2. The accused appealed and by a judgment dated the 3rd of September 1971 a learned Additional Sessions Judge at Karachi dismissed the appeal and holding that the sentence awarded to the accused was inadequate, he referred the case to this Court for enhancement of sentence. For the same consideration he refused to permit the accused to remain on bail. In clue course the reference came up to this Court but in the meantime on 30-9-1971 the accused also filed an application for revision challenging the correctness of the appellate judgment. These two matters numbered respectively Criminal Reference 46/71 and Criminal Revision Application No. 202/71 came up before Mr. Justice Ghulam Rasool K. Shaikh who on 20-10-1971 admitted the revision application to regular hearing and on 25-10-1971 ordered the release of the accused on bail and also ordered that the reference and the revision application be fixed together for final hearing. For reasons which are immaterial to the present case the accused was not actually released until the 11th November 1971. The 31st of October 1971 was fixed as a Farzi date for the reference and notice thereof was sent to the accused in July. The case was then fixed for hearing on 17-11-1971 and notice was again sent to Jail but in the meantime the accused had been released from Jail and presumably, therefore, the notice was not served; it is worth remarking however, that neither then nor up to now has the notice come back from the prison authorities with any endorsement. On the 12th of November 1971 the reference thus came up for hearing before me but due to some mistake in the office and despite the order of my learned brother Ghulam Rasool K. Shaikh, J. The Criminal Revision Application was not put up. The result was that the accused was unrepresented on that date since he was not served in the reference and his learned Advocate did not appear because the application for revision was not even listed. I proceeded to hear the reference for reasons which I shall presently -state I did not examine the merits of his conviction but upon the assumption that the conviction was correct I felt that the sentence was inadequate and accordingly enhanced it to two years' R I.
3. In due course the Criminal Revision Application came up for hearing before Mr. Justice Abdul Hayee Qureshi on 17-11-1972 and it was then brought to the learned Judge's notice that I had already decided the Reference and enhanced the sentence. In the meantime, however, on the 4th of December 1971 an application had already been made bearing Criminal Miscellaneous No. 869/71 stating the reasons why the accused was, not present when I had heard the reference and praying that my order dated 17-11-1971 be recalled and that the application for revision and the Reference be heard together. Upon that application I had passed an order on 7-12-1971 directing that the application for revision be fixed as also the Miscellaneous Application an d in the meantime allowing the accused to remain on bail. These facts being brought to the notice of my learned brother Kureshi, J. On 17-11-1972 the learned Judge directed that my orders be obtained for the hearing of the matters. I then directed these to be fixed before myself and heard them on the 5th of February 1973.
4. Mr. Haq Nawaz Raja who appeared for the accused before me has argued strongly that in the circumstances of the case his application for revision should have been heard by this Court and in any case on the Reference I should have permitted the accused to show cause against the enhancement of his sentence. He, therefore, claimed that my earlier order enhancing the sentence should be recalled. Now obviously the claim that I should have heard the applicant on merits, if well founded, could still be met technically by saying that since he was not present such an opportunity was not denied. This would, however, ignore two important facts, namely, that in actual fact the accused had no notice of the hearing on that date, and also the fact that he had expressly applied to this Court for revision and that that application still remained undecided when I enhanced the sentence. Besides I did not in fact consider the merits of the case. The principal question of law, therefore, that arises is whether as a matter of law and, whatever be the merits in favour of the accused, I can recall an earlier order for unless that is recalled there would be no point in acquitting the accused as that would indeed create an extremely anamolous position in that there would be two orders of this Court one for enhancement of the sentence and the other acquitting the accused and obviously both cannot stand together.
4. The bar, if there is any, against my recalling the earlier order is obviously contained in section 369 of the Criminal Procedure Code which reads thus: "369. Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no, Court, when it has signed its judgment shall alter or review the same except to correct a clerical error."
Now in express terms section 369 does not say whether the word `Judgment' refers to trial Court judgments or other judgments also. The section, however, occurs in Chapter XX VI of the Cr. P. C.
Which is headed "of the judgment" and the first section of this Chapter, section 366, starts with the words "The judgment in every trial in any Court of Original Jurisdiction". It seems very clear, therefore, that all the provisions in this Chapter are intended to relate to judgments given in the exercise of original jurisdiction by any criminal Court. This would of course include the High Court for the High Court also is a criminal Court and, in any case, the fact that section 369 expressly refers to certain savings, not relevant to my present purpose, in favour of the High Court shows that it was not intended to exclude the High Court from the meaning of the word "Court" in the entire Chapter but, as I have said before, this would meant the Court in the exercise of original jurisdiction.
