law, Constitutional provisions, Rules and precedents, and while doing this exercise we were also thoughtful as to whether any other like provision is available in prevalent law, we however, found a response while tracking and reading section 382A Cr.P.C. which authorizes the trial court to suspend the sentence of accused and allow him to remain on bail even after conviction except in two situations for enabling the convict to file appeal against his conviction and sentence. Section is reproduced; 382-A. Postponement of execution of sentences of imprisonment under Section 476 or for a period of less than one year: Notwithstanding anything contained in Section 383 or 391, where the accused-- (a) is awarded any sentence of imprisonment under Section 476, or (b) is sentenced in cases other than those provided for in Section 381, to imprisonment whether with or without fine or whipping, for a period of less than one year. the sentence shall not, if the accused furnishes bail to the satisfaction of the Court for his appearance at such time and place as the Court may direct, be executed, until the expiry of the period prescribed for making an appeal against such sentence, or if an appeal is made within that time, until the sentence of imprisonment is confirmed by the Appellate Court, but the sentence shall be executed as soon as practicable after the expiry of the period prescribed for making an appeal. or in case of an appeal, as soon as practicable after the receipt of the order of the Appellate Court confirming the sentence. The above is an enabling provision for accused to file appeal against conviction while on bail, and whether sub-section (2B) of section 426 Cr.P.C. also maintains the like status that when High Court after conviction grants to the convict special leave to appeal to the Supreme Court, it has also power to suspend his sentence enabling him to file such appeal, or it is entirely a different provision, giving a special jurisdiction to High Court to suspend sentence of an accused whom Supreme Court has granted leave to appeal; therefore, we feel it appropriate to track the legislative history of this provision, and the situation prevailed before and after insertion of sub- section (2B) in section 426 Cr.P.C. 5. Government of India Act, 1915 by virtue of section 113 authorized His Majesty to establish High Court of Judicature in any territory in British India through letters patent; for better understanding Section is reproduced;
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"His Majesty may, if he sees fit, by letters patent, establish a high court of judicature in any territory in British India, whether or not included within the limits of the local jurisdiction of another high court, and confer on any high court so established any such jurisdiction, powers and authority as are vested in or may be conferred on any high court existing at the commencement of this Act and, where a high court is so established in any area included within the limits of the local jurisdiction of another high court, His Majesty may, by letters patent, alter those limits, and make such incidental, consequential and supplemental provisions as may appear to be necessary by reason of the alteration". (emphasis supplied) Therefore, under said Act, through letters patent dated 21st March, 1919, His Majesty Constituted the High Court of Judicature at Lahore for the Province of the Punjab and Delhi. As per clause-31 of such letters patent, right of appeal from any judgment, order or sentence of High Court in criminal cases was granted which is as follows; 31. And We do further ordain that from any judgment, order or sentence of the High Court of Judicature at Lahore, made in the exercise of original criminal jurisdiction or in any criminal case where any point or points of law have been reserved for the opinion of the said High Court, in manner provided by the 18th clause of these presents by any Court which has exercised original jurisdiction, order or sentence to appeal Us, Our heirs or successors, in Council, provided the said High Court declares that the case is a fit one for such appeal, and that the appeal be made under such conditions as the said High Court may establish or require, but subject always to such rules and orders as are now in force, or may from time to time be made, respecting appeals to Ourselves in Council from the Courts of the Provinces of the Punjab and Delhi. This was a special right of appeal to His Majesty in Council against any judgment, order or sentence of the High Court, (1) made in the exercise of original criminal jurisdiction or (2) in any criminal case and that too with special leave of High Court in a particular situation when the High Court reserves any point or points of law and declares a case fit for appeal, and not in very case as a matter of course. 6. Later through Government of India Act, 1935, Federal Court was constituted and pursuant to section 205, a right of appeal to Federal Court was given against any judgment, decree or final order of a High Court that too in the like terms as mentioned in clause-31 of the letters patent cited above i.e., issuance of certificate by the High Court that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder; Section 205 runs as under; 205.