MUHAMMAD AJMAL KHAN Versus MUHAMMAT SHAFAAT

1. KARAM ELAHEE CHAUHAN, J.‑I have gone through the judgment Of my' learned brother A. R. Sheikh, J. and though I agree that the present writ petition is not maintainable but as I differ on the subject of the maintain?ability of successive writ petitions in cases of present type i.e. cases of punitive detention, therefore, very respectfully I proceed to express my own views in: that respect as follows

ARGUMENTS OF THE COUNSEL FOR THE PETITIONER

2. The first point argued by the learned counsel for the detenu was that in the matter of issuing what is known as a writ of habeas corpus (a) there was no res iudicata or principle of finality of' judgment, decision or order and as such (b) successive writ petitions on the ?same grounds or (c) on different grounds could always be moved in the High Court. In this connection be referred to section 491 of the Code of Criminal Procedure (Act V of 1898)‑which reads as follows :‑

2. "Section 491. Power etc. to issue directions of the nature of a habeas; corpus.‑(1) Any High Court may, whenever it thinks fit, direct‑

(a) that a person within the limits of its appellate criminal jurisdiction be ?brought up before the Court to be dealt with according to law ;

(b) that a person illegally or improperly detained in public or private ?custody within such limits be set at liberty ;

(c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any ?matter pending or to be inquired into in such Court ;

(d) that a prisoner detained as aforesaid be brought before a Court martial or any Commissioners for trial or to be examined touching any matter pending before such Court‑martial or Commissioners, respectively ;

(e) that a prisoner within such limits be removed from one custody to? another for the purpose of trial ; and

3. (f ) that the body of a defendant within such limits be brought in on the? Sheriff's return of copi corpus to a writ of attachment.

(2) The High Court may, from time to time, frame rules to regulate the ?procedure in cases under this section.

(3) Nothing in this section applies to persons detained under the Bengal State Prisoners Regulation, 1818, or Bombay Regulation XLV of 1827, or the State Prisoners Act, 1859, or the Security of Pakistan Act, 1:952."

4. He then referred to section 369 of the same Code, which reads as follows

5. "Section 369.‑Court not to alter judgment.‑Save as otherwise provide& by this Code or by any other law for the time being in force or, in case of a High Court 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."

6. Learned counsel, confining the argument‑(to start with)‑to the provi?sions of the Criminal Procedure Code, submitted that directions in the nature of habeas corpus could be issued by a High Court under section 491,. and the only section which precluded a Court to review was section 369 which‑(to ?emphasise the point)‑was confined to "judgment" of the concerned Court‑ He submitted that section 369 occurred in Chapter XXVI of the Code which was headed "of the judgment" and contained eight sections‑(i.e. sections 366 to 373).‑The context of these sections shows that orders passed under section 491 of the Code were not within the contemplation of section 369 ibid which dealt with judgment of other types but not those given under section 491. In this way he submitted that on the strict construction of section 369 institution of successive petitions for issuance of directions of the nature of habeas corpus was not barred whether on the same or diff9rent grounds. If this was the position under section 491, Cr. P. C., it could not undergo a change, he submitted, merely because no such like power had been given also under Article 199 (1)(b)(i) of 1973 Constitution to the High Court. He also argued that the matter of habeas corpus may sometimes be called a criminal matter and sometimes a civil matter. In case it was a criminal matter he submitted, then, according to him, in criminal matters there was no res judicata. However, if it was a civil matter then in any case, it was a class or species of a special nature or characteristics in which the public policy demanded that the principle of res judicata ‑(or to put it broadly principle of finality of judgment, decision or order) should not be so rigidly applied. Projecting the point he submitted that strictly speaking the basis for applying a rule of res judicata or of finality of judgment. decision or order, is the public policy of putting finality to a list but as against this there was another public policy, namely, that liberty of a man was above all rules of technicalities and should be preserved at all cost and where that was the situation a successive application on same or similar grounds should not be prohibited on the technical principles hereinbefore mentioned and that the said principles must yield in the large interest of all concerned to the concept of the liberty of a citizen. Another point submitted was that in criminal cases each day of confinement was a fresh confinement and if any application was dismissed earlier that will pertain to the confinement up to the date of the order ,of the previous application but for confinement thereafter a fresh petition will always be competent even though the order impugned may be the same which was adjudicated upon earlier. In this respect he referred to (i) English Law as contained in various texts and cases, (ii) American Law as contained in the Corpus Juris, 1st Edn., Vol. 29, pp. 111 to 116, (iii) certain Indian cases, and (fv) in particular a Full Bench decision of the erstwhile West Pakistan High Court (Lahore) as reported in Mst. Nasim Fatima v. Government of West Pakistan and another ( P L D 1967 Lab. 103 ) (S. A. Mabmood, M. Jamil Asghar and Shaukat Ali, JJ.).

