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Petitioner: STATE VS Respondent: HADI BAKHSH
Court Name: Supreme Court of Pakistan Judge(s): Fakhruddin G. Ibrahim, Muhammad Afzal Zullah, Durab Patel Title: STATE vs HADI BAKHSH Case No.: Criminal Appeal No. K-4 of 19755 Criminal Appeal No. 373 of 1967 Date of Judgment:1981-03-24 Reported As: 1981 SCMR 1008 Result: Appeal dismissed
JUDGMENT
JUDGMENT DORAB PATEL, J.-The respondent was tried by an Additional Sessions Judge, Nawabshah, for the murder of one Niaz Ali and one Hayat Ali, and for causing injuries to other persons, because he had fired at them with a gun. Although the respondent's case was that the gun "went off" accidentally as some boys were playing with it, the Additional Sessions Judge held that the prosecution had proved that the gun had been fired by the respondent and not by boys as claimed by the respondent. However, as he also held that the respondent had no intention of firing at the deceased or at the other persons, he convicted him only under section 304-A, P. P. C. And sentenced him to two years. The respondent challenged this judgment in an appeal in the Karachi Seat of the West Pakistan High Court. The appeal was successfully contested the State and was dismissed by a learned Single Judge of the High Court, after full bearing, by his judgment dated 1-11-1967. But. Whilst the learned Single Judge dismissed the respondent's appeal, he was of the view that the respondent was guilty of murder, therefore, he observed in his judgment that the learned Additional Sessions Judge "has given very flimsy ground, in fact no grounds at all have been. Given for reducing this offence from 302,to 304-A, P. P. C." In view of these observations, the State filed an appeal against the respondent's acquittal on the charge of murder, and although the date on which this appeal was filed is not known, it is common ground between the learned counsel that the appeal was filed well within the statutory period of limitation. This State appeal came up for hearing three years later before another Bench of the Karachi Seat of the West Pakistan High Court in March, 1970, and the contention of the respondent before the learned Judges was that this State appeal against hint was not competent, because his conviction
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under section 304-A had become final on the dismissal of his appeal against his conviction by the Sessions Court. On the other hand, the contention of the State was teat as it had filed its appeal under section 417 of the Criminal Procedure Code within the statutory period of limitation, the High Court had to hear and decide it on merits and in support of this plea, reliance was placed on the majority judgment in Muhammad Gut Rohilla v. Emperor (AIR 1932 Nag. 12), and on a judgment of the Guirat 1ligh Court in State v. Diwanji Gardharji and others (PLD 1982 SC396). The appeal was dismissed by the learned Judges of the High Court by their judgment dated 30-3- 1970, on the ground that it was not competent, because the judgment dismissing the respondent's appeal against his convic--tion by the Sessions Court had become final and in this connection, Hayat Junejo, J., who wrote the judgment of the High Court, observed :- "One of the basic principles of Criminal jurisprudence is embodied in the ancient maxim "Nemo debet bis puniri prouno delicto" that is to say that no one ought to be punished twice for one offence." The learned Judge then referred to a host of judgments is support ofthe principle that no one can be punished twice: for the same offence, and as he agreed with these judgments, he preferred the minority yew of Niyogi, A. J. C., in Rohilla's case to the majority view, and in this connection he pointed out that the Punjab High Court had in The State v. Mansha Singh (1981 SCM R 899), followed the minority view in Rohilla's case. The learned Judge also referred to the Federal Court's judgment in the Crown v. Sultan Mahmood and others (PLD 1955 FC 20), and observed that the ratio of the judgment of Cornelius, J., (as he then was), was inconsistent with the majority view in Rohilla's case and with the judgment of the Gujrat High Court. Therefore, he held that the State appeal was not competent. The State filed a petition for leave against this judgment and leave was granted in order to examine the proper construction of section 430 of the Criminal Procedure Code on which the State bases its case. I would begin with the definition of an offence and according to clause (o) of section 4 of the Criminal Procedure Code, an offence "means any act or omission made punishable by any law for the time being in force." As the offence in the instant case was the act of firing by the respondent, if the State appeal is heard and allowed, it would mean that the respondent could be convicted and hanged by the Sind High Court for the very same offence for which it had convicted and sentenced him for manslaughter. In the first place, this would mean that the High Court would be reviewing its own judgment. And, that is barred by section 369 of the Criminal Procedure Code unless of course this section is subject to section 430 of the Criminal Procedure Code. Secondly, it would be most anomalous if the same High Court gave two different verdicts for the same offence. That would be an abuse of the process of the Court which would shake confidence in the administration of justice, and I would be loath to place upon section 430 of the Criminal Procedure Code a construction that could lead to such anomalous consequences. However, it is not merely a question of anomalous consequences. What is involved in this appeal is -something much more fundamental. Whether the respondent's acquittal on the charge of murder be right. Or wrong--- there has to be an end to litigation in every legal system, and in the instant case; on the dismissal of the respondent's appeal by the High Court, his acquittal on the charge of murder by a competent Court became final. It. Is true that the learned Single Judge, by whose judgment this is acquittal became final, had misgivings about the judgment which he was ,4 upholding. But, he had the power to prevent that verdict from becomingfinal by adjourning the hearing of the appeal before him in order to enable the State to decide whether it should file an appeal against the respondent's acquittal on the charge of murder. And, as I will present show, this is precisely -what Munir,..C. J., had done in Sultan Mahmood's appeal when this appeal had come up for hearing before him in the Lahore High Court. But as the learned Single Judge did not follow
