1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, is directed against the judgment of a Division Bench of the erstwhile High Court of West Pakistan upholding the convictions of the appellants for the murder of one Moonda on the 4th of November 1966, and confirming the sentence of death in the case of the appellant Noora. The sentence of death imposed on appellant Shera by the trial Court was, however, not confirmed on the ground "he acted under the evil influence of his elder brother". He was only given a sentence of imprisonment --for life.
2. Leave was granted on the 26th of November 1969, for further scrutiny by this Court to ensure safe dispensation of justice".
3. The appeal was heard first by a Bench consisting of four learned Judges of this Court including myself on the 19th and the 22nd of March 1971, when judgment was reserved. The main judgment was written by my learned brother Sajjad Ahmad Jan, J. Who came to the conclusion after examination of the evidence that "it would not be safe to uphold the convictions of the appellants on the material produced in the case". I agreed with his views, but my learned brothers, Muhammad Yaqub A.I arid Salahudin Ahmed, JJ., disagreed, and in their :1isseating judgments indicated that, their disagreement was based vainly on the ground that the order and sentence passed by a High Court in a criminal matter cannot be interfered with by this Court "by a process of rehearing the case."
4. The conclusion of my learned brother Yaqub A.I, J, after examination of a large number of decisions was to the following effect :- "It will thus be seen that opinions can differ if fresh appraisal of evidence is made in each Court. It is in this view that the Judicial Committee and the Federal Court of both India and Pakistan had declined to assess the weight of evidence as it amounts to retrial and rehearing of the case, which only a fully constituted Court of criminal appeal can do. The Supreme Court of Pakistan is certainly not a fully constituted Court of criminal appeal."
5. My learned brother, Salahuddin Ahmed, J., also came to the same conclusion and relied upon the observations of the Federal. Court in the case of Sarfraz A.I v. The Crown (PLD 1951 FC 78). These observations, as quoted in his judgment, are as follows: - "We would not review or interfere with the course of criminal proceedings unless it was shown that by a disregard of the forms of legal process, or by some violation of the principles of natural justice or otherwise substantial and grave injustice has been done."
6. These words are taken almost verbatim from the opinion of Lord Watson in A. M. Diller's case ((1887)
7. 12 A C 459).
8. PLD 1956 FC 171) whereby, in a case of equal division in this Court, the judgment of the High Court was to prevail. A Bench of five learned Judges then available heard this appeal on the 8th, 9th and 10th of November 1971, after notice to the Attorney-General of Pakistan, the Advocates-General of all the Provinces and the Presidents of the Bar Associations. The learned Attorney --General, the learned Advocates-General of East Pakistan, Sind and Punjab and the Presidents of the Lahore and Karachi High Courts Bar Associations were good enough to appear and assist the Court.
9. Unfortunately a further difficulty arose thereafter due to the non-availability of one of the learned Judges constitut--ing the Bench by reason of his inability to return from Fast Pakistan after the Eid holidays. The appeal hat, therefore, to be reheard on the 12th and the 13th March 1973 by the Full Court.
10. The learned Attorney-General and the learned Advocates General of East Pakistan, Sind and the Punjab contended at the previous Full Court hearing that we should not approach the question under any inhibition or from the point of view of the practice either of the English Courts or the Privy Council or the High Courts or even the Federal Court of Pakistan, because, the jurisdiction that is now exercised is of an entirely different character. The sweep of the powers of the Supreme Court of Pakistan is indeed wide and all embracing as the Constitutions from which it derived its powers placed no limitations thereon. The limitations, if any, are all self-imposed and based largely on the Privy Council practice. The question is whether this is necessary or desirable in the context of the changed circumstances under which the Supreme Court now functions. They are unanimously of the view that in the changed circumstances it is neither necessary nor desirable to adhere to the philosophical conceptions of the Privy Council evolved as a result of the limitations inherent in the exercise of prerogative jurisdiction by British Judges trained under the peculiar Anglo-Saxon system which did not favourably countenance an appeal on facts by the Court of last resort.
11. The learned Presidents of the Lahore and Karachi High Court Bar Associations also fully supported this point of view and maintained that there is no analogy between the Privy Council practice and the constitutional status of this Court as a Court of Appeal in the context of me constitutional arrangements consistently adopted by the successive constitutions adopter in this Country.
12. The learned President of the Karachi High Court Bay Association has taken pains to point out that even in the Unites States of America, which too adopted the Anglo-Saxon judicial norms, significant differences in the philosophy relating to appellate review in criminal matters had of necessity to develop because, as pointed out by Professor Delmar Karlen in his boo on Anglo-American Criminal Justice (p. 211). England had no written constitution, she was neither "plagued by the problem engendered by double Sovereignty" under a federal system no was she "beset by the type of racial, religious, and ideological struggles that complicate law enforcement in the Unite States" and above all there was no tendency In England to us law "as an instrument for effectuating major social changes' As a result of these differences the opportunities for appellate review in criminal cases had become far greater in the Unite States than in England and the right of appeal less limited. "1 short the tendency in the United States is exactly the reverse of that in England: to upset convictions rather than to save them."
13. As a classical illustration of this tendency he has cited a decision of United States Supreme Court in the case of Edward M. Fay v. Charles Nola (372 US 391) where the Supreme Court armed the decision of a District Court releasing on a habeas corpus petition an accused convicted on a murder charge on the ground that his confession was obtained by coercion notwith--standing that appeals preferred by his co-accused had proved successful and the petitioner fad preferred no appeal even though one was available.
14. The said learned President has, of course, invited this Court to display a similar tendency to secure the ends of justice, for, the situation in our own Country is comparable to the situation in the United States of America. We too have a federal system, a written constitution, a heterogeneous type of racial and religious population and a pressing need for social changes. Indeed, according to him, the Supreme Court has already judiciously but continuously launched on this process and it would not be desirable for it now to retrace its steps.
