Find a Lawyer

Criminal Appeal No. 163 and Confirmation Case No. 62 of 1967, decided on 15th May 1969.

Ss. 366 & 367-- Judgment‑Principles of Ss. 366 & 367 although not applicable to High Courts, nevertheless, accepted principles of jurisprudence and practised by High Courts‑Judgment must be pro nounced in open Court‑Draft judgment sent by one Judge after his retirement to his companion Judge on the Bench‑Held, could not be pronounced as a judgment.

Azizullah K. Shaikh for Appellant.

Kazi Akhtar, A. A.‑G. for the State.

Tufail Ali A. Rehman : Amicus Curiae.

This confirmation case and criminal appeal were heard by Faizullah Khan, J. and me on 29th, 30th and 31st January 1969 and we had reserved our judgment. Before my learned brother left for Peshawar, we had discussed the case and were of opinion that the appellant's plea of insanity should be accepted. My learned brother was to write the judgment and send it to me for my signature and pronouncement in Court. My learned brother wrote the judgment, signed it and forwarded it to me for pronouncement on the day on which he retired from this Court, therefore the "judgment" was received by me much after he had retired. Although, as I have observed, I agreed with the view taken by Faizullah Khan, J., I was doubtful whether the judgment written by him could either be signed or pronounced by me after his retirement. Accordingly, I gave notice to the appellant to argue on the question whether a judgment could be pronounced by me in the events that happened. I also gave notice to the Addi tional Advocate‑General on behalf of the State and to Mr. Tufail Ali Rehman to appear as amicus curiae to assist me in the determination of this question.

2. All the learned counsel who appeared before me correctly submitted that the provisions of the Criminal Pro cedure Code (sections 366 and 367) which relate to the pronouncement and preparation of judgments do not apply to this Court. Similarly, there is no provision in the Rules framed by this Court under its letters Patent for the pro nouncement of judgments on the criminal appellate side of this Court. The question therefore has to be determined in accordance with the general principles of our jurisprudence. All the learned counsel submitted that the written opinion of Judges become judgments only when they are pronounced in open Court and, as a corollary of this proposition, when a case was heard by a Bench of two or more Judges, they further submitted that until the pronouncement of the judg ment, Judges could consult each other and change their opinion on the case before them, therefore on this ground also the written opinion of a Judge became a judgment only when it was pronounced in open Court.

3. In support of this proposition Mr. Tufail Ali Rehman, who has been of very great assistance to me, relied on a judgment of the Calcutta High Court in Mutty Lall Sera Gywal v. Deshkar Roy (9 W R 1). The facts of that case were that an heir of a zamindar under the Permanent Settlement of Bengal had challenged an alienation made by the zamindar and, in view of the importance of this question, the appeal was heard by a Full Bench of 9 Judges. The 9 Judges were not able to agree, therefore they decided to write separate judgments. In accordance with the practice then prevailing in the Calcutta High Court, which was based on the practice of the late Suddar Court, some of the Judges wrote their judgments, forwarded them to the Registrar of the Court and the Registrar would have announced the judgment after all the learned Judges had sent him their judgments. However, before this could be done, three of the learned Judges who had sat on the Full Bench died or retired. The question which arose for consideration was whether the judgments of the learned Judges who had died or retired could be considered to be judgments. After full consideration of the question, all the surviving Judges held that a fundamental principle essential to the due administration of justice was that every judicial act which was done by several Judges ought to be completed in the presence of the whole of them. Therefore they unanimously held that the written opinions of the deceased or retired Judges could not be treated as judg ments. I may quote here with advantage the observations of Peacock, C. J. which, in my humble opinion, state the correct law. At page 29 of the judgment Peacock, C. J. has stated as follows :‑

" . . . . . a final judgment ought not to be pronounced by a Court consisting of several Judges in a case in which they differ, until by conference and discussion, they have endeavoured to arrive at an unanimous judgment; . . . . .

If, after discussion and after deliberately weighing the arguments of each other, the Judges cannot agree, their several judgments ought to be delivered in open Court in the presence of the others.

It would not have been lawful, nor would it have been even seemly, for each of the Judges who sent his written opinion into the Registrar's Office, to have gone separately into open Court without communication, or even after communi cation, of his intention to the other Judges and to have read out as his final judgment the contents of the memo randum which he sent into the Registrar's office.