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this precedent, the' result was that the judgment of the Sessions Court acquitting the respondent on the charge of murder became final, andcannot be re-opened on the principle of resjudicata. Additionally, in m humble opinion, it would be shocking to the , judicial conscience to try a man for the second time for the same offence and that is what would happen if we allow this appeal. I also venture to think that ,a violation, of this rule about double jeopardy would be shocking to the puloiv B conscience and that is why Article 13 of the present Constitution prescribes, that "no person shall be prosecuted or punished; for the same offence; more than once." This provision is of course not available to the respondent, but this Article only embodies the maxim "Nemo debet his vexari prouna et eadem causa, on which the learned Judges relied. And, a4 observed by Broom (Legal Maxims, tenth edition, page 223) this maxim "expresses a great fundamental rule of our criminal .Law, which forbid that a man should be put in jeopardy twice for one and the same offence, It- is the foundation of the special pleas of autrefois acquit and autrefois, convict. When a criminal charge has been once adjudicated upon by a Court of competent jurisdiction, that adjudication is final, whether it take the form of an acquittal or a conviction, and it may be pleaded in bar of subsequent prosecution for the same offence, whether charged with or without matters of mere aggravation, and whether such matters relate to the intent with which the offence was committed or to the consequence o the offence". It must also be borne in mind that this maxim is one of the oldest maxims of the common law and I may with advantage refer here to a passage from the speech of Lord Morris in Connelly v. Director Punjab Prosecutions ((1964) 2 All E R 401). This passage reads :-- "Thus Coke's Institutes (Part 3 at p. 213) says that "auterfoitz acquite must be of the same felony. Blackstone's Commentaries (1769, Book 4 at p. 329)'says that "the plea of auterfoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence." He says that when a man is once fairly found not guilty on any indict--ment he may plead such acquittal in bar of any subsequent accusation "for the same crime": and that the plea of auterfoits convict depends on the same principle. Also he points out (ibid., at p. 330) that a conviction of manslaughter is a bar to an indictment of murder: `for the fact prosecuted is the same in both, though the offences differ in colouring and in degree'." The instant case falls directly under this dictum that a conviction of manslaughter is a bar to an indictment for murder. I am aware that this dictum does not relate to appeals, because the common law does not provide for an appeal against an acquittal. This right was created for the first time in the sub-continent by the Criminal Procedure Code of 1872; and as I will presently show this departure from the common law is itself a circumstance relevant to the construction of section 403. I now turn to section 403 of the Criminal Procedure Code. As the question is whether the respondent can' be placed if double jeopardy for the same offence, only subsection (1) of this section is relevant and it reads :- "403.-(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be ,tried again for the same offence, nor on the same facts for any * other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237." Although the Court referred to in the section is not the Appellate Court, the obvious question which arises for examination is whether the provisions of this section should be extended to acquittals by appellate Court. In my humble opinion, the answer to this question can only be in the affirmative and I receive some support for my opinion from this Court's judgment in Abul Hossain v. Suwalal
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Agarwala (PLD 1962SC242). The facts in this case were that the appellant was charged for offences under sections 379 and 465 of the Penal Code, but was discharged by a Magistrate. Thereafter, the case against him was revived at the instance of the complainant, and he pleaded the bar of section: 403. The contention of the respondents was that the benefit of section 403 was not available to the appellant, because the section referred to acquittals and not - to orders of discharge. In other words, as in the instant case, the State relied on the literal or grammatical meaning of the words in the section and in support of this plea, reliance was placed on judgments of the High Court in which it was held that the benefit of the section was available only to persons, who had been acquitted by a competent Court, and not to persons, who had been discharged under section 253 of the Criminal Procedure Code. In overruling this view, Kaikaus, J., observed at page 245 :- "The general principle that there has to be an end to litigation is applicable ex necessitates to proceedings of any kind an a Court. It would be impossible to contend that once an accused person