7. ARGUMENTS OF THE ATTORNEY‑GENERAL

3. As against the above, the learned Attorney‑General submitted that cases of English Law were not relevant on the subject in hand, because, there the earlier concept was that a person could file habeas corpus petition from Judge to Judge and from Court to Court as it was presumed that there was no res judicata in such matters. Later on this common law concept was statutorily abolished and it was enacted that successive habeas corpus petition could be filed (only) on new facts‑(but not the same grounds :) In Pakistan, he submitted, the law was codified and peculiar notions of unwritten on English Law were not relevant. He referred to C. P. Matthen and others v. District Magistrate, Trivandrum and another ( 1 L R 1939 Mad. 744 (P C) ), for the proposition that‑(prior to the introduction of writ jurisdiction to the Constitution of Pakistan)‑a High Court had no jurisdiction to issue a writ of habeas corpus as known to the .English common law and that its powers were confined in that respect to the issuance of only those directions which were contained in section 491 of the Code of Criminal Procedure. In this decision the Privy Council maintained a Full Bench decision of the five Judges of the Madras High Court as reported in District Magistrate, Trivandrum v. K. C. Mannon Kappilli and 5 others ( 1 L R 1939 Mad. 708 ). With this as the premises he submitted that jurisdiction under .Article 199 of the Constitution was a constitutional jurisdiction (just as earlier there was a statutory jurisdiction under section 491 of Cr. P. C.)‑which was to be exercised within the precise ambit of that Article. In this Article the technical words like certiorari, mandamus, prohibition, quo warranto and habeas corpus were deliberately not used by the Constitution‑makers, though such terms were used in 1956 Constitution and this avoidance was not without ,any substance. The reason was, he submitted, that the Constitution‑makers . did not intend to import into this Article the technical peculiar incidents of those processes which had customarily, conventionally or by practise or unwritten common law notions of other countries been attached to them. The concept, for instance, that all those or any of those writs were prerogative writs of the Crown, was no loner relevant, because, here there was no Crown and the High Court did not have any prerogative of its own nor was it a delegatee of any prerogative, because, in Pakistan according to Article 1.75(2) of the Constitution "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law." He argued that under Article 199 there was no provision for filing successive applications under clause (1) (b) (i) as, for example, was permissible in England in section 14 of the Judicature Act of 1960. The omission to provide such a clause in Article 199 of the present Constitution, he submitted, will show that in our country the law was different from that in England and here successive applications on the same cause of action were not permissible by ,.simply changing or repeating the old grounds. The theory that in criminal matters the principle of res iudicata or principle of finality of judgments, decisions or orders, was not applicable was not correct, as it was based on unwritten English Law so far as the writ of habeas corpus was concerned whereas we had written law on such matters in Pakistan. Similarly the plea that habeas corpus cases were species of its own kind so as to be immune from principles of res judicata or finality of judgments, decisions or orders due to the fact that they involved liberty of a citizen was not correct, In Pakistan Constitution due safeguard existed for preserving the liberty of a citizen and the Courts whose duty was to administer law and practice the Constitution could neither enlarge nor curtail their jurisdiction in zeal of their own progressive approaches to the question of liberty. The appeal to any public policy, as was being made by the learned counsel for the petitioner in this respect, was totally misunderstood and misdirected, because, Courts could ,not frame policies of their own when enforcing the Constitution. See Pettit v. Pettit ((1969) 2 All. E R 385). It was their duty, the learned Attorney‑General argued, to administer the law and to do justice to all manner of people according to law and Constitution and not according to abstract policies however attractive they may apparently appear to be. He also argued that in cases covered by judgments of convictions recorded by special or ordinary Courts the concept of continuing wrong was not applicable, because, that theory it was submitted, was peculiar only to those cases where detention was, for instance. not for a definite period. The case of Msr. Nasim Fatima v. Government of West Pakistan and another, it was argued, was not a good law, inasmuch as, it was based upon the old unwritten common law of England which itself had undergone statutory changes and wherein provisions of Judicature Act of 1960 and other later cases on the subject had not been noticed. He submitted that so far as the facts and circumstances of the present case are concerned, the legality of conviction of the detenu had already been examined in Writ Petition No, 625 of 1972 reported in Ziaur Rahman v. The State (PLD 1974 Note 3 at P.4) by five Judges of this Court who were all unanimous that his trial and conviction did not suffer from corum non judice or male fides. Against the judgment and decision of this Court the detenu filed an appeal being Criminal Appeal No. 69 of 1973 in the Supreme Court which was dismissed by the Full Court on 8‑1‑1973 upholding the conviction and sentence of the detenu. See The State v. ZiaurRahman and others ( P L D 1973 S C 49 ). He then filed a Review Petition No. 2 of 1973 urging additional grounds which too brought no success as the Supreme Court dismissed it on 15‑10‑1973. See Muhammad Mukhtar Rana v. The State and 2 others (P L D 1973 S C 614). The field, he submitted, was occupied by three judgments of the Superior Courts and on the peculiar facts and in the circumstances of the present case, a second petition under Article 199 of the Constitution to challenge again the legality and correctness of the conviction and sentence of the detenu was not justified inasmuch as it will tend to question earlier orders of this Court and also of the Supreme Court (which jurisdiction the High Court did not possess under Article 199 (1)(b)(i) of the Constitution where under it can neither issue a direction to its own self nor to a Court superior to it, namely, the Supreme Court and nor can it give declarations mentioned therein about its own previous judgments or the judgments of the Supreme Court. He submitted that what cannot be done directly should not be allowed to be done indirectly. Last but not least, he submitted, that the principles of judicial dignity as laid down in Fazal Elahi and others v. The Crown ( PLD1953FC35 ) demanded that as the matter had passed through the Supreme Court twice this Court should not entertain this petition which has the propensity of ignoring the two orders and judgments of the Supreme Court and which tempts this Court to avoid the effect of those judgments or to go out of them by looking to additional grounds most of which were not considered worth anything even in review by the Supreme Court. The present petition was nothing but an abuse of process of law and it was submitted by the learned Attorney‑General that it should be dismissed as such.

4. Examination of Law on the Subject and my findings thereon‑(a) The arguments raised on both sides are very interesting and important and to appreciate the same one has to focus his attention to Article 199 of the Constitution, which reads as follows Article 199. Jurisdiction of High Court.‑(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law

(a) on the application of any aggrieved party, make an order‑

8. I. directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, l, a Province or a local authority, to refrain from doing anything he is' not permitted by law to do, or to do anything he is required by law to do, or

(ii) declaring that any act done or proceeding taken within the, territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a province or a local authority has been done or taken without lawful authority and is of no legal effect ; or

(b) on the application of any person, make an order‑

(i) directing that a person in custody within the territorial jurisdiction, of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner ; or

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law be claims to hold that office ; or

(c) on the application of any aggrieved person, make an order giving. such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.

(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II shall not be abridged.

(3) an order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan or who is for the time being subject to any law relating to any of these forces, in respect of his terms and conditions of his service, or in respect of his matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or is a person subject to such law.

(4) Where‑

(a) an application is made to a High Court for on order under paragraph (a) or paragraph (c) of clause (1), and

(b) the making of an interim order should have the effect of prejudication or interfering with the carrying out of a public work or of otherwise being harmful to the public interest or of impeding the assessment or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reason to be recorded in writing, is satisfied that the interim order‑

9. I) would not have such effect as aforesaid ; or ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.

10. 5) In this Article, unless the contract otherwise requires,‑

11. 'Person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme , Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan ? prescribed law officer" means‑

(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney General, and

(b) in any other case, the Advocate‑General for the Province in which the application is made."

12. A perusal of this Article will show that it is a new charter of juris?diction of the High Court. In its nature, it confers a supervisory jurisdiction in the High Court and it no longer contains words like mandamus, certiorari prohibition, quo warranto and habeas corpus as was the position in 1956 Constitution. I had the occasion to attend to this aspect of the matter in Abdul Aziz v. Muhammad Ali and others ( P L D 1967 Lah. 762 ) (with reference to Article 98 of 1962 Constitution which so far as the subject in hand is concerned was in parinraterta with the present Article 199)‑wherein at pages 765 to 767 I held as follows :‑

13. "Before dealing with the points aforesaid, it is necessary to examine the nature of the jurisdiction conferred on the High Court under Article 98 of the ‑ Constitution. After the nature and scope of this jurisdiction is traced out, it will , be easier to find out as to how that type of jurisdiction is exercised and what are the well‑recognised judicial principles which regulate. it. In Mahboob Ali Malik v. The Province of West Pakistan and another (P L D 1963 Lah. 575 ), this Court pointed out while comparing the old jurisdiction of the High Court for issuing writs with the present Article 98 of the Constitution, that the scope of writs was not defined in the earlier Constitution, but had to be gathered from the text‑books on the subject and from cases decided in England and other countries where writs under those names (namely, mandamus, prohibition, certiorari and quo warranto) are issued. The present Constitution by its Article 98 appears to have made an attempt to reduce into self‑contained propositions that which was regarded as the substance of those four writs. In the course of their evolution some distinguishing incidents had come to attach to some of those writs. Those distinguishing features, it seems, have not been incorporated is Article 98, apparently because they were not regarded as being of the essence of the remedy. The conditions of exercise of jurisdiction in relation to the various writs have thus become more uniform. As a consequence, in some cases the field covered by the earlier writs, has become somewhat enlarged and in others it has become somewhat curtailed. The writ of certiorari for example, was available originally in respect of judicial, quasi ? judicial Acts only. It was not available in respect of non judicial determinations. Article 98 has not preserved any such distinction, with the result, that all orders passed in excess of lawful authority, whether by judicial, quasi judicial or non‑judicial functionaries. are equally liable to be declared as being of no legal effect. On the other hand, the requirement that this jurisdiction should be exercised only if there is no other adequate remedy, has become equally applicable to all the cases falling under Article 93. In English Law, apparently, this requirement was insisted upon rigorously only in relation to mandamus. In relation to certiorari, it was frequently relaxed. Article 98, however, is not susceptible to any discrimination between mandamus and certioriari on this point."