15. The learned counsel for the appellant not unnaturally fully supports these contentions and relies on a large number of decisions of this Court (which will be noticed later) to show that after leave to appeal has been granted the practice of this Court: has consistently been to review the evidence and that this Court has not, hesitated, in a fit case, even to reverse concurrent findings of fact.
16. The learned counsel for the State also conceded that this Court had the right to re-examine the evidence but maintained that even while doing so it should give due regard and weight to the opinions of the Courts below and should not ordinarily interfere with their findings except for compelling reasons. He agrees, however, with the other learned counsel that it will neither be desirable not advisable for this Court to lay down any hard and fast rule of practice which would restrict the power of this Court to do full justice.
17. At the present hearing too the Advocates-General, Punjab, Sind and N.W. F. P. As also the other learned counsel assisting the Court have all not only supported the arguments advanced at the Bar at the previous hearing but also sought to fortify them by a host of other decisions of this Court where leave was actually granted to re-examine the evidence in a criminal case and where the evidence was, in fact, re-examined and the findings of the Courts below reversed. Indeed no one at the Bar seems to be in favour of restricting the jurisdiction of this Court by the introduction of any self-imposed restrictions as a rule o f practice or procedure.
18. Before I proceed to consider as to which of the two compet--ing views, the one advocated at the Bar or the one propounded in the dissenting judgments, should prevail I propose to examine first as to whether the Courts in England or the Privy Council ever laid down any hard and fast rule of the type suggested by any learned Brothers in their dissenting notes.
19. "(a) Against his conviction on any ground of appeal which involves a question of law alone; and
(b) With the leave of the Court of Criminal Appeal or upon the certificate of the Judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal; and
(c) With the leave of the Court of Criminal Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law."
20. It will be noticed that tinder (b) above an appeal lay with the leave of the Court, inter alia even on any ground "which appears to the Court to be a sufficient ground" yet the British Courts could not shed their reluctance to interfere with findings of facts unless it was a case of no evidence or the verdict was, unreasonable or palpably wrong or one which could on no, account be supported having regard to the evidence or one which the jury would not have returned but for a misdirection as to the evidence. This reluctance was ascribed to the wording of section 4 of the Criminal Appeal Act of 1907 and its pro--viso which gave the discretion to the Court to dismiss the appeal if "no substantial miscarriage of justice has actually occurred." The Criminal Appeal Act of 1966 therefore, ultimately amended this section. By this amendment the word) "substantial" was deleted from the proviso and the Court was given power to set aside a verdict if "under all the circumstances of the case it is unsafe or unsatisfactory" or if "there was a material irregularity in the course of the trial."
21. Freed from the trammels of precedents relating to the inter--pretation of the language of the provisions of the Act of 1907 the Courts in England were not slow to react to the change in the legal philosophy and to respond to the spirit of its transformation. In the same year i.e. 1966 the Court of Criminal Appeal in the case of George Smith (51 CAR 22) reviewed the evidence and then set aside the verdict, because, "in all the circumstances of the case" it would be "unsafe and unsatisfactory" to allow the con--viction to stand. The same treatment was given in the follow--ing year to the verdict of another Jury in the case of Abdulla Muhammad Hassan (52 CAR 291) by the same Court.
22. It took another year, however, to complete the transforma--petition by the Criminal Appeal Act of 1968, which by its section directed the Court to allow an appeal against conviction in the following terms:- "2.-(1) Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think-
(a) That the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is un--safe or unsatisfactory; or
(b) that the judgment of the Court of trial should be set aside on the ground of a wrong decision of any question of law; or
(c) That there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred."
23. These provisions were interpreted by the Court of Appeal itself in the same year in the case of R. v.
24. Cooper (1969) 1 All E R 37) where Widgery L. J. Summarised his conclusions thus:- "It has been said over and over again throughout the years that this Court must recognize the advantage which a jury has in seeing and bearing the witness, and if all the material was before the jury and the summing-up was Impeachable, this Court should not lightly interfere. Indeed, until the passing of the Criminal Appeal Act, 1966, (51CAR22)-provisions which are now to be found in section 2 of the Criminal Appeal Act. 19681 (52CAR291)-it was almost unheard of for this Court to interfere in such a case. However, now our powers are somewhat different, and we are indeed charged to allow an appeal against convic--petition if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt In our minds, which makes us wonder whether an injustice has been done. This is a reaction, which may not be based strictly on the evidence as such it is a reaction which can be produced by the general feel of the case as the Court experiences it. We have given earnest thought in this case to whether it is one in which we ought to set aside the verdict of the jury notwithstanding the fact they had every advantage and, indeed, some advantages we do not enjoy. After due consideration, we have decided we do not regard this verdict as safe, and accordingly we shall tallow the appeal and quash the conviction. As far as this matter is concerned the appellant Is discharged."
25. Even in England, therefore the Court of Criminal Appeal is now no longer called upon to exercise its ingenuity for discovering grounds for holding verdicts of juries "unreasonable" or such that no reasonable body of persons could have arrived at the same. It is enough for it to entertain subjectively "some lurking, doubt" which might make it "wonder whether an injustice has-- been done." If British Courts of Criminal Appeal can feel justified in acting upon such wonderment then do we not possess the same right?
26. Let me now examine the Privy Council practice. The Privy Council was not a Court in the strict sense of the term but only a Board; as its official designation of the "Judicial Committee of the Privy Council" correctly signified; whose function was to advise the Sovereign-the fountain head of justice as to the manner---s to which he should exercise his or her, as the case may be, prero-- gative of justice in the Dominions and the Colonies, which then spread all over the World and comprised of heterogeneous types of people. It was not unnatural for it, in these circumstances, to be extremely conservative, cautious and circumspect in advising Interference. It adhered, therefore, to the old philosophical con--cepts of administration of justice that gave the maximum weightage to the opinion of local Judges who were expected to be more familiar with local laws aid local conditions.
