PLJ 2007 SC 440
[Appellate Jurisdiction]
Present: Rana Bhagwandas, Nasir-ul-Mulk & Syed Jamshed Ali, JJ.
KARAM ELLAHI--Appellant
versus
STATE--Respondent
Cr.A. No. 444 of 2001, decided on 28.9.2006.
(On appeal from judgment of Lahore High Court, Lahore dated 23.11.2000 passed in Criminal Appeal No. 712 of 1990).
(i) Constitution of Pakistan, 1973--
----Art. 185(2)--Criminal appeal against conviction of accused by High Court after setting aside acquittal order passed by Addl. Sessions Judge--Memo of appeal was returned with objection that appeal could not be entertained without surrender of accused--Criminal miscellaneous appeal, however Supreme Court directed the office to entertain memo of appeal and to fix bail application--Foot of application for bail before arrest moved--Accused neither appeared before Supreme Court nor before High Court at any time and did not pursue prayer for granting of bail--Convict being fugitive or absconding--Right of hearing of appeal--Court not bound to decide the appeal on merits, surrender of accused--Conviction of accused by High Court while setting aside the order of acquittal passed by Addl. Sessions Judge with direction that appellant would be taken into custody and sent to judicial lockup to serve out the sentence--Accused did not surrender before the law enforcing agencies and preferred direct appeal as of right--Validity--Appellant was not surrendering to the judgment of High Court--Held: Supreme Court was not bound to decide present appeal on merits--Accused must surrender before the Court unless his attendance has been dispensed with by the Court seized of the appeal--In absence of accused without any legal justification or permission of Supreme Court, the question of dispensing with his attendance would hardly arise--Further held: Appellant being a convict by a competent Court of Law becoming fugitive, even after filing the memo of appeal, through a counsel, loses a right of hearing though his appeal may be maintainable before the Court in view of express command of Art. 185(2) of the Constitution.
[P. 443] A
(ii) Constitution of Pakistan, 1973--
----Art. 185(2)--Criminal direct appeal--Absconder, cannot get benefit of his appeal being kept pending sine die till he surrenders--Appeal against acquittal it would not be illegal or even improper to hear of an acquitted accused who is on bail--Principles enunciated by Supreme Court (that a fugitive from justice looses right of hearing if he defies the orders of the Court for his surrender and or otherwise abuses its process), if, while, he remains fugitive, he is allowed to be represented by another person so that his plea might be heard.
[P. 443] B
(iii) Administration of Justice--
----Fugitive from justice--Inherent power cannot be invoked--Essential--Person who is fugitive from justice; the inherent power cannot be invoked in his favour--Person concerned should submit to due process of justice; where an individual seeks interference of the sovereign to obtain the reversal of a judicial order, he cannot succeed if he himself is engaged in setting that judicial order at naught; the Court would in order to avoid taking drastic action of the dismissal of a matter on account of such a conduct of the person concerned, afford opportunity through some adjournments in the expectation that he might be induced to surrender; this all being accord with the basic principles governing administration of criminal justice, it is the duty of the person representing the accused, to secure. [P. 444] C
(iv) Constitution of Pakistan, 1973--
----Art. 185(2)--Fugitive from justice--Appeal cannot be filed on the basis of power of attorney executed by him before his abscondence--If a person is fugitive from justice and is in the state of abscondence, an appeal cannot be filed on his behalf on the basis of a power of attorney executed by him before his abscodence and the same would apply to a power of attorney executed during abscodence; that a fugitive in effect is also a contemnor and further that he is not entitled to hearing. [P. 444] D
PLD 1981 SC 265, PLD 1956 F.C. 43, PLD 1969 SC 89, PLD 1982 SC 294, 1982 SCMR 818, 1985 SCMR 614, PLD 2004 Quetta 16, PLD 2005 SC 270, (Ref.)
Sheikh Zamir Hussain, ASC and Mr. Ejaz Muhammad Khan, ASC for Appellant.
Chaudhry Munir Sadiq, ASC for State.
Date of hearing: 28.9.2006.