Certainly I was not exercising original jurisdiction when I enhanced the sentence.
5. By reason, however, of section 430 of the Code of Criminal Procedure, finality is given, even to appellate judgments except in the cases provided for under section 417 and Chapter XXXII of the Code. Both references are clearly understandable. If section 417 was not referred to then it would become entirely meaningless inasmuch as an appellate judgment of acquittal passed by a Court inferior to the High Court could not then be interfered with under section 417 which can apply only in the case of such Courts since the power is exclusive to the High Court. The purpose of the reference to Chapter XXXII is equally clear in that this is a Chapter which relates to revisional jurisdiction, otherwise appellate judgments of inferior Courts would be immune from correction by the High Court.
6. The question then is, are any, orders of a criminal Court even though they finally determine the matter, passed otherwise than as a result of a trial or at the conclusion of an appeal, judgments within the meaning of section 369 or if necessary section 430? It is worth noticing that Chapter XXXII which deals with the revisional power of the High Court and some other Courts contains no provision analogous either to section 369--or section 430 and it would seem, therefore, that there is no provision which prevents the review, alteration or recall of any other kind of order final or otherwise than such as are described as judgments in these two sections. It is worth noticing that the word "judgment" itself is not defined any--where in the Code.
7. Some guidance is available from the case reported as Hori Ram Singh v. Emperor (AIR 1939 FC 43), although the point involved there was not precisely the same. Jurisdiction having been conferred by the Government of India Act, 1935 upon the Federal Court in certain circumstances to hear an appeal against a judgment of the High Court, in the particular case before the Federal Court a judgment of acquittal delivered by a Court of Session had been reversed by the High Court, which had ordered a re-trial. The question that arose, therefore, was whether this was a "judgment" within the meaning of the relevant provision of Government of India Act. Their Lordships of the Federal Court came to the conclusion that it was not. In the course of considering this question, however, Sir Shah Sulaiman observed: "Thus, judgment in the Code means a judgment of conviction or-- acquittal."
8. The question was considered by the Patna High Court in Ramautar Thakur and others v. State of Bihar (AIR 1957 Pat. 33), where an application for revision had been dismissed for default. It was held that neither section 369 nor' section 430 applies to an order passed by the High Court in exercise of its revisional jurisdiction. The fact that the case which the learned Judges were considering was one where the earlier judgment was passed in default, does not, I think, make any difference, whether it was passed in default or on merits it was nevertheless an order of the High Court and, if section 369' applied to such orders on the basis that such orders are judgments, then it would apply as much to orders passed in default as to orders passed on merits. That the propriety of interfering with the earlier order would be greatly influenced by the distinction between the two kinds of cases I am far from denying but that would be a matter of propriety and not jurisdiction; with that aspect of the matter I shall deal with at a more appropriate stage. A different view was taken by Mr. Justice Anwarul Haq, as a Judge of the High Court as he then was, in the case of Muhammad Samiullah Khan and another v. The State (PLD 1961 Lah. 227). The learned Judge observed: "6. My conclusion may, therefore, be stated thus. If a party has agitated in a matter by means of an application under section 561-A of the Criminal Procedure Code and the application is dismissed by the High Court, after considering the merits of the case, then a second application by the same party in respect of the same matter cannot be entertained under section 439 of the Criminal Procedure Code, notwithstanding the difference of language employed in the two sections while defining the scope of the powers enjoyed by the High Court under these sections, for the reasons that : (a) such a procedure is likely to lead to confusion, multiplicity of litigation and conflicting judgments, and (b) it will amount to an application to review or alter a judgment of the High Court against the express provisions of section 369 of the Criminal Procedure Code."
It will be seen that the first ground which appealed to his Lordship is really a matter which governs propriety, if I may say so, with great respect. Of course the second ground was clearly directed to a question of jurisdiction in--asmuch as it was grounded upon the express prohibition of section 369 of the Criminal Procedure Code.