27. The rule of practice that it set for itself was first fully enunciated In the case of R. v. Bertrand (L R (1807) 1 P C 529) a case from New South Wales, thus:- "It seems undeniable that in all cases, criminal as well as civil, arising in places from which an appeal would lie, and where either by the terms of a charter or statute, the authority has not been parted with, It is the inherent prerogative right, and, on all proper occasions, the duty of the Queen in Council to exercise an appellate jurisdiction, with a view not only to ensure, so far as may be, the due administration of justice In the individual case, but also to preserve the due course of procedure generally. The interest of the Crown, duly considered, is at least as great in these respects in criminal as in civil cases; but the exercise of this prerogative is to be regulated by a consideration of circumstances and consequ--ences; and interference by Her Majesty in Council in criminal cases is likely, in so many Instances to lead to mischief and Inconvenience, that in them the Crown will be very slow to entertain an appeal by its officers on behalf of Itself or by individuals.
28. The instances of such appeals being entertained are, therefore, rare. When the suggestions, if true, raise questions of great and general importance, and likely to occur often, and also where, if true, they show the due and orderly admi--nistration of the law interrupted or diverted into a new course, which might create a precedent for the future, and also where there is no other means of preventing these consequences, then It will be proper for this Committee to entertain an appeal, if referred to it for Its decision."
29. Next in point of time comes the famous case of In re: Abraham Mallory Dillet (1887 L R 12 A C 459) which came by special leave before the Board from the verdict of jury before the Sheriff, who was also the then Chief Justice of British Honduras, finding Dillet, a Barrister---at-law, guilty of perjury. In this case the Board actually inter--fered because the directions of the Chief Justice to the jury "were grievously unjust to the appellant, and in many in--stances outraged the proprieties of judicial procedure." In the course of his opinion, however, Lord Watson observed: "Such appeals are of rare occurrence; because the rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done.
30. These observations which have now become classical were, in my opinion, made more to highlight the outrageous nature of the behaviour of the Chief Justice of British Honduras rather than to indicate the limits within which the Board would advise the Queen to interfere yet in Arnold v. King- Emperor (L R 1914 A C 644) the Privy Council itself interpreted these words as follows t- "The present case brings prominently before the Board the question of what is the sense in which those words arc to be interpreted. If they are to be interpreted in the sense that wherever there has been a misdirection in any criminal case, leaving it uncertain whether that misdirection did or did not affect the jury's mind, then in such cases a miscarriage of justice could be affirmed or assumed, then the result would be to convert the Judicial Committee in to a court of Criminal Review for the Indian and Colonial Empire. Their Lordships are clearly of opinion that no such proposition is sound. This Committee is not a Court of Criminal Appeal. It may in general be stated that its practice is to the following effect. It is not guided by its own doubts of the appellant's innocence or suspicion of his guilt. It will not interfere with the course of criminal law unless there has been such an interference with the elementary rights of an accused as has placed him outside the pale of regular law, or unless, within that pale, there has been violation of the natural principles of justice so demonstra--tively manifest as to convince their Lordships, first, that the result arrived at was opposite to the result which their Lordships would themselves have reached, and, secondly, that the same opposite result would have been reached by the local tribunal also if the alleged defect or misdirection had been avoided."
31. Although the Privy Council had enunciated such a general rule It was, nevertheless, fully conscious that no such rule could be universally applicable and accordingly two years later hastened to add by way of caution in the case of La Cite De Montreal v. Les Ecclesiastiques Des Seminaire De St.
32. Sulpice De Montreal (1889) L R 14 A C 660) the following.
33. "It is the duty of their Lordships to advise Her Majesty in the exercise of her prerogative, and in the discharge of that duty they are bound to apply their judicial discretion to the particular facts and circumstances of each case as presented to them. In forming an opinion as to the propriety of allowing an appeal, they must necessarily rely to a very great extent upon the statement contained in tire petition with regard to the import and effect of the judgment complained of, and the reasons therein alleged for treating it as an exceptional one, and permitting it to be brought under review.
34. Experience has shown that great caution is required in accepting these reasons when they are not fully substantiated, or do not appear to be prima facie established by reference to the petitioner's statement of the main facts of the case, and the questions of law to which these give rise. Cases vary so widely in their circumstances that the principle3 upon which an appeal ought to be allowed do not admit of anything approaching to exhaus--tive definition. No rule can be laid down which would not necessarily be subject to future qualification, and an attempt to formulate any such rule might therefore prove misleading."
35. This caution was necessary because the cases in which the Privy Council had In fact interfered were increasing and not all of them could be justified upon the narrow limits indicated in Arnold s or Diller's cases.
36. Thus in Vaitninatha Pillai v. King-Emperor (L R 401 A 193) a conviction was set aside after reviewing the evidence on the ground that inadmis--sible evidence had been relied upon. In Arnold's case Lord Shaw characterized the last mentioned case as being one of a "most extraordinary character", because, the Board while purporting to follow the rule in Dillet's case had actually gone to the extent disbelieving one witness who was supporting "a confessed perjurer" and another who had given "under oath conflicting and contradictory accounts I previous judicial proceedings."
37. The important point to be observed in these cases is that the Board after granting leave did examine the evidence to satisfy itself that there had been no serious violation of any legal principle by the Courts below. In other words, the Board did not just accept the findings of the Courts below but satisfied itself that the findings were proper and had been arrived at according to legal principles.
38. As against this, in illustration of the cases in which the Privy Council has refused to interfere even on the ground of admission of inadmissible evidence, one may cite the case of Dal Singh v. King- Emperor (AIR1917PC25) where Viscount Haldane renunciated the principle of interference, without noticing the earlier opinion of Lord Atkinson in the case of Vaithinatha Pillat v. The King--Emperor, in the following terms: -- "It is well settled that the unwritten principles of the Constitution of the Empire restrain the Judicial Committee from being used in general as a Court of Review in criminal cases. But while the Sovereign in Council does not interfere merely on the question whether the Court below has come to a proper conclusion as to guilt or Innocence, such interference ought to take place where there has been a disregard of the proper forma of legal process, grievous and not merely technical in character, or a violation of principles in such a fashion as amounts to a denial of justice. Their Lordships have now heard full arguments in the case before them, and have examined the procedure and evidence with some minuteness.