Judgment
Rana Bhagwandas, J.--This direct appeal against judgment and conviction of the appellant by Lahore High Court dated 23.11.2000, after setting aside acquittal order passed by leanred Additional Sessions Judge, Kasur was presented in office way back on 6.1.2001. While allowing acquittal appeal to the extent of appellant, Division Bench of the High Court had ordered that the appellant shall be taken into custody and sent to judicial lock-up to serve out the sentence of life imprisonment with fine of Rs. 25,000/-. However, even after this direction, the appellant did not surrender before law enforcing agencies and preferred this appeal as of right, with the result that judgment of the High Court remains unimplemented.
2. Deputy Registrar of this Court returned the memo of appeal to the learned AOR for appellant with the objection that this appeal could not be entertained without the surrender of the appellant, in criminal miscellaneous Appeal No. 3 of 2001 against the order of the Deputy Registrar, however, a learned Judge of this Court directed the office to entertain the memo of appeal and to fix the bail application, filed alongwith the memo of appeal, in accordance with law at the hearing of which the appellant shall appear in person. It may be pertinent to observe that at the foot of the application for bail before arrest moved on his behalf, the appellant undertook to appear and surrender before this Court on the date fixed for hearing. Evidently the appellant neither appeared before this Court nor before the Lahore High Court at any time and did not pursue his prayer for grant of bail. Once, it was listed for hearing before the Court after due notice but it could not be reached for want of time.
3. Notice of listing of this appeal for today was issued to the appellant through District Police Officer, Kasur well in time, which has been returned with the endorsement of Station House Officer Mustafa Abad, District Kasur to the effect that the appellant has been absent and away from his house for the last 5/6 years and he is not in touch even with his real brother Rashid Ahmad. It may be observed, that he has neither intimated any reason for his absence nor entered appearance in person in pursuance of the undertaking furnished by him and in compliance with direction of the learned Single Judge of this Court as far back as 5.3.2002.
4. Sheikh Zamir Hussain, learned ASC has entered appearance on behalf of the appellant while State is represented by Chaudhry Munir Sadiq, learned ASC. Sheikh Zamir Hussain frankly states that during the last about six years, appellant has not come in contact with him though his brother Rashid Ahmed has been in touch with him. Since the appellant has not surrendered before this Court and he is a fugitive at law by not surrendering to the judgment of the Lahore High Court, we legitimately feel that we are not bound to decide this appeal on merits. Since it would be a condition precedent for hearing of an appeal by a convict against his conviction that an appellant must surrender before the Court unless his attendance has been dispensed with by the Court seized of the appeal. In the absence of the appellant, without any legal justification or permission of this Court, the question of dispensing with his attendance would hardly arise. Appellant being a convict by a competent Court of law becoming fugitive, even after filing the memo of appeal, through a counsel, in our view, looses a right of hearing though his appeal may be maintainable before the Court in view of express command of Article 185(2) of the Constitution.
5. In Hayat Bakhsh v. State (PLD 1981 S.C. 265) a larger Bench of this Court categorically held that if a convict after filing a petition becomes fugitive and does not surrender, he deprives himself of the relief claimed in the petition. Similarly, there would be no difference if he absconds after obtaining special leave to appeal, or after obtaining a bail order. This Court observed that it was not possible to agree with the submission of the counsel that in this situation the absconder can get the benefit of his appeal being kept pending sine die till he surrenders. The Court laid down that although in an appeal against acquittal it would not be illegal or even improper to hear the counsel of an acquitted accused who is on bail, it is not so for a fugitive. It would be the negation of the principles enunciated by this Court (that a fugitive from justice looses right of hearing if he defies the orders of the Court for his surrender and or otherwise abuses its process), if, while, he remains fugitive, he is allowed to be represented by another person so that his plea might be heard. In order to maintain consistency, in such a situation, although the Court would be obliged itself to examine the merits of the case for setting aside the acquittal, if need be the absconding acquitted accused would not be entitled to be heard, even through a counsel.
