1. MUHAMMAD APZAL ZULLAH, J.-Question relating to the right of an accused person to hearing in criminal appeals against conviction as also ----against acquittal when he has not surrendered his person in pursuance of the processes issued under the authority of law, has arisen in these two cases (Criminal Appeals 53 and 130 of 1976) in the following circumstances; Criminal Appeal No. 53 of 1976 This appeal arose out of murder case. The accused were acquitted by the trial Court in 1972. The State appeal against acquittal was admitted by the Lahore High Court in 1973. A Division Bench of the said Court allowed the appeal and convicted the accused. They preferred direct appeal in this Court on 5th July 1976. It came up for hearing before a Bench of three Judges on 5th of February 1980, when the following order was passed;-- "In an appeal against acquittal the Lahore High Court convicted all the four appellants under sections 302, 364 and 460 read- with section 34, P. P. C. All have been awarded long sentences of imprisonment and Muhammad Afzal has been sentenced to death. This appeal was filed in July 1976. The case could not be completed due to non-surrender of the appellants except Muhammad Afzal. It is noted in the order of the Court dated 9-4-1979 that Mr. Kasuri learned counsel for the appellants had then stated that the High Court had not issued warrants of arrest. While observing that the appeal could not be heard "until such time as the appellants surrender themselves in obedience to the judgment of the High Court", the case was adjourned for a month to enable the A.
2. O. R. To make available all the remaining appellants. In the meanwhile it was directed that enquiries should be made from the High Court as to why warrants of arrest had not been issued.
3. The Registrar of the High Court informed that directions for the arrest of the appellants were issued on 21st June 1976. The District Magistrate reported that although Allah Bux son of Sikandar had also been arrested, the two remaining convicts/appellants were still at large-having gone abroad.
4. These developments were reported to the Chief Justice by the office, with the proposal that the appeal of Muhammad Afzal and Allah Bux son of Sikandar be heard and that of the two absconding accused might remain pending. This proposal was accepted by the Chief Justice on 25-2-1979. The, appeal came up for hearing before the Court on 19-6-1979 but was adjourned.
5. Today, under the assumption that the appeal is complete in every respect, the hearing commenced. After some time the Court Associate brought to our notice that two appellants have not yet surrendered. The A. O. R. Stated that he took all necessary steps to inform them about today's hearing. It is agreed by all the learned counsel that on account of their connections in Pakistan the absconding appellants were presumed to be aware of today's hearing ; yet they have not surrendered. Mr. Kasuri did not consider this circum--stance as in any way prejudicial to the interest of the absconding appellants. According to him, despite this Court having waited for such a long time (which from all standards of justice is more than seasonable) they can stay away. He went to the extent of saying that if a situation had arisen he might as well have advised them to stay away till the decision of the appeal of their co-convicts, because as he thought, their appeal in any case has to be kept pending and cannot be dismissed without hearing. Even on account of the conduct. We, prima facie, considered this matter to be covered by the ruling in the case of Chan Shah v. The Crown PLD 1956 FC 43 and thus the appeal of the absconding appellants could be dismissed without further 'hearing. Learned counsel seeks time to address the Court on this point.
6. We in the interest of justice adjourn further hearing of the appeal. Date in office."
7. It is in pursuance of the said order that the question posed therein has come up for consideration.
8. Criminal Appeal No. 130 of 1976 "In pursuance of issuance of non-bailable warrants of arrest against the three respondents, only two of them, named above, have been arrested and the third respondent, Bakhsha, is still at large.
9. Mr. S. M. War appearing for the applicants has applied for bail on the ground of delay to the disposal of the appeal. At this stage, a question has arisen as to how the case of the third respondent should be dealt with as he has not yet surrendered in obedience to the orders of this Court. "
10. As a similar question is also involved in Criminal Appeal No. 53 of 1976, let both these matters be put up for consideration of this question before the Court during this week."
11. Before dealing with various aspects of the controversy it is necessary to note an explanation offered by Mian Mahmud A.I Kasuri with regard to what he had stated on 5-2-1980 and is noted in the order passed on that date lift Criminal Appeal No. 53 of 1976). He explained his position and stated that he had answered the question with regard to the (so-called) right of convict-appellant not to surrender and stay away till the appeal of his co-convicts is decided, only in a hypothetical manner; otherwise he affirmed his own view that the convict-appellant should surrender to the processes of this Court. Not only this, he further stated, that he has informed and advised his clients that surrender must be made, otherwise they might have to find a different counsel.
12. Apart from other related questions, the two main questions involved in these two matters for determination are: (1) in Criminal Appeal 53, which has been filed as of right by the accused who, after acquittal by the trial Court, have been convicted by the High Court-whether Hayat Bakhsh and Allah Bakhsh son of Muhammad Bakhsh appellants, who did not surrender despite the orders of this Court, are entitled to the hearing of their appeal on merits in their absence without surrender and whether the same cannot be dismissed on the short ground of their non-surrender; and (2) in Criminal Appeal 130, which is not an appeal as of right but is on account of grant of leave to appeal by this Court to the complainant against the acquittal of the respondents by the High Court,- whether the appeal of those accused/respondents who have not surrendered in obedience to the orders of this Court can be heard and disposed of on merits or otherwise on the basis of the negative conduct of the non-surrendering respondent, namely, Bakha.