14. In Muhammad Khan v. Additional Commissioner and Commissioner Frontier Crime Regulations, Quetta Division, Quetta and others ( P L D 1964 Lah.401 ), this Court, again laid down while dealing with the various clauses of Article 98 of the Constitution, that the first or second clauses of Article 98t2)(a) "are not confined to cases where to person, against whom the order is proposed to be passed, has been performing judicial or quasi judicial functions. Administrative or executive authorities also fall within the orbit of the jurisdiction conferred by the above Article on the superior Courts. The provisions of Article 98 are in this respect wider in scope than its predecessors, with the result, that the Superior Courts now exercise a wider jurisdiction ..." To the same effect is the dictum of their Lordships of the Supreme Court in Abul A'la Maudoodi v. Government of West Pakistan ( P L D 1964 S C 673) that administrative or executive authorities now equally fall within the ambit of the jurisdiction of the High Court under Article 98 of the Constitution.

4. In the recent case Mian Jamal Shah v. The Member, Election Com?mission etc. (P L D 1966 S C 1) the Hon'ble Judges of the Supreme Court expressed themselves as follows with regard to the nature of jurisdiction conferred by Article 98 of the Constitution on the High Court, Cornelius, C. J., wrote as follows :‑

15. "Article 98 is a wholly new provision and confers a new jurisdiction. To regard it as continuation of the power conferred upon the Supreme Court and the High Courts by Article 2(4) of the Laws (Continuance in Force) Order, 1958, to issue writs of habeas corpus, mandamus, prohi?bition, quo warranto and certiorari, is in my view an error. The Constitution of 1956 gave similar power to the Supreme Court and the High Courts by expression in more than one Article, but it is well? recognised that by the abrogation of the Constitution, and the introduction of Martial Law, a wholly new source of plenary Authority came into existence and it was from this new source that the new power in Article 2(4) of the Order of 1958, was derived. Again, when the Martial Law Order was brought to an end, the Laws (Continuance in Force) Order was revoked with effect from the date of commencement of the Constitution of 1962 which itself was given to the country by the President in exercise of the mandate given to me on the fourteenth day of February, one thousand nine hundred and sixty, by the people of Pakistan.'

16. This again was a wholly new source of plenary authority and it was from this source that simul?taneously the High Courts were given jurisdiction under Article 98."

17. And at another place his Lordship proceeded to write as follows :‑ "that any assumption that the power under Article 98 is something inherent in the High Court, something of earlier origin than the. Constitution of 1962, is one that cannot be supported."

18. Mr. Justice Kaikaus held as follows :‑

19. "In the Constitution of 1956, jurisdiction for judicial control had been conferred on the High Courts in terms of English writs of certiorari, mandamus, etc. Similar was the provision in the Laws (Continuance in Force) Order of 1958. The defect in this method of conferment of jurisdiction was that whenever a question arose as to the limits of this jurisdiction reference had perforce to be made to the scope of various writs in England. The English judgments were not uniform and in fact sore of them were hard to reconcile. It was desirable, therefore, that the jurisdiction of the High Court be, stated without reference to the English writs and in words which it would not be difficult to construe. This is what I presume, the draftsman of the present Constitution attempted to do in Article 98."

5. The upshot of the above discussion is that the jurisdiction under Article 98 cannot be said to be a continuation of the old jurisdiction which existed in the Laws (Continuance in Force) Order, or the late Constitution of 1956, etc. This is a new jurisdiction which is self‑contained in itself.

20. Keeping that feature of the Constitution in the forefront, I have no hesitation in holding that unwritten common law notions prevalent in England., and elsewhere in the matter of issuing writs of habeas corpus are not. applicable in our country where the jurisdiction (so far as relevant for the present case)‑to examine legality of detention (punitive or preventive),?‑is contained in Article 199(l)(b) (i) of the Constitution. In other words,. Courts in Pakistan cannot issue common law writs of habeas corpus nor do they possess jurisdiction to issue such a writ on the peculiar notions or practices prevalent there, and here we will have to confine ourselves within the Constitutional framework on the subject in hand.

(b) The unwritten common law jurisdiction or notions regarding. issuance of writs of habeas corpus were not applicable in this country even prior to establishment of Pakistan is well supported by high authorities. In this connection I may refer to C. P. Matthen and others v. The District Magistrate of Trivandrum and another ( 1 L R 1939 Mad. 744 (P C) ) where at page 758 the Privy Council observed that "on this point their Lordships agree with the conclusions of the Full Bench in the present case which are stated in the judgment delivered by the learned Chief Justice as follows

21. "The High Courts Act of 1861 authorised the Legislature if it thought fit to take away the powers which this Court obtained as the successor of the Supreme Court, and Acts of the Legislature lawfully passed in 1875 and subsequent years leave no doubt in my mind that the Legislature has taken away the power to issue the prerogative writ of habeas corpus in matters contemplated , by section 491 of the Code of Criminal Procedure of 1898."

22. Indeed counsel for the appellants stated that he found difficulty in pressing this contention, and the reasoning of the learned Chief Justice, on which he based the above conclusion, is so clear and convincing, including his narration of the Legislative Acts referred to in his conclusion, that their Lordships are content to adopt it, as also to state that like the learned Chief Justice, they are in entire agreement with the judgment of Rankin, C. J. in Girindra Nath Banerji v. Birendra Nath Pal ( I L R 54 Cal. 727 ).

23. The case of five judges of the Madras High Court where Leach, C. J. wrote the judgment of the Full Bench which was approved by the Privy/ Council is reported in the same volume of District Magistrate, Trivandrum v.. K.C Kammon Nappillai and five others I L R 1939 Mad. 708 () where it was held that the High Court had no power to issue a writ of habeas corpus as known to the English common law. Its powers are confined in this respect to those conferred by section 491 of the Code of Criminal Procedure, which gives authority to issue directions of the nature of a habeas corpus . In that case before the Full Bench reliance for the issuance of prerogative writs of habeas corpus was sought to be placed upon the decision of the Judicial Committee of the Privy Council in Eshugbayi Eleki v. Government of Nigeria (Officer Administering) ( (1928) A C 459 ). Leach C. J. made the following observations about .that case :‑

24. "The decision of the Judicial Committee in Eshugbayi Eleki v .Government of Nigeria (Officer Administering), on which Pandrang Row, J. so much relied in holding that he had jurisdiction in the matter, has in our opinion no application. The decision in that case would, of course, be binding upon this Court if the position was the same in British India as it is in Nigeria. In Nigeria the right to issue the prerogative writ of habeas corpus still exists but here the right has been taken away."