6. Referring to the principle laid down in the cases of Chan Shah v. The Crown (PLD 1956 F.C. 43) and Gul Hassan v. State (PLD 1969 S.C. 89), this Court cautioned that this Court would not act in aid of a person who is fugitive from justice; the inherent power cannot be invoked in his favour because it is an essential condition of the administration of justice that the person concerned should submit to the due process of justice; where an individual seeks interference of the sovereign to obtain the reversal of a judicial order, he cannot succeed if he himself is engaged in setting that judicial order at naught; the Court would in order to avoid taking drastic action of the dismissal of a matter on account of such a conduct of the person concerned, afford opportunity to him through some adjournments in the expectation that he might be induced to surrender; this all being in accord with the basic principles governing administration of criminal justice, it is the duty of the person representing the accused, to secure. Elaborating further, this Court approved the principle laid down in Gul Hassan's case (supra): namely if a person is fugitive from justice and is in the state of abscondence, an appeal cannot be filed on his behalf on the basis of a power-of-attorney executed by him before his abscondence and the same would apply to a power of attorney executed during abscondence; that a fugitive in effect, in view of the principles laid down in the case of Chan Shah (supra) is also a contemner and further that he is not entitled to hearing; that even if it is a case of confirmation of death sentence under section 374 Cr.P.C., if the convict decamps, he thereby forfeits the right of audience and the High Court would, in such a situation, be competent to consider the case of confirmation of his death sentence and confirm the same even in his absence. The confirmation of course will have to be on merits of the case; and this Court would not hesitate even after grant of leave to appeal on the application of such a person, to rescind the leave. In Mairaj Begum v. Ejaz Anwar (PLD 1982 SC 294), dealing with an appeal against acquittal after the absconsion of respondent acquitted by High Court this observed:--
"Although non-bailable warrants of arrest were issued against Ejaz Anwar respondent, now absconder, he has remained fugitive from law and Court for nearly five years and has not yet surrendered. Two learned counsel appeared in the Court from his side to state that they have been instructed to remain present to assist the Court. After noticing their presence and the circumstances about the absence of the respondent, we feel satisfied that his non-surrender is intentional and is, in the defiance of Court process. Therefore, he has lost right of hearing as was held in this Court judgment in the case of Hayat Bakhsh and others v. The State. We accordingly proceeded to hear the appeal against acquittal. The learned counsel were told that they had no right to represent the respondent and we on our part did not feel it necessary to seek their assistance in the disposal of the appeal."
Aforesaid view is further supported by Ali Ahmad Sabri v. State (1982 SCMR 818), Nazar Hussain v. State (1985 SCMR 614), Amir v. State (PLD 2004 Quetta 16) and latest precedent reported as State v. Naseemur Rehman (PLD 2005 SC 270), to which one of us (Rana Bhagwandas, J) was a party.
7. Respectfully following the dictum laid down by this Court, we earnestly feel, this is a fit case for the exercise of discretion, consistent with golden rule laid down hereinabove. Resultantly, this appeal is liable to dismissal on this ground and is accordingly dismissed.
8. Before parting with this order, we find it our solemn duty to call upon the District Police Officer Kasur as well as Inspector General Police to Punjab to take steps for arrest of the convict and to execute judgment of the High Court under intimation to this Court, within thirty days positively.
Syed Jamshed Ali, J.--I had the benefit of going through the judgement authored by my learned brother Rana Bhagwandas, J and concurred by my learned brother Nasir-ul-Mulk, J. The basis of the judgement is the case of Hayat Bakhsh supra, decided by a learned five members Bench of this Court. With greatest respect to the learned Judges and their legal acumen who decided the said case as also the learned author Judge, I have serious doubts as to correctness of the views expressed in the case of Hayat Bakhsh supra. I am of the opinion that the judgement in the case of Hayat Bakhsh supra, needs to be re-visited at an appropriate occasion by a larger Bench. My reasons are as follows:--
(a) When an acquittal is over turned by the High Court, the appeal lies as of right under Article 185 (2) of the Constitution. A plain reading of the said Article shows that it is un-qualified and absolute not conditioned with the surrender of the appellant.
(b) When an appeal lies as of right, there is a corresponding obligation for its decision and in-built therein is the right of hearing otherwise the appeal as of right will become a perfunctory ritual.
