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Petition for Special Leave to Appeal No. 64 of 1956, decided on 19th April 1956.

(On appeal under Article 159 (a) of the Constitution Act against the judgment. and order 3f the High Court of West Pakistan, Lahore, dated 21st February 1956, in Criminal Appeal No. 203 of 1955).

Art. 159 clause (a)‑Not retrospective.

Clause (a) of Art. 159 of the Constitution of Pakistan is not of retrospective effect. No appeal lies as of right to the Supreme Court under that clause, in a case in which the High Court had reversed in appeal an order of acquittal and had passed a sentence of death or transportation for life before the date of the coming into force of the Constitution.

Clause (a) of Art. 159 of the Constitution contemplates a case where the order has been reversed by the High Court after the Constitution came into force.

‑Provision affecting substantive rights‑Prospective in effect in absence of express words or necessary intendment indicating retrospective operation‑Right of appeal a substantive right‑Constitution of Pakistan, Art. 139, clause (a)‑Not retrospective in effect.

Where a statute affects a substantive right, in the absence of express words or necessary intendment, it has to be con strued prospectively and not retrospectively. The right of appeal in this country being the creation of statute is a substantive right, and it can only be conferred or taken away retrospectively by express words or necessary implication.

Delhi Cloth and General Mills Co. Ltd. v. Income‑tax Commissioner, Delhi and another A I R 1927 P C 242 ref.

Held, that clause (a) of Art. 159 of the .Constitution of Pakistan was not retrospective in effect.

Art. 159, clause (a)‑Appeal wrongly filed under‑Treated as petition for leave to appeal.

Clause (a) of Art. 159 of the Constitution of Pakistan not being retrospective in effect, an appeal, relating to a sentence of death passed by the High Court in an acquittal appeal, before the coming into force of the Constitution, was held to be incompetent, but the Supreme Court treated the appeal as a petition for leave to appeal and disposed it of as such.

Ghulam Abbas Jafari, Advocate, Supreme Court, instructed by Zahir Abbas, Attorney for Petitioner.

Respondent : Not represented.

Date of hearing: 18th April 1956.

‑This petition for special leave to appeal in a criminal matter was originally filed as an appeal under clause (b) of Art. 159 of the Constitution Act, but on 6th April, 1956, after hearing counsel, we expressed the opinion for which we now give reasons that no appeal lay in this case as of right.

On an appeal by the Government against his acquittal by the Additional Sessions Judge, Lyallpur, on the charge of murder, the petitioner was convicted and sentenced to death by the High Court of West Pakistan on 21st February 1956. The appeal was filed on 24th March 1956, after the Constitution Act had come into force on 23rd March 1956. Article 159 of the Constitution Act provides an appeal in four classes of criminal cases, one of which is the case where the High Court "(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death o to transportation for life." Now obviously this clans contemplates a case where the order has been reversed by the High Court after the Constitution came into force. This is evident from clause (c) of that Article which provides an appeal where the High Court "certifies that the case is a fit one for appeal to the Supreme Court" because it cannot possibly be contemplated that the High Court should have certified a case to be a fit one for appeal before the Constitution Act came into force, no such power having been given to the High Court by Ate Letters Patent or the Code of Criminal Procedure. But even if clause (a) be considered not to be expressly prospective, the principle fig that where a statute acts a substantive right, in the absence of express words or necessary intendment, it has to be construed prospective and not retrospectively. The right of appeal in this country being the creation of statute is a substantive right, and it can only be conferred or taken away retrospectively by express words or necessary implication. In the Privy Council case in Delhi Cloth and General Mills Co. Ltd. v. Income‑tax Commis sioner, Delhi and another (A I R 1927 P C 242), the rule is thus stated by Lord Blanesburgh :‑

"The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Co. v. Irving ((1905) A C 369), where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lord ships can have no doubt that provisions which, if applied retrospectively would deprive of their existing finality orders, which, when the statute came into force, were final, are provisions which touch existing rights."

The present case is fully governed by this principle because before the Constitution Act came into force judgments by the High Court in criminal matters were final in the sense that no appeal, except by special leave, lay to this Court.

''here being no right of appeal, the petition has to be treated as a petition for special leave to appeal under Art. 160. Now since the finding of the High Court is based on the evidence of eye‑witnesses, a dying declaration by the deceased woman, who was the petitioner's own step‑sister, an oral confession deposed to by the petitioner's father the fact that the murder was committed in the petitioner's own house and that the petitioner immediately after the murder was found in possession of a knife and wearing clothes on which human blood was discovered by the serologist, there is no case for our interference with the judgment of the High Court. The petition is, therefore, dismissed.

A. H. Petition dismissed.

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