1. HAMOOD UR RAHMAN. C. J.--The appellant was tried along with one Muhammad Yousuf for the murder of Muhammad Ahmad at about 11 p.m. Of the 16th of April 1965, near the crossing of Ramchandar Temple Road with Mohan Road, bar tabbing hire with a knife.
2. The appellant as well as the complainant were residents of Chaki Compound, Ratan Tulao, Karachi, but fit appears that the appellant acted as the Polling Agent of one Sadiqullah who successfully contested the last Basic Democracy Election against one Manzoor Ahmad who was related to the complainant Maqbool Ahmad. This bad engendered bad blood between them. On account of this on 16-4-65, at about 8 p .m., it is alleged, the appellant told Ahmed A.I to warn Maqbool not to visit the neighbourhood. Then, at about 10 p.m., when the appellant and his co-accused were sitting on the steps of a building called Aziz Mahal, they were annoyed at seeing Maqbool Ahmad pass that way. They called him and warned him not to do so in future; but when he enquired as to why he could not pass that way, he was given a slap. He returned the compliment with the result that the appellant and his companion started beating Maqbool Ahmad who ran towards his own house raising cries for help.
3. The cries attracted the other witnesses; but before they could come to his rescue Maqbool Ahmad took shelter in the Hotel of one Rasul Bhai. The appellant and his companion, who were pursuing him, also 3 reached there and started throwing aerated water bottles at Maqbool Ahmad. By this time the witnesses who had been attracted by Ma4bool Ahmad's cries also approached the Hotel of Rasul Bhai. They too had aerated water bottles thrown at them and Muhammad Yousuf, the co- accused of the appellant, picked up a pole and begain hitting out at the witnesses. At this stage, the co-accused Muhammad Yousuf, however, ran away and the appellant was also thinking of retreating. Just then Muhammad Ahmad, the deceased, who was also a relation of Maqbool Ahmad, was seen coming from the direction in which the appellant was trying to escape. It is rot known exactly as to what happened, but immediately thereafter the appellant was seen with an open knife in his hand and the deceased Muhammad Ahmad was seen coming in an injured condition and falling down on the ground. He was taken to the Hospital where he expired soon after.
4. The first information report of this incident was lodged at 11-45 p.m. By Maqbool Ahmad at Preedy Police Station after leaving the deceased at the Hospital.
5. The appellant was arrested on the 29th of April 1965. He took the Police to a place from where he produced a blood-stained knife (Exh. 40) which was duly taken into possession.
6. The appellant, it appears, at the trial, admitted that his relations with Manzoor Ahmad, the unsuccessful candidate, were strained, because, be had supported Sadiqullah in the Basic Democracy Election. He also admitted that a quarrel did take place at the time and place alleged by the prosecution between him and Manzoor Ahmad's party during which ho picked up aerated water bottles from the Hotel of Rasul Bhai and threw them in self-defence. He also admitted that Muhammad Ahmad was present at the time but denied having stabbed him. He explained the injuries on big own person by saying that he had received them in tire course of the quarrel. , The trial Court, after examining the evidence, which was supported by several unrelated and independent witnesses, and examining the plea of self-defence raised by the accused, came to the following conclusion :- "Muhammad Ahmad was, however, a boy of about 20 years, who had come out on the cries and who had run towards Bahadur Shah Market when accused Muhammad Ashfaq had taken out his knife. There is nothing to show that accused Muhammad Ashfaq stabbed Muhammad Ahmad as he apprehended danger to his person from him. If 10 or 15 persons had attacked Muhammad Ashfaq armed with lathis and sticks, Muhammad Ashfaq would not have escaped with the few abrasions on his person. On the other hand, there la clear evidence that as soon as Muhammad Ashfaq took out his knife every one receded backwards. He had, therefore, no apprehension of death or grievous hurt at the time he stabbed deceased Muhammad Ahmad. In any case, there can be no doubt that accused Muhammad Ashfaq had started this quarrel and he had chased Maqbool Ahmad along with his companion. Thereafter he had thrown bottles at Manzoor and others, who had come out on the cries of Maqbool Ahmad. After being beaten by Manzoor, he had taken out the knife and had used it on Muhammad Ahmad, who was standing nearest to him. A person cannot avail himself of the plea of self-defence in a case of homicide, when he was himself the aggressor and wilfully brought or, himself without legal excuse, the necessity for killing. A person cannot take shelter behind the plea of self-defence in justification of the blow which he struck during the encounter if he provokes an attack, brings on combat and then slays the opponent."
