KARAM ELAHEE CHAUHAN, J.-Aminullah and his brother Naimatullah were tried by the learned Additional Sessions Judge, Peshawar, under sec--petition 302/4, P. P. C. For the murder of their father Haji Muhammad Yousaf Jan (a Retired Executive Engineer of the Electricity Department of the N. W. F. P. a Khan of the village and owner of extensive landed and house property in Charsadda and neighbouring Mahals), and having been found guilty were convicted under the aforesaid sections and were sentenced to death by his judgment and order dated 9-2-1973. The petitioners filed individual appeals but without any success as the same were dismissed by a learned Division Bench of the Peshawar High Court, on 25-4-1974.
2. The petitioners then filed separate appeals by special leave which were heard by Bench of four Judges of this Court comprising of Muhammad Yaqub A.I, C.J., Salahuddin Ahmed, Muhammad Akram and Dorab Patel, JJ. So far as the appeal of Aminullah Khan petitioner is concerned it was dismissed by majority (Muhammad Yaqub A.I, C. J., Salahuddin Ahmed and Muhammad Akram, JJ.), (Dorab Patel, JJ. contra).
3. As regards the appeal of Naimatullah petitioner the Bench was equally divided. Muhammad Yaqub A.I, C. J. And Salahuddin Ahmed, J., maintained the conviction but Muhammad Akram and Dorab Patel, JJ., found that the case against him was not free from doubt. However, in the end all the, Judges agreed that in the circumstances the judgment of the High Court would remain (operative) in the field. The actual order of the Court dated 3-5-1976, reads as follows:- "Order of the Court Tire appeal by both Aminullah and Naimatullah is dismissed. The appeal by Aminullah is dismissed by majority view of the Court. The appeal by Naimatullah is dismissed as the Judges are equally divided on the question of his guilt with the result that judgment delivered by the High Court on the 25th of April, 1974, maintaining his conviction and confirming the sentence of death awarded to him by the Sessions Judge under section 302 of the Pakistan Penal Code remains in the field."
4. Aminullah and Niamatullah petitioners have now filed Review Petitions being; 6-R/76 and 7-R/76 respectively against the aforesaid "order of the Court".
5. The main judgment of this Court is reported in Aminullah v. The State(PLD 1976SC629)which contains the detailed facts, the relevant pieces of evidence, and the points of difference between the learned Judges concerned both on legal and factual planes. We do not think that it is necessary to reproduce all those details in view of the order which we propose to pass, and which as will be presently seen, is confined only to the above reproduced "order of the Court" and to no other portion of the aforesaid judgments.
6. 'The first point argued by Mr. A. K. Brohi learned counsel for the petitioner Naimatullah was that the only course for deciding a criminal appeal by this Court was to fix it before a Bench of odd number of Judges so that they may decide the same by a majority opinion. However, if the case was fixed before an even number of Judges then the only lawful course was that in case of equal division amongst the Bench hearing the appeal, the same should be referred to a larger Bench of odd number of Judges so that here again it may be disposed of by a majority view. Any adjudication contrary to this procedure, according to him, was no adjudication in the eye of law. Similarly he submitted that there was no sanction legal or otherwise for adopting the practice or procedure for negating the relief in case of equal division in a Bench of even number of Judges by letting the judgment under appeal remain operative. Such a judgment of equal division, cannot be considered as laying down any law to be followed by other Courts or this Court itself and nor could it be considered as operative or effective decision on factual matters involved in the appeal. Projecting the argument further, learned counsel submitted, that as the aforesaid procedure enunciated by him was not followed while deciding the appeal of the petitioner, therefore, the "order of the Court" as reproduced above is no order, with the result, that the appeal of the petitioner in the eye of law is still pending and may consequently be decided or redecided afresh by following the rule invoked by him and for that purpose the previous "order of the Court" be reviewed and recalled.