-(1) An appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder, and it shall be the duty of every High Court in British India to consider in every case whether or not any such question is involved and of its own motion to give or to withhold a certificate accordingly. (2) Where such a certificate is given, any party in the case may appeal to the Federal Court on the ground that any such question as aforesaid has been wrongly decided, and on any ground on which that party could have appealed without special leave to His Majesty in Council if no such certificate had been given, and, with the leave of the Federal Court, on any other ground, and no direct appeal shall lie to His Majesty in Council, either with or without special leave. Though there was a finality to the judgment of High Court except in a situation when High Court grants leave to appeal to His Majesty in Council, but with the establishment of Federal Court, by virtue of above section a conditional right of appeal was provided against any judgment, decree or final order of High Court so as to curtail direct litigation to His Majesty in Council. However, it did not disturb the arrangement/remedy in place under clause-31 of letters patent, which is reflected from
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sub-section (2) of Section 205 above. As per clause-31 of letters patent, appeal before His majesty in Council was competent in following situation; i. against any judgment, order or sentence of high court passed in exercise of original criminal jurisdiction; ii. in any criminal case where any point or points of law have been reserved for the opinion of the said High Court. provided the High Court declares that the case is a fit one for such appeal, and that the appeal be made under such conditions as the High Court may establish or require. Whereas appeal before the Federal Court u/s 205 above was competent against any judgment, decree or final order of a High Court if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder. The section indicates that it was enacted primarily for right of appeal in civil matters as reflected from the words used, like "judgment, decree or final order" and was conditional to the involvement of a substantial question of law as to the interpretation of the Government of India Act, 1935 or any Order in Council made thereunder, but criminal matters if involve such questions and order too is final in nature, then any such judgment, order or sentence could also be assailed before the Federal Court. Whereas under clause-31 of letters patent, any question of law, other than one related to interpretation of Act of 1935 or any order in Council made thereunder, could be made basis for a direct appeal before His Majesty in council if permission is granted by the High Court; that is the reason sub-section (1) of section 205 above says that it is the duty of High Court to consider in every case whether or not any such question is involved and of its own motion to give or to withhold a certificate accordingly. Likewise sub-section (2) of Section 205 above makes it clear that if any such certificate is given by the High Court, any party can appeal to Federal Court in following situations; i. that any such question as aforesaid has been wrongly decided; ii. on any ground on which that party could have appealed without special leave to His Majesty in Council if no such certificate had been given; iii. with the leave of the Federal Court, on any other ground; Finally, it was made clear in said sub-section (2) of section 205 that no direct appeal shall lie to His Majesty in Council, either with or without special leave; which saves the right of party to approach His Majesty in Council with the permission of High Court under clause-31 of letters patent, without routing to Federal Court, against any judgment, order or sentence of the High Court made in the exercise of original criminal jurisdiction or in any criminal case where any point or points of law have been reserved for the opinion of the said High Court and High Court declares that the case is a fit one for such appeal, and that the appeal be made under such conditions as the said High Court may establish or require. Through said Act pursuant to Section 206 it was authorized that The Federal Legislature may by Act provide that in such civil cases as may be specified in the Act an appeal shall lie to the Federal Court from a judgment decree or final order of a High Court in British India without any such certificate as mentioned in section 205. This section however says that no appeal shall lie under any such Act unless following situations are met; (a) the amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than fifty thousand rupees or such other sum not less than fifteen thousand rupees as may be specified by the Act, or the judgment decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (b) the Federal Court gives special leave to appeal.