(c) Rule 8 of Order, XXIII of the Supreme Court of Pakistan Rules, 1980, provides that the petitioner-convict will have to surrender before his petition could be entertained but Order, XXII, which deals with the criminal appeals, does not contain any such provision which is an eloquent expression of the intention of the rule making authority not to insist on the surrender of the convict-appellant in case of appeal as of right. The provision of orders XXII and XXIII were not noted by the learned Bench in Hayat Bakhsh' case supra.
(d) The observation in the case of Hayat Buksh that even in case of appeal, the appellant must surrender is supported by the observation that power of the Supreme Court under Article 187 extends to passing of necessary orders for doing complete justice or orders incidental to facilitate exercise of such power. It is submitted with respect that it does not have the effect of abridging the scope of an appeal under Article 185 (2) of the Constitution. The residuary enabling article although of wide implititude, cannot be interpreted to abrade the effect of an express constitutional provision. Right of appeal in this case being creation of the constitution, substantive and valuable, could only be curtailed by an express provision of the constitution and not by exercise of an ancillary power.
(e) The other basis of the judgement in Hayat Bakhsh was that a fugitive from justice loses right of hearing an appeal filed on his behalf through a counsel. The only basis of this principle, we can find in equity, it is not rule of law laid down in case of appeal under Article 185(2) of the constitution. Again, it may be noted that a right guaranteed by the Constitution cannot possibly be diluted by any subordinate principle of equity or even of law. The right conferred by the Constitution could only be taken away by the Constitution. In case the acquitted accused is convicted, the law should have its course, he should be arrested and sent to the prison for undergoing sentence. The condition of personal attendance could, however, be imposed while hearing a bail matter because that lies in the discretion of the Court.
(f) Another basis of the judgement in the case of Hayat Bukhsh supra is that sub-Article (1) of Article 185 (2) is the controlling provision and, "The jurisdiction to hear and determine appeals in clause (1) encompasses both types of appeals whether filed under clause (2) or clause (3). Thus the constitution does not make any difference in this behalf". It is respectfully submitted that on a plain reading of the two provisions i.e. sub-Article (2) and sub-Article (3) of Article 185, the distinction is explicit. The two remedies are independent and are governed by different rules of this Court.
(Rao Farid-ul-Haque) Appeal dismissed.
[Appellate Jurisdiction]
Present: Rana Bhagwandas, Nasir-ul-Mulk & Syed Jamshed Ali, JJ.
KARAM ELLAHI--Appellant
versus
STATE--Respondent
Cr.A. No. 444 of 2001, decided on 28.9.2006.
(On appeal from judgment of Lahore High Court, Lahore dated 23.11.2000 passed in Criminal Appeal No. 712 of 1990).
(i) Constitution of Pakistan, 1973--
----Art. 185(2)--Criminal appeal against conviction of accused by High Court after setting aside acquittal order passed by Addl. Sessions Judge--Memo of appeal was returned with objection that appeal could not be entertained without surrender of accused--Criminal miscellaneous appeal, however Supreme Court directed the office to entertain memo of appeal and to fix bail application--Foot of application for bail before arrest moved--Accused neither appeared before Supreme Court nor before High Court at any time and did not pursue prayer for granting of bail--Convict being fugitive or absconding--Right of hearing of appeal--Court not bound to decide the appeal on merits, surrender of accused--Conviction of accused by High Court while setting aside the order of acquittal passed by Addl. Sessions Judge with direction that appellant would be taken into custody and sent to judicial lockup to serve out the sentence--Accused did not surrender before the law enforcing agencies and preferred direct appeal as of right--Validity--Appellant was not surrendering to the judgment of High Court--Held: Supreme Court was not bound to decide present appeal on merits--Accused must surrender before the Court unless his attendance has been dispensed with by the Court seized of the appeal--In absence of accused without any legal justification or permission of Supreme Court, the question of dispensing with his attendance would hardly arise--Further held: Appellant being a convict by a competent Court of Law becoming fugitive, even after filing the memo of appeal, through a counsel, loses a right of hearing though his appeal may be maintainable before the Court in view of express command of Art. 185(2) of the Constitution.