13. Mian Mahmud A.I Kasuri, learned counsel for the accused/appellants in Criminal Appeal No. 53, has contended: that it would be dangerous to make one or the other assumption regarding defiance of the two defaulting appellants in so far as the warrants of their arrest are concerned-he tried to show that there was no intentional disobedience on their par!; that the practice of this Court has been to separate the appeal of absconding convict/accused and hear the same after the surrender; that there is no precedent that the absconder's appeal was ever dismissed on ground of non-surrender; that in this case also there is an order of the learned Chief Justice wherein the office was directed to separate the appeal of the two absconders; that the appeal filed by the non- surrendering convicts in this case is the creature of the Constitution having been filed us a matter of right-there is nothing in the Constitution to direct its disposal in any manner other than by a decision on merits thereof; that although in England the practice is that a criminal appeal can be dismissed in convict's absence and it cannot be denied that every accused/convict can be required to appear or be produced in Court, the higher principles of criminal justice demand that the disposal of appeal, notwithstanding the disobedience of the orders of the Court, should be on merits.
14. Mr. S. M. Zafar (learned counsel for respondents in Criminal Appeal No. 130) submitted that the controversy could not be resolved without analysis on a full canvas. In this behalf he visualized cases: where a convict becomes a fugitive from law before filing a petition for leave to appeal- -in that case, according to him, the petition may not be properly constituted; where, after filing the petition, the convict becomes an absconder and being himself the mover of the petition fails to assist the Court by his presence-- in that case he might deprive himself of any relief which could have been obtained by him; where after the presentation of a petition for leave to appeal the convict succeeds in obtaining an order granting him leave and thereafter either absconds without surrendering, or after having surrendered obtains a bail order and becomes an absconder--in such a case the Court can either keep the appeal pending and bear it when the absconder surrenders; or when there are more than one convicts/appellants, the appeal of the absconder be separated only if on hearing the appeal of his co-convict no benefit can be given to him (absconder) on account of the said hearing in his absence; otherwise if he becomes entitled to acquittal, this benefit should not be withheld from him; where the High Court having acquitted or having maintained the acquittal of an accused he is re-arraigned before the Supreme Court as a respondent, if he is a single accused in the matter his presence must be secured so that the appeal against acquittal is beard against him, if he cannot at all be benefited without hearing him-the principle underlying section 512, Cr. P. C. Was relied upon; and if there are more than one accused, the case of the absconding accused should tie seperated and postponed while that of others should be heard and decided; or if on hearing the appeal of the co-accused of the absconder, it becomes clear that he cannot be convicted, it should be so held and declared so as to benefit him as well, even though he remains fugitive throughout. In presenting the foregoing analysis, the learned counsel emphasised that it is not only the function but duty of the Court to do complete justice in every matter that comes before it.
15. Sh. Shaukat A.I (learned counsel for appellant/complainant in Criminal Appeal No. 130) made a distinction between an appeal by a convict as of right and appeal on grant of special leave to appeal. In the former cue, according to him, it is the demand of justice that the appeal should not be dismissed on account of the conduct of the appellant in becoming a fugitive from justice, while in the latter case his appeal could be so dismissed. He, however, conceded that in an appeal against acquittal an absconder can be convicted even in his absence, but not without examining the case on merits.
16. Kh. Shaukat A.I, learned counsel for the State, adopted the arguments advanced by Sh. Shaukat A.I.
17. The following precedents were I cited at the Bar, or otherwise noticed: Khalil acrd others v. The Crown (1). Lmanullah v. The Crown (2), Chan Shah v. The Crown (3), Abdul Razik v. State (4), Slate v. Muhammad Nawaz (5), Sadiq v. The Stale (6), Gul Hassan v. State (7), Ghulam Nabi Shah v. The Crown (8), Muhammad Aslam v. State (9), Sher Khan alias Mammi v.
18. State (10), Muhammad 1qbal v. State (1 I ), Khanan Khan v. State (12), Babulal Agarwala v. State (13), R. v. Flower (Richard) (14), Fakir Muhammad v. Emperior (15), Bansi Mirdha and others v.
19. Brojeswar Dutt (16), Muhammad Aslam v. State (17), Sikandar Hayat v. Atta (18), Mushtaq Ahmad v.
20. Siddiqullah (19), Farid v. Aslam and others (20), Muhammad Latif v. Muhammad Farvoq (21) and King-Emperor v. Drhu (22).