25. It is this enunciation of law which the Privy Council in the case of .C. P. Matthen and others v. The District Magistrate of Trivandrum and another adopted as correct law applicable in India. The facts of the .case of Eshugbayi Eleki v. Government of Nigeria were that there had been ;filed successive applications of habeas corpus which were held to be not maintainable by the Nigerian Court but the Privy Council held it to be maintainable in that country on the basis of the English common law on the subject. This notion or practice of common law of England was held ,by Leach C. J. to be inapplicable in India and if we read the two judgments of Privy Council I e. Eshugbayi Elekl v. Government of Nigeria and ivlatthen and whers v. The District Magistrate of Trivandrum and another together with District Magistrate Trivandrum v. K. C. Kammen Nappillai and five others then in my view it can be successfully urged that the Privy Council did not consider the common law notion or practice of successive applica? tions as applicable in this sub‑continent. The distinction which I have

26. :presently made of the case of Eshugbayl Elekf v. Government of Nigeria was made in the same way in Mst. Haydarl Begum v. Jawan Govern= Shah ( A I R 1934 All. 22 ), (King and Collister JI.). It was a case of the custody of a minor who was sought to be released from the alleged illegal confinement of the respondent for being handed over to the petitioner under section 491 of the Cr. P. C. The first petition of the petitioner was dismissed whereupon she filed a second application on the same subject and same facts. A question arose whether a successive application of habeas corpus could be made or not King J., who wrote the judgment of the Bench, held as follows :‑.

27. "Sir Tej Bahadur Sapru for the applicant has relied strongly upon the Common Law practice, relating to applications for a writ of habeas corpus, which is in force in the Courts of England and has been held in Eshugbayi Eleko v. Officer, Administering the Government of Nigeria to apply also to the Supreme Court of Nigeria. The law laid down in this ruling and in certain other rulings on the same subject is stated as follows

28. "The applicant (for a writ of habeas corpus) has a right to apply successively to every Court competent to issue a writ of habeas ???????? corpus, and each tribunal must determine such an ? application upon ? its merits unfettered by the decision of any other tribunal of co? ???????? ordinate jurisdiction even though the grounds urged are exactly the same. Thus, each Judge of the High Court of Justice has jurisdiction to entertain an application for a writ in term time or vacation, and he is bound to hear and determine the application on its merits, notwithstanding that ???????? some other Judge has already refused a ? similar application: "Halsbury's" Laws of England (2 net Edn. Vol. 9, para. 1239)." ??? The question then arises, whether this practice should be followed in the High Court of Allahabad, in the case of applications under section 491, Criminal P. C. We think it is clear that the rulings upon which the practice is founded have no direct application to proceedings under section 491 in this Court. The rulings lay down the law relating to applications for writ of habeas cropus in countries where the Common Law of England is in force. In this Province the Common Law of England is not in force and this High Court has not the Common Law right of issuing a writ of habeas corpus. It only has the power, conferred upon it by statute, of making "directions of the nature of a habeas corpus". Sir Taj Bahadur Sapru has not argued that the Common Law of England is in force in this Province, but he argues that if there is no prohibition imposed by statute, or by any rule having the force of law, then the common law practice relating to writs of habeas corpus "should be followed in the analogous proceedings under section 491 of the Code, as being a salutary and reasonable practice. The general argument seems to be that as the powers to be exercised are similar, so the procedure to be followed should also be similar. ? Section 491, Criminal P. C., 1898 did not originally confer any power upon the High Court at Allahabad. It only conferred powers on the High Courts in presidency towns to make directions of the nature of habeas corpus within the limits of their ordinary original civil jurisdiction. In the year 1923 the Code was amended and by the amendment all the High Courts in India were given power to take action under section 491 within the limits of their appellate criminal jurisdiction. It seems clear therefore that the power which we are now being asked to exercise was conferred upon this Court by statute for the first time in 1923. It is a power which was conferred by statute and not merely regulated by statute. In such circum?stances we do not think that the rules of Common law which govern the procedure relating to, an application for a writ of habeas corpus would necessarily or by implication be considered applicable to the exercise of the statutory power conferred upon us under section 491.

29. It is argued that there is no prohibition against making successive identi?cal applications under section 491 either in any statute or in any rule regulat?ing the procedure in cases under that section. Section 491 empowers High Courts to frame rules to regulate the procedure in cases under that section. We are informed that no rules have been passed by this High Court for regulating the procedure under section 491. There appears therefore to be no special legal prohibition against the presentation of successive identical applications praying for a direction under section 491. But the very fact that High Courts have expressly been empowered to make rules regulating the procedure under that section shows, in our opinion, that the Legislature never contemplated the applicability of the Common Law rules governing, applications for writ of habeas corpus. Although there are no special rules' regulating the procedure under section 491 there is however a general rule made by this High Court in exercise of the powers conferred by parliament, Letters Patent and Acts of the Indian Legislature, which appears to be decisive of the point in issue. Rule 8, Chapter 1 of these Rules of Court runs as follows :‑

30. "No application to the same effect or with the same object as a previous application upon which a Judge has passed any order, other than an order of reference to another Judge or Judges, shall, except by way of appeal be presented to any other Judge or Judges on behalf of any person on whose behalf alone or with others such previous application was presented."

31. As this rule relates to applications in general it would prima facie relate to an application under section 491, Criminal Procedure Code. It is argued for the applicant that this rule cannot apply to applications made under section 491, because the rule was made long before 1923, when power to take action under section 491 was for the first time conferred upon this High Court. It is true that when rule 8 was framed it could not have been contemplated that it would apply to applications made under section 491. But section 491 empowered the Court to frame special rules governing the procedure under that section, and as this High Court has not made any special rules governing the procedure under section 491, we can only infer that no special rules were thought necessary and that rule 8, which governs applications in general, was considered fitting to govern applications under section 491 also. In any case the language of rule 8 is undoubtedly wide enough to include applications under section 491 and we consider ourselves bound to give effect to it unless and until this High Court thinks fit to make special rules expressly permitting the presentation of successive identical applications for a direction under section 491, after previous applications to the same effect and with the same object have been rejected.

32. Even if we were at liberty to disregard rule 8 of the Rules of Court, on the ground that it was never intended to apply to applications made under section 491, we should hesitate to adopt the rule of Common Law relating to writs of hebeas corpus, permitting successive identical applications, as being a rule so obviously reasonable and desirable that it ought to be extended to the exercise of statutory powers conferred by section 491. To adopt such a rule would amount to making a very striking exception to section 8 which governs the procedure relating to all other kinds of applications, and which is merely an application of the salutary principle of re judicata. A Single Judge of this Court has authority to grant or to reject an application under section 491 and his order is an order of the High Court. If he rejects it and another Single Judge, upon the same facts, comes to a different con?clusion and grants the application, we should then have two contradictory and inconsistent orders of the same High Court.