7. The trial Court, however, acquitted the co-accused Muhammad Yousuf on the ground that he could not, in the facts and circumstances of the case, be said to have shared the Intention of the appellant or to have known that the appellant would murder Muhammad Ahmad. The appellant alone was convicted but he was not given the maximum sentence on the ground that he was a young man of hardly 18 years of age and the killing appeared to be unpremeditated, as it had been committed in the beat of excitement on the spur of the moment, and only one blow had been struck with a knife.
8. It may also be mentioned here that the ocular testimony in the case was supported by the dying declaration of the deceased recorded at the Hospital, the recovery of the blood-stained dagger at the instance of the appellant, and the identification of the blood stains thereon as being of human origin.
9. From the judgment and order of the Additional Sessions Judge, Karachi, the appellant went up in appeal to the High Court, which was, on the 6th of June 1966, admitted for regular hearing by a learned Single Judge and thereafter heard on the 31st of August 1967, again by a learned Single Judge, who dismissed the appeal by his judgment of the 14th of November 1967.
10. From this order, the appellant came up on a regular petition for special leave to appeal to this Court but the same was dismissed on the 16th of February 1968, after considering the evidence, on the ground that Ashfaq produced the blood--stained knife in the course of investigation which had been treated as corroborative evidence. Ashfaq had also admitted participation in the earlier fracas and that he encountered Muhammad Ahmad but denied the stabbing.
11. The appellant again filed another appeal in the High Court of West Pakistan, Karachi Seat, on the ground that his previous appeal having been heard and decided by a learned Single Judge was not to accordance with sub-rule (19) of rule 1 of Chapter -III-B of Volume V of the High Court Rules under which an appeal against conviction and a sentence of death or transportation for life was "ordinarily to be heard and disposed of by a Division Bench". The Division Bench heard this appeal along with several other criminal appeals involving such sentences which had earlier been disposed of by a Single Judge and dismissed them all holding that "the appeals stand disposed of in so far as this Court concerned".
12. The appellant then filed a belated petition for leave to appeal from jail, on which this Court condoned the delay and granted leave to consider "the effect in law of the refusal of leave to appeal from a judgment of a learned Single Judge of the High Court which was passed without jurisdiction".
13. This appeal first came up for hearing before a Bench of three learned Judges of this Court on the 8th of February 1972, but they referred the question to a Full Court by reason of the importance of the legal question involved.
14. Learned counsel appearing in support of this appeal has contended that since under tats provisions of Article 130 of the Constitution of 1962, which prevailed at the time the appellant's appeals were dealt with in the High Court, no Court could have any jurisdiction, which was not conferred on it by or under the law, it followed, that a learned Single Judge of the High Court had in the year 1967, under the High Court Rules and Orders, no jurisdiction to hear an appeal involving a sentence of death or transportation for life. Such an appeal could have been heard by a Division Bench. Therefore, the proceedings before the learned Single Judge were coram non judice and a total nullity. The order of Supreme Court dismissing the petition for special leave on merits to February 1968, was, accordingly, also a nullity, as nothing which was based on a void order could be valid. The High Court, it is further contended, was, in the circumstances, not justified in refusing to hear the fresh appeal filed by the appellant. In doing so, it had clearly declined to exercise a jurisdiction Which, according to law, was vested in it.
15. The West Pakistan High Court has In the judgment under appeal as also, in another unreported judgment delivered on the 21st of January 1970, in Criminal Appeals Nos. 103 and 394 ) of 1966 and J-185 of 1967, takes the following view :- "(5) The objection to the jurisdiction of the single Benches which have decided these five appeals, is founded on the rule mentioned above, which regulates the jurisdiction of the Judges of the High Court, and cannot be taken to go further than that. In this respect, a distinction between the jurisdiction of a Judge of this Court by reason of his appointment as such, is distinguishable from the jurisdiction which he is to exercise in accordance with regulations made for this purpose. The observations of a Full Bench of this Court in Muhammad Nagin v. Haji Nawab Khan P 1. D 1962 Lah.
16. 722 and those of the Supreme Court in Shamsuddin v. Capt. Gauhar Ayub PLD 1965 SC 496 appear to support this distinction.
(6) Our attention was drawn by the Additional Advocate-- General to section 410, Cr. P. Code in support of his argument that in such appeals jurisdiction is exercised by Judges of this Court as members constituting the Court. The jurisdiction is conferred by this section on the High Court and not on Individual Judges or Benches. He contended that the Members of this Court exercise jurisdiction as Judges of the High Court; therefore, the basic jurisdiction which they exercise cannot be said to be detracted by reason of the regulations which are made for their proper exercise.