21. Four basic principles need to be highlighted with reference to the views expressed thereupon by this Court: (1) It was held by majority in the case of Imranullah that in a criminal case, an appeal is not a rehearing; but only a hearing by a Court of error, and the expression "rehear--ing" used in section 423(1) of the Cr. P. C. Compendiously indicates both the right of address possessed by the appellant and the duty of listening to the address, imposed upon the Court and as it is an expression of the simplest kind, it must be given the wider connotation. It must be read into the word "hearing anything in the nature of an obligation, as to its form and "any suggestion that observance of any kind of ritual is involved would be, in my opinion, obnoxious to its true meaning";
(2) the principle that the Court would not Act in aid of a person who is fugitive from Justice, was affirmed in the case of Chan Shah and a universal rule was reiterated that it is an essential condition of the administration of justice, in a case affecting an individual or individuals. That the persons concerned should submit to the due process of justice.. While administering a caution to the Attorneys and Advocates, the Court observed that steps should be taken to secure the appearance of the prisoner before this Court on the first day that the petition comes up for hearing and it is at that time that a move can be made through counsel for an order suspending the execution of the High Court decision; (3) a fugitive from law has no right of hearing before an appellate forum was affirmed in the case of Gut Hassan in such strong terms that he was treated as a continence and even if he had been condemned to death by the trial Court, in a reference for confirmation of death sentence under section 374, Cr. P. C., the High Court could justifiably refuse to heal anything against confirmation of death sentence on behalf of the convict, who "decamps and thereby forfeits the right of audience", in that eventuality the "sentence of death may be confirmed in his absence". It was further held that in such a case the appeal filed by the counsel on the basis of the power of-attorney executed by the absconder in favour of a person before his absconsion was not properly constituted and the Court could ` dismiss the appeal filed on the basis of such a power-of-attorney on this ground alone; and (4) the theory that a criminal appeal once filed has to be heard and disposed of on merits even if the appellant desires other wise or requests for its withdrawal, was rejected in the case of Muhammad Aslam. It was held that an appeal is the creation of statute, essentially in the nature of a right. A convicted person is not bound to appeal even where the law gives him such 'a right and that being so, there appears to be no general principle which stands in the way of his withdrawing the appeal If he can accept the finding and sentence by electing not to file appeal, there is no reasons why the mere fact of his having filed an appeal should in the absence of some principle akin to estoppel, be considered to be a bar to his subsequently waiving the right. At the same time it way observed that an appeal by a prisoner creates no right in any one else and gives to the High Court no higher power otherwise than what ha: been conferred on it in its revisional jurisdiction, and there being no implied or express prohibition against abandoning or withdrawal of appeal; such a right must be conceded to a convicted person. In adopting such a course, there would be no injustice to any one or deprivation of an3 right or power because none is involved in the mere withdrawal of at appeal.
(1) PLD 1953 FC 133(2) PLD 1954 FC 123 (3)PLD1956FC43(4)PLDI965SC151
(5) PLD 1966 SC 481(6) PLD 1967 SC 356
(7) PLD 1969 SC 89(8) 1969 SCMR 629
(9) 1972 SC M .R 194(10) 1975 P Cr. L J 655 (i 1) P L p 1963 Lah. 279(12) PLD 1966 Pesh. 232
(13) PLD 1961 Dacca 523(14) 1965 All E L R 69
(15) AIR 1930 Lah. 953(16) AIR 1924 Cal. 95
(17) PLD 1959 SC 119(18) PLD 1970 SC 224
(19) PLD 1975 SC 160(20) PLD 1977 S- C 4
(21) 1978 SCMR 374(22) AIR 1935 P C 39 Apart from the cases of Imranullah, Chan Shah, Gul Hassan and Muhammad Aslam, the case-law cited at the Bar, or otherwise noticed above does indicate as to bow the questions arising in these two matters have been dealt with. In the English case of Flower (Richard) the Court of Criminal Appeal noticed that although the practice of that Court where are appellant had escapej6 from prison and so was not present on the hearing of the appeal, was to adjourn the appeal or dismiss it according to the justice of the case; yet in a given case if all the points to be raised b5 the absent appellant had been raised and argued on behalf of other appellants and there was no conflict of interest, the Court, in the circumstances of the case, would not consider it proper to adjourn the appeal of the absent appellant and thus keep it alive, but would consider the common point on the argument raised by the counsel of the other appellants who, it was noted in the cited case, was an experienced counsel. It is true that in that case the merits were examined; but it is not clear from the report as to how the rules relating to. The appearance of the convict at the hearing of appeal have been reconciled in the departures made therefrom The law at the relevant time on the point, as is apparent from Paragraph 967 note (i) and paragraph 975 note (p) at pages 526 and 531 of Volume 10 of Halsbury's Laws of England, Third Edition, was that "!f the appellant is not present at any hearing of his appeal, the Court may decline to consider the appeal and may summarily dismiss it and issue a warrant for the apprehension of the appellant, or it may consider the appeal in his absence or make such other order as it thinks right. A warrant for the apprehension of an appellant issued by the Court of Criminal Appeal is deemed to be for all purposes a warrant issued by a justice of the peace for the apprehension of a person charged with an indictable offence . . An appellant who is not in custody must whenever his case is called on before the Court surrender himself to such persons as the Court may from time to time direct and must thereupon be searched by them, and is deemed to be in their lawful custody until further released on bail or otherwise dealt with as the Court may direct." (See also Criminal Appeal Rules, 1908, Rules 29, 31 and 47). It appears that the normal practice for dealing with the appeal of a fugitive from justice, is not different from what is prescribed in the rules governing criminal appeal. It is not necessary to comment any further on the case, of Flower (Richard). The law and practice in England has no bearing on the larger questions which have been raised in the controversy in the cases before us.