has, been discharged after the whole of the evidence produced by the prosecution has been recorded he can be proceeded against on a fresh complaint or report on the basis of the very same evidence. An order of discharge, which is passed on the merits and which is not plainly or substantially an order passed in default, although it does not in law constitute a legal bar will practically have the same effect as an order of acquittal." The same principle was affirmed by the Privy Council in Sambasivam v. Public Prosecutor Federation of ,Malaya (1950 A C 458). Lord MacDermott observed at "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is rot completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim " Res judicata pro veritate accipituris no less applicable to criminal than to civil proceeding." The principle is ancient and as observed by Lord Coleridge, C. J., in Reg. v, Duncan ((1881) 7 Q B D 198) :-- "The practice of the Courts has been settled for centuries, and is that in all cases of a criminal kind where a prisoner or defendant is in danger of imprisonment no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted." I am aware that these observations relate to the question whether the accused can be tried for a second time in the trial Court, but as in the words of Kaikaus, J., "there has to be an end to litigation', the principle of the finality of judgments is applicable to all Courts whatsoever. But as according to Mr. Rashid Qureshi, this principle was abolished by section 430 read with sec--tion 369 of the Criminal Procedure Code, it is necessary to examine them. These sections read :- "369.-(Save as otherwise provided by this Code or by any other law for the time - being in force, or, in the 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 exceptto correct a clerical error: 430.-Judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in section 417 and Chapter .XXXII." In view of the opening words of section 369, learned counsel submitted that section 430 was not subject to the provisions of section 369. That is correct. And, the appeal against the respondent's acquittal on the charge for murder was filed within time, therefore, as section 430 does not, in terms, contain any restriction on the right to file an appeal, learned' counsel's further submission was that the appeal was competent, although it had been filed after the High Court's judgment confirming the respondent's conviction under section 304-A, P. P. C. Had become final. Now, although the section does not contain any restriction on the right to file an appeal, is this by itself
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sufficient to justify the conclusion that the section was intended to abolish the practice of the Courts for centuries? I pointed out earlier that the right of appeal against the acquittal is a departure from the common law, and, if we accept Mr. Rashid Qureshi's submissions, it would mean a further inroad on the principles of the common law. Could that have been the intention of the Legislature? The language of section 430 is no doubt wide, but as observed by Maxwell in his Inter--pretation of Statutes (Twelfth Edition, page 116) :- "Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the Legislature do not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system o~ law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended." This passage has been repeatedly approved by this Court and applying it to the instant case, I would hold that in the events that happened, the appeal by the State is not competent. I now turn to the case-law and I would begin with Sultan Mahmood's case. The learned Judges had followed the observations of Cornelius, J. (as he then was) which read :- "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 circum--stances 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." Learned counsel submitted that we should not follow these observations, because the facts of the case cited were distinguishable. The learned Judges have themselves pointed out that the facts of Sultan Mahmood's case were distinguishable, but they were of the view that the observations quoted above were intended to lay down a rule of law which they followed. And, I may further observe here that the House of Lords has taken the same view in Connelly's case. Turning now to the facts of the case, the respondents had been acquitted for a murder, therefore, the brother of the victim had filed a revision in the Lahore High Court which came up for hearing before Munir, C. J. (as he then was). As in the instant case, Munir, C. J., was of the view that the acquittal of the respondents was perverse, therefore, instead of hearing the revision, he gave notice to the State. However, in response to the notice, the Advocate-General appeared and stated that the Govern--ment did not intend to file appeal against the acquittal. Therefore Munir, C. J., heard the revision and dismissed it with observations as in the instant case, and taking the advantage of th6lse observations, the State filed an appeal against the acquittal of the respondents. But that question was whether the appeal was competent as the acquittal of the respondents had become final. Munir, C. J., held that the appeal was not competent, because the State had elected not to file an appeal when called upon to make up its mind. Now, as I pointed out, the learned Single Judge did not, in the instant case, follow the precedent of Munir, C. J., therefore, as the State had contested the respondent's appeal without expressly electing to abandon its right of appeal against the respondent's acquittal only the charge of murder, learned counsel stated that Sultan Mahmood's case was distinguishable on the facts. It is true that the facts in the case cited are not absolutely identical to those in the instant case, but does anything turn on the distinction? Even though the learned Single Judge did not call upon the
