Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: THE STATE VS Respondent: HADI BUX
Court Name: Sindh High Court Judge(s): Muhammad Hayat Junejo, Noorul Arfin Title: THE STATE vs HADI BUX Case No.: Criminal Acquittal Appeal No. 373 of 1967 Date of Judgment:1970-03-30 Reported As: PLD 1970 Karachi 737 Result: Appeal dismissed
JUDGMENT
JUDGMENT M. HAYAT JUNEJO, J.----This appeal by the State under section 417, Cr. P. C. Raises an important question of law, namely, whether the decision, by a Judge of the High Court after full hearing and with notice to both parties of an appeal against conviction on a minor charge bars the hearing by the High Court of an appeal later filed by the State against the acquittal of the convict on a graver charge. 2. The appeal has arisen in the following circumstances on 8-4-1966, at about 10. a.m. An incident took place outside village Amir Bux Wassan in the course of which two persons, namely, Hidayat A.I alias Inayat A.I son of Haji and Niaz A.I son of Allahditto lost their lives; while four others, namely, Suleman, Sain Bux, Jamal and Allahditto sustained injuries. The First Information Report relating to the occurrence was lodged the same day at 11 a.m. By complainant Rasool Bux. 3. The prosecution case in brief was that these murders had been committed on account of previous enmity between respondent Hadi Bux and deceased Niaz A.I over matrimonial disputes. The respondent was asked not to visit the village of the complainant-party but he came there on the evening preceding the day of the occurrence and threatened deceased Niaz A.I. The next morning, deceased alongwith his other relations had gone to participate in a feast and while .All of them were having their food Hadi Bux appeared there with a gun of his brother and fired at the deceased persons. He was immediately secured on the spot and handed over to the Police on their arrival. On these allegations the respondent was sent up to stand his trial for offences under sections 302, P. P. C., 307, P. P. C. And 13 (d) of the West Pakistan Arms Ordinance, 1965. 4. At the trial the prosecution case was supported by the testimony of three eye-witnesses, namely, Rasool Bux P. W. 5, Allahdino P. W. 6 and Saifal P. W. 7. The respondent took up the plea of accident
---
## Page 2
and stated that the gun was brought not by him but by his brother Sikildho, who was the owner thereof, and it accidentally went off while some boys were playing with it. After considering the evidence on record, the trial Judge convicted the respondent under sections 304-A, P. P. C. And 13 (d) of the Arms Ordinance sentencing him to suffer R. I. For two years and one year respectively by his judgment dated 30-6-1967. 5. Being aggrieved by this judgment the respondent filed an appeal in this Court being Criminal Appeal No. 218-A/1967. Along with the appeal an application under section 426, Cr. P. C. For suspension of his sentence was also filed but the prayer for bail was refused. Similar applications were made on two successive occasions but were rejected each time. The appeal was ultimately heard by Khamisani, J., who dismissed the same by his judgment dated 1-11-1967. The learned Judge came to the conclusion that there had been a miscarriage of justice on account of acquittal of the respondent of an offence under section 302, P. P. C. That the learned Judge expressed himself strongly on this point, can be seen from the following observations :- "The learned Additional Sessions Judge has given very flimsy grounds, in fact no grounds at all have been given for reducing this offence from section 302 to section 304-A, P. P. C. What I have not been able to understand is as to how the appellant can be liable under section 304-A, P. P. C. In view of the finding given by the learned Judge that there was a previous strained relationship between the appellant and the deceased and in view of the finding given by him that the appellant was armed with a gun not on his licence at the time of the incident, there can be no escape from the conclusion that the gun was used by him and a shot was fired by him. On this view of the matter, there can be no escape from the conclusion that the appellant had come determined to wreak vengeance on Rasul Bux and others and commit intentional murders of two innocent boys. The learned Judge has given a judgment which cannot be supported by law or by facts. The judgment, in my opinion, is absolutely unbecoming of the Judge who wrote it and I am of the view that this judgment was given after a great effort to circumvent law and give benefit to the appellant. Even the prosecution seem to have failed in their duty in not taking up the matter in appeal under section 417, Cr. P. C. Against the acquittal of the appellant under section 302, P. P. C. They seem to have also been persuaded by the learned Judge not to do so. As no appeal against acquittal has been filed, I have no option but only to dismiss this appeal. It is for the prosecution to consider whether an appeal should or should not be filed because the judgment of acquittal of the appellant under section 302, P. P. C. Was recorded on 30th June 1967, and the appeal, would still be in time. The appeal filed by the appellant, in these circumstances stands dismissed." 