(7) Mr. Khalid Ishaque argued on the other hand, that jurisdiction of High Courts is conferred by clause 1 of Article 98 of the Constitution of 1962 as follows :- "A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law."
17. He emphasised the words 'or by law' and strengthened his arguments by referring to Article 130 of the Constitution, which is as follows :- 'No Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law: Thus emphasising the importance of law, he argued that the High Court Rule, mentioned above, being a law, it was correct to contend that exercise of jurisdiction by Single Benches of this Court, in contravention of the rule, was without jurisdiction. The emphasis made by learned counsel has undoubtedly its own value, but it does not appear to demolish the argument that the jurisdiction to hear these appeals is conferred by section 410, Cr. P. Code on the High Court, and not on individual Judges of the Court. Nor does this emphasis appear to be an answer to the distinction which is obvious between the basic and fundamental jurisdic--petition of the Judges of the High Court from the orderly and proper exercise of jurisdiction by their Judges in accordance with the rules made for this purpose."
18. Now the jurisdiction to hear appeal' against conviction in criminal matters Is derived from section 410 of the Code of Criminal Procedure which provides as follows :- ''Any person convicted on a trial held by a Sessions Judge, or an Additional Sessions Judge, may appeal to the High Court."
19. This is the section which gives the jurisdiction, but It does not say as to how that jurisdiction is to be exercised. Indeed, there is nothing in the Code of Criminal Procedure with regard to the manner of the exercise of the jurisdiction save that by clause (c) of subsection (2) of section 554 every High Court has been given the power to make rules "for regulating its own practice and procedure and the practice and procedure of all sCriminal Courts subordinate to it" with the previous sanction of the Provincial Government, provided that the rules and forms so made are not inconsistent with any of the provisions of the Code or any other law for the time being in force.
20. Similar power to make rules had also been given to the High Courts by Article 101 of the Constitution of 1962 which read as follows :- "Subject to this Constitution and the law, a High Court of a Province may, with the approval of the Governor of the Province, make rules regulating the practice and procedure of the Court or of any other Court subordinate to it."
21. Similar provisions for vesting the Court with rule-making powers were contained in the Constitution of 1956 and the Government of India Acts beginning with section 108 of the Act of 1915. In exercise of the powers conferred upon it by these Acts and by the Letters Patent granted to the High Court of Judicature at Lahore in 1919, the High Court of Lahore had framed rule 1(19)(a) of Chapter III of the Lahore High Court Rules, printed in Volume V of the High Court Rules and Orders, providing that all appeals involving sentences of death and transportation for life should be heard by a Bench other than a Single Bench. Subsequently by Correction Slip No. 173 a change was introduced on 3-1-1966 confining the operation of the above rule to cases involving death sentences only. This correction was, however, itself deleted by Correction Slip No. 180 on the 21st of October 1967, and the original position was reverted to Unfortunately, the information regard--ing the last change did not reach the office of the Additional Registrar, Karachi, until the 12th of March 1968, with the result that during this period appeals involving sentences of transportation for life continued to be heard by a Single Judge in accordance with the provisions of Correction Slip No. 173 of the 3rd of January 1966.
22. Subsequently, when this mistake was discovered, the matters were all placed before two different Division Benches for re-consideration. The judgment now under appeal is from one of these Division Benches. Both the Division Benches took the same view, namely, that though the hearing was irregular, it was not without jurisdiction and that the proceedingbefore the Single Judge were Coram nonjudice.
23. The reason given for reaching this conclusion was that since section 410 of the Criminal Procedure Code gave jurisdiction to the High Court to hear appeals against convictions and this jurisdiction of the High Court, under Clause 26 of the C Letters Patent of the Lahore High Court of 1919, could b performed by any Judge or any Division Bench of the Court as may be determine by the rules for convenience of business, no vested right accrued to any litigant to demand that a particular case should be heard by a particular number of Judges of the High Court. The rules were merely rules of business and could not add to, or subtract from, the provisions of the Letters Patent or the Statute by which the right to appeal was conferred. The rules could not, therefore, divide the jurisdiction of the High Court. The decision still remained a decision of the High Court, whether it was made by a Single Judge or by a Division Bench.
24. Clause 26 of the Letters Patent is in these terms :- "26. And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore; In the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915; ant if such Division Court is composed of two or more Judges and the Judges are divided in opinion alt to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the paint shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it."