22. It is true that a learned Single Judge had held 'in the pre-Independence Lahore case of Fakir Muhammad, that it was not the duty of an accused person to produce his absconding co-accused before the Court, and s; Court of Justice was not justified in exercising any pressure upon him with the object of coercing him to produce persons who were fugitive from justice, but as held in some recent case, if it is found that the abscondenee of the co-accused is contrived or otherwise motivated by the accused who has already surrendered or has been arrested, then at least, in case of a request for his bail, consideration of this aspect of the matter would not be irrelevant. In this connection it would not be out of place to note the case of Said Mian and another recently decided by this Court, and the Lahore case of Muhammad Iqbal, wherein some of the purposes for which an accused is taken into or kept into custody during the trial, or is supposed to remain in the custody of the Appellate Court during the pendency of the appeal, have been noticed and discussed.
23. There are some cases starting from that of Sikandar Hayat and including those of Mushtaq Ahmad.
24. Farid and Muhammad Latif, wherein it was held that an appeal against acquittal, after, leave to appeal had been granted, could not be effectively abandoned as of right by the appellant. Even if the counsel for the appellant withdrew, the case was heard and decided with assistance from other counsel appearing therein. As was noted in the case of Sikmdar Hayat, wherein the subject is discussed, this Court had rendered a decision much earlier in the case of Muhammad ..!Slam that an appeal being the creation of a statute is in the nature of a right and that being so, no general principle stayed in the way of an affected person to withdraw his appeal. This principle, it was further noted, did support the argument raised in the case of Sikandar Hayat by late Mr. Manzoor Qadir that right to abandon an appeal inheres in the right -to bring an appeal. As to what is the result of inter action of these two rulings of this Court and how the seeming conflict was or would be resolved is beyond the scope of present discussion. It would, however, be remarked that one way of looking at the so-called conflict would be to examine it in relation to the power of this Court as no complete -justice in a matter which comes before its. The foregoing subject of abandonment of appeal has been discussed and dealt with in the context that a convict/ appellant, if he has a right to abandon his appeal, may do so either in a formal manner or by his conduct; for example, that he becomes a fugitive from justice and is no more interested in pursuing the appeal.
25. At this stage, it is necessary to notice another set of cases, cited at the Bar, with reference to which an attempt was made to show that even when an appellant absconds, it is the duty :of this Court to bear the appeal on merits of course the reliance is only indirect. In the case of Abdul Razik the appeal before this Court was only of one person. His co-accused Sharifullah had been acquitted at the trial. There were two absconders who had not been tried at all. While accepting the appeal of Abdul Razik on merits, it was observed in the concluding part of the judgment that the evidence relied upon by the prosecution could not be accepted for the conviction of four persons who were admittedly enemies of the deceased. It was further observed: "It is immaterial that only two of them could be brought to justice, for the findings in the Courts below affect the two absconding men equally with Abdul Razik." It would not be correct to say that the decision in the appeal of Abdul Razik was in any way indicative of the fact that the 'two absconding accused were no more required to be tried. The case of Muhammad Aslam and 5 other presents a different picture. The appeal of Muhammad Aslam and five others, who were represented by two learned counsel, was pending when Muhammad Aslam absconded. After hearing the appeal, the learned Judges came to the conclusion that the prosecution did not succeed in establishing the case. Accordingly the appeal, which was joint, was allowed. With regard to the question as to whether this decision could enure for the benefit of Muhammad Aslam also, it was remarked: ". Although appellant Muhammad Aslam has absconded during the pendency of the present appeal and has remained absconding uptill now, the benefit of our judgment should be given to him also in order to do complete jrcrtice in the case. We, therefore, do not find it necessary to postpone the hearing of the case of Muhammad Aslam until his presence before this Court." It would be noticed that in the circumstances of that case, the Court thought that the requirement of the rule with regard to complete justice demanded that the benefit of the judgment should also go to Muhammad Aslam.