6. It appears that these observations of Khamisani, J. Came to the notice of the authorities concerned and the State filed an appeal under section 417, Cr. P. C. Against the acquittal of the appellant, which was admitted by a Division Bench of this Court on 5-12-67 by the following order :- "Admit. The appellant shall remain in Jail even after sentence imposed upon him has expired till the disposal of this appeal." 7. A preliminary objection has been raised on behalf of the respondent that this appeal' is not maintainable, in view of the fact that Criminal Appeal No. 218-A/1967 filed by the respondent against his conviction has been already dismissed by this Court after hearing both the parties. In other words, the contention is that the judgment of the trial Court has merged in the judgment of the High Court, and has in fact been replaced by it; no appeal against that decision is, therefore, competent under section 417, Cr. P. C. 8. It is contended by the learned Assistant Advocate-General on behalf of the appellant that the State has statutory right of appeal; and when an appeal is filed under section 417, Cr. P. C. The High Court has to hear the same on merits. Reliance was placed on the majority judgment of Macnair, J. C. In Mohammadi Gul Rohilla v. Emperor (AIR 1932 Nag. 121) and the observations of Raju, J. In State
---
## Page 3
v. Diwanji Gardharji and others (AIR 1963 Gujarat 21). We are, however, not impressed by this argument. A similar contention was raised before their Lordships of the Federal Court in the case of Crown v. Sultan Mahmood and others (PLD 1955 FC 20), and was repelled. In the words of Cornelius, J. (as his Lordship then was) :- 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 or otherwise to secure the ends of justice. 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 of Sun Life Assurance Company of Canada v. Jervis 1944 A C 111." 9. 1t is no doubt correct that the observations of Khamisani, J. Reproduced in para. 5 above would show that he considered the judgment of the Additional Sessions Judge to be erroneous. The learned Judge, nevertheless, went on to confirm that judgment when he dismissed the appeal filed by the respondent and maintained his conviction and sentences. What we are now called upon to do is to hear the same matter over again although it is based exactly on the same set of facts and the same evidence. Would such a course be permissible under the law? In our opinion, the answer to this question has to be in the negative. As observed by their Lordships of the Supreme Court in Abdul Hossain Sana v. Suwalal Agarwala and another (PLD 1962 SC 242); the general principle that there has to be an end to litigation is applicable ex necessite re to proceedings of any kind in a Court. One of the basic principles of criminal jurisprudence is embodied in the ancient maxim "Nemo debet bas punire pro uno delicto" that is to say that no one ought to be punished twice for one offence. In the Queen v. King ((1897) 1 Q B 214) it was held that a defendant who had been convicted upon an indictment charging him with obtaining credit for goods by false pretences could not be afterwards convicted upon a further indictment charging him with larceny of the same goods. In the words of Hawkins, J.: "I am of opinion that the second trial ought not to have taken place, and that the objection was good. The man had clearly been convicted of a misdemeanour in respect of obtaining credit for the same goods which were the subject of the charge of larceny; and it is against the very first principles of the criminal law that a man should be placed twice in jeopardy upon the same facts; the offences are practically the same, though not their legal operation. The course adopted is altogether inconsistent with what is right and just; and though the defendant will in fact get no practical advantage from our decision, he is entitled to have this second conviction quashed." 10. In R v. Barron ((1914) 2 K 8 570), the principle was reiterated thus:- "It is thus, that the law does not permit a man to be twice imperilled of being convicted of the same offence. In R. v. Miles (1890) 24 Q B D 423, Charles, J. With whose judgment Lord Coleridge, C. J. And Grantham, J. Con--curred, referred to the rule as well established rule at common law that were a person has been convicted for an offence by a Court of competent jurisdiction, the conviction is a bar to all further criminal proceedings for the same offence and observed further; `This rule has been acted on again and again and I can see no reason why it should not be acted on in this case. It cannot be material that a Magistrate has power by statute to deal with a convicted person otherwise than by fine or imprisonment, for it is the conviction and not the nature of the sentence which constitutes the bar. The principle is that no man shall be placed in peril of legal penalties more than once on the same accusation."