7. The argument is quite attractive, but we are unable to endorse the same as a mandatory legal proposition binding on this Court always, as the learned counsel in support of his submission, has not referred us to any provision of the Constitution, the law or rules which may be relevant in this respect A careful study of the constitutional history of this country will show that in subsection (4) of section 214 of the Government of India Act, 1935, which dealt with the procedure of the Federal Court, it was laid down that "no judgment shall be delivered by the Federal Court save in open Court and with the concurrence of .a majority of the Judges present at the bearing of the case, but nothing in this subsection shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment". While considering the aforesaid provision Sulaiman, J. In Subrahmanyan Chetrlar v. Muttuswami Goundan (AIR 1941 FC47at p. 52, observed that "this subsection has obviously a two-fold effect. First, there must be the concurrence of a majority of the Judges in the final conclusion. If the Judges were equally divided the decision would be wholly inconclusive and therefore utterly useless, as it would be impossible to give any direction to a subordinate Court to select one opinion in preference to 'the other. Secondly, it is emphasised that a Judge who does not concur is not prevented from delivering a dissenting judgment. The subsection does not say that reasons cannot be stated separately by the Judges who concur in one judgment". However, in the Pakistan Constitutions of 1956, 1962, Interim Constitution, and the Constitution of 1973, such a stipulation or provision as was contained in section 214(4) of the Government of India Act, 1935, was neither repeated and nor was it enacted in any other law or rule applicable to criminal appeals in this Court. No doubt in cases where odd number of Judges heard a case, the aforesaid rule ipso facto may be considered as applicable, but where the Chief Justice-(who has exclusive power and discretion to constitute a Bench of as many number of Judges as he may desire)-for instance, makes a Bench of six or eight or ten Judges, or when he makes a Bench of Full Court which at any given time consists of even number of Judges, then in the absence of any statutory requirement on the subject, to hold that to decide by majority is the only method of deciding a case may not appear to be practically enforceable always in cases of equal division. Secondly the very omission to repeat a similar provision in subsequent Constitutions is a very relevant factor and of course a strong one, to suggest that the Legislature did not consider the said rule so essential which could in no circumstance be dispensed with, because, had that been the case they would not have omitted to re--enact it in the Constitution or else where in the ordinary law. The scheme and purpose of omitting the aforesaid provision seems to be that in cases where odd number of Judges were to hear a case the rule of majority decision will automatically apply, and in the rest of the situations the matter wall left to the decision of the hearing Bench itself, which may in the end decide to refer it to a larger Bench-(which jurisdiction they always had)-or to le the judgment appealed against remain as an operative judgment in the fields as the Bench had failed to successfully overrule it. It appears that this Court has been adopting this practice in a number of cases. Reference may be made to Adalat and another v. The Crown (1) and Muhabbat Khan v. Fateh.Muhammad and 2 others (2), at p. 608 where the Bench passed an "order of the Court" to let the judgment under appeal remain operative in the field. At this place it may be mentioned that the practice followed in the above cases was not without legal precedents or principles. There is a well known maxim "semper praesumitur pro negante", which means that "presumption is always in favour of the one denying", or "in favour of the negative" [See "Latin For Lawyers" Sweet and Maxwell, London, Publication (1915), page 242, Maxim No. 967 (a); Aiyer's Law Lexican (1940 Edition) (page 1173)]. This principle and maxim is applied by the House of Lords in the matters coming up before them for instance in appeals, filed for reversing the judgments impugned therein. As the claim in appeal is to get the judgment under appeal reversed or modified as the case may be, the question which in the event of equal division, obviously arises is "whether the judgment complained of shall be reversed", and as there is no majority to do so, they principle above-mentioned is applied namely-that presumption is always in favour of the one denying, and as such. The judgment of denial of relief is considered to be the operative judgment and thus made a rule of the Court. See Reg v. Milks House of Lords) (3). The actual passage is as quoted in Reg v. Mills (Writ of Error) (4). The order of the day being read for the further consideration of this case, the House proceeded to take the same into consideration. And it being moved to reverse the judgment complained of, the same was objected to, and the question was put ~ whether the judgment complained of shall be reversed. The Lords Cottenham and Campbell were appointed to tell the number of votes; and--- upon report thereof to the House, it appeared that the votes were equal; that is, two for reversing and two for affirming. Whereupon, according to the ancient rule in the law, Semper (1)PLD 1956FC 171 (2)PLD1976SC593
(3) l0 C & F 534(4) 8 E R 907 (H L) praesumitur pro negante, it was determined in the negative. Therefore the judgment of the Court below was affirmed, and the record remitted." For other cases see Paquin Limited v. Beauclerk (1), Kennedy v. Spratt (2). Also see Halsbury's Laws of England (4th Edition), Volume 10, page 765, footnote 3 on page 354; and Law in the Making by C. K. Allen (7th Edition); page 253. No doubt the House of Lords now has developed a practice to avoid the rigour of the above rule by constituting Benches of odd number of Judges or to constitute a larger Bench, but the rule above mentioned in its own place remains as it is. To say therefore that the procedure adopted by this Court to maintain judgment of the Court appealed against in cases of equal division-(like the one in hand)- in a Bench of even number of Judges was without any precedent, principle or sanction or was even otherwise no judgment at all in the eye of law is not correct, as it was well backed by the aforesaid maxim or practice of the House of Lords which this Court adopted and was competent to adopt due to non-existence of a rule of the kind which existed in section 214(4) of the Government of India Act, 1935, and which was not repeated in the Constitution (s) of Pakistan or any other enactment o rules later on.
