1. Z. A. CHANNA , J.-This office reference raises the rather unusual question whether an appeal which was allowed by a Division Bench of this Court by a short order, for reasons to be recorded later in the judgment, but which reasons cannot now, in the unfortunate circumstances of the case be recorded by that Bench, could be reheard by another Bench.
2. The circumstances in which this reference has been made are as follows Confirmation Case No. 42 of 1976 was heard alongwith Criminal Appeal No. 300 of 1976 (Ghulam Hussain v. State) by a Division Bench consisting of my learned brothers, Jamaluddin Ahmad 'and Zaffar Hussain Mirza, JJ. They allowed the appeal and acquitted the accused on 8-2-1978 by a short order, the reasons for which were to be recorded later in the judgment. The reasons were to be given by Jamaluddin Ahmad, J., but before his Lordship could record his reasons, he was gathered to his forefathers, much to the regret of his colleagues, hosts and friends and admirers.
3. The reasons for the short order have thus remained unwritten and cannot now b; recorded by the Bench which beard the appeal. In these circumstances, Mr. Shakir Naqshbandi, Advocate, has submitted an application under section 561-A, Cr. P. C. On behalf of Mst. Saran, the mother of Kist.
4. Shah Khatoon for whose murder respondent Ghulam Hussain had been awarded death sentence by the learned Sessions Judge, Nawabshab, praying that the appeal be reheard by another Bench, as there is no judgment in the case and the short order, without reasons in support thereof, cannot be considered to be a judgment.
5. I have heard Mr. Shakir Naqshbandi on behalf of Mat. Saran. Mr. Mohammad Hayat Junejo, the learned counsel for respondent Ghulam Hussain and Mr. Mazhar Hassan A.I, the learned Assistant Advocate-General, who appeared for the State.
6. It. Was contended by Mr. Naqshbandi that the short order by which respondent Ghulam Hussain was acquitted cannot be deemed to be a judgment, as a judgment necessarily implies a decision together with a statement of the grounds of that decision. He further submitted that even if it be deemed to be a judgment, whether partial or concluded, since the reasons for it have not been given and cannot now be given, because of the demise of one of the members of the Bench that passed the short order, the appeal can under the provisions of section 561-A, Cr. P. C. Be reheard by another Bench, which would be competent to allow or reject the appeal as it deems fit. The learned counsel was unable to cite any authority in support of his con--tention but sought support from the decision of a learned Single Judge of the Allababad High Court in the case of Chandrika v. Rex ( AIR 1949 ALL 176). In that case it was held that 'where the High Court has disposed of an appeal and passed the appellaNt judgmEnt on a date earlier than the one fixed for hearing and thus the counsel for the appellant has had no opportunity of being heard. It amounts to an abuse of the process of the Court, although not deliberate. However, it is not one passed without jurisdiction and cannot be treated as a nullity but it is only a case of. Irregular exercise of jurisdic--petition and the High Court has inherent power to set aside the proceedings starting with the hearing of the appeal and terminating ,with the appeal. This decision, in our view, is distinguishable and inapplicable to the facts of the instant case, as not' only the Division Bench had jurisdiction to decide the appeal, but did decide the appeal, after due hearing, and in consequence of that decision a writ of release, bearing the seal of the High Court, was issued. There was no irregularity whatsoever in the exercise of jurisdiction.
7. Mr. Mohammad Hayat Junejo, the learned counsel for respondent Ghulam Hussain, on the other hand, contended that even if the short order acquitting the respondent be not considered to be a judgment for the purposes of section 369, Cr. P. C. Neither the appeal can be reheard nor the said order can be reviewed, as finality attaches to orders and decisions of the High Court. In support of .His contentioa the learned counsel relied -upon the decision of the Supreme Court in the case of Qulzar Hussain v. Ghulam Murtaza (2), and the decisions of this Court in Mohammad Hanif v. State
(3) and Soomar v. State (4).
(1) AIR 1949 All. 176. (2) PLD 1970 SC 335
(3) PLD 1974 Kar. 22(4) PLD 1975 Kar. 80 Gulzar Hussain's case, Waheeduddin Ahmed, J. While considering the question whether the High Court could in the exercise of its inherent jurisdic--petition recall or reverse an order made and signed by it, observed as follows :- "I am conscious of the fact that general principles of finality of judgment attaches to the decision or order of the High Court passed in criminal cases. But it will not apply to cases where an order is passed without jurisdiction or without giving any opportunity to the parties of being heard. In such cases section 561-A, Cr. P. C. Can be invoked for the purpose of doing justice between the parties and for seeing that the act of the Court does no injury to any of the parties. This is an inherent power of the Court and has been preserved by the above provision of law. In my opinion in rare and exceptional cases the High Court hag inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424, Cr. P. C. With a view to give effect to any order under the Code or to prevent abuse of tote process of any Court or otherwise to secure the ends of justice. It is, however, not possible to enumerate the circumstances in which this provision can be invoked. It may, however, be mentioned that the learned, counsel for the appellant has conceded that application for bail can be made from time to time on fresh material.
8. There is thus no difficulty in such cases."
9. Muhammad Hanif's case, a reference was made 'by 'the Sessions Judge for enhancement of sentence and the accused also filed 'a revision application before the High Court challenging the correctness of his sentence. Both were admitted to regular hearing and it was ordered that both were to be disposed of together. However, due to mistake of office, only the reference was placed before the Judge for hearing and the Judge, examining the merits of the case, enhanced the sentence in the absence of the accused and without giving him an opportunity of hearing.
10. Subsequently, on the revision coming up for hearing, the previous orders for enhancement of sentence were recalled on the ground that section 369, Cr. P. C. Did not apply to that case and there was no legal bar to the recalling of the earlier order.