---
## Page 4
"No doubt it seems a little startling that a conviction for a common assault, accompanied by a shilling fine or a dismissal of the complaint as too trifling for any punishment, should afford an answer to a subsequent indictment for that same assault, upon conclusive evidence that it was accompanied by an intent to murder; but reason and good sense point out that, even at the risk of occasional miscarriages of justice, when once a criminal charge has been adjudicated upon by a Court having jurisdiction, that adjudication ought to be final, and, after all, such miscarriages are very rare." 11. In his commentary on the Constitution of India (Third Edition), Basu has dealt with this aspect of the case in Volume I at pages 250 to 252, and referred to the Fifth Amendment to the Constitution of the United States of America as well as to Article 39 of the Japanese Constitution. The learned author quoted passages from R. v. Plummer ((1902) 2 K B 339), Archibald on Indictments pp. 135-142 and R. v. Miles ((1890) 24 Q B D 428); and went on to point out that the above provision of the United States Constitution was indeed founded on the English, Common Law rule "nemo debet bis vexari", which means that a man may not be put twice in peril for the same offence and that it enabled an accused to raise a plea not only of autrefols convict but also of autrefofs acquit. Amongst several notable cases referred to by the learned author is the one of R. v. Grimwood ((1896) 60 J P 809). 12. The same principle is embodied in the provisions of section 403, Cr. P. C. And section 26 of the General Clauses Act. It is no doubt correct that a case like the present one does not come strictly within the provisions of section 403, Cr. P. C. But A the principles on which this section is based can nevertheless be invoked while considering whether the State appeal can be heard in spite of a previous judgment of the High Court on the same set of allegations and based on exactly the same evidence. 13. Supposing, for the sake of argument, that we proceed to consider this appeal on merits; what can be the nature of our order ? Under section 423, Cr. P. C. The Appellate Court may either- (i) dismiss the appeal; or (ii) reverse the order of acquittal and direct that further enquiry be made, or that the accused be retried or committed for trial, as the case may be; or (iii) find him guilty and pass sentence on him according to law. 14. It is also by now well settled that in an appeal against acquittal the accused is entitled to ask the Court to consider all the evidence before it and all the possible grounds which may be raised against the conviction; and if the Court is satisfied that no offence at all was committed, it would undoubtedly exercise suo motu its powers under section 439 (i), Cr. P. C. And set aside the conviction. Reference in this connection may be made to the case of Emperor v. Panchaksharam (AIR 1938 Mad. 723), which has been followed by our Court in some unpublished judgments and also by other Courts of the sub- continent in a few reported decisions e.g. In State Government, M. P. v. Sheodayal Gurudayal (AIR 1956 Nag. 8) and Public Prosecutor v. Semalai Pannadi and another (AIR 1960 Mad. 240). 15. In the case before, us, the learned counsel for the respondent-accused is entitled to argue that if the defence taken up by . The accused is considered reasonable possible he would not be liable to be convicted even for an offence under section 304-A, P. P. C., as according to him, the gun was brought not by him but by his brother Sikildho the owner thereof. In that event, even if Sikildho negligently left it unattended and it accidentally went off while some boys were playing with it how would the respondent be responsible for this act or omission on part of his brother? If this argument is accepted and if we also find that there is no force in the appeal filed by the State, we would undoubtedly acquit the respondent of all the charges including those under section 304-A, P. P. C. And 13 (d) of the Arms Ordinance. Would such a finding not be in direct conflict with the reasoning, the findings as well as the operative part of the judgment of Khamisani, J. ? And if so, which of the two judgments, both given by the High Court on the same facts, is to prevail?