26. Yet in another case of Ghulam Nabd Shah, it was trot considered necessary to give direct benefit of a similar judgment of acquittal to a convict whose appeal was not before the Court, and instead a recommendation was made by the Court to the Provincial Government that the sentence .Imposed upon him may be fully remitted. But when a similar situation arose in the appeal of Sadlq a strict view was taken regarding the observance of the law and rules with regard to filing and hearing of appeals in this Court. Sadiq and his brother Khan Bahadur were both convicted and sentenced under section 302/34, P. P. C. Khan Bahadur did not challenge the' decision of the High Court whereby his conviction was upheld. His brother Sadiq having filed a petition was granted special leave to appeal, on hearing of one of the two co-convicts, it was found that he was entitled to a spatial relief-Exception IV to section 300, P. P. C. Was held to be attracted to the case and the offence thus fell under section 304, Part I with consequential substantial reduction in sentence. The question arose as to how the benefit of this decision should be given to Khan Bahadur, why appeal was not before this Court. It was observed that: "He has not sought leave to appeal against that order, but on the view we take, we consider that he is entitled to relief on the same grounds as those which we find to exist in favour of Sadiq, and accordingly we direct hereby that he should be instructed to submit a petition from the Jail for leave to appeal similarly". This case is an illustration of the emphasis which has often been laid on the need for observance of the law relating to the processes of this Court. It is well known that in another set of cases, arising out of grant of leave to appeal, when the appellant misused or abused the process of this Court, instead of deciding the appeal on merits, the leave granting order was rescinded, bringing the appeal proceedings to a regular ending. A glaring example of exercise of power to do "complete justice" by this Court is found in the case of Muhammad Nawaz and 10 others. Twenty-eight persons were tried for offences including murder, out of which eighteen were convicted. On appeal the High Court maintained the convictions of only seven of them and acquitted the rest. The seven convicts were granted leave to appeal and so was the State in so far as the acquittal of eleven persons was concerned. On objection from the acquitted accused, the appeal of the State against them was dismissed because the petition for leave to appeal was barred by time. However, during the hearing of the appeal the question arose as to whether the acquittal of some of the respondents in the State appeal, which merited dismissal as time .Barred, could not be interfered with by this Court, notwithstanding the were acquitted by the High Court on account of r to issue fact that they patent on record. It was held that: Thi3 Court has power such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, vide Article 61 of the Constitution. The error being patent on the record in this case, this Court could have sun motu issued notices to those of the respondents who had cured an acquittal from the High Court as the result of the abovementioned error. These respondents are represented by Mr. Saleem appearing before us and he accepts notice on their behalf. The position, therefore, is that the case against these five respondents calls for consideration by us alongwith the appeal of seven convicts." After consideration of the merits the acquittal of three persons was set aside and they were convicted, two of them under section 302, P.
27. P. C. With an award of transportation for life.
28. The precise question as to whether an absconder can claim, during the time that he remains fugitive from ,justice, the hang of his appeal on merits and whether it cannot be dismissed in his absence, was also con sidered in two High Court cases: one from Peshawar and the other from Lahore. The former case, namely lfhanan Khan and others v. State is the same the appeal arising out of which was ultimately decided by the Supreme Court in the case of Gul Hassan and others, already noticed. It was held therein that to hold that the death sentence on a convict cannot be confirmed by the High Court in his absence and shall remain suspended because he has managed to run away will be putting a premium on abscondence, amounting to stultification of the authority of the Court by an unlawful act, which obviously cannot be the intention of the law.
29. With regard to the argument that if the death sentence. Of a convict is confirmed while he is absconding, his right of appeal to the Supreme Court may be adversely affected by lapse of the prescribed time, it was observed that: "the simple answer is that if a person runs away from justice, he shuts the doors of justice on himself and if he finds his entry blocked, he must thank himself."
30. The Lahore view in a similar situation expressed in the case of Sher Khan alias Mammi v. State is that to decide an appeal of a person who is fugitive from law on consideration of merits of the appeal would amount to invoking the process of the Court in favour of a person who himself has abused it by being fugitive from justice. It was accordingly held that in such a situation the appeal can be rejected without going into the merits and in that case there will be no judgment within the meaning, of section 367, Cr. P. C., with the result that section 309, Cr. P. C. With regard to the bar of review, would not prevent rehearing. Accordingly it was observed: "It can in the fitness of circumstances be restored and heard. It will not be rehearing of the case nor will it amount to reviewing the previous judgment." The same view was taken in Babulal dgarwala v. State. In taking the foregoing view, the Lahore High Court relied upon the cases of Chan Shah and Gut Hassan, decided by this Court. An observation relied upon from the case of Chan Shah reads as follows "It is an essential condition of the administration of justice, in a case affecting an individual or individuals, that the persons concerned should submit to the due process of justice. We cannot conceive of a more flagrant violation of this condition than a case-like the present-where the individual seeks the interference of the Sovereign to obtain revision of a judicial order, when he is himself engaged in setting that judicial order at naught."
31. After the survey of the case law, it has become easy to comment upon the arguments advanced by the learned counsel. The argument of Mr. Kasuri based on what he calls the practice of this Court, that the appeal of a convict who is fugitive from justice may be separated and heard after he surrenders and that the absconder's appeal shall be never dismissed on the ground of non- surrender, or ` for that matter an order was passed for separating the absconder's appeal, is without force. The practice and procedure of this Court is well known that on grant of leave to appeal, or on filing of a direct appeal by a convict, normally the Court issues orders and directions including the issuance of warrants of arrest so as to secure the custody and presence of the appellant, if he is not held. In custody. This of course is subject to the power of the Court to grant bail. I is only. On an exceptional occasion when no serious controversy arose that on this issue notice was not taken of the effect of the abscondence of the accused on the hearing of the appeal.
