1. ZAFFAR HUSSAIN MIRZA, J.-This order will dispose of Office Reference dated 14-4-1981 and two References dated 28-4-1981. These References are being disposed of by a common order as common questions of law require to be determined.
2. These References have arisen on account of the fact that certain cases were heard by some of the Judges of this Court and disposed of, but before judgments or orders could be written the concerned Judges ceased to be Judges of this Court. The cases were heard by Messrs A. Q.
3. Halepota, Abdul Hafeez Memon and G. M. Shah, JJ. (as they then were), either sitting singly or as Members of the Division Benches of this Court with other Judges some of whom have also ceased to be Judges of this Court. The particulars of these cases are mentioned in the respective office References.
4. The first-mentioned Reference relates to cases, the files of which were returned by-Mr. A. Q.
5. Halepota upon his ceasing to be a Judge of this Court as cases lying with him for writing judgments. There are two categories of cases in this Reference. The first are those in which criminal appeals or revisions were allowed by him either sitting singly or as a Member of Division Benches with other Judges who have also ceased to be Judges of this Court. The second category is of criminal appeals in which the cases were disposed of with modification in the sentences awarded to the accused persons. In all these cases short orders were written for reasons to be recorded later on, but as already stated, on account of Mr. Halepota's ceasing to be a Judge of this Court, the reasons could not be recorded and the files were returned to this Court.
6. One of the Office References dated 28-4-1981 relates to cases in which G. M. Shah, J. (as he then was) had to write judgments and orders. In this Reference the cases can be divided into four categories. The first category is of cases in which criminal appeals, criminal miscellaneous applications or criminal revisions were allowed by oral orders announced in open Court without recording a short order. The second category includes criminal appeals which were dismissed by oral orders also announced in open Court without recording a short order. The third category relates to criminal appeals and revisions dismissed by him with modification of sentences or with directions by oral orders announced in open Court without recording short orders. The last category relates to cases which were disposed of by recording short orders for reasons to be dictated later on.
7. The third Reference dated 28-4-1981 relates only to two cases one heard by a D. B. Comprising of Abdul Hafeez Memon, J. (as he then was) sitting with Mr. Justice Z. C. Valliani which was allowed by oral order announced in open Court for reasons to be dictated later on. The second case was a civil revision application heard by him sitting singly and was dismissed also by oral order announced in open Court for reasons to be dictated later on. In both these cases he could not dictate the reasons until he ceased to be a Judge of this Court.
8. It will thus be seen that taking all the References together. There are two main categories of cases.
9. In the first place there are cases in which short orders were recorded and then there are cases in which the decision was orally announced without recording a short order incorporating the same.
10. The questions that arise for determination are as follows :-
(1) What is the effect of a decision orally announced in Court without recording an order signed by the Judge or the Judges concerned ?
(2) What is the effect of a decision in which a short order has been recorded signed by the Judge or the Judges concerned, but the detailed reasons are not recorded subsequently ?
(3) In cases falling under No. 2 above, what procedure should be adopted, i.e. Whether reasons can be recorded by Judges who are available as sitting Judges of this Court ?
11. We have heard the learned Advocate-General, Mr. Azizullah Shaikh and Mr. Khalid Anwar as amicus curiae to assist us in disposing of these References. We have been referred to a similar situation that arose in Confirmation Case No. 42 of 1976/Criminal Appeal No. 300 of 1976, Ghulam Hussain v.
12. State in which a D. B. Of this Court had considered the 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 could not be recorded by the Bench, could be reheard by another Bench. In this case one of us was sitting as a Member of the Bench with late Jamaluddin Ahmad, J., but before the latter could record his reasons in the judgment, he suddenly passed away. After a thorough review of case law and I say so with respect, their Lordships reached the following conclusion ;- "We are accordingly of opinion that as the Division Bench had not only signed its short orders, acquitting the appellant, but further in pursuance of that order, the writ of release for the appellant had been issued, neither the said order can be modified or revised nor can the appeal be reheard, as the order of the Division Bench was passed with jurisdiction and after hearing the parties concerned."
13. The further question then considered by their Lordships was whether the reasons in support of the orders could be written by the Judge who was still available as a sitting Judge of the Court, In this behalf the following observations were made; "Rule 3 in Chapter 4-H, under the sub-heading "Rules of Procedure in Appeals", in Volume V of the Rules and the Orders of the High Court, deals with cases where one or more Judges of a Bench, which was 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 judgment.'
14. 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.
15. 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.
16. However, such a written opinion would be assistance to the Supreme Court, in case an appeal against the decision of a Division Bench is preferred to it."
17. In this view of the matter the learned Judges expressed the opinion that the remaining Judge could record his reasons in support of the decision or short orders passed, if the other Judge is no longer available or ceased to be a Judge.
18. Mr. Azizullah Shaikh referred us to three reported cases throwing light on the questions raised in these References. In Ali Akbar v. State (1969 P Cr. L J 1307) Division Bench of the High Court heard a confirmation case. And criminal appeal and reserved the judgment. The case was discussed by the two learned Judges and a consensus of opinion was arrived at as to the decision in the case.