---
## Page 5
16. Let us next consider the other alternative, namely, that we accept the State appeal, find the respondent guilty of an offence under section 302, P. P. C. And sentence him to transportation for life. Would it not amount to sentencing him twice on the same set of facts constituting the offence? And would such a course be permissible under the law in spite of the provisions of section 26 of the General Clauses Act? 17. Further complications which may arise in such cases, have been ably illustrated as follows by Niyogi, A. J. C. In the minority judgment in the case of Mohammadi Gul Rohilla v. Emperor "If an appeal is preferred subsequent to the decision by the High Court of the convict's appeal relating to the minor offence, the Court dealing with such appeal cannot exercise its full powers. I shall explain the position by an illustration: A man is convicted of offence punishable under section 304, but acquitted of offence under section 302. Both the Local Government and the convict have the right of appeal. I shall now examine the effect of the High Court's decision in the convict's appeal relating to a minor offence. The Court hearing this appeal can exercise all powers mentioned in (b) of section 423. It may either (i) acquit the accused, or (U) order a retrial, or (iii) affirm the conviction. Whatever the decision, it cannot be set aside or altered by any Court and it is, there--fore, final. (a) If the High Court, acquits the accused of the minor offence (e.g., culpable homicide), is the Local Government's appeal against the subordinate original or appellate Court's order of acquittal competent? I think not; for this reason that the Court dealing with appeal against acquittal cannot exercise all the powers defined in (a) of section 423. Can it convict the man of murder in the face of the High Court's order of acquittal on the same facts? If it can, which of the two decisions is to prevail? (b) If the High Court dealing with the convict's appeal orders a retrial, is it open to Court hearing the appeal against acquittal to convict the accused and pass a sentence of death? Can such a sentence be carried out while the High Court's order of retrial in the convict's appeal stands and is being given effect to? (c) If the High Court in the convict's appeal affirms the conviction, can the Court hearing the appeal under section 417 order a retrial? If so, how can this be effective in the face of the other judgment already passed by the same Court? Moreover, section 403, Criminal P. C. Debars such a trial." 18. The learned Assistant Advocate-General appearing on behalf of the State adopted the reasoning of Macnair, J. C. In the same case and contended that the conflict if any in the two contradictory judgments of the High Court can be resolved by the Government under section 401 of the Criminal P. C. By remission of one of the two sentences. This contention is also answered by Niyogi, A. J. C. And we can do no better than to quote his words :- "The competency of the appellate Court to hear appeals depends upon its power to enforce its orders; any circumstance which takes away or restricts this power must affect the competency of the Court. It must follow that any appeal fled in such circumstance will turn out to be futile. In other words the appeal itself will be incompetent. In Cox v. Hakes (1891) 15 A C 506 at page 534 Lord Herschell in delivering his opinion upon an analogous question stated the principle in these terms: `I. Think it is impossible to read the section. Your Lordships have to construe without seeing that the power to hear and determine an appeal, and the power to enforce the judgment of the Court of appeal in case it should differ in opinion from the Court below, were intended to be co-extensive. And 1 cannot think that it was ever contemplated that an appeal should be entertained from any class of orders when that which was effected by them could never be effectually interfered with . . . . . . And if it had been intended that an appeal should lie against such an order, I think that provision would have been made to enable the Court of appeal to restore to custody the person erroneously discharged. In the absence of such a power the appeal is futile, and this appears to me to be a sufficient reason for holding that the Legislature did not intend the right to hear and determine appeals to extend to such cases.