32. Otherwise, when the question was debated and decided, it was declared as a law-as in the case o Gul Hassan-that the appeal of absconding convict could be concluded without hearing the same on merits. As would be presently . Shown, it would not make any difference whether the appeal was pending on grant of special leave or was, otherwise, filed as a matter of right. It is significant to note that the decision in the cast of Gul Hassan was not on the basis of any new rule or practice, but the principles laid down in the case of Chan Shah, after quoting the same, were reiterated. As the proceedings in this case would show, despite the order relied upon by Mr. Kasuri, whereunder he thought that the appeal of the absconders was separated, they had not surrendered till the hearing of this matter. This leads to two conclusions: (1) That the so-called separation of the appeal was not for purposes of adjourning it sine die so that it could be disposed of only after . Their surrender, and it was only an opportunity to the absconders to avail of the process of the Court, if they so desired, but the postponement itself was a process which cannot be permitted to be abused indefinitely; and (2) that despite the postponment for. a considerable time, the absconders did not surrender, which, together with other circumstances, shows that the first argument of the learned counsel that there was no intentional disobedience of the order of this Court by the absconders is also without any substance.
33. Reliance on the English case of Flower (Richard) does not advance Mr, Kasuri's argument based on so-called practice of Court of criminal Appeal. There does not appear to be any general practice departing from the Criminal Appeal Rules, nor the cited case was intended to be regarded as an authority for such a departure on the basis of any practice. Same would apply to some of the stray .Cases where either this Court separated the absconder's appeal, or notwithstanding his being fugitive from law, when hearing the appeal of his co-convict, gave benefit to him on such hearing.
34. These cases have already been properly analysed. There was no intention to lay it down, as a law that the procedure adopted in one or the other such cases was to be observed as law, or even could be relied upon as having the force of law on account of any binding principle of law. On the other band, the judgments in the cases of Chan Shah and Gul Hassan do involve decisions on question of law and are otherwise also based on enunciation of principles of law. There is no compelling reason of any principle or law, for us ,now to review the law laid down in hose cases.
35. The other argument of the learned counsel, based on the provisions o the Constitution, namely, that an appeal as of a right should be considered on a different footing . From the one through leave to appeal, in so far a s the present controversy goes, is also without force. Reliance of Mr. Kasuri is based on para. (a) of clause (2) of Article 185 of the Constitution. 11 provides "(2) An appeal shall lie to, the Supreme Court from any judgment, decree, final order or sentence of a High Court
(a) if the High Court has, on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life;, or; on revision, has enhanced a sentence to a sentence as aforesaid."
36. Criminal Appeal No. 53 has been filed under the aforementioned provisions: The argument proceeds/that it cannot be disposed of, except by way of a decision on merits thereof, because the appeal is as of right. Learned counsel .Tried to snake distinction between the appeal under Article 185(2) and an appeal under clause (3) of-Article 185, which .Provides that an appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal. The question arises whether for purposes of the procedure and form of disposal of the two appeals, arising in the context of the abuse of the process of this Court by an accused person, there is any difference between the appeals filed under Article 185(2) and those under Article 185(3). The key to the answer of this question lies in clause (1) of Article 185, which contains the governing provision, in so far as appeals under Article 185 are concerned. It provides: "Subject to this Article, the Supreme Court shall have jurisdiction to bear and determine appeals from judgments, decrees, final orders or sentences ofHigh . Court." The jurisdiction to bear and determine appeals under clause (1) encompasses both types of appeals, whether filet under clause (2 or clause (3). Thus the Constitution does not make any difference in this behalf. There is nothing in the Constitution to bar the determination o an appeal on basis other than merits. For example, in the case o Muhammad Nawaz, notwithstanding the fact that leave to appeal had been granted and the State appeal against acquittal was pending before the Supreme Court and - required to be heard and determined, it was on a belated objection raised from the respondents acquitted accused after the grant of leave to appeal (application was barred by time), the appeal was not decided on merits against several acquitted accused. This, however, did not bar the jurisdiction of this Court to issue suo motu notice to some of the concerned acquitted accused so that complete justice could be done in the case and indeed it was done-they were convicted and sentenced in accordance with the justice of the case. In this behalf there are two, provisions in the Constitution which need to be noticed. Under Article 1871 the inherent power of the Supreme Court, being the ultimate judicial forum in the realm, has been preserved for doing complete justice "in any case or matter pending before it." By virtue of this power, the Court can issue such directions, orders or decrees as may be necessary in this behalf, including an order for the purpose of securing the attendance of any person or the discovery or production of any document, and such directions and orders, by virtue of clause (2) of Article 187 are enforcible throughout Pakistan, No doubt, this power is subject to clause (2) of Article 175, but for the present purposes it does not make any difference because the said clause provides that no Court shall have any, jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. The power of the Supreme Court to do complete justice has been saved by Article 187 of the Constitution, The power of this Court as envisaged by Article 187 extends to passing of all orders which are by themselves necessary for doing complete justice or otherwise ancillary and incidental to facilitate the exercise of that power. The power conferred under Article 191 of the Constitution on this Court to make rules regulating the practice an procedure of the Court, amongst others, has to be co-related to Article 18 of the Constitution as well. Rule 6 of Order LIX of the Supreme Court Rules clarifies that nothing in the Rules would be deemed to limit or otherwise affect the inherent power of the Court to make such order as may be necessary for the ends of justice, or to prevent abuse of the process of the Court. This Rule preserves the spirit of Article 187 and would apply to all situations requiring orders for achieving the ends of justice, or preven--ting the abuse of the process of the Court. In criminal matters, there would 'be no distinction to this behalf, namely, the application of Article 187 and Order LXI, rule 6 of the Supreme Court Rules, where the question arises with * regard to the conduct of one or the other party. Thus, ; it. Would not be correct to say that there is any bar on this Court to dispose of a criminal appeal on consideration that the accused parson has abused the process of the Court.