33. If on the other hand, each of the eleven Judges successively and indepen?dently rejects the application, then much public time and money would have been wasted. Procedure leading to much consequences does not seem so unquestionably reasonable and desirable that we should feel inclined to adopt it as a special rule of procedure for cases under section 491. Although the High Courts in India are empowered to make rules governing the proce? dure in cases under ruction 491, and although it is therefore apparently open to them to make special rules permitting successive identical applications, it has not been shown to us that any High Court in India has made any such rule. Certainly this High Court has not made any such rule, and in the absence of such special rule we hold that we are bound to give effect to the general rule (rule 8, Chapter t) regarding applications.

34. The position in the instant case is almost similar. Here also we do not have any special rule framed under section 491 of the Cr. P. C. or under Article 199 of the Constitution authorising filing of successive applications on the lines of the unwritten English Common Law or Statute Law in England and if with regard to other types of writ petitions the law is not to encourage successive writ petitions as 1 will elaborate later the same should be the position regarding the present types of writ petitions from the same stand‑ point as was in general adopted by King, J. above. Similarly the view of Rankin C. J. in Girindra Nath Banerjee and another v. Birendra Nath Pal (1), which was approved by the Privy Council was that for any of the purposes mentioned in what is now section 491 it is not open to an applicant to say that he will make his application independently of that section altogether for the prerogative writ of habeas corpus on the civil side of the High Court. The cases of Girindra Nath Baneriee and another v. Birendra Nath Pal (2) and Mathhond and others v. The District Magistrate of Trivandrum and another (3) were again approved by their Lordships of the Privy Council in Emperor v Sibnath Banerji and others (4) where at page 158 column 1 they observed that "in their Lordships' opinon, the condition of the law of habeas corpus in India, and the purpose and express words of section 205, Government of India Act, 1935, afford a contract to the Constitution of the English Law and object and general terms of section 19 of the Judicature Act of 1873. This passage occurs in the context whether or not a discharge under section 491, Cr. P. C. was appealable to the Federal Court or Privy Council and their Lordships held that though in England such an order was not appealable but in India it would be appealable. This points out another significant departure in India/Pakistan from the English Law of habeas corpus in England.

(a) After fixing the points mentioned in sub‑paras. (a) and (b) above, I now attend to the text and cases referred to by the learned counsel for the petitioner in support of his pleas that successive petitions under Article 199 (1) (b) (i) can be filed in this Court without limit of number. Learned counsel referred to a number of English cases as Ex parte Partington ( 10 L J 123 ), In re: Carroll ((1931) 1 K B 104), Cox v. Hakas ((1890) 15 A C 506). He also referred to certain American cases like Salignar v. Laical ( (1924) 265 U S 224 ) and other cases reported in 92 L. Ed. 1379 Prince v. Gohsan ((1948) 34 U S 266), Corpus Juris Vol. 29 (1st Edition) page 111, 115 and 116, Ferries in Extraordinary Legal Remedies (1926) Edition page 69. Reference was also made to certain text‑books, essays of various jurists, In re: Hastings (No. 3) ( (1959) 1 All E R 698 ). In re: Hastings ( (1958) 1 All E R 707 ), In re: Hastings (No. 2) ((1958) 3 All E R 625), In re: Hastings (No. 3) ( 1959) 3 All E R 221), C. A. Ex parte Sehiraks ((1964) 1 Q B 191), which enunciate the history of unwritten English common law and statutory law of American Law on the subject of filing petition for a writ of habeas corpus in England. The Indian cases referred to could be split in two parts, one set holding that successive applications on new facts and grounds could be filed. See Ramji Lal s/o Mohadoe v. Rex ( AIR 1949E P67 ) and Sativh Gopal Gurha and another v. Rex ( A I R 1949 All 147 ), (Now grounds which came into existence after dismissal of earlier petition) and the other set of cases which held that successive applications could not be filed on same ground or such grounds which were available but were not urged earlier see Satish Gopal Gurha and another v. Rex Mathani Ramjt Chikate v. Imperator ( A I R 1948 Bom. 326 ), Haridas Damaji Amade v. Provincial Government C. P. and Barar ( A I R 1949 Nag. 201 ) and Raghunanden Yadav and another v. Province of Bihar (A I R 1949 Pat. 262). Reference was also made to Daryso and others v. State of U. P. and others (A I R 1961 S C 1457), where the question was left open. An earlier Lahore case to the same strain is Kishori Lal v. The Crown (1 L R 1945 Lab. 573) (Din Muhammad and Blacker JJ.) another case of Lahore High Court referred to is D. Dilbagh Singh v. Emperor ( A I R 1944 Lab. 373 ) where, while disposing of the earlier application, the learned Judge had given the pethioner concerned leave to file a fresh application and thus indicating that his order should not have finality. It is to be noticed that the Indian Constitution in its Article 226 does use terms like mandamus, certiorari, prohibition, quo waranto and habeas corpus leaving scope, as opined by Chitaley in A. I. R. commentaries on the Constitution of India (1st Edition 1954) Volume 2 Note 107 at page 1746, for attracting provisions of English Law, but as earlier pointed out above Article 199 is not drafted in that form. This dis?tinction should be kept through and through in view while comparing Indian cases or, as a matter of fact, cases of other countries where such terminology may have been deployed. The view of the Supreme Court of Burma is that in cases of detention for a term certain piecemeal arguments cannot be raised by successive petitioners and a fresh petition cannot be filed merely because certain points which otherwise could be raised and found with due diligence were not raised or found earlier.

35. These texts and references point out that under the unwritten English common law there could be filed as many successive petitions as the number of the Judges of the Court was, because, there the view was that each Judge had independent jurisdiction and a petitioner could go from Judge to Judge or Court to Court. I must say that this concept of the unwritten English common law is not applicable in our country, because, here High Court is one Court and each Judge of the High Court is not a separate Court. In our country, to excuse repetition, we must keep the principles enunciated by the Privy Council in C. P. Matthen and others v. District Magistrate of Trivandrum and another (1 L R 1939 Mad. 744) in view and should not derive power to issue writs of habeas corpus from peculiar notions of English unwritten common law. For this reason, very respectfully and speaking in a very humble way, I hold that any justifica?tion for filing successive petition under Article 199 (1) (b) (i) on the above concept of unwritten English common law cannot be endorsed especially when the said unwritten common law notion has been tempered with by the Judica?ture Act of 1960 in that country as well.

(d) The next justification for institution of successive petitions under Article 199 (b) (i) is sought to be derived from the Judicature Act of 1960 which is prevalent in England and in section 14 whereof it is written as follows :‑

36. "Section 14. Procedure on application for habeas corpus.‑(1) On a criminal application for habeas corpus an order for the release of the person restrained shall be refused only by a Divisional Court of the Queen's Bench Division, whether the application is made in the first instance to such a Court or to a Single Judge in accordance with rules of Court.