[P. 443] A
(ii) Constitution of Pakistan, 1973--
----Art. 185(2)--Criminal direct appeal--Absconder, cannot get benefit of his appeal being kept pending sine die till he surrenders--Appeal against acquittal it would not be illegal or even improper to hear of an acquitted accused who is on bail--Principles enunciated by Supreme Court (that a fugitive from justice looses right of hearing if he defies the orders of the Court for his surrender and or otherwise abuses its process), if, while, he remains fugitive, he is allowed to be represented by another person so that his plea might be heard.
[P. 443] B
(iii) Administration of Justice--
----Fugitive from justice--Inherent power cannot be invoked--Essential--Person who is fugitive from justice; the inherent power cannot be invoked in his favour--Person concerned should submit to due process of justice; where an individual seeks interference of the sovereign to obtain the reversal of a judicial order, he cannot succeed if he himself is engaged in setting that judicial order at naught; the Court would in order to avoid taking drastic action of the dismissal of a matter on account of such a conduct of the person concerned, afford opportunity through some adjournments in the expectation that he might be induced to surrender; this all being accord with the basic principles governing administration of criminal justice, it is the duty of the person representing the accused, to secure. [P. 444] C
(iv) Constitution of Pakistan, 1973--
----Art. 185(2)--Fugitive from justice--Appeal cannot be filed on the basis of power of attorney executed by him before his abscondence--If a person is fugitive from justice and is in the state of abscondence, an appeal cannot be filed on his behalf on the basis of a power of attorney executed by him before his abscodence and the same would apply to a power of attorney executed during abscodence; that a fugitive in effect is also a contemnor and further that he is not entitled to hearing. [P. 444] D
PLD 1981 SC 265, PLD 1956 F.C. 43, PLD 1969 SC 89, PLD 1982 SC 294, 1982 SCMR 818, 1985 SCMR 614, PLD 2004 Quetta 16, PLD 2005 SC 270, (Ref.)
Sheikh Zamir Hussain, ASC and Mr. Ejaz Muhammad Khan, ASC for Appellant.
Chaudhry Munir Sadiq, ASC for State.
Date of hearing: 28.9.2006.
Judgment
Rana Bhagwandas, J.--This direct appeal against judgment and conviction of the appellant by Lahore High Court dated 23.11.2000, after setting aside acquittal order passed by leanred Additional Sessions Judge, Kasur was presented in office way back on 6.1.2001. While allowing acquittal appeal to the extent of appellant, Division Bench of the High Court had ordered that the appellant shall be taken into custody and sent to judicial lock-up to serve out the sentence of life imprisonment with fine of Rs. 25,000/-. However, even after this direction, the appellant did not surrender before law enforcing agencies and preferred this appeal as of right, with the result that judgment of the High Court remains unimplemented.
2. Deputy Registrar of this Court returned the memo of appeal to the learned AOR for appellant with the objection that this appeal could not be entertained without the surrender of the appellant, in criminal miscellaneous Appeal No. 3 of 2001 against the order of the Deputy Registrar, however, a learned Judge of this Court directed the office to entertain the memo of appeal and to fix the bail application, filed alongwith the memo of appeal, in accordance with law at the hearing of which the appellant shall appear in person. It may be pertinent to observe that at the foot of the application for bail before arrest moved on his behalf, the appellant undertook to appear and surrender before this Court on the date fixed for hearing. Evidently the appellant neither appeared before this Court nor before the Lahore High Court at any time and did not pursue his prayer for grant of bail. Once, it was listed for hearing before the Court after due notice but it could not be reached for want of time.
3. Notice of listing of this appeal for today was issued to the appellant through District Police Officer, Kasur well in time, which has been returned with the endorsement of Station House Officer Mustafa Abad, District Kasur to the effect that the appellant has been absent and away from his house for the last 5/6 years and he is not in touch even with his real brother Rashid Ahmad. It may be observed, that he has neither intimated any reason for his absence nor entered appearance in person in pursuance of the undertaking furnished by him and in compliance with direction of the learned Single Judge of this Court as far back as 5.3.2002.