37. There is nothing in the Constitution or the Rules to compel the Court to decide on merits as appeal filed by an accused person who has chosen to be a fugitive from justice, and while remaining so decide to disobey or frustrate the orders, directions and processes of the Court, from which he seeks justice.
38. The argument of Sh. Shaukat A.I, based on distinction between treatment of an appeal as of right and one through special leave to appeal is the same as addressed by Mian Mahmud A.I Kasuri, and has been dealt with. His second argument that an appeal against acquittal of an absconder can be heard and decided on merits in his absence would be presently dealt with when considering the arguments of Mr. S. M. War.
39. It is correct, as submitted by Mr. War, that the two cases before us do not present the full picture of various situations that can arise on account of an accused person b; coming fugitive from justice at the appellate stage. But the basic principles laid down by this Court in various decisions in this behalf, which have been noted in the opening part of the discus--sion, would remain the same. It is in the light of those principles that the situation visualized by Mr. War would have to be dealt with.
40. There is considerable weight in the argument that when a convict becomes fugitive before filing petition for leave to appeal, his petition itself would not be properly constituted. This can be noticed as one line of reasoning in the case of Gut Hassan. The second proposition submitted by the learn counsel is also correct; because it flows from the first one. If a convict after filing a petition becomes fugitive and does not surrender, he deprive himself of the relief claimed in the petition.
41. Similarly, there would be n difference if he absconds after obtaining special leave to appeal, or after obtaining a bail order. It is not possible to agree with Mr. War that in this situation the absconder can get the benefit of his appeal being kept pending sine die till be surrenders. Nor will there be any justification for the proposition that if there are more convicts/appellants, the appeal of the absconder should be separated and adjourned sine die to await his surrender in case he cannot be benefitted on the hearing of the appeal of his co appellant. There is no basis or principle for adopting this suggestion as a normal course by this Court; and if that is done, it would be placing premium on the negative conduct of the absconding appellant if he is Mowed to remain fugitive from justice and also benefitted by deciding his appeal in his favour when hearing the appeal of his co-convict. Such a course, if adopted as a normal routine, would not only encourage abuse of process of this Court, but would also disturb the fabric of administration. Of justice at the appellate stage. However, there is considerable force in the argument of Mr. War that an acquitted accused cannot be convicted by the Supreme Court without a decision on merits, justifying the reversal of judgment of acquittal. And although in an appeal against acquittal it would not be illegal o even improper to hear the counsel of an acquitted accused who is on bail, it is not so for a fugitive. It would be the negation of the principles enunciated by this Court (that a fugitive from justice loses right of hearing if he defies the orders of the Court for his surrender and or otherwise abuse its process), if, while he remains fugitive, be is allowed to be represented by another person so that his plea might be beard. In order to maintain consisteney, in such a situation, although the Court would be obliged itself to examine the merits of the case for setting aside the acquittal, if need be the absconding acquitted accused would not be entitled to be heard, even through a counsel. It is a different matter if the Court for its own benefit -seeks assistance from one or the other counsel appearing for the parties before it, including a co-accused of the absconding respondent, or from any other counsel, but the absconding accused would not be entitled, as of right, to a hearing. Reliance of the learned counsel on the provisions contained to section 512, Cr. P.
42. C. Is of not much help in this behalf. While the present controversy relates to the hearing of o otherwise determiation of an appeal, section 512, Cr. P. C. Deals with trials. Moreover, the said provision is not attracted to the form and procedure of this Court. It would not be possible at all to adjourn an appeal against acquittal even against a single acquitted accused/absconding respondent, for an indefinite period, although the of the Court would make efforts to secure his surrender/arrest in obedience to the process of the Court, for a reasonable period before fixing the appeal for hearing; and if he remains fugitive, the Court would proceed to determine the appeal in his absence. If after examination of the case the acquittal merits to be reversed, there would be no impediment to decide the appeal accordingly, but in case the judgment of acquittal merits to be maintained, the same would not be reversed on account of the abscondence of the accused/respondent. This would apply to both the situations whether the appeal is against one acquitted or more. The submission of the learned counsel that while dealing with the controversy the Court should keep in view its power to do complete justice is undoubtedly weighty, but as already indicated, this power I concomitant with the power of the Court to pass such orders as are necessary for the ends of justice and also for the prevention of the abuse of the process of the Court. These aspects of rendering justice cannot be visualized and considered in isolated water tight compartments. They have to be put in juxtaposition because they react upon each other and that is the only course to keep the stream of justice flowing uninterrupted and unsullied.