9. In the case of Gulzar Hussain Shah v. Ghulam Murtaza and others (PLD 1970 SC 335) what was challenged was an order of the High Court canceling bail granted by an earlier order and the question, therefore, arose whether such orders come within the scope of section 369. Mr. Justice Waheeduddin Ahmad in delivering the judgment of the Court referred to the case of the Indian Supreme Court in Sankatha Singh and others v. State of Utter Paradesh (AIR 1962 SC 1208) and held that the decision there, which was concerned with the question of reviewing or restoring an appeal which had been disposed of, was not the same and therefore the case was distinguishable.
His Lordship then observed: "There is no quarrel with this proposition of law. The question for consideration is whether section 369 of the Criminal Procedure Code controls section 498, Cr. P. C. Or section 561-A of the Criminal Procedure Code applies to it. In my opinion, section 369 of the Cr. P. C. Does not control section 498 and in suitable cases section 561-A of the Criminal Procedure Code can be invoked. In the first place, an order passed under section 498, Cr. P. C. Is not a judgment within the meaning of section 369, Cr. P. C. Moreover, section 369 of the Criminal Procedure Code is in the Chapter relating to original trial and unless it is specifically applied to other proceedings under the Criminal Procedure Code, it cannot be said to have any application to other proceedings."
It will be noticed that expressly it was observed that section 369 is limited, to original trials. The Lahore case to which I have earlier referred was taken notice of in the judgment in a later passage in the judgment. The position as to cases which are not controlled by section 369, Cr. P. C. Is made even clearer: "I am conscious of the fact that general principle of finality of judgment attaches to the decision or order of the High Court passed in criminal cases. But it will not apply to cases where an order is passed without jurisdiction or without giving any opportunity to the parties of being heard. In such cases section 561-A, Cr. P. C. Can be invoked for the purpose of doing justice between the parties and for seeing that the act of the Court does no injury to any of the parties. This is an inherent power of the Court and has been preserved by the above provision of law. In my opinion in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decisions in cases which are not governed by sections 369, 424 and 430, Cr. P. C. With a view to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is, however, not possible to enumerate the circumstances in which this provision can be invoked. It may, however, be mentioned that the learned counsel for the appellant has conceded that application for bail can be made from time to time on fresh material. There is thus no difficulty in such cases."
I have, therefore, come to the conclusion that section 369 does not apply in j the present case and there is no legal bar to my recalling my earlier orders. Having said this, however, I should like to guard myself against being understood to mean that merely because section 369 does not apply, orders of this kind are not final. It does not follow by any means that whenever an application is made for reconsidering a case the Court is bound to or even A in propriety may, re-examine the earlier case and come to a different conclusion. To do so would mean that there will be no end to any case; which can be constantly re-opened and such a practice in my view would be contrary to all well established judicial principles. I recall in this connections the first ground which appealed to Mr. Justice Anwarul Haq in the Lahore case which I have cited and I am in respectful agreement with the learned Judge that such a procedure is likely to lead to confusion, multiplicity of litigation and conflicting judgments. The Supreme Court case to which I have referred does not lend itself to any such conclusion. In the second of the two passages which I have quoted from the judgment a clear note of warning is struck that it can only be in rare and exceptional cases that the High Court would have the power to revoke, review or alter its own earlier decision. In the case of bail, which is in its nature a matter for interim orders, it has been the consistent practice of the superior Courts and one, which they have insisted that the subordinate Courts follow that an order contrary to a previous order must not be passed unless something has happened after the earlier order to justify a change. When we are not dealing with interim orders (and in the present case I am not) there must be some exceptional reason which would justify alteration of a previous order. It is neither possible nor desirable to enumerate the different possibilities but one which occurs to me as a proper consideration and which I mean to rely upon in the present case is that an order previously passed may be altered where that order has been passed in violation of some mandatory provision of law or in violation of the principles of nature justice. In the present case as I have stated earlier I gave no opportunity to the accused to show cause against his conviction nor did I consider the merits of the conviction. Indeed I stated: "Since Muhammad Hanif's appeal has already been heard, he is not entitled to notice in showing cause against enhancement, to show cause also against the conviction."
"The extent and the mode in which an accused person can show cause against his conviction have not been defined. Where, therefore, a,, accused person has not appealed against his conviction at all, it ma-,;, be open to him to claim the right of attacking the findings of fact in the same manner and to the same extent in which he could have done if he had appealed to the lower Court. But he cannot, in my opinion, claim the same privilege where he has appealed and lost. I think it is not open to the accused in the circumstances of the case to challenge the findings of fact unless they can bring their case within the ordinary rule as applicable to revision applications."