19. One of the learned Judges who was to write judgment and send it to the other for signature and pronouncement was soon to retire. He wrote the judgment, signed it and forwarded to the other learned Judge for pronouncement in accordance with the arrangement, but on the day on which he retired from the Court, so that it was received after the date of his retirement. The question was whether the learned Judge who was available could sign and pronounce the judgment after the retirement of the one who had written and signed it already. It was held that the draft judgment sent by the retiring Judge could not be pronounced after his retirement. Reliance in this case was placed upon a judgment of the Indian Supreme Court reported as Surendra Singh and others v.
20. State of Uttar Pradesh (AIR 1954 SC 194). The following passage from the Indian Supreme Court judgment was cited with approval;- "Now up to the moment the judgment is delivered, Judges have the right to change their mind.
21. There is a sort of `locus poenitentiae' and indeed last minute alterations often do occur. Therefore, however much a draft judgment may have been signed before hand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallize into a full-fledged judgment and become operative. It follows that the Judge who "delivers" the judgment, or causes it to be delivered by a brother Judge, must be in existence as a Member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to .Be physically present in Court but he must be in a position to stop delivery and effect an alteration on his part. If he bands in a draft and signs it expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and in a position to change his mind, but takes no steps to arrest delivery."
22. The above quotation and the judgment cited by the counsel throw valuable light, if 1 may say so with respect, on the principle underlying the significance of signature and delivery of a judgment in Court, but otherwise does not directly assist in deciding the questions raised in these References.
23. In the second case cited by the learned counsel, namely, Mahboob Ali v. Qamar Ali (1972 SCMR 109) the Magistrate, who tried the case, after announcing acquittal of the accused died without writing any judgment. It was held by the Supreme Court that verbal order of acquittal was a nullity in law and produced no legal consequences in view of the provisions of section 366, Cr. P. C. Which provides for the mode of delivery of judgment and section 367 of the Code of Criminal Procedure which requires the judgment to be written in the language of the Court, to contain reasons for the decision and has to be dated and signed by the Presiding Officer in open Court at the time of pronouncing it.
24. The case of Rukan Din v. Hafiz-ud-Din (PLD 1962 Lah. 161) the next case cited by counsel is directly in point. In this case the learned Judges of the High Court having heard the parties and formed the opinion that appeal should be accepted, informed the counsel that it would be accepted. But no order was dictated or signed. On the following day upon reconsidering matters the learned Judges of the Division Bench decided to rehear the parties on the merits of the appeal as well as on the question whether a rehearing was permissible under the circumstances and heard the counsel accordingly. After referring to para. 1 of Chapter 4-H relating to Rules of Procedure in Appeals, of the Rules and Orders of the High Court, Volume V and section 117 of the Code of Civil Procedure, the learned Judges reached the conclusion that a judgment is not complete until it has been signed and it 'can be altered before it has been signed. It is, therefore, clear that a judgment in order to be operative has to be signed and delivered, so that a verbal decision without even a short order recorded by the Court cannot be an effective judgment disposing of the case.
25. With reference to sections 367 and 369, Cr. P. C., Order XLI, rule 31, C. P. C. a learned Single Judge of the Lahore High Court in Nisar Ahmed v. Presiding Officer, Punjab Labour Court No. 2 (PLD 1976 Lah.
26. 1162) expressed the opinion that a judgment should be in writing, be announced publicly and signed, and that an oral order is merely an intention of the Court as to what the judgment is going to be, but not a valid, operative and final judgment in the eyes of law. In Mehar Din v. Murad Begum (PLD 1964 SC 446) the learned Judges made the following observation;- "The cases, therefore, in which judgments written by a person after transfer or on leave, were held to be valid, would not be sufficient authority for the view that a judgment written by a Judge who had ceased to be hold his office would also be immune from exception. Such a view has potentialities of great mischief and if by reasonable construction of the statutory provision it could be avoided, the result would most probably be in conformity with the intention of the Legislature. I am, therefore, disposed to think that a narrow construc--tion of Order XX, rule 2, C. P. C. Should be adopted and it should be held that a Judge who has become functus officio, after being relieved of his office should not be allowed to have anything to do with the judicial work of the Court over which he previously presided."
27. Learned Advocate-General has brought to our notice the case of Muhammad Ramzan v. State (1979 SCMR 200) In this case a petition under section 561-A, Cr. P. C. Recorded with Article 199 of the Constitution for quashment of proceedings was heard in absence of the counsel for the respondents, who failed to appear and the Court orally pronounced the order in favour of the petitioner. However, later on the same day the counsel for the respondents appeared and requested for rehearing and reconsideration of the order. Thereupon the Court further considered the case after hearing the parties and dismissed the petition which was earlier orally allowed. The matter was brought before the Supreme Court and it was contended that the High Court was not competent to hear and reconsider the order orally passed by it earlier. The contention was, however, repelled by the Supreme Court holding that the High Court was competent to do so before the judgment was actually signed and sealed by the Court.
28. In view of the above, we have reached the conclusion that in cases where verbal orders were announced without recording them even by way of a short order with the signature of the Judge or . Judges concerned, no operative decision in law can take effect and these cases must be deemed to be pending to be disposed of after rehearing the parties. The cases in which short orders have been recorded and signed by the concerned Judges, these cases stand disposed of as these orders are fully operative in law. In the last-mentioned cases the Judges who have ceased to hold office cannot record reasons, but in cases in which one of the Members of the Bench was a Judge who is still available, he may be requested to record his reasons in support of the decision which will, however, serve as minutes of his individual opinion for use as deemed fit by the Supreme Court in case appeals are filed against such orders.
29. The References are disposed of in the aforesaid terms.