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Criminal Appeals Nos. 154, 255, 360 and 361 of 1966 and 380 of 1967, decided on 26th August 1969.

--S. 410 and High Court Rules (Lahore), Vol. V, Chap. IV-B, r. 1 (19)-Jurisdiction of Judge by reason of his appointment and that which he is required to exercise in accordance with rules made for that purpose--Distinct-Objection that appeal which was required under r. 1 (19), Ch. III-B, Vol. V of High Court Rules (Lahore) to be heard and disposed of by a Division Bench had erroneously been decided by a Single Bench and as such not lawfully disposed of-Held: despite error, decision by Single Bench not without jurisdiction inasmuch as primary jurisdiction is that conferred by S. 410, Cr. P. C.-High Court refused to hear the appeal over again.

Rashid Ahmed and another v. The State P L D 1969 S C 362; Pir Muhammad Farid Jan v. Colonisation Officer P L D 1965 S C 399; Muhctrnmad Nagin v. Haji Nawab Khan P L D 1962 Lah. 722 and Shamsuddin v. Capt. Gauhar Ayub P L D 1965 S C 496 ref. Yousaf Ali v. Muhammad Aslam Zia P L D 1958 S C (Pak.) 104 and Muhammad Ayub Khuhro v. Pakistan P L D 1960 S C 237 ref.

Khalid Ishaque for Appellant (in Criminal Appeal No. 154 of 1966).

Additional Advocate-General for the State.

Date of hearing : 26th August 1969.

-The above-mentioned five appeals were heard and decided by a Single Bench of this Court, whereas in accordance with sub-rule (19) of rule I of Chapter 111-B of Volume V of the High Court Rules, they were required to be "ordinarily" heard and disposed of by a Division Bench of this Court. After the decision, the parties applied to the Supreme Court for leave to appeal, which applications were rejected.

2. The error was not noticed for a long time, and now they have been placed before this Bench for considering whether the appeals should be heard over again or not.

3. Our first reaction is that the judgments having been examined by the Supreme Court, it will not be proper for this Court to express any view which may directly or indirectly amount to reviewing that position. We feel fortified in taking this attitude by the law that after a High Court has examined the judgment of a lower Court, the judgment of the latter Court becomes merged in the judgment of the High Court in the sense that the judgment of the lower Court ceases to be open to review by that Court. The Additional Advocate-General nas drawn our attention in this respect to the judgment of the Supreme Court in Rashid Ali, eel and another v. The State (1 P L D 1969 S C 362).

4. Mr. Khalid Ishaque controverted the above proposition by saying that the defect of jurisdiction cannot be cured even if the decision is approved by a higher Court. This view was apparently expressed in Yousaf All v. Muhammad Aslam Zia (2 P L D 1958 S C (Pak.) 104) and in Muhammad Ayub Khuhro v. Pakistan (3 P L D 1960 S C 237). But that view appears to have been modified at least with respect to cases like the present appeals in Pir Muhammad Farid Jan v. Colonisation Officer (4 P L D 1965 S C 399). The relevant observations appear on page 402 as follows:

"An appeal is the creature of a statute and must be confined within the limits imposed by the relevant statute. Under section 203 of the Act, an appeal from an order passed by a Revenue Officer' under the Act, would lie to his immediate superior but the Revenue Officer who heard it, was clearly not in that position above the Assistant Revenue Officer since both of them were invested with powers of a Collector. The order of the Revenue Officer being itself a nullity, it was inapt to make it the subject of an appeal, without canvassing the point of jurisdiction of the officer hearing the first appeal. This, however, does not conclude the matter. Even if the two appellate orders suffered from an infirmity, the order passed in revision by the learned Member, Board of Revenue, was not open to any such exception on the legal plane. By section 211 of the Act, the Board of Revenue possesses power to revise an order passed by any subordinate officer and questions of legality as well as propriety of such a decision would be open in revision before the Board. The order of the Board was passed after full hearing of both parties on the merits of the case. Even if therefore the intermediate appellate links were weak, the final order in revision referable as it was to section 211 of the Act, could not be successfully assailed as illegal."

5. The objection to the jurisdiction of the Single Benches which have decided these five appeals, is founded on the rule mentioned above, which regulates the jurisdiction of the Judges of the High Court, and cannot be taken to go further than that. In this respect, a distinction between the jurisdiction of al Judge of this Court by reason of his appointment as such, is distinguishable from the jurisdiction which he is to exercise in accordance with regulations made for this purpose. The observations of a Full tench of this Court in Muhammad Nagin v. Haji Nawab Khan. (5 P L D 1962 Lah. 722) and those of the Supreme Court in Shamsuddin v. Capt. Gauhar Ayub (6 P L D 1965 S C 496) appear to support this distinction.

6. Our attention was drawn by the Additional Advocate General .to section 410, Cr. P. Code in support of his argument that in such appeals jurisdiction is exercised by Judges of this Court as members constituting the Court. The jurisdiction is conferred by this section on the High Court, and not on individual Judges or Benches. He contended that the Members of this Court exercise jurisdiction as Judges of the High Court; therefore, the basic jurisdicion which they exercise cannot be said to be detracted by reason of the regulations which are made for their proper exercise.

7. Mr. Khalid Ishaque argued on the other hand, that jurisdiction of High Courts is conferred by clause 1 of Article 98 of the Constitution of 1962 as follows

"A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law."

He emphasised the words "or by law" and strengthened his arguments by referring to Article 130 of the Constitution, which is as follows

"No Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law."

Thus emphasising the importance of low, he argued that the High Court rule, mentioned above, being a law, it was correct to contend that exercise of jurisdiction by Single Benches of this Court, in contravention of the rule, was without jurisdiction. The emphasis made by learned counsel has undoubtedly its own value, but it does not appear to demolish the argument that the jurisdiction to hear these appeals is conferred by section 410, Cr. P. Code on the High Court, and not on individual Judges or the Court. Nor does this emphasis appear to be an answer to the B distinction which is obvious between the basic and fundamental jurisdiction of the Judges of the High Court from the orderly and proper exercise of jurisdiction by their Judges in accordance with the rules made for this purpose.

8. Lastly, Mr. Khalid Ishaque took the stand that prejudice was caused to the appellants in these cases by their disposal in contravention of the above-mentioned rule of this Court; therefore, it was just and fair that the appeals be heard over again. We think that the solution of this problem is not that we should hear over again these appeals, after the Supreme Court has expressed an opinion about them, but if the parties really 'feel aggrieved, then they may approach the Supreme Court for such remedy as may be considered by their Lordships to be just and proper.,

9. In conclusion, we hold that the appeals stand disposed of in so far as this Court is concerned.

Order accordingly.

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