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Criminal Miscellaneous Application No. 4 of 1958, decided on 21st March 1958.

. 159‑Criminal case‑Order of retrial passed by High Court in appeal is not judgment.

In a criminal trial the matter before the Court can be said to end finally only when there is either acquittal, discharge or conviction. A retrial does not decide the matter before the Court finally. It only suspends the judgment of the Court till evidence has been gone into.

Dr. Hori Ram Singh v. Emperor A I R 1939 1 C: 4_> ; Baason v. Altricham Urban District Council (1903) 1 K B 547 ; S. Kuppuswami Rao v. The King A I R 1949 F C 1 ; Abdul Rahman v. D. K. Cassim 60 I A 76 and Ramchand Mauiiinal v. Goverdhandas Vishindas Ratan 47 I A 124 rel.

‑Chief Commissioner of Karachi ‑Not Provincial Government.

Remington Rand of Pakistan v. The Islamic Republic of Pakistan and others P L D 1957 S C (Pak.) 170 rel.

, Art. 74‑Letter signed by officer on behalf of Government‑It should be shown that officer had authority to sign on behalf of Government.

, Arts. 159 & 160‑No violation of principles of natural justice and no grave injustice‑No interference.

Muhammad Ashiq v. Allah Bakhsh and another P L I) 1957 S C (Pak.) 293 and Alfred Granville Ross v. The Queen P L D 1957 P C 151 foll.

H. T. Raymond for Petitioner.

J. Nasiruddin for Respondent.

This is an application for leave to appeal to the Supreme Court under Article 159 (c) of the Constitution of the Islamic Republic of Pakistan against the " judgment " delivered by me on 28th August 1957 in Criminal Appeal No. 183 of 1955 whereby I ordered retrial of respondent Mujahiduddin Faridi. The application is opposed not only by the respondent but also by the counsel appearing on behalf of the Additional Advocate General.

At the time of the hearing of the appeal it had been conceded on behalf of the Additional Advocate General appearing for the State that the offences with which the respondent stood charged had not been committed in the course of the same transaction as required by section 235 (1) of the Cr. P. C. and consequently the trial was bad for mis‑joinder of charges. 1, after going through the record, agreed with the admission made at the Bar that the offences had not been committed in the course of the same transaction and held on that basis that the trial was illegal and ordered retrial. The learned counsel appearing on behalf of the Additional Advocate‑General stuck to his original position and contended that no question of law was involved inasmuch as it was a question of fact whether offences had been committed in the course of the same transaction and it was not the case of Mr. Raymond supporting the application that the joinder or otherwise of the offences could be decided on any other basis.

Mr. S. Nasiruddin appearing for Mujahiduddin Faridi took a preliminary objection that the application was not competent for three reasons, firstly, because my order dated 28th August 1947 ordering retrial was not a judgment or final order within the purview of Article 159 of the Constitution, secondly because the Chief Commissioner who is said to have authorised Mr. Raymond to file the petition was not the Provincial Govern ment and thirdly because there is no proper authority even from the Chief Commissioner to file the application. There is force in this objection and it must prevail.

Article 159 allows an appeal to the Supreme Court from any judgment, final order or sentence of a High Court in criminal proceedings. The question for consideration is whether the order for retrial amounts to a judgment or final order contem plated by Article 159 of the Constitution. This point received consideration at the hands of Sir Sulaiman in the case of Dr. Hori Ram Singh v. Emperor (A I R 1939 F G 43). After reviewing the case‑law that eminent Judge observed :

" Thus, neither under the English nor the Indian law the term judgment' in a criminal case includes an interlocutory order. In S. 205 (1) of the Act, the word judgment' does not occur by itself but is used in conjunction with final order. When both the terms judgment and final order are used together in one expression, they undoubtedly connote different and distinct meanings, and judgment cannot be interpreted as, embracing even interlocutory orders, which would make the category final order' wholly superfluous and unnecessary. It is true that in the Federal Court Rules unfortunately the definitions of judgment, decree and order have been borrowed from the Code of Civil Procedure ; but that of course is only for the purposes of the Rules and cannot be taken in any way to control the proper meanings to be given to those terms in the Act itself, even if an inconsistency were inevitable. I am of the opinion that the order of the High Court directing a re‑hearing of the criminal appeal by the Sessions Court is not a judgment within the meaning of S. 205, Government of India Act."