(2) Notwithstanding anything in any enactment or rule of law, whet a criminal] or civil application for habeas corpus has been made by or in respect of any person, no such application shall again be made by or i respect of that person on the same grounds, whether to the same Court c Judge or to any other Court or Judge, unless fresh evidence is adduced ? support of the application ; and no such application shall in any case b made to the Lord Chancellor.

(3) In every case where the person by or in respect of whom an application for habeas corpus is made is restrained as a person liable or treated b virtue of any enactment as liable, to be detained in pursuance of an order or direction under Part V of the Mental Health Act, 1959 (otherwise that by virtue of paragraph (e) of paragraph (f) of subsection (2) of section seventy‑three of that Act), the application shall he deemed for the purpose of this section and of any appeal in the proceedings to constitute a criminal cause or matter."

37. It was argued that since such a procedure was statutorily recognize ( in England, therefore, even though no statute of that kind existed in out country we should follow the same principle which was contained ? section 14 of the Judicature Act. I must say that the argument has no impressed me. That our constitution makers and relevant Legislature have not thought it proper to enact a provision on the lines of section 14 of the Judicature Act is rather a pointer towards the fact, that such a principle ? not approved by them and that is the reason, they made no enactment of that kind here. Anyhow the short answer is that in Pakistan there is no enactment of the kind of section 14 of the Judicature Act 1960 and I find the sanction to apply that enactment in this country as a part of our codi?fied law.

(e) Having eliminated the justification of filing successive petition; under Article 199 (1) (b) (i) on the basis of unwritten English common law or on the basis of express statutory law of England, let us see whether there exists any other sanction for filing successive applications in this Court of not. As a matter of fact, learned counsel for the petitioner, having felt the difficulty in invoking the applicability of the unwritten English common law or English statute law noted above, adopted another recourse. His sub?mission was that assuming that unwritten English common law or the statute law (i.e. Judicature Act) were not applicable in Pakistan in any positive form and there being no positive sanction to administer those laws here, there was nothing in any law of Pakistan to stop institution of successive petitions. He submitted that if institution of successive petitions was not sanctioned, any prohibition against successive petitions was also not contained anywhere and unless a course was expressly or impliedly prohibited it would mean that there was no objection to follow or practise the same. This brings us to the question whether the principle of res judicata or the principle of finality of judgments decision or orders was applicable to judgments decision or orders passed by High Court under Article 199.

38. At this stage we may attend to the general position of law on the subject. In Mirza Muhammad Yaqub v. The Chief Settlement Commissioner, Lahore and another (PLD 1956 SC 254), Fazal Din and 14 others v. The Custodian Evacuee Property, Lahore and 21 others ( P L D 1971 S C 779), Managing Committee Masj1d Muhajrin v. Mst. Zainab Bib! and others (1974 S C M R 230), Muhammad Chiragh‑ud‑Din Bhatti v. The Province of West Pakistan (1971 S C M R 447), Abdul Ghafoor v. Settlement and Rehabilitation Commissioner, Kar. and 3 others (1971 S C M R 602), Fazal Din v. Wall Muhammad and 5 others (1972 S C M R 225), Mohammad Hanif and 11 others v. Chief Settlement Commissioner Lahore and 3 others (1972 S C M R 369 at 370), Muhammad Shafi and another v. Muhammad Bakhsh and another (P L D 1971 Lah. 148), Barkat v. Haji Ghulam Muhammd and another (P L D 1970 Quetta 10 ) and Ramzan v. Ch. Mohammd Aslam Magistrate I Class, Sahiwal and 3 others ( P L D 1972 Lah. 809), (per Zullah, J.) it was held that priniciple of res judicata or principle of finality of judgments, decisions or orders applied to the writ petitions filed under Article 98 of 1962 Constitution (or Article 201 of the Interim Constitution) which correspond to Article 199 of 1973 Constitution and no successive writ petition could be instituted in High Court. No doubt these are cases which involved civil matters but question arises, what is true of other writ petition can it not also be true of petitions for a writ of habeas corpus ? Apparently I do not find that any distinction in this respect should be drawn between various clauses of Article 199 so as to hold that judgments, decisions or orders passed by High Court in one clause of that Article will be final, while those passed under another clause will not be final especially when the source to adjudicate was the same one Article .199. Secondly, it is highly doubtful whether finality doctrine i. e. principle of res judicta or principle of finality of judg?ments, decisions, or orders should be impaired from the point of view that the matter involved was a civil matter or a criminal matter. That such a distinction was not justified is well settled but if authority be needed reference may be made to Sambasivam v. Public Prosecutor, Federation of Malaya (1950 A C 458), where Lord Muce Darrott observed that :‑

39. "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and con?clusive in all subsequent proceedings between the parties to the adjudication.

40. The maxim `res judicata pro veritate accepture' is no less applicable to criminal than to civil proceedings.‑Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession the prosecution was bound to accept the correctness of that verdict and was precluded from taking any steps to challenge it at the second trial."

41. This enunciation of law was followed in Pritam Singh and another v. The State of Punjab ( P L D 1957 S C India 1 ). To the same strain in the view of Anwar‑ul‑Haq, J. (as then his Lordship was) in Mohammad Akram and others v. The State (P L D 1965 Lah. 461 at 471 in par&. 17).

42. Also see Gulzar Hassan Shah v. Ghulam Murtaza and 4 others ( 1970 S C 335 ), where it is written that general principles of finality of judgment attaches to the decision or order of the High Court passed in criminal cases." In this respect I may also refer to the following passage which is contained at page 431 of Basu's Commentary on the Constitution of India (4th Edition) Volume 3 under Article 226. The learned author states that "it is settled by the Court of Appeal In Hudd. ex parte ( 1942 1 All E R 373, 377 [C A] ), affirming majority judgment in Hudd. ex parte ( (1941) 2 All E R 749, 757 ), that what the Court determines in a proceeding for habeas corpus is the legality of the impugned order of detention, as disclosed in the return. A. G. for Hong Kong v. Kwon‑a‑Singh ( 1873 L R 5 P C 179 ). Hence, if the Court releases the prisoner on an application for habeas corpus, the prisoner cannot‑arrested or detained on substantially the same cause or ground. The be re of autrefois acquit applies if same to the second writ raises the principle e question with regard to the validity of the grounds of detention as the first. Stallaman ( (1912) 3 K B 424 (448) )". This shows that the aforesaid principle of autre fois acquit applies in certain conditions to orders passed in habeas corpus proceedings as well and as such to argue that principle of res judicata or of finality of judgments, decisions or orders does not apply here is principle of correct. If in cases of release as given in his commentary by the learned author the principle of finality applies the same should be true in the converse case when in the previous litigation the High Court and the Supreme Court held that the conviction and sentence of the accused stood validated by the Constitution and could not be taken out of the relevant validation clause as no corum non judice or mala fide had been established. I would sum up the, debate by holding that each case, therefore, depends upon its own fact and circumstances and to make a sweeping statement that the principle of finality of judgments, decisions or orders does res judicata or the principle of fined or can never apply to petitions under Article 199 (b) (i) is not correct. Thirdly, it is also doubtful whether jurisdiction under Article 1 9 as a whole oil clause (1) (b) (i) in particular is a criminal jurisdiction. I think division of this jurisdiction into civil jurisdiction or criminal jurisdiction probably is not is proper to say that it is a constitutional jurisdiction which justified and it may cover civil matters, criminal matters matrimonial matters fiscal matters, commercial matters, constitutional matters and matters relating to infants d property etc. Whatever the nature of a subject matter in any persons and petition may be, the broad fact cannot be disputed that the High court under Article 199 examines the same under its constitutional jurisdiction.