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The above section authorizes for regulation of right of appeal and 'special leave to appeal' in civil cases and that too if it is granted through an Act of Federal Legislature. 7. Section 208 of said Act states that an appeal may be brought to His Majesty in Council from a decision of the Federal Court passed in its original jurisdiction in situations enumerated therein and in any other matter with the leave of Federal Court or His Majesty in Council and section 209 (3) of said Act says as under; (3) The Federal Court may, subject to such terms or conditions as it may think fit to impose, order a stay of execution in any case under appeal to the Court, pending the hearing of the appeal, and execution shall be stayed accordingly. The combined effect of above sections shows that Federal Court too had jurisdiction to stay the execution of sentence and right of appeal to Federal Court or His Majesty in Council was not a matter of course rather special circumstances when any point or points of law are reserved by High Court and declares the case fit to appeal; or any substantial question of law, relating to interpretation of any section of Government of India Act, 1935 or order passed by His Majesty in Council, is involved, therefore, when it was expedient for High Court to grant special leave to appeal under Clause-31 of the letters patent or to give a certificate under section 205 of the Government of India Act, 1935, it did not have power to suspend the sentence of accused, who was in confinement, enabling him to prefer such appeal. 8. This was felt in a case reported as "Lala Jairam Das and others v. Emperor" [AIR (32) 1945 Privy Council 94] when Lord Russell of Killowen held that under section 426 or 561 of Cr.P.C. High Court has no power to grant bail to an accused who has been granted special leave to appeal to His majesty in Council or to Federal Court and it could only be done through legislation. Legislature duly responded when sub-section (2B) was inserted in section 426 Cr.P.C. through following Act; The Code of Criminal Procedure (Second Amendment) Act, 1946 (Act No. IV of 1946). (2B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal to His Majesty in Council against any sentence which it has imposed or maintained, or has been granted leave to appeal to His Majesty in Council against an order of the Federal Court on an appeal from the High Court involving the imposition or maintenance of a sentence it may if it so thinks fit order that pending the appeal the sentence or order appealed against be suspended, and also, if the said person is in confinement, that he be released on bail. (Underlined for emphasis) Through above provision, High Court was authorized to suspend the sentence in two situations; like when "special leave to appeal" is granted to His Majesty in Council against any sentence the High Court has imposed or maintained and "leave to appeal" to His Majesty in Council against an order of Federal Court. This difference between "special leave to appeal" and "leave to appeal" can well be comprehended from the situation that 'special leave to appeal' was usually granted by the High Court when any point or points of law are reserved as mentioned in Clause-31 of letters patent, or through issuance of certificate under section 205 of Government of India Act, 1935; whereas leave to appeal was simply granted in suitable cases by Federal Court or His Majesty in Council u/s 208 of Government of India Act, 1935. Such arrangement one can well imagine from the situation that Court of His Majesty in Council was at a distance of 6000 miles from the jurisdiction of High Court and there was only one Federal Court for whole of India. Thus, keeping in view the means of transportation and access of litigants to the concerned forums, it was a time taking and cumbersome exercise; therefore, this beneficial provision was enacted primarily to save those convicts who were languishing in the jail under petty sentences, lest they should not serve out their entire sentence in the meantime. 9. After the advent of Pakistan in 1947, Government of India Act, 1935 was adopted as the Constitution of the Country through The Pakistan (Provisional Constitutional) Order, 1947; which
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provides for the establishment of the Federal Court. It was established under the Federal Court of Pakistan Order, 1948 at Karachi; therefore, Rules of Federal Court already in place were also adapted. Power of Federal Court to frame rules was enacted through The Federal Court Act, 1937 (Act XXV of 1937). After 1937, another Act XXI of 1941 was passed with the title "The Federal Court Act, 1941" to empower the Federal Court to make rules with the approval of Governor-General for "regulating the presentation and prosecution of appeals lying to that Court, including rules relating to the furnishing of security for costs, the proceedings, if any, to be had in High Courts in connection with such appeals, and the preparation and transmission to the Federal Court of the records of such appeals"; and for that purpose to repeal those provisions of the Code of Civil Procedure, 1908 which now regulate that matter. By virtue of said Act, section 