4. Sheikh Zamir Hussain, learned ASC has entered appearance on behalf of the appellant while State is represented by Chaudhry Munir Sadiq, learned ASC. Sheikh Zamir Hussain frankly states that during the last about six years, appellant has not come in contact with him though his brother Rashid Ahmed has been in touch with him. Since the appellant has not surrendered before this Court and he is a fugitive at law by not surrendering to the judgment of the Lahore High Court, we legitimately feel that we are not bound to decide this appeal on merits. Since it would be a condition precedent for hearing of an appeal by a convict against his conviction that an appellant must surrender before the Court unless his attendance has been dispensed with by the Court seized of the appeal. In the absence of the appellant, without any legal justification or permission of this Court, the question of dispensing with his attendance would hardly arise. Appellant being a convict by a competent Court of law becoming fugitive, even after filing the memo of appeal, through a counsel, in our view, looses a right of hearing though his appeal may be maintainable before the Court in view of express command of Article 185(2) of the Constitution.
5. In Hayat Bakhsh v. State (PLD 1981 S.C. 265) a larger Bench of this Court categorically held that if a convict after filing a petition becomes fugitive and does not surrender, he deprives himself of the relief claimed in the petition. Similarly, there would be no difference if he absconds after obtaining special leave to appeal, or after obtaining a bail order. This Court observed that it was not possible to agree with the submission of the counsel that in this situation the absconder can get the benefit of his appeal being kept pending sine die till he surrenders. The Court laid down that although in an appeal against acquittal it would not be illegal or even improper to hear the counsel of an acquitted accused who is on bail, it is not so for a fugitive. It would be the negation of the principles enunciated by this Court (that a fugitive from justice looses right of hearing if he defies the orders of the Court for his surrender and or otherwise abuses its process), if, while, he remains fugitive, he is allowed to be represented by another person so that his plea might be heard. In order to maintain consistency, in such a situation, although the Court would be obliged itself to examine the merits of the case for setting aside the acquittal, if need be the absconding acquitted accused would not be entitled to be heard, even through a counsel.
6. Referring to the principle laid down in the cases of Chan Shah v. The Crown (PLD 1956 F.C. 43) and Gul Hassan v. State (PLD 1969 S.C. 89), this Court cautioned that this Court would not act in aid of a person who is fugitive from justice; the inherent power cannot be invoked in his favour because it is an essential condition of the administration of justice that the person concerned should submit to the due process of justice; where an individual seeks interference of the sovereign to obtain the reversal of a judicial order, he cannot succeed if he himself is engaged in setting that judicial order at naught; the Court would in order to avoid taking drastic action of the dismissal of a matter on account of such a conduct of the person concerned, afford opportunity to him through some adjournments in the expectation that he might be induced to surrender; this all being in accord with the basic principles governing administration of criminal justice, it is the duty of the person representing the accused, to secure. Elaborating further, this Court approved the principle laid down in Gul Hassan's case (supra): namely if a person is fugitive from justice and is in the state of abscondence, an appeal cannot be filed on his behalf on the basis of a power-of-attorney executed by him before his abscondence and the same would apply to a power of attorney executed during abscondence; that a fugitive in effect, in view of the principles laid down in the case of Chan Shah (supra) is also a contemner and further that he is not entitled to hearing; that even if it is a case of confirmation of death sentence under section 374 Cr.P.C., if the convict decamps, he thereby forfeits the right of audience and the High Court would, in such a situation, be competent to consider the case of confirmation of his death sentence and confirm the same even in his absence. The confirmation of course will have to be on merits of the case; and this Court would not hesitate even after grant of leave to appeal on the application of such a person, to rescind the leave. In Mairaj Begum v. Ejaz Anwar (PLD 1982 SC 294), dealing with an appeal against acquittal after the absconsion of respondent acquitted by High Court this observed:--
"Although non-bailable warrants of arrest were issued against Ejaz Anwar respondent, now absconder, he has remained fugitive from law and Court for nearly five years and has not yet surrendered. Two learned counsel appeared in the Court from his side to state that they have been instructed to remain present to assist the Court. After noticing their presence and the circumstances about the absence of the respondent, we feel satisfied that his non-surrender is intentional and is, in the defiance of Court process. Therefore, he has lost right of hearing as was held in this Court judgment in the case of Hayat Bakhsh and others v. The State. We accordingly proceeded to hear the appeal against acquittal. The learned counsel were told that they had no right to represent the respondent and we on our part did not feel it necessary to seek their assistance in the disposal of the appeal."