43. The question to be seen, therefore, is whether a judgment given in exercise of its constitutional jurisdiction by a High Court is to operate as res judicata ? attracts the principle of finality of judgments, decisions or orders or not. In my opinion, there is no justification to whittle down the application of the aforesaid principles merely on the ground that the matters involved in some cases will be criminal or in some cases civil etc. The statement of law, made by the Supreme Court in the various cases cited earlier that principle of res judicata applies to writ petitions under Article 98 of 1962 Constitution‑ (or other corresponding Articles of later Constitutions)‑Though given in cases which contained civil matters is however of a general comprehensive character) and admits of no exceptions or qualifications because if that were so their Lordships would have themselves qualified it, and when they have not qualified) it, it is not possible for me to go out of that enunciation of law on the ground that it was given in civil matters. In Article 189 of Constitution it is laid down that "any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan." Surely the cases quoted above enunciate in unqualified terms that the principle of res judlcata applies to writ petitions and it is my pleasant duty to accept the same without exceptions or qualifications.

44. (f ) Learned counsel for the petitioner argued that when a High Court decides an application under Article 199, (1) (b) (t) its order is not a 'judgment.' This argument he was raising for the purposes of submitting that the principle of res judicata is applicable only to judgments.' Keeping the soundness of this proposition open for the time being I asked the lea counsel time and again to assist us on the point as to what is a "judgment" what qualifications it must possess to be called a "judgment" and in light thereof to tell us that if five Judges of this Court decided Writ Petition No. 625 of 1972 on 6‑7‑1972 in Mr. Ziaur Rahman v. The State, after holding that the trial and conviction of the detenue was neither corum non judice nor mala fide why our order could not be called a "judgment" and what ingredients it lacked in that respect. No precise precedent was cited before us on this point but the learned counsel made a bleak reference only to a case in Dr. Hort Ram Singh v. Emperor (AIR 1939 FC 43), a petition for special leave to appeal against which leave was refused by the Privy Counsel in Hori Ram Singh v. Emperor ((1940) P C 54), by observing that the case did not involve any such important question of law which required interference by the Privy Council. The pre?cise facts of that case were that the accused therein who was a civil servant was tried and convicted under section 477‑A and section 409 P. P. C. to rigorous imprisonment of six months. He filed an appeal before the Sessions Judge D. G. Khan where objection was taken that as under section 270 (1) of the Government of India Act 1935 sanction for his prosecution had not been taken, therefore, the whole trial and conviction was bad. The objection prevailed and accepting the appeal the Sessions Judge acquitted the accused on the aforesaid technical ground without adverting to the evidence on merits. The Crown appealed to the High Court which was heard by a Division Bench consisting of Douglas Young C, J. and Blacker J. The learned Judges accepted the Crown appeal, set aside the order of the Sessions Judge and remanded the case to him for disposal of the appeal of the accused merits. The accused applied to the High Court for fitness certificate for appeal to the Federal Court under section 205 of the Government of India Act 1935, which reads as follows :‑

45. "Section 205. Appellate jurisdiction of Federal Court fn appeals from High Courts In British India.‑( AIR 1939 F C 43 ) 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 certificates 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 such 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 had 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." The learned Judges granted the certificate and thereafter the appeal was taken up by the Federal Court which was and accepted in part so far as charge under section 477‑A of P. P. C. was concerned and proceedings whereunder were quashed and High Court's order in that respect was modified but regarding the order of remand for rehearing the appeal under section 409 P. P. C. the appeal was dismissed. Before the Federal Court the maintainability of Crown appeal was not objected but Sulaiman J. obiter dealt with the point whether an order of High Court directing remand of an appeal in a criminal case was a judgment within the meaning of section 205 of the Government of India Act 1935 so as to maintain an appeal against the same before the Federal Court. He held that judgment for appeal under section 205 of the Government of India Act, 1935 In a criminal case must be a judgment of conviction or acquittal and that the term judgment did not include interlocutory order of remand and hence the order of the High Court directing rehearing of the criminal appeal by the Sessions Judge was neither a judgment nor a final order within the meaning of section 205(1) of the Government of India Act 1935 and was not appealable. He dismissed the appeal on this ground as well as on merits with slight variation from other judges of the Court. It is pertinent to men?tion that the other members of the Court Gwyer C. J. and Vardachariar J., however, held that section 205 of Government of India Act 1935 bestowed constitutional jurisdiction of appeal against both civil and criminal matters and hence the appeal before them was quite competent. Against this judg?ment of the Federal Court the accused filed a petition for special leave to appeal before the Privy Council who dismissed it holding that the ultimate order being just of remand and no question of law being involved therein the case wag not a fit one for examination by the Privy Council. See Hori Ram Singh v. Emperor. In my view these cases are hardly relevant with regard to the point which is involved in the instant case before us and is no authority for judgment in habeas corpus matters. On the other hand in Ghulam Hussain Shah v. Iqbal Mohammad (PLD 1974 SC 344), which was a case under section 12 of the Limitation Act (IX of 1908) where question involved was whether time spent in obtaining a copy of the judgment was to be counted for computing the period of limitation for appeal, Mohammad Yaqub J., with whom the other noble lords agreed, held at pages 350 and 351 as follows:‑

46. "If the words "Order" and "Judgment" are considered in this light, in my opinion, they carry the same meaning. According to Shorter Oxford Dictionary, in law, the word, "Order" means a decision of a Court or Judge made or entered in writing. According to the same Dictionary, the meaning of the word "Judgment" 'is' a judicial decision or order in Court. If these meanings are taken into consideration, it is quite clear that the two words are inter‑changeable. In the past, this Court has considered the question whether the orders of the High Court in Letters Patent appeals are judgments or not and it has held that such orders are judgments. Reference in this connection may be made to Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner P L D 1966 S C 276. It was held in that case that in the general connotation of the term, a "Judgment" would merely mean a "Judical determination or a decision of a Court" and it could be interlocutory or final. In that case, the learned Single Judge of the High Court had actually passed an order which finally decided the rights of the parties in respect of an evacuee house. It was held Lo be judgment in every term of the case. It was held that it was clearly rendered in a proceeding of a civil nature as rights of property were adjudicated upon.

47. It will be further noticed that in another case the report of the Election Tribunal was considered by the Court as 'Judgment' in Muhammad Saeed and others v. Election Petitions Tribunal West Pakistan and others P L D 1957 S C (Pak.)

91. It was held as under

48. "The Election Petition Tribunal has functioned as a Court and that its report is a judgment in every since a necessary for the exercise of this Court's power to entertain appeals under Article 160 of the Constitu?tion."