If each of the judgments who composed the Full Bench could not have gone separately into Court, and, in the absence of the others, have read out his own judgment, without hearing the arguments which each of the other Judges, who were associated with him as members of the Full Bench, might adduce to alter his opinion, he could not lawfully deliver a separate judgment at a separate time, by handing in to the Registrar as his judgment a separate paper signed by him containing his written opinion. The mere arguments and expressions of opinion of individual Judges who compose a Court, are not judgments. A judg ment, in the eye of the law, is the final decision of the whole Court. It is not because there are nine Judges that there are nine judgments. When each of the several Judges of whom a simple Court is composed separately expresses his opinion when they are all assembled, there is still but one judgment, which is the foundation for one decree. If it were otherwise, and if each of the memoranda sent in on the present occasion were a judgment, there would be nine judgments in one case, some deciding one thing and some another, and each Judge would have to review his own judgment separately, if a review should be applied for."

All the Judges of the Court concurred with the view of Pea cock C. J. and I am in respectful agreement with the observations quoted because they reflect my own opinion on the subject.

4. Mr. T. A. Rehman next referred me to a judgment of the Supreme Court in Amin Sharif v. Saeed Khatoon (P L D 1962 S C 97). The facts of the appeal before the Supreme Court were that the appellant had been tried by a First Class Magistrate who had written a judgment acquitting the appellant, but before the judgment could be pronounced, the respondent had filed a transfer application, therefore the learned Magistrate did not announce his order of acquittal. In the events that happened, the case was finally heard by another Magistrate who convicted the appellant. In the appeal before the Supreme Court it was contended that the order of the Magistrate, who had first heard the case and written and signed an order acquitting the appellant, was a judgment even though it had not been pronounced in open Court, therefore it was argued that the appellant could not have been specifically tried and convicted. The Supreme Court held that the written opinion of the Magistrate could have become a judgment only if it had been pronounced in open Court and at page 102, the Supreme Court observed;

"We would therefore hold that the simple writing and signing was wholly ineffective and did not operate as a bar to further proceedings."

Mr. Tufail Ali Rehman himself pointed out that this judgment was based on the provisions of sections 366 and 367 of the Cr. P. C. which are not applicable to this Court. But he submitted that the principle contained in the said sections that a judgment should be pronounced in open Court was an accepted principle of our jurisprudence, therefore he submitted that the observations of the Supreme Court should be applied to the instant case. Learned counsel's submission is correct, and the invariable practice of this Court is to announce judgments in open Court. Therefore, the observations of the Supreme Court are also relevant to the instant case, and lend support to the argument that the written opinion of Faizullah Khan, J., as he then was, did not amount to a judgment. Further, as the practice of pronouncing judgments in open Court and of mutual consultation between Judges until a judgment is pronounced is not a mere technicality but a cardinal principle of our jurisprudence, it also follows that no judgment can now be pronounced by me.

5. Finally, as no judgment of our Courts was available on the precise question for determination before me, Mr. Tufail Ali Rehman referred me to a judgment of the Indian Supreme Court reported in Surendra Singh and others v. State of Uttar Pradesh (A I R 1954 S C 194). The facts of that case were that a murder appeal had been heard by a Division Bench of the U. P. High Court and judgment was reserved. Thereafter, the judgment dismissing the appeals and confirming the sen tence of death was written by one of the learned Judges and signed and forwarded by him to his brother for pronounce ment. His brother signed and pronounced it in due course but the learned Judge, who had written the judgment, had died before it was pronounced in open Court. Therefore, the appellants filed an appeal in the Indian Supreme Court against the dismissal of their appeals by the High Court on the ground that no judgment could have been pronounced by the High Court as one of the learned Judges, who was party to the judgment, had died before its pronouncement. The con tention of the respondent before the Indian Supreme Court was that the death of one of the learned Judges, who had signed the judgment, before its pronouncement in open Court was a curable irregularity within the meaning of section 537, Cr. P. C. In repelling this argument, the Indian Supreme Court observed:

"A judgment within the meaning of these sections is the final decision of the Court intimated to the parties and to the world at large by formal "pronouncement" or deli very" in open Court. It is a judicial act which must be performed in a judicial way."

In para. 12 of the judgment their Lordships further observed:

"Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of locus paenitentiae' and indeed last minute alterations often do occur. Therefore, however much a draft judgment may have been signed before hand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallise into a full‑fledged judgment and become operative. It follows that the Judge who "delivers" the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in Court but he must be in a position to stop delivery and effect an alteration on his part. If he hands in a draft and signs it expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind but takes no steps to arrest delivery."

The facts in the judgment cited are identical to those in the instant case, except fortunately that my learned brother has retired. This distinction is not material, because a retired Judge is no more capable than a dead Judge of pronouncing judgment. Therefore, it appears to me that the principles contained in the observations quoted are applicable to the instant case and fortify me in my opinion that the draft judg ment sent to me by Faizullah Khan, J. cannot be pronounced by me after his retirement. Accordingly, I direct that this confirmation case and murder appeal should be put up again before a Division Bench.

Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.