9. The next plea that a judgment rendered by negating the relief in appeal on the ground that there was no majority in a Bench of even number of Judges to reverse the judgment under appeal, could not be considered as a declaration of law or adjudication of facts is equally devoid of force. If once the applicability of the maxim and rule above reproduced is accepted then by virtue of the ultimate consequential order of the Court rejecting the appeal, the operative judgment and declaration of law as made by those' judgments which refused the relief prayed for i. e. Which refused to reverse the judgment under appeal, will be so considered by the Supreme Court itself as well as by all other Courts, unless the Supreme Court on any appropriate occasion by a larger Bench overrules the same. As we are not strictly faced with any such situation and nor the value of any such decision of this Court is for examination before us for considering its effect as a precedent, we need not go deeper into this matter and leave it for examination, if necessary, in any appropriate case later. In this respect, however, it may be state that the position in Pakistan is different from the practice of the House o Lords in England where that Court cannot overrule its former decision even though it may be of the kind under discussion here, whereas in Pakistan as already indicated the Supreme Court has never expressed any lack of competency in overruling its former decision and rather precedents are available when this has actually been done.
10. This was all in support of the practice adopted and followed by this Court in a number of cases.
However, as the field, in the absence of any constitutional or statutory provision as mentioned above was open, this Court has in the past referred a few cases to a larger Bench when there was equal division in a Bench of even number of Judges. For this see Noora v. The State (3),which for other points was referred to and noticed in the instant case, but the precedent set therein of making reference to a larger Bench, however, was not followed here. Picking up the thread from that precedent, Mr. A. K. Brohi argued that practice of the Court being the rule and the law of the Court, there is no reason given in the "order of the Court" in this case as to why the practice of referring the matter to the larger Bench was not restored to here. If two procedures, in a given context, he argued, were available, then the one more favourable to the accused should have been
(1) (1906) 138 L J 100 (2) (1972) A C 83=(1971) 1 All E R 805 (3 PLD 1973 SC 469 followed qua his client and the case should have been referred to a large Bench to be nominated by the Chief Justice. He argued that in order to maintain confidence in the procedure of the highest Court of the country in the matter of even-handed administration of justice, it was essential, that the same procedure should be applied to accused persons placed in similar situations and circumstances. The contention raised has force. We think that due to varying practice adopted by this Court in similar situations in the past the condemned prisoner who is facing a capital sentence can justifiably ask for a review of the case so as to adjudicate upon it in accordance with the practice and procedure more favourable to him i. e. By hearing by a larger Bench, especially when other Judges were available for participating in the case and the total strength of sitting Judges had not been exhausted by constituting the earlier Bench of four Judges. The point raised being apparent on the face of the record, with reference to the practice and procedure of the Court, constitutes a valid ground for a review of the "operative order" involved herein.
11. The above position of law and procedure, it will be appreciated, will strictly apply to the case of Naimatullah petitioner as there was an equal division amongst the Judges hearing his appeal. So far as Aminullah petitioner is concerned, the three Judges by majority found him guilty. His case, therefore, does not deserve to be reviewed on the above-mentioned ground. However, as we notice, and as was argued by his learned counsel Mian Mahmud A.I Kasuri, if for instance the larger Bench on the same evidence acquits Naimatullah and settles the controversy as to what rule o principle in the matter of burden of proof of a plea of alibi is to be applied; whether it is for the prosecution to disprove it or for the accused to prove the same; and whether even if the accused is unable to successfully prove it can he urge that at least it casts a doubt on the prosecution case (these being the legal points on which there took place a division between the learned Judges regarding the case of Naimatullah)-then a question would arise whether the case of Aminullah has also been dealt with according to those principle's and whether in the face of that development, the same evidence could be relied upon against Aminullah without any independent corroborating material in that respect on the record. From this point of view it is not justified to separate his case at this stage.
12. The result is that the review petitions are accepted. The "order of the Court" dated 3-5-1976, as reproduced above is recalled and now the order of the Court is, that in view of the equal division of opinion -amongst the Judges as mentioned in their respective judgments the case of Naimatullab accused is referred to a larger Bench. The case of Aminull:th petitioner is also similarly referred to the larger Bench for the reason stated in the preceding paragraph.
13. As it is a pretty old case, let the main appeal be fixed for -hearing at a very early date.
MUHAMMAD AFZAL ZULLAH, J.-I agree with the proposed order and the reasons given in support thereof in paragraphs Nos. 10 and 11.