43. The principle laid crown in the cases of Chan Shah and Gul Hass do not in any way merit review.
44. Rather, some of them need to be reiterated and reaffirmed: The Court would not act in aid of a person who is fugitive from justice; the inherent power cannot be invoked in his favour because it is essential condition of the, administration of justice that the person concerned should submit to the due process of justice; where an individual seeks interference of the sovereign to obtain the reversal of a judicial order, he cannot succeed if he himself is engaged in setting that judicial order atnaught; the Court would in order to avoid taking drastic action of the dismissal of a matter on account of such a conduct of the person concerned, would afford opportunity to him through some adjournments in the expectation that he might be induced to surrender; this all being in accord with the basic principles governing administration of criminal justice, it is the duty of the person representing the accused, to secure. So for as it is within his power, the appearance of the accused before the Court on the first day of the hearing and, thereafter, if so advised, to seek an order for bail or suspension of sentence, if it is an app; al by the convict. Apart from the foregoing principles laid down in the case of Chair Shah, these aspects were further elaborated in Gul Hassan's case: if a person is fugitive from justice and is in the state of abscondence, an appeal cannot be filed on his behalf on the basis of a power-of-attorney executed by him before his abscondence and the same would apply to a power of attorney executed during abscondence; that a fugitive in effect, in view of the principles laid down in the caseClean Shah, is also a contemner and farther that he is not entitled to hearing; that even if it is a case of confirmation of death sentence under section 374, Cr. P. C. If the convict decamps, he 'hereby for feight the right of audience and the High Court would, in such a situation, be .Competent to consider the case of confirmation of his death sentence and confirm the same eve in his absence the confirmation of course will have to be on merits of the case; and this Court would not hesitate even after grant of leave to appeal on the application of such a person, to rescind the leave. It may be clarified here that in the case of Gu! Hassan leave to appeal having been obtained on the basis of an incompetent petition for leave to appeal, it was thought adviseable to adopt the course of rescinding the leave granting order; Applying the principles which are now being reiterated and reaffirmed, it would not be necessary in, all the cases to adopt the same procedure, as the Court would be competent when such an occasion arises, to dismiss the appeal itself.
45. Before proceeding to the next step relating to the orders which are to, be passed in to the light of the foregoing discussions, it is necessary to make three clarifications: (1) That although the treatment of the case of a fugitive from taw and justice can also be of general nature, yet in the present discussion it essentially relates to the proceedings before this Court. When applied to other proceedings) and. Or before other Courts, these principles would have to be con--sidered and applied only subject to the law applicable thereto; (2) thd same principles are often applied to cases of preventive detention when a citizen seeking redress from a Court refuse to obey or ignore the orders of the very Court which in order to do justice to him requires his appearance or surrender before it. So far there does not seem to be any real conflict between the two fields: one of administration of justice by Courts and the other of maintenance and observance of law, because one factor remains namely, the defiance of the order of or the process connected with the Court proceedings. In every situation the question of surrender would have to be dealt with in accordance with the relevant law; and (3) the concept of doing complete justice in accordance with the principles already discussed, would not be controlled by any bar of technicality, and notwithstanding the action of the Court in dealing with a fugitive from justice who seeks justice from it in one or the other way, on a proper cause being shown and after due submission of an explanation, the power of review, and in case of need, of rehearing in proper cases would remain in tact.
46. Nothing has been urged 'in relation to bail application of Noor and Bashir accused (respondents in Cr. Appeal No. 130), from the appellants side indicating that the said applicants (respondents accused) are responsible for their co-accused Bakhsha remaining fugitive from justice. That application can be heard and disposed of on merits. However, in view of the decision on the basic question as to how the appeal itself i3 to be dealt with, the office is directed to fix the same for hearing as soon as possible, because some accused, who were acquitted by the High Court, are in custody since long. As the appeal has been ordered to be fixed for hearing, it is necessary to fix the application for bail for a separate date of hearing. If for some reason the appeal when. Fixed is not taken up and heard, the learned counsel might then press for hearing of the bail application separately.
47. It is clarified that that the appeal against acquittal when fixed for hearing shall be heard in absence of Bakhsha respondent, if he remains fugitive till then, and he would not be entitled, as of right, to hearing through his representative. The Court would, however, when hearing the appeal against his co-respondents, consider the case against him on merits with or without assistance then available. If, in the meanwhile, however, Bakhsha respondent surrenders and shows cause in this b.-half, he might make an application for grant of hearing at the time the acquittal appeal is taken up. Such an application, if made, would be fixed by the office before the date fixed for the hearing of the appeal, and the same would be decided on its own merits.
…and 31 more citing cases