39. But before considering the results, it is right that they should state what they conceive to be in a case such as that before them, the character of the limitation of their fur coon. The Constitution of the Empire is tending to develop n the direction of regarding as final, decisions given in the local administration of criminal justice. The general principle is established that the Sovereign in Council does not act, in the exercise of preroga--tive right to review the course of justice in criminal cases in the free fashion of a fully constituted Court of Criminal Appeal. The exercise of the prerogative takes place only where it is shown that injustice of a serious and substantial character has occurred. A mere mistake on the part of the Court below, as for example in the admission of improper evidence, will not suffice if it has not led to injustice of a grave character. Nor do the Judicial Committee advise interference merely because they themselves would have taken a different view of evidence admitted. Such questions are, as a general rule, treated as being for the final decision of the Courts below."
40. It is unnecessary to cite the other subsequent cases in which the dictum of Viscount Haldane has in one or the other form boon reiterated except to point out that in 1947 again in the cape of Smt.
41. Bibbabati Devi v. Romendra Narayan Roy (AIR 1947 PC 19) the Board itself felt the necessity of pointing out that the rule was not inflexible or of universal application and to indicate, as a caution to the Courts in India, some of the circumstances in which it might well do so in these words t- "From this review of the decisions of the Board, their Lordships are of opinion that the following propositions may be derived as to the present practice of the Board and the nature of the special circumstances which will justify a departure from the practice
(1) That the practice applies in the case of all the various judicatures whose final tribunal is the Board.
(2) That it applies to the concurrent findings of fact of two Courts and not to concurrent findings of the Judges who compose such Courts. There fore a dissent by a member of the appellate Court does not obviate the practice.
(3) That a difference in the reasons, which bring the Judges to the same finding of fact, will not obviate the practice.
(4) That, in order to obviate the practice there must be some miscarriage of justice or violation of some principle of law op procedure. That miscarriage of justice means such a departure from the rules, which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding is such a question of law.
(5) That the question of admissibility of evidence is a pro--position of law, but it must be such as to affect materially the finding. The question of the value of evidence is not a sufficient reason for departure from the practice.
(6) That the practice is not a cast iron one and the foregoing statement as to reasons that will justify departure is illustrative only, and there may occur cases of such an unusual nature as will constrain the Board to depart from the practice.
(7) That the Board will always be reluctant to depart from the practice in cases, which involve questions of manners, customs or sentiments peculiar to the country or locality from which the case comes, whose significance is specially within the knowledge of the Courts of that country.
(8) That the practice relates to the findings of the Courts below, which are generally stated in the order of the Court but may be stated as findings on the issues before the Court in the judgments, provided that they are directly related to the final decision of the Court."
42. Thus from theabove review of the decisions it transpires that though the Board's arms were not tied down by any law it was as a matter of practice reluctant to interfere in con. Sequence not only of the extraordinary nature of the prerogative jurisdiction itself but also of the growing tendency to give finality to the decisions of the superior Courts in the Colonies and India. The practice was not, however, a cast iron one, for, there may well occur cases of such an unusual nature as might constrain the Board to depart from the practice. The Board was as such always careful to add qualifying words e.g. "as a general rule", "ordinarily" or "generally" to indicate that even this rule of practice could in a fit case be departed from. Another significant fact which has emerged from the above examination is that whenever the Board granted leave to appeal it did examine the evidence in order not only to satisfy itself that no grave miscarriage of justice had been committed but also to make certain that the findings were proper and had been arrived at according to legal principles.
43. Let me now examine the practice of the Federal Court. This Court, it has to be remembered, was set up under the Government of India Act of 1935 and subsections (PLD 1951 FC 41) and (PLD 1952 FC 108) of section 205 thereof gave it the following appellate jurisdic--petition :- "(1) An appeal shall lie to the Federal Court from any judgment, decree or final order of a High Court in British India, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder, and it shall be the duty of every High Court in British India to consider in every case whether or not any such question is involved and of its own motion to give or to withhold a certificate accordingly.
(2) Where such a certificate is given, any party in the case may appeal to the Federal Court on the ground that any question as aforesaid has been wrongly decided, and on any ground on which that party could have appealed without special leave to His Majesty in Council if no such certificate bad been given, and, with the leave of the Federal Court, on any other ground, and no direct appeal shall lie to His Majesty in Council, either with or without special leave."
44. But section 208 preserved the prerogative jurisdiction of His Majesty in Council to hear appeals from a decision of the Federal Court in the case of a question relating to the inter--pretation of the Constitution or any Order in Council made thereunder without any leave and in all other cases by leave of the Federal Court or His Majesty in Council.
45. It will thus be seen that the only new jurisdiction given to the Federal Court was that of constitutional interpretation. In other matters an appeal lay to the same extent and under the same conditions as an appeal lay to the Privy Council.
46. After the establishment of Pakistan, however, the jurisdiction of the Federal Court was enlarged by the Federal Court (Enlargement of Jurisdiction) Act, 1949, which gave the Federal Courtof Pakistan the right to entertain and bear appeals from judgments, orders and decrees of the High Court without special leave in the same circumstances as an appeal could be entertained without special leave under the provisions of the Code of Civil Procedure by the Privy Council and with special leave in any other case. Direct appeals to the Privy Council were abolished by this Act. The process of transference of jurisdiction was, however, completed by the Privy Council (Abolition of Jurisdiction) Act, 1950, whereby the jurisdiction of the Privy Council was to cease to exist so far as it concerned cases from territories then constituting Pakistan and all pending appeals from such territories stood transferred to the Federal Court of Pakistan except those in which the Privy Council bad already delivered its judgment or reserved judgment of those which had been listed for hearing daring the Easter sittings of the year 1950.