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Government to decide whether it should file an appeal against the respondent's acquittal on the charge, .For murder, the respondent's appeal was heard after notice to the State and as the State had opposed that appeal, it was in a position to know whether the respondent's acquittal on the charge of murder was, prima facie, illegal, and if it was, it was its duty to file an appeal immediately against the respondent's acquittal and if necessary to move the Court for an adjournment in the respondent's appeal, so that the two appeals could be heard together. Therefore, nothing turns on the distinction sought to be drawn by Mr. Rashid Qureshi and I am supported in my opinion by a judgment of the Indian Supreme Court in U. J. S. Chopra v. State of Bombay (AIR 1955 SC 633). As this judgment is important for more reasons than one, I would examine it in some details, and the facts were that the appellant had been convicted under the Bombay Prohibition Act and sentenced to imprisonment till the rising of the Court and to a nominal fine. He challenged his conviction in appeal in the Bombay High Court, which was dismissed summarily. After the dismissal in limine of his appeal, the State filed a revision in the High Court for the enhancement of the sentence against the appellant. As this revision was admitted, the appellant challenged the High Court's order in an appeal in the Indian Supreme Court, and the question before the Court was that whether the State's revision was competent in view of the dismissal by the High Court of the appellant's appeal against his conviction. There was a cleavage of opinion amongst the High Courts of the sub-continent on this question and after examining the entire case law, the learned Judges of the Supreme Court held that the State's revision for the enhancement of the appellant's sentence was competent only, because the appellant's appeal bad been dismissed by the High Court in limine. But, they also held, I would repeat after an exhaustive examination of the case-law, that the revision by the State would not have been competent, if the appellant's appeal had been dismissed after notice to the State ; and this was, inter alia, on the ground that when the appeal of an accused against his convic--tion was disposed of after notice to the State, the State was under an obligation to file an appeal before the High Court pronounced its judgment in the appeal of the accused. S. R.. Das, J., observed in this connection at page 643 :-- "When an appeal or revision by the accused is allowed after a full bearing, on notice to the respondent the conviction and sentence must regarded as having been put in issue and finally decided. When the accused person in the presence of the State claims an acquittal or reduction of his sentence, the State ought then and there to apply for enhancement of sentence and its failure to do so cannot but be regarded as abandonment of the claim." I respectfully agree with this view, and as to the reason given by the learned Judge for reaching this conclusion, the learned Judge went on to observe :--- "The acceptance by the High Court of the appeal or revision on notice to the respondent and after a full hearing is, therefore, nothing less than a judgment of acquittal or a judgment for reduction of sentence. On the other hand, the dismissal by the High Court of an appeal or revision after such a full hearing amounts to a judgment of conviction. In both cases the judgment is final as regards both the accused and the respondent as regards the conviction as well as the sentence in all its aspects, namely, reduction or enhancement. In that situation no further question of revision can arise at the instance of either party. There can be no further application by the accused challenging his conviction or sentence. Nor can there be any further application by the State for enhancement of the sentence, for that question could have been and should have been raised when the accused person in the presence of the respondent prayed for acquittal or reduction of sentence and not having then been raised it cannot be raised subsequently and consequently no question can arise for the exercise of right by the accused under section 439 (6).
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This result is brought about not by any technical doctrine of constructive "resjudicata" which has no application to criminal cases but on the general principle of finality of judgments." As Bhagwati, J., also pronounced a separate judgment, I would refer, on the question of the duty of the State, to the following passage in the judgment at page 651 :-- "When the judgment of the lower Court has been. Under its scrutiny on notice being issued to the opposite-party and on a full hearing accorded to both the parties notice for enhancement of sentence can only be issued by it before it pronounces its judgment replacing thatof the lower Court. When such hearing is in progress it is incumbent upon the High Court or the opposite-party to make up its mind before such judgment is pronounced whether a notice for enhancement of sentence should issue to the accused." As I respectfully agree with the observations of . S. R. Das, J., and Bhagwati, J., in my humble opinion nothing turns on the fact that in the instant case, the learned Single Judge did not, unlike the Chief Justice of the`' Lahore High Court in Sultan Mahmood's case, call upon the State to decide whether it wanted to file an appeal against the respondent's acquittal on the charge for murder, and, therefore, I would extend the rule laid down by the Federal Court in Sultan Mahmuod's case to the instant case. As Mr. Rashid Qureshi relied, for the purpose of his…
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