Aforesaid view is further supported by Ali Ahmad Sabri v. State (1982 SCMR 818), Nazar Hussain v. State (1985 SCMR 614), Amir v. State (PLD 2004 Quetta 16) and latest precedent reported as State v. Naseemur Rehman (PLD 2005 SC 270), to which one of us (Rana Bhagwandas, J) was a party.
7. Respectfully following the dictum laid down by this Court, we earnestly feel, this is a fit case for the exercise of discretion, consistent with golden rule laid down hereinabove. Resultantly, this appeal is liable to dismissal on this ground and is accordingly dismissed.
8. Before parting with this order, we find it our solemn duty to call upon the District Police Officer Kasur as well as Inspector General Police to Punjab to take steps for arrest of the convict and to execute judgment of the High Court under intimation to this Court, within thirty days positively.
Syed Jamshed Ali, J.--I had the benefit of going through the judgement authored by my learned brother Rana Bhagwandas, J and concurred by my learned brother Nasir-ul-Mulk, J. The basis of the judgement is the case of Hayat Bakhsh supra, decided by a learned five members Bench of this Court. With greatest respect to the learned Judges and their legal acumen who decided the said case as also the learned author Judge, I have serious doubts as to correctness of the views expressed in the case of Hayat Bakhsh supra. I am of the opinion that the judgement in the case of Hayat Bakhsh supra, needs to be re-visited at an appropriate occasion by a larger Bench. My reasons are as follows:--
(a) When an acquittal is over turned by the High Court, the appeal lies as of right under Article 185 (2) of the Constitution. A plain reading of the said Article shows that it is un-qualified and absolute not conditioned with the surrender of the appellant.
(b) When an appeal lies as of right, there is a corresponding obligation for its decision and in-built therein is the right of hearing otherwise the appeal as of right will become a perfunctory ritual.
(c) Rule 8 of Order, XXIII of the Supreme Court of Pakistan Rules, 1980, provides that the petitioner-convict will have to surrender before his petition could be entertained but Order, XXII, which deals with the criminal appeals, does not contain any such provision which is an eloquent expression of the intention of the rule making authority not to insist on the surrender of the convict-appellant in case of appeal as of right. The provision of orders XXII and XXIII were not noted by the learned Bench in Hayat Bakhsh' case supra.
(d) The observation in the case of Hayat Buksh that even in case of appeal, the appellant must surrender is supported by the observation that power of the Supreme Court under Article 187 extends to passing of necessary orders for doing complete justice or orders incidental to facilitate exercise of such power. It is submitted with respect that it does not have the effect of abridging the scope of an appeal under Article 185 (2) of the Constitution. The residuary enabling article although of wide implititude, cannot be interpreted to abrade the effect of an express constitutional provision. Right of appeal in this case being creation of the constitution, substantive and valuable, could only be curtailed by an express provision of the constitution and not by exercise of an ancillary power.
(e) The other basis of the judgement in Hayat Bakhsh was that a fugitive from justice loses right of hearing an appeal filed on his behalf through a counsel. The only basis of this principle, we can find in equity, it is not rule of law laid down in case of appeal under Article 185(2) of the constitution. Again, it may be noted that a right guaranteed by the Constitution cannot possibly be diluted by any subordinate principle of equity or even of law. The right conferred by the Constitution could only be taken away by the Constitution. In case the acquitted accused is convicted, the law should have its course, he should be arrested and sent to the prison for undergoing sentence. The condition of personal attendance could, however, be imposed while hearing a bail matter because that lies in the discretion of the Court.
(f) Another basis of the judgement in the case of Hayat Bukhsh supra is that sub-Article (1) of Article 185 (2) is the controlling provision and, "The jurisdiction to hear and determine appeals in clause (1) encompasses both types of appeals whether filed under clause (2) or clause (3). Thus the constitution does not make any difference in this behalf". It is respectfully submitted that on a plain reading of the two provisions i.e. sub-Article (2) and sub-Article (3) of Article 185, the distinction is explicit. The two remedies are independent and are governed by different rules of this Court.
(Rao Farid-ul-Haque) Appeal dismissed.
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