49. On this view of the matter I am of the opinion that the word 'Judgment' covers order and the word ' Order` also means in general sense a judgment. In these circumstances, the time taken for obtaining a copy of a judgment was rightly excluded in the case of Wali Muhammad and others v. Wali Muhammad and another P L D 1974 S C 56)."

50. Also see Sardar Kapur Singh v. Union of India (AIR 1957 Pb 173 (FB)) for the word "Judgment" where it was held that an order refusing to issue a writ was a "Judg?ment". In that view of the matter, the view of Sulaiman, J. i n the Federal Court case, in my opinion, is no authority with regard to judgments and orders passed by the High Court in exercise of its consti?tutional jurisdiction under Article 199 of the Constitution. Learned counsel for the petitioner has not cited a single case to the effect that such an order under Article 199 (1) (b) (i) which was passed by this Court in Writ Petition No. 625/11 of 1972 in not a "Judgment" iather in Emperor v. Sibnath Benerf and others (AIR 1943 PC 156), the Privy Council held that an order of discharge under section 491, Cr. P. C. though 'was not appealable under section 404 of that Code but the same, however, was appealable under section 205 of the Government of India Act, 1935. This leaves a scope for arguing that their Lordships did not approve the view of Sulaiman, J. in Dr. Hori Ram Singh v. Emperor (1939 FC 43), but rather (to examine the matter by procass of elimination) approved the view of Gwyer C. J., and Vardachariar J., who had held that such orders were appealable under the constitutional jurisdiction of the High Court ‑ (and I may add because for that purpose the meaning of the words "Judgment", "decision" or "final order" "was not the same which might be given to them under the Criminal Procedure Code). In these circumstances it is not possible for me to accept that our previous order or the decision of the Supreme Court in appeal and review were not "Judgment". Another thing to be noticed is that if a decision or an order was not called a Judgment, because, it was not appealable then firstly this premises is uncalled for because for res judicata it is not necessary that the decision should have been appealable. See Arikapudi Balekot;iyycr v. Yadiapellf Nagayya ( A I R 1946 Mad. 509 at 513 ), and secondly the test aforesaid would not apply to orders passed under Article 199, because, all orders passed thereunder if they otherwise qualify for this purpose are appealable in one form or another to the Supreme Court and confirming ourselves to the facts of the present case orders whereby a writ petition under Article 199 (i) (b) (1) is accepted or rejected are both appealable to the Supreme Court. Emperor v. Sibnath Benerji and others was a case of discharge of the detenue on a petition of habeas corpus and the case of the present petitioner in the Supreme Court was of a refusal to issue the writ. As a matter of fact, The State v. Zia ur Rahman and other is also a case of both types. If in English law any characteristic to orders passed in a petition for habeas corpus was being given from those stand points the same approach is not applicable in Pakistan orders passed under the relevant clause of Article 199 under discussion. An order refusing a writ of habeas corpus (or discharging rule nisi)‑is a .judgment was held in Muhammadalli Allabus v. Ismailji Abdulah (95 I C 49 (D.B), Sir Norman Macleod Kt C J A Goyajee J.) (I am referring to this case for this purpose and not for other point mentioned therein that section 491, Cr. P. C. did not curtail English common law jurisdiction in India, because, on that subject my view is different and for which I have already referred to the judgments of the Privy Council . etc).

51. Though I have held above that our previous decision was a "Judgment" I now proceed to attend to the other limb of the argument of the learned counsel in this respect, namely, whether the principle of res judicata or the principle of finality is confined only to judgments or extends to decisions or orders also. Authorities are not lacking that these principles extend to decisions or orders a5 yell for instance sec. G. H. Took v. Administrator General of Bengal and others (2) and Sourendru Mohan Sikta and others v. Holi Irsha Singh and others (AIR 1925 PC 280) where the Privy Council held that interlocutory order in a suit was res judicata till the conclusion of that suit. Similarly the doctrine has been applied to other decisions for example in execution proceedings, arbitration proceeJings, probate proceedings, Insolvency proceedings, and various other proceedings of similar type. See Civil Procedure Code by Chitley (Seventh Edition) Volume I, suction 11 Notes 3 and 22 to 31). I do not want to enlarge the debate on the subject and will stop this discussion by holding that our previous order was a judgment, a final decision or a final order vis‑a‑vis the point involved therein, namely, whether the trial, conviction and sentence of the accused were without lawful authority in the sense of course non judice or mala fide or not, so as to be excluded from the validity coverage ,contained in Article 281 of the Interim Constitution. This judgment, decision or order is binding on the accused who himself was the petitioner at that time and its effect cannot be destroyed by a successive application filed by the brother of the accused who again raises the same plea though this time he has tried to raise certain additional points in support of that plea.

(g) It was then argued that the principle of res judicata and the principle of finality of judgments, decisions or orders should not be applied to orders under section 199 (1) (b) (i) on the ground that in this clause it is the High Court which is to satisfy itself whether detention of a person is without lawful authority or not. This, it was submitted, is the responsibility and duty of the High Court which it was bound to perform wherever moved in this respect and the mere fact that since it had expressed its satisfaction about the authority of a particular trial, conviction or sentence that by itself was no ground for not doing the same exercise again and again whenever moved in that behalf by any body. The question involved it was submitted, was of a very important fundamental right, namely, that "no person shall be deprived of life or liberty save in accordance with law" which should not be shelved on the mere ground that the High Court has already previously determined it. The principle of res judicata or finality of judgments, decisions or orders applied to some parties and the fact that under Article 199 (1) (b) (i) the right to move the High Court had been given to any person (not necessarily any aggrieved person) that by itself showed that here the intention of the Constitution makers was not to make previous judgments, decisions or orders as final. It was suggested that if, for instance, earlier somebody had filed a collusive application and got a judgment (by not properly arguing or present?ing the case), to the effect that the conviction' and sentence of the accused was not without lawful authority. Could not the accused later on himself file a proper application and bring all true facts to the notice of the Court. In that situation will the High Court dismiss the application on the ground that it had earlier satisfied itself on the matter and that now the new applica?tion was not maintainable. The parties in each petition under Article 199 (1) (b) (i) may each time be different and, therefore, how could the principle of res judicata or of finality of judgments, decisions or orders be binding on each new petitioner who may have moved for the release of the accused/ detenu in his own right. I will not enter into various hypothetical examples, leaving the point to be decided on the facts of each situation whenever it crops up, and confining myself to the facts of the present case, will simply observe that here the earlier petition was filed by the accused himself through a very able counsel Mr. S. M. Zafar who as our previous judgment will show argued the same very strenuously raising important constitutional and legal points. In the Supreme Court the accused was represented by Mr. M. Anwar Senior Advocate and Mr. M. A. Rehman, Advocate on record. In review before the Supreme Court the same set of counsel represented him. It is not suggested that all these counsel colluded with anybody and, therefore, any plan on the ground of non‑representation of the case properly is not available in this Case. Secondly if the earlier judgments, decisions or orders in these cases are binding on the accused then the mare fact that now a petition is moved by a brother (or to be mere precise get moved by the accused himself through his brother) will be no factum to release the accused from the binding effect of the earlier judgments, decisions