25. To the same effect are the observations of this Court in the case of Shamsuddin v. Capt. Gauhar Ayub where after quoting -Clause 26 of the Letters Patent of the Lahore High Court, this court observed as follows :- "It follows therefore, that all the powers vested in the High Court of West Pakistan were also vested in each Judge of that High Court in respect of the whole area of the High Court's jurisdiction, and this was so wherever in that area, such powers should fall to be exercised by such Judge. The assignment of areas to the two Benches, under paragraph 4 of the Order, cannot be construed to restrict the jurisdiction of any Judge of the High Court, in derogation of the full jurisdiction conferred by clause 26 to hold otherwise would be to confer power on the Chief Justice to confine the jurisdiction of any Judge of his Court, in a manner contrary to the main instrument conferring jurisdiction, not only on such Judge, but upon the Chief Justice himself, and equals upon the whole Court. It would amount to creation of three High Courts with mutually exclusive jurisdictions, which is entirely outside the contemplation of the Order of 1955. Orders of assignment under paragraph 4 must therefore be construed to be without effect upon the fullness of the jurisdiction vested in each Judge of the High Court in respect of the entire jurisdiction of the High Court, subject, of course, to such orders as the Chief Justice might make as to the distribution and disposal of work, among and by the Judges and the Division Courts, of the High Court"
26. It may be pointed out here that the Letters Patent of the Lahore High Court and the Rules framed thereunder were made applicable to the West Pakistani High Court also at its various seats.
27. Reading these provisions of the Letters Patent and the Criminal Procedure Code together, it seems clear to us that a hearing conducted in disregard of the rules framed by the High Court does not render the hearing coram non judice or without jurisdiction or a nullity. The rules can clearly not have that effect. The rules are designed to lay down the manner in which the High Court proposes to exercise its jurisdiction. They cannot, therefore, have the effect of dividing the jurisdiction of the High Court by means of executive orders of the Chief Justice. Such a result could clearly not have been in the contemplation of the framers of the rules, for, once rules had been framed, they would have left no power in the Chief Justice to transfer a case from one Bench to another or assign a particular case to a particular Bench or to a particular Judge.
28. No one has any vested right in procedure and, therefore, no litigant can demand that his appeal or matter should be heard by a Bench constituted in a particular manner or by a Bench consisting of a particular number of Judges. This has of necessity to be left to the Chief Justice to decide in accordance with the exigencies of the Court. We are in full agreement, therefore, with the views expressed in the judgment under appeal, that the hearing before the learned Single Judge was by no means without jurisdiction or corum non judice. A party has a right of appeal its the High Court and not to any particular Bench of the High Court. The High --Court's own rule providing for the exercise of its various jurisdictions by one or more Judges or by Division Court constituted of two or more Judges is a rule for regulating the procedure of the High Court and the constitution of its Benches, and not to give any particular party a right to claim that his appeal or matter must be heard by a Bench so constituted.
29. There is no doubt that a rule framed by the High Court has the force of law and has ordinarily to be followed, but this does not mean that if by inadvertence or by mistake something is done which is not strictly in accordance with the rules, that must necessarily be void, nor can such a rule take away a jurisdiction given by the substantive provisions of the Statute itself. The rules do not affect the jurisdiction, nor can they curtail or restrict the jurisdiction given by the Statute, but they may only regulate the manner of the exercise of that jurisdiction. Thus, even where the exercise of the jurisdiction is irregular, the jurisdiction itself is not affected, particularly, where the mistake committed can be corrected by an appeal to a higher Court. It is an equally well-settled principle that if a Court not having jurisdiction wrongly exercises such a jurisdiction, an appeal lies from that decision in the same manner as an appeal lies from a decision with jurisdiction.
30. This appeal would normally have failed on this ground alone; but since the appellant bas been convicted on a charge of murder and sentenced to transportation for life, we have also re- examined his case on merits, but we find that there rat nothing much that can be said in his favour.
31. He admits participation in the incident and it is established, upon reliable evidence of independent witnesses that he was seen with an open knife in his hand and immediately thereafter the deceased was seen in an injured condition and carried to the Hospital where he died. The appellant nowhere alleges that the deceased had taken any part in the earlier quarrel, nor is there anything on the record to show that the appellant could have had any apprehension of death or grievous hurt by reason of any act done by the deceased. In the circumstances, he had no justifica--petition whatsoever to stab the deceased. There is nothing to be said on the merits either in this case. The appellant has beer, rightly convicted and sentenced.
32. This appeal must, therefore, fail and is, accordingly, dismissed.