11. The above judgment was referred to in the later case of Soomar v. State where it was pointed out that "Muhammad. Hanif's case therefore, is no authority for the proposition that there is jurisdiction to review an order or decision of the High Court in criminal cases, which are not judgments within the meaning of section 369, Cr. P. C. But only for the more limited purposes that in rare and exceptional cases, there is such power. Such exceptional circumstances must be of the nature indicated in the judgment of the Supreme Court" (in Gulzar Hussain Shah's case). The contention that an order could be reviewed if it was passed in default was repelled in Soomar's case with the observation that "An order does not cease to be on without jurisdiction merely because ix was passed in default unless -of course it can be claimed that no proper opportunity was given' to the person whose default was the basis of the order."
12. Section 369, Cr. P. C. Invests judgments in criminal cases, which have been signed, with finality. The term "judgment" has not been.; defined in the Code, but the connotation . Of this term in Civil as well as Criminal Cases was exhaustively examined by Sir Shah Sulaiman, J. In Dr. Hari Ram Singh v.
13. Emperor (AIR 1939 IFC43In this connection, the learned Judge referred with approval to the following observation of a Division Bench of the Madras High Court in Emperor v. Mohesh Wara Kondaya (31 Mad. 543"a judgment is intended to indicate the final order in a trial terminating in either the conviction or acquittal of the accused."
14. A Full Bench of the Sind judicial Commissioner's Court had also occasion to consider the connotation of the term "judgment" in criminal cases in the case of Mst. Harbai v. Roya Premji (AIR 1939 Sind 193) and referred to the discussion on this point by Sir Shah Sulaiman J., in Dr. Hari Ram's case.
15. It is, however, unnecessary to determine, for the purpose of the present matter, whether the short order passed by Division Bench is or is not judgment as envisaged by section 369, Cr. P. C. In view of the decision of the Supreme Court in Gulzar Hussain Shah's case that even apart from section 369, Cr. P. C. The general principle of finality attaches to decisions and order of the High Court in criminal cases, and cannot be reviewed except cases o coram. Non judice or where, in contravention of law, no opportunity o hearing was afforded to the concerned parties.
16. As regards the scope of section 561-A, Cr. P. C. It is settled law both in Pakistan and in the Indian jurisdiction, that there never has been an inherent power in the High Court to alter or review a criminal case which has been finally and legally decided' by it. (See A 1 R 1928 Lab. 462, AIR 1953 Hum. Par. 3 and AIR 1958 Pb. 31?.
17. Although there appears to be no specific provision for passing of short orders on conclusion of hearing of an appeal or other matter by the High Court, such orders are invested with the sanctity of long practice in all the C superior Courts in Pakistan. Such short orders are immediately given effect to and writs of release, etc. Are issued on .The basis of such short orders. In Emperor v. Abdul Rahiman (AIR 1936 BOM. 193reference was made to the practice prevailing in the Bombay High Court, in the exercise of its ordinary criminal jurisdiction, to draw up the warrant or writ some little time after the sentence has been orally pronounced. It was held in that case that after the warrant has been signed, the decision or judgment cannot be altered or reviewed.
18. We are accordingly of opinion that as the Division Bench had not only signed its short order, acquitting the appellants, but further in pursuance of that order, the writ of release for the appellants had been issued, neither the said order can be modified or revised nor can the appeal be re-heard, as the order of the Division Bench was passed with jurisdiction and after hearing the parties concerned. We accordingly see no merit in Mr. Naqshbandi's application and would dismiss the same.
19. It, however, remains to be considered whether the reasons in support of the short order could be written now by the learned Judge who still adorns this High Court. Rule 3 in Chapter 4-H under the sub-heading "Rules of Procedure in Appeals", in Volume V of the Rules and Orders of the High Court, deals with cases where one or more Judges of a Bench, which has heard an appeal, has ceased to be attached to the Court before delivery of judgment. The said rule reads as follows :- "3. When an appeal has been heard by a Bench of the Court, the written opinions of the Judges who heard the appeal, but have ceased to be attached to the Court before delivery of judgment, shall, unless delivered by another Judge of the Bench which heard the appeal, be deemed to be minutes merely and not judgments."
20. The spirit of this rule is that only such - judgment is to be delivered as is written by a person who is Judge at the time of the delivery of the judgment. Though this rule is in the part of the rules dealing with civil ,cases, it would appear to be applicable with greater force to criminal cases. Although both the Judges of a Division Bench may have concurred in the decision and the short order, it is conceivable that the reasons for the conclusion reached may be different. In that case; if one of the Judges of the Division has ceased to be available, as in the instant case, the reasons given by the Judge who still continues to adorn the High Court, would not really be the reasons of the Bench in support of the conclusions reached or the short orders passed by it, but would be, in effect, the individual opinion of that learned Judge. However, such a written opinion would be of assistance to the Supreme Court, in case an appeal against the decision of a Division Bench is preferred to it. A similar situation, as in the present case, has arisen in the case of Niazoo alias Niaz Mohammad v.
21. State, in which an Appeal being No. K-S/1978, is pending before their Lordships of the Supreme Court. In that case, Wabeeduddin Ahmed, J., has made the query : "find out from the High Court whether the judgment in this case will be written or not." Since one of the learned Judge who constituted the Division Bench that decided the above matter is no longer a Judge, the query of his Lordships can only be considered as asking whether the remaining Judge has written or will write the judgment. If we have understood correctly the query of his Lordship, it means that the remaining Judge could record his reasons in support of the decision, though the other Judge's view unfortunately no longer can be made available. His Lordship's query thus fortifies us in our view that one Judge of a Division Bench can write his reasons in support o E the short order passed, if the other Judge is no longer available or has ceased to be a Judge.