47. It will thus be observed that the jurisdiction of the Federal Court was the same as the jurisdiction of the Privy Council in non-Constitutional matters and only in the latter category of cases could it act as a Constitutional Court of Appeal. It is not surprising, therefore, that it should also have adopted the Privy Council practice which it examined in some detail in the case of Sarfraz A.I Khan v. Crown (PLD 1951 FC 41) and came to the follow--ing conclusion; - "That this Court is not a Court of criminal appeal as the Judicial Committee was not, is as true today as it had been ever since the Board had started to function . . . . . . . The passing of the Independence Act in 1947 has made no difference whatever, for the Constituent Assembly has, in its wisdom, chosen to confer only such powers on this Court as had been possessed by the Judicial Committee of the Privy Council before the 1st of May 1950, and no further. It is possible to conceive as an abstract proposition that larger powers could have been conferred by the Constituent Assembly of Pakistan on this Court or on any other tribunal, and not only could the Judicial Committee Act of 1833 be superseded but it could have been provided that the voluntary limitations imposed by their Lordships of the Privy Council on themselves in disposing of petitions for special leave in criminal appeals, of which they must be presumed to be aware, should not be observed by this tribunal in adjudicating on Pakistan appeals and petitions. This was, however, not done and in the absence of any such legislation we cannot but hold that the constitutional reasons although of a different type, still hold the field. For the above reasons, we are of the view that the rules of practice adopted by their Lord--ships of the Judicial Committee in granting or refusing special leave to appeal in criminal cases has correctly been and should ordinarily be applied by this Court."
48. Again, in the case ofDilawar v. Crown (PLD 1955 FC 378), Muhammad Munir, J. (as he then was) enumerated the circumstances in which the Court would interfere thus: - "The cases in which the Privy Council expressed its readiness to interfere, and where on the principle of Sarfraz A.I Khan's case we would interfere, fall into two distinct categories:
(1) Where some irregularity has occurred in the trial; and
(2) Where a manifestly mistaken view of the evidence has been taken."
49. Then he went on to consider in detail the precise nature of the cases which would fall in these two categories but again, like the Privy Council, added the following caution :- "Of course the cases just enumerated are not exhaustive of the instances where a petition for special leave would be entertained and there may be many another reason for this Court's attention and interference which it is not possible to formulate with precision beyond this that the decision complain--ed of must involve a contravention of some general principle of law and resultant injustice."
50. It may also be pointed out that in this very judgment, Munir. J. Also accepted that one of the tests for judging as to whether a case came within the ambit of the categories in which the Federal Court would interfere was "that no reasonable man could possibly approve of it".
51. Next, in point of time, comes the decision in the case of Muhammad Sarfraz Khan v. The Crown (PLD 1953 FC 317) where the Court unanimously, after reiterating that "the Court does not function in a free fashion of a fully constituted Court of criminal appeal", entered upon an exhaustive examination of the evidence and "on a consideration of the entire evidence" reached the conclusion that "there was no reliable evidence in the case on which a finding of guilty" could have been founded. In effect, therefore, the Court did review the evidence and came to the conclusion that the "varying evidence", in the case, did raise "a reasonable doubt regarding the guilt" of the appellant before the Court to respect of the offences charged.
52. The views of the Federal Court were well summarized by Cornelius, J. (as he then was) in the case of Khuda Bakhsh v. The Corwn (PLD 1955 FC 378), where he observed :- "It is desirable that we should repeat that this Court does not sit as a Court of criminal appeal, and it is a matter of deep concern to us, as well as to the system of administration of criminal justice in the country, that we should not allow ourselves to be converted into a Court of appeal. While on the one hand, we possess the power which until 1950 was exercised by His Majesty, acting on the advice of Privy Council, to review any and all proceedings of a criminal nature, we have, on the other, consistently followed in this respect, certain principles laid down in a series of authorities by the Privy Council, which restrict our interference to cases of the most serious nature, involving what may be described compendiously as substantial and grave injustice, consequent upon the disregard of the forms of legal process, or violation of principles of natural justice."
53. Up to this stage, there can be no doubt that the ultimate Court in this Country did consistently maintain that it was not an ordinary Court of criminal appeal, and that since. It was exercising the juri3diction of the Privy Council, it would follow the same salutary principles as had been laid down by the Privy Council in the matter of criminal appeals.
54. "An appeal shall lie to the Supreme Court from any judgment, final order or sentence of a High Court in criminal proceedings, if the High Court-
(a) Has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life; or
(b) Has withdrawn for trial before itself any case from any Court subordinate to its authority, and has in such trial convicted the accused person and sentenced him as aforesaid; or
(c) Certifies that the case is a fit one for appeal to the Supreme Court; or
(d) Has imposed any punishment on any person for con--tempt of the High Court: Provided that where a certificate is issued under paragraph (c) of this Article an appeal shall lie subject to such rules as may be made in that behalf under paragraph 3 of the Third Schedule and to such other rules, not inconsistent with the aforesaid rules, as may be made in that behalf by the High Court."
55. From this day onwards, it is suggested, the Supreme Court did become an appellate Court even in criminal matters and) there eras no longer any analogy between ft and the Privy Council or the Federal Court. It was the highest Court at the apex of the judicial system in the Country and it was armed with all the powers of a Court of Appeal without any limitations whatsoever. Therefore, the decisions of the Privy Council or the Federal Court circumscribing their own jurisdiction by self- imposed restrictions necessitated both by the extraordinary nature of the jurisdiction exercised by the Privy Council and the special circumstances under which it functioned hearing appeals from distant lands inhabited by different types of people, no longer had any relevance in the context of its jurisdiction as a Constitutional Court of Appeal functioning within the Country at the apex of its judicial system.