111A of the Code of Civil Procedure, 1908 and Rule 17 of Order 45 of the First Schedule to the said Code was omitted which was primarily inserted through Government of India (Adaptation of Indian Laws) Order, 1937 whereby making the procedure of Privy Council appeals applicable to Federal Court Appeals, but the procedure was cumbersome and dilatory being meant for appeals to a Court 6000 miles away. 10. Similarly, Federal Court (Supplemental Powers) Act, 1942 (Act No. XXVI of 1942) was promulgated to give legal cover to rules for the delegation of certain powers of the Court to the Registrar as mentioned in order VIII Rule 1 of Federal Court Rules because doubts have been raised about the validity of this rule. Section 128 (2) (i), C.P.C. which gives such powers of delegation to the High Courts was not applicable to the Federal Court. It was doubtful whether section 214, Government of India Act, 1935 covers the delegation of powers of the Court to one of its officials. Through said Act, Federal Court was authorized to delegate to the Registrar of the Court or any other official of the Court, by name or generally by designation, any judicial, quasi-judicial and non-judicial duties and the Registrar or such official in the discharge of any such delegated duties shall have power to administer oath. 11. Federal Court of Pakistan was established through the Federal Court of Pakistan Order, 1948 issued by the Governor General in exercise of the powers conferred by section 9 of the Indian Independence Act,1947 and of all other powers enabling him in that behalf. Through this Order it was ordained that Federal Court shall be deemed to have been established as from the appointed day (15th August, 1947) in accordance with the provisions contained in that behalf in the Government of India Act, 1935 as adapted by the Pakistan through (Provisional Constitutional) Order, 1947. The Rules of the Federal Court in force immediately before the appointed day were declared to be Rules of the Federal Court of Pakistan till such time the other rules are made by the Federal Court of Pakistan. By the time, Act 1 of 1950 titled as Federal Court Enlargement of Jurisdiction Act, 1949 was promulgated to provide for the enlargement of appellate jurisdiction of Federal Court in civil cases. Later Federal Court of Pakistan, in pursuance of the powers conferred on it by section 214 of the Government of India Act, 1935 and section 3 of the Federal Court Act, 1941 and all other powers enabling in that behalf, with the approval of Governor General, made the Federal Court Rules, 1950. 12. Procedure for filing of appeals before Federal Court speaks through Order XII of Federal Court Rules, 1950 which says that next eight succeeding Orders in this part shall apply only to appeals brought to the Court under section 205 of the Government of India Act, 1935 unless they are applicable to other appeals. Next Orders of such Rules spilt into civil and criminal appeals with miscellaneous matters. Order XIX relates to criminal appeals and there was no concept of leave to appeal in criminal matters rather it was limited to civil matters only. On what matter criminal appeal lies, Rule-1 of said Order speaks as under; Where a High Court makes any final order in exercise of its criminal jurisdiction, whether original, appellate or revisional, and gives a certificate as is mentioned in section 205 of the Act, any party
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to the case may appeal to the Court within thirty days from the date of the order. Similarly Rule-7 of said Order talks about the stay of execution of any order in following terms; "Pending the disposal of any appeal under these Rules, the Court may order that the execution of the sentence or order appealed against be stayed or that the accused may be enlarged on bail on such terms as the Court may think fit." There was no concept of granting leave to appeal in criminal matters by the Federal Court under above Rules, and while pending appeal Federal Court was competent to stay the execution of sentence. Thus, there remained clarity that applicability of subsection (2B) of section 426 Cr.P.C. was confined to the situation when special leave to appeal to the Federal Court is granted by the High Court in accordance with section 205 of the Government of India Act, 1935, and clause-31 of letters patent was parametria to it. 13. Through Act XXVI of 1951 titled "Federal Laws (Revisions and Adaptation) Act, 1951" as per second schedule of the Act, amendment was introduced in sub-section (2B) of section 426 Cr.P.C. and following text in sub-section was repealed: "or has been granted leave to appeal to His Majesty in Council against an order of the Federal Court on an appeal from the High Court involving the imposition or maintenance of a sentence" Similarly, as per third schedule of above Act, for the words "His Majesty in Council" where they first occur, the words "the Federal Court" were substituted; and final version of sub-section after amendment was as under; (2-B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal to the Federal Court against any sentence which it has imposed or maintained, it may, if it so thinks fit order that…
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