The same view was followed in AIR 1929 Sind 26. In Emperor v. Haji Khamoo (AIR 1936 Sind 233) after quoting section 439(6), Cr. P. C. The Judicial Commissioner held:- "The words are notwithstanding anything contained in this section. It does not say notwithstanding anything contained in this Code'', and the effect of these words is, in our opinion, to allow the accused, when notice is issued to show cause why sentence should not be enhanced, and not only to show cause why sentence should not b,~ enhanced but to show cause against the conviction itself, provided that an appeal, if an appeal lies or a revision application, where no appeal lies, has not been already dismissed. We refer to the cases in 61 Cal. 6(1) and 36 Bom. L R 954(2), which support this conclusion. Section 439(6), Cr. P. C. Does not destroy and was not, in our opinion, intended to destroy the finality of judgments of appellate Courts given by section 430, Cr. P. C."
10. However, in Crown v. Misri (PLD 1955 Sind 366) the view was taken that the subsection entitles the accused person to show cause against enhancement even if he had no right of appeal.
Although this case is not in direct conflict with the earlier Sind cases it does seem to me that it takes a wider view of the right under section 439(6). The learned Judges observed: "It remains to be said that section 439(6) which entitles a person showing cause against enhancement of sentence to show cause also against his conviction is subject to no such bar as is an appeal, a plea of guilty does not in our opinion take away the right of showing cause against his conviction. This seems fair since in a case of enhancement of sentence the Crown moves to make his position worse and he should be entitled to make his position better."
Except the Bombay High Court, however, a different view has prevailed with the other High Courts in the sub-continent. It is unnecessary I think to cite the numerous cases on the point and it suffices to refer to Kala v. Emperor (AIR 1929 Lah. 584) and Crown v. Ghulam Mohammad (PLD 1950 Lah.
479) from the latter of which I am tempted to reproduce the following quotation: "I may point out respectfully that the decision to entertain a petition for enhancement after a revision petition by the accused has been dismissed by itself destroys the finality of a judgment in revision, and if, it could be reopened for the benefit of the Crown, it might v ell be reopened for the benefit of the accused."
11. I have, therefore, come to the conclusion that it is both permissible and proper that I should be reconsider the case of the accused.
12. On the merits there, are matters in the prosecution case which clearly leave at least a doubt in my mind. The case of the prosecution was that on the 16th of January 1971 one Maqbool Bari lodged a report at the Police Station Kurangi complaining of an attack on him by the accused. He alleged that he ran both a cycle shop and a tea shop and that the accused had hired a cycle and when he came to pay the charges which amounted to annas six insisted that only four annas were due. An altercation followed in she course of which the father and brother of the accused, Sabir and Sharif Whom I have earlier mentioned as having been acquitted by the learned Niiagistrate, came and helped him to inflict a blow upon the first informant with a knife.
13. There were several discrepancies in the story as put forward in the F. I. R. And as stated in evidence. For instance while the F. I. R. Says that minas six were due and the accused offered only four annas the deposition stated that hire charges at the rate of six annas were due while the accused offered him at the rate of annas four per hour. Of more serious consequence was the discrepancy that while in the first information report it was stated that the other two accused persons joined the accused m the depositions it was claimed that the accused went away and came back soon after accompanied by the other two thus showing more deliberation. Three witnesses were named in the F. I. R. As being eye-witnesses, namely: Mistri Nasrullah Baig, Riaz shopkeeper and Rabnawaz. None of these were, however, examined and instead two others, a woman called Mst. Halima and Abdul Wahid were examined besides the first informant himself.
Mst. Halima's evidence was hardly credible in as much as although she claimed to have witnessed the entire occurrence she could not say what was the cause of it. Abdul Wahid was a casual visitor who had come to the tea shop and not to the cycle shop. None of these witnesses although easily available near the site were examined until the next day.
14. The learned Additional Advocate-General also states that he is unable to support the conviction on merits. On the whole, therefore, I do not find it possible to maintain the conviction and, recalling my earlier order, I set aside the conviction and sentence imposed on the accused. He is already on bail and his bail bonds will be cancelled. The sentence having been set aside no question of its enhancement can arise and the Reference is, therefore, rejected.
K. B. A.