56. Although the Constitution of 1962 did do away with appeal as of right in civil matters as also eliminated certificated appeals in criminal matters under clause (c) of Article 159 of the Constitution of 1956 it did not affect the rest of the criminal jurisdiction of the Court or its power to grant leave to appeal. The jurisdiction conferred on the Court by Article 58 in 1962 was as follows :- "58.-(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a High Court.
(2) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court shall lie as of right where-
(a) The High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution;
(b) The High Court has sentenced a person to death or to transportation for life; or
(c) The High Court has imposed punishment on a person in pursuance of the power conferred on the Court by Article 123.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) of this Article does not apply shall lie only if the Supreme Court grants leave to appeal. "
57. The position under the Interim Constitution of 1972 is much the same.
58. The question that I have now to examine is as to whether the Supreme Court did also recognise the change to its status and in the nature and content of its powers and react, accordingly, or did it continue to function in the same manner as the Privy Council and the Federal Court. It appears that although the Supreme Court did also from time to time emphasis that it was not an "ordinary Court of criminal appeal", yet, in practice, at any rate, in cases in which it had granted special leave to appeal, it did review the evidence and often interfered by setting aside the findings of fact arrived at by the Courts below. Thus, even in the year 1956, a definite tendency towards shedding the restrictions imposed by the Privy Council and the Federal Court began to be noticed and in the case of Munawar Ahmad v. The State (PLD 1956 SC), this Court, after examination of the evidence with the assistance of the State Counsel, actually discovered serious discrepancies in the evidence bearing on the question of motive and interfered on the ground that these discre--pancies had not received "necessary treatment" in the judgment of the High Court. It justified its action in these words:- "The reason for so close an examination of the evidence on these points is that they have not received the necessary treatment in the judgment of the Court below. The evidence of Nizam Din on the point of the demand is clearly of a shaky character, and this is emphasized indeed by firstly the clear evidence, supported by documents, given by Ghulam Muhammad contractor as D. W. 1 and by very marked uncertainty on Nizam Din's part regarding payment for the cigarettes. In a short state--ment, he gave three separate versions on this point in the state of the evidence; there is more than enough room for reasonable doubt that any official act was involved, the doing or not doing of which depended upon the furnishing of cigarettes to the Ahlmad. "
59. The appeal was, on the Court's own examination of the evidence, allowed and the appellant acquitted, even though the grounds upon which the acquittal was based did not come strictly within the principles earlier enunciated by Munir, J. In the case of Dilawar v. Crown.
60. The very next year, in the case of Hayat v. The State (PLD 1957 SC (Pak.) 207), Muhammad Munir, C.
61. J. Himself granted leave to appeal in order to consider the question whether the ocular evidence against him (the appellant) could have been rightly accepted.
62. Then, in the case of Kazi Abdul Jamil v. The State (PLD 1958 SC (Pak.) 12) leave was granted, because of the "very unsatisfactory nature of the judgment recorded in the High Court" and, because, a number of conclusions reached by the High Court on important points seemed "to lack the support of sound reason". In this case too the Supreme Court did-re-examine the evidence in a criminal matter justifying its action for the following reasons :- "In this case it has been necessary for this Court to re--examine the evidence in the light of all the proved circum--stances in order that justice should be duly administered. It is the function of the High Court to arrive at findings of fact upon the evidence, and this Court, as a rule, refrains from interfering with such findings, unless in very exceptional cases, which it is not necessary to categories here. Our inter--ference with the findings reached upon the evidence by the High Court in the present case has been necessary because in assessing that evidence the learned Judges in the High Court did not approach the case from the proper angle, and this has resulted it their reaching conclusions without giving the degree of consideration to the pleas taken in defence which those pleas clearly deserved. Unless the evidence in a case is assessed on the foundation of a clear understanding of all the circumstances as they appear, and with a full appreciation of the nature of the pleas advanced by the defence, there can be no safety in the dispensation of justice."
63. Again, in the case of Feroz Khan v. The State (PLD 1960 SC 344) the Court granted leave to re- examine the whole evidence in relation to the plea of self-defence raised by the accused, did so re--examine the evidence and allowed the appeal of two out of the three appellants before it.
64. PLD 1963 SC 17), the Supreme Court actually interfered, because, in its view, the High Court had ignored the principle that the benefit of every doubt must go to the accused 1 and in the case of Sultan Khan v. Taj Din (PLD 1963 SC 97) leave was actually granted "to examine the case afresh in view of certain features appearing from the evidence". The evidence was examined at length and "after carefully considering the whole evidence on record" the Court came to the conclusion that the acquittal of as many as three of the respondents was "manifestly against the weight of evidence" and had resulted in a miscarriage of justice.
65. PLD 1964 SC 26), In an appeal against acquittal, full examination of evidence was allowed and the evidence thoroughly reappraised, because, the Court felt that in a case of this nature the Supreme Court should be "satisfied independently that the evidence in the case was in quality and quantity adequate to support a conviction of the offence charged"
66. Again, in the same year, in the case of Afsar Khan v. The State (PLD 1964 SC 205), leave to appeal was granted "to re-examine the whole evidence" in order to check "the correctness of the view taken by the High Court", the evidence was re-examined and the appeal of two of the appellants was allowed.
67. Similarly in the case of Syed Riaz Haider Zaidi v. The State (PLD 1965 SC 179) leave was granted to re-examine the evidence to see "if chances of false implication have been adequately exclude".
68. Even my learned brother, Yaqub A.I, J., has himself been a party to a number of decisions in which the evidence has been reviewed at large. Thus, in the case of Sardar A.I v. The State (PLD1967SC217), leave was actually granted "on certain considera--tions arising out of the assessment of the evidence in the Courts below, for the purpose of re-examining the relevant evidence". The evidence was re-examined and then "after full examination of the relevant evidence" the appeal was dismissed.