As to final order Sir Sulaiman quoted with approval the following observation of Lord Alverstone, C. J. reported in Bazson v. Altricham Urban District Council ((1903) 1 K B 547) < [if supportLineBreakNewLine]>

" It seems to me that the real test for determining this question ought to be this : Does the judgment or order, as made, finally dispose of the rights of the parties If it does, then I think it ought to be treated as a final order ; but if it does not, it is then, in my opinion, an interlocutory order."

Sir Sulaiman proceeded to observe :

" Although the point is certainly a cardinal one, the order of remand cannot be regarded as a final order within the meaning of S. 205 (1). The accused may ultimately not be found guilty at all. If the accused is hereafter found guilty by the Sessions Court and convicted and sentenced, he can come to the High Court in revision ; and in case the High Court adheres to its view and the revision is dismissed, the order would become final."

A similar question was considered by their Lordships of the Federal Court of India in the case of S. Kuppuswami Rao v. The King (A I R 1949 F C). The following observation is pertinent :

"In our opinion, the decisions of the Courts in India show that the word "judgment", as in England, means the determina tion of the rights of the parties in the matter brought before the Court."

As to a final order their Lordships observed :

"It is also not a final order, as the order is not on a point which, decided either way, would terminate the matter before the Court finally."

This view finds support from the case of Abdul Ruhman v. D. K. Cassim (60 I A 76) and Ramchand Manjimal v. Goverdhandas Vishindas Ratan (47 I A 124).

In a criminal trial the matter before the Court can be said to end finally only when there is either acquittal, discharge or conviction. A retrial does not decide the matter before the Court finally. It only suspends the judgment of the Court till evidence has been gone into.

The second basis of preliminary objection is also valid. The observations of the Supreme Court in the case of Remington Rand of Pakistan v: The Islamic Republic of Pakistan and others (P L D 1957 S C (Pak.) 170), show that the Chief Commissioner does not constitute the Provincial Government. The following observations made by the Chief Justice may be quoted

" We have considered these contentions with the care they deserve. There are plainly difficulties in the way of holding that in law, any authority which exercises exceptionally any power belonging under the substantive provisions of the Constitution to a Provincial Government, is pro tanto the Provincial Govern ment. To achieve the same result, in relation to the Federal Capital, by the method of adaptation of existing instruments seems to us to be impossible, without straining the method to the point of covering fresh legislation of a substantive nature. For the same reason, it seems to us that the procedure of President's Order XV of 1956 (as to whose vires we say nothing) is not act in the present case. It was perhaps open to the President to make an order to cover a case such as the present, under Article 211 (2) (b) enabling him, by Order, to provide as to the laws which are to be in force in the Federal Capital, but no such order has been made."

It is conceded by Mr. Raymond that if it be held that the

Chief Commissioner is not the Provincial Government then his application is incompetent.

The third ground for preliminary objection is also not devoid of force. The authority on the basis of which this petition has been filed by Mr. Raymond is a letter signed by Mr. G. Rashid. Mr. Raymond failed to show whether Mr. G. Rashid had any authority to sign on behalf of the Chief Commissioner.

I also heard Mr. Raymond on merit. He supported the application on the mere ground that a substantial question of law was involved. When asked what was the substantial question of law he stated that joinder of charges was rightly allowed as joinder is permissible in case of offences committed in the course of the same transaction. It was pointed out to him that the judgment expressly concedes that if offences are committed in pursuance of a conspiracy or in the course of the same transaction they can and should he tried jointly and that the basis of the decision was that as a matter of fact offences had not been committed in the course of the same transaction, the point on which the counsel for the respondent and for the State were at one at the time of the hearing of the appeal. Mr. Raymond had no answer for this.

The limits which the Supreme Court has laid upon itself in relation to its criminal jurisdiction has been stated over and over again. The latest case on the point is Muhammad Ashiq v. Allah Bakhsh and another (P L D 1957 S C (Pak.) 293). His Lordship has reproduced the follow ing statement of the Judicial Committee with approval :

" The rule has been repeatedly laid down and has been) invariably followed that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done."

The learned counsel for the applicant failed to show how there has been a disregard of the forms of legal process of violation of the principles of natural justice. As to accrual of substantial and grave injustice there was not even an attempt to show it. As observed by their Lordships of the Privy Council in the case of Alfred Granville Ross v. The Queen (P L D 1957 P C 151) the order for a new trial having been competently made will not be set aside upon an appeal to Her Majesty in Council unless the case can be brought within the usual principles which have been too often stated to need repetition.

In view of the above there is no force in the petition and it is rejected.

K.M.A. Petition rejected

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