---
## Page 6
This principle was stated in connexion with a case where the Legislature did not make any provision for enforcing the appellate Court's judgment, but it will apply with equal force to a case where the appellate Court, as in the present case, is unable to enforce the powers conferred on it by law. In fact the Criminal Procedure Code has made no provision for resolving the conflict between the decisions of the High Courts of the nature already indicated. The very fact that the learned Judicial Commissioner finds it necessary to invoke powers of the Local Government under section 401, Criminal P. C. Is itself an argument to prove the incompetency of appellate Court to hear and determine the appeal. It must be noticed that the Local Government has no power to reverse the judgment, but only to remit the sentence. It must therefore follow that the Legislature could not have intended to give a right of appeal in case where the appellate Court which is supposed to hear the appeal is unable to exercise its powers vested in it by law and enforce its own orders, by reason of another judgment of same Court having become final and effective." We are in respectful agreement with these observations of Niyogi, A. J. C. And would venture to differ with great respect with the conclusions expressed by Macnair J. C. In the majority judgment. 19. We may also mention in this connection that a Division Bench of the Nagpur Judicial Commissioner's Court itself had expressed the same opinion in an earlier case, namely, Emperor v. Modkia (AIR 1932 Nag.73) and it was held that no appeal under section 417 can be preferred by the Local Government against an order of acquittal when an appeal preferred by the accused against his conviction had already been heard and decided by the High Court. Subhedar, A. J. C. Who was a party to this decision, however, later agreed with Macnair, J. C. In Mohammadl Gul Rohilla v. Emperor. 20. The opinion of Niyogi, A. J. C. Has also been followed by a Full Bench of the Madhya Bharat High Court in State v. Kalu (AIR 1952 Madh. Bharat 81) Chaturvedi, J. Delivered the leading judgment, referred to the observations of Niyogi, A. J. C. And went on to express his opinion in paragraph 24 of the judgment in the following terms:- "If the Division Bench's judgment is final and not open to review, it is argued, how the Government appeal under section 417, can be entertained? If it is heard on merits, it might lead to a disturbance so far as the finality of the judgment is concerned. The difficulty arises from the difference in the period of limitation prescribed for filing appeals by the accused and by the State. In the case of the accused it is 30 days while the limitation for the State to appeal against acquittal is six months. It is possible that an appeal by an accused person may be heard and decided before the State has determined whether to prefer an appeal or not. Where there has been an acquittal on a graver charge, both State and accused have a right of appeal. If the appeal of accused person is heard and decided before the State appeals under section 417, the decision is final under section 430. Under the circumstances the State appeal is barred and cannot be entertained. This was the opinion of the Division Bench in Emperor v. Modkia." Later in paragraph 46 of the same judgment the learned Judge summed up his conclusions thus:- "For reasons stated above, I hold that once an appeal preferred by the accused against his conviction of a minor offence is dismissed either summarily or after hearing arguments, the High Court cannot alter or review the judgment and the Government Appeal against an order of acquitting the accused of a major offence will then become futile by reason of the previous judgment having become final and effective." 21. The views expressed by Niyogi, A. J. C. Have also been followed by the East Punjab High Court in the State v. Mansha Singh Bhagwant Singh (AIR 1958 Pb. 233). In addition, Gurnam Singh, J. And A. N. Grover, J., pointed out how section 425, Cr. P. C. Also stood in way of the maintainability of the appeal filed by the State. In the words of Gurnam Singh, J.- "This aspect of the case does not necessitate any comments as it is self-explanatory. Section 425 requires the High Court to certify its judgment or order to the Court by which the finding, sentence
---
## Page 7
or order appealed against was recorded or passed. The Court to which the High Court certifies its judgment etc., then makes such order as is conformable to the judgment or order of the High Court. If necessary that Court shall amend its record in accordance with the decision of the High Court. In the event of conflicting decisions of the High Court on the same set of facts in the same case unsurmountable difficulty of certification required by this provision of law would naturally arise. This again is a strong indication against the competency of the State appeal against acquittal after the appeal of the convict had already been decided by the High Court. I am, therefore, clearly of the view that an appeal against acquittal in such circumstances is barred." A. N. Grover, J. Dealt with this aspect of the case in paragraph 13 of the judgment as follows :- "Apart from these considerations, the provisions of section 425 of the Code of Criminal Procedure cannot be ignored. According to that section, whenever a case is decided on appeal by the High Court it…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.