69. PLD 1967 SC 307), leave was granted as it appeared from the record that "each piece of evidence against the accused is affected by a measure of doubt". The entire record was examined and the Court came to the conclusion that it was "unsafe for the trial Judge to place full reliance only on the committing Court statements of three eye-witnesses". The appeal was, accordingly, allowed.
70. There are several other decisions too in the same volume reported as, Mumtaz Ahmad Khan v. The State (PLD 1967 SC 326), Muhammad Ilyas v. The State (PLD 1967 SC 443) and Muhammad Hanif v. The State (PLD 1967 SC 451) where leave was granted to consider the evidence on the record, and in the last mention4d case, the Court, after considering the entire evidence, came to the conclusion, disagreeing with the Courts below, that the whole prosecution case was "streaked with falsehood"
71. Similarly, in the case of Bhai Khan v. The State (PLD 1969 SC 101), leave was granted to re-examine the entire evidence, and after doing so, many learned brother, Yaqub A.I, J., himself wrote the leading judgment, finding that the Courts below had wrongly disbelieved the testimony of some witnesses and set aside the convictions and sentences of some of the appellants.
72. It is interesting to note that in the case of Shakirullah v. The State (1968 SCMR 1210), my learned brother, Yaqub A.I, J., himself granted leave to re-examine the evidence, because, he felt that "the evidence of the material prosecution witnesses on which petitioner's conviction is based" was not correctly represented in the order of the High Court and the evidence relating to some other material facts was "equally of dubious value".
73. 1968 SCMR 1042), S. A. Rahman, C. J. Granted leave by a very brief order, merely because "there are features in the evidence in this case which would justify its re-examination by this Court".
74. PLD 1970 SC 491), my learned brother, Yaqub A.I, J. "perused the entire record and considered the plea pat up by the respondents during the trial" and thereafter came to the conclusion that "the reasons on which the learned Judges in the High Court based their conclusions were thus neither sound nor supported by any material on the record". He accordingly set aside the acquittal and restored the convictions and sentences recorded by the trial Court.
75. As against this, there are certainly some observations in orders granting leave to the effect that the Supreme Court will not grant leave merely for the purposes of appreciation of evidence vide Said Akbar v. The State (1970 SCMR 768), Nisar Ahmad v. The State (1971 SCMR 398) and Rustam v.
76. The State (1971 SCMR 599), but I have not been able to discover a case in which, after leave had been granted to re-examine the evidence, this Court had refused either to weigh the evidence or to come to its own independent satisfaction after full appreciation of the evidence.
77. The cases on this line can no doubt be multiplied but it is unnecessary to do so, for, the instances cited above are, in my view, sufficient to show that since 1956 the tendency of this Court has been to consider itself freed from the fetters of the practice of the Privy Council. It has not hesitated to re- examine the evidence where the justice of the cause so demand--ed, as is evidenced by the innumerable number of cases in which leave has been granted to consider the evidence as well as to re-examine the same.
78. The conclusion, therefore, to which I am driven after the examination of the relevant decisions and the constitutional provisions relating to the jurisdiction of this Court, is that this Court has every right to examine the evidence in a criminal appeal, if it is necessary to the interests of justice. In what circumstances it will do so is a matter on which it is neither possible nor desirable to lay down any bard-and-fast rule. Each case will have to be judged upon its own facts and circum--stances; but, at the same time, I must point out that although under the constitutional provisions the powers of this Court are in no way fettered, yet, from the very nature of things, there must be some difference in its approach towards the cases which come before it directly as an appeal and cases in which leave to appeal has first to be obtained.
79. The limitations, which the Court imposes on its powers are, however, only such as are implicit in the nature end character of the power Itself. They cannot be defined with any precision, because, it is not advisable to fetter the exercise of this discretionary power by any set rule. The Court will no doubt use its good sense in determining the circumstances in which It will grant leave and will exercise its discretion on well-- established principles; but where the Court reaches the con-- clusion that a person has been dealt with In violation of the established principles of the administration of criminal justice, then no technical hurdles should be allowed to stand in its way of doing justice and seeing that injustice is not perpetuated or perpetrated by the decisions of the Courts below.
80. Once, however, the Court has come to the conclusion that injustice has been done and has granted leave to appeal I, for my part, do not see any reason as to why an appeal by special leave should be treated differently to an appeal as of right. Both appeals should, in my view, stand on the same footing and should be determined according to the same principles of administration of justice by this Court. Now that we are no longer merely exercising a prerogative jurisdiction but are exercising powers conferred by the Constitution, there appears to me no valid reason for this Court to be inhibited by the limitations which the Judicial Committee of the Privy council had imposed upon itself. I cannot, therefore, persuade myself to agree that we should go back again to the rule in Dillet's case and narrow down the scope and content of our own constitutional jurisdiction. We should have the fullest power to do full justice without fettering ourselves with any self-imposed restictions, which are no longer necessary in the context of the changed circumstances in which we now function.
81. This, in my humble opinion, is the true scope and nature of the powers of this Court in a criminal appeal, whether it be an appeal as of right or an appeal by special leave, that has consistently been followed by this Court ever since 1956. Having thus determined the scope of my functions as a Judge of this Court, I now proceed to examine the evidence in the case before me, as stated in the leave granting order, "to ensure the, safe dispensation of justice".
82. I do not propose to recapitulate the facts of this case, which have been fully set out in the earlier judgment of my learned brother Sajjad Ahmad Jan, J.
83. The prosecution case, it appears, was sought to be supported mainly by the direct testimony of three witnesses, namely, Malli (P. W. 2), A.I Mochi (P. W. 3) and MR. Naziran (P. W. 4). Malli is the paternal uncle of the deceased and Mst. Naziran is his widow. A.I Mochi is the only witness who is not related to the deceased. The High Court came to the conclusion that in the background of enmity and blood feud between the parties the evidence of Malli and Mst. Naziran was "highly interested in character" but, nevertheless, decided to rely upon the same, because, it had been "sufficiently corroborated by A.I Mochi", a disinterested witness. The evidence of All Mochi, therefore, was the pivotal evidence on which the entire case hinged. He was a non-proprietor being a kamin of the village and he came to the place of the incident by accident on hearing the alarms raised by the companions of the deceased. His house was at a distance of more than 2 or 21 killas and there were several houses in between his house and the edge of the village abadi near which the incident occurred. All these houses were inhabited, but no one from any one of these houses either came out or gave evidence in this case. Even the two persons who were said to accompanying the deceased and his party at the time, namely, Umra and Mst. Sardaran, were not examined. But A.I Mochi, who accord--ing to his own version was on his way to the fields to answer the call of nature heard the cries and by hurriedly covering a distance of about 1 -- killas (40 steps) managed to arrive just in time to see the occurrence. He could not tell the number of blows inflicted on the deceased, nor did he raise any alarm. In fact, after remaining near the dead body for 2 to 3 minutes, he would have us believe, that he left to urinate and from there went to the mosque to offer his prayers and from the mosque he went straight to his house. He came out the following morning only when summoned by the police.
84. The conviction, based principally upon the evidence of A.I Mochi, could only be justified if his evidence was found to be unimpeachable in every respect. This raises the question as to whether upon the principle consistent with the safe dispensation of criminal justice accepted bar this Court the solitary evidence of a single witness, who happened to be there merely by chance, could be made the basis of the conviction?
85. The High Court considered him to be a truthful witness merely, because, it thought that he had not been shown to have any particular animus against the accused persons. This con--clusion however, was reached by ignoring the positive suggestion in cross-examination that he was a moin of the deceased party and that he had in fact joined the deceased in murdering the father of the accused. He denied the suggestion but the fact remained undisputed that although he was a kamin of the village he had come forward to support the prosecution. Would he have had courage to do so if he was a disinterested person Sajjad Ahmad Jan, J. Has taken the view that his disinteres--tedness is only a "guise" and that his evidence does not inspire any confidence. On the other hand, Salahuddin Ahmed, J. Thought that he could safely be relied upon, as there was co suggestion even to him to show that he had any particular reason to falsely implicate the appellants. This of course, I must point out with respect, is not quite correct, for suggestions were indeed made. Yaqub A.I, J. Has not discussed his evidence at all nor expressed any view with regard to his credibility.
86. This witness, as has been pointed out by Sajjad Ahmad Jan, J., did not also support the prosecution version fully, for, he did not see any bundle of bajra fodder at the spot or any fodder load, while the prosecution case was that the deceased and his companions had gone to the bajra field of the deceased to cut fodder and when they were carrying it back to the village the deceased was attacked at about degarwela. No bajra load was seized by the Police nor was any attempt made to verify the prosecution version by visiting the bajra field and finding out if any bajra was, in fact, cut from the field.
87. The veracity of the prosecution witnesses, including All Mochi, was also seriously affected by the fact that the recoveries of the weapons of offence at the instance of the accused persons were disbelieved by the High Court on the ground that even the recoveries had been witnessed by near relatives of the deceased although three lambardars were available in the village. The recovery witnesses had furthermore given incon--sistent versions on material points.
88. The time of the Incident alleged by the prosecution witnesses also did not fit in with the medical evidence which showed that, at the time of post-mortem examination, the stomach of the deceased was found to be full and so was the urinary bladder. From this physical fact the inference should have followed that the incident could not have occurred, as alleged by the prosecution, at degarwela but after evening time which is the usual hour for Zamindars in this part of the country to take their evening meal.
89. The defence case appears to have been that the deceased must have gone out to the fields to ease himself after his evening meal and was there attacked by someone of his enemies whose number was quite large, and it is for this reason that no independent witness could be found, apart from very near relations and a kamin, to depose in favour of the prosecu--petition.
90. The High Court admitted that deep-rooted enmity existed between the parties due to blood-feud and disbelieved the recovery of the blood-stained hatchets, yet accepted the oral evidence of interested witnesses merely on the ground that A.I Mochi was an unrelated witness having no move to falsely implicate the appellants. The apparent conflict created by the medical evidence was explained away by accepting the prosecution evidence, that the deceased took his last mean after finishing the cutting of the bajra fodder and just before starting on the return journey to the village, even though this is as incon--sistent with the normal course of conduct of agriculturists in this country. It is inconceivable that a person carrying his midday meal with him to the fields would wait till he had completed the cutting of the fodder and then take his meal just before returning home. The normal course of conduct would have been to take the meal earlier in the day or to wait till after returning home to have the meal in comfort.
91. The High Court was also not prepared to accept that All Mochi arrived there by accident or that he was a chance witness, because, he was a resident of the village, without realising that every resident of the village does not necessarily become a natural witness to an incident occurring on the outskirts of the village.
92. A.I Mochi's house was at a good distance away from the place of the incident and there is nothing on the record to show that he had of necessity to go that way to answer the call of nature at this time of the day. Nor is there any explana--petition by the witness as to why he had adopted the callous course of quietly departing from the place, after seeing a murder being committed, to await being summoned by the Police from his house in the following morning I have carefully considered the reasons given by the High Court for believing the evidence of A.I Mochi and I am con--strained to say that the reasons given are insubstantial and irrelevant. This conclusion appears to have been reached without taking into consideration all the relevant circumstances which affected his credibility. This was clearly a departure from the cardinal principle that not only evidence going in favour of the prosecution should be taken into consideration but also that which went in favour of the accused. Material brought on the record by the defence to show that A.I Mochi was sot a free from the influence of the family of the deceased should not have been ignored. If all this material had been taken into account it would have become apparent that the evidence inthe case was neither in quality or quantity adequate to support a conviction.
93. I would, therefore, allow this appeal, give the appellants the p benefit of doubt and set aside their convictions and sentences. They should be set at liberty forthwith, if not required in any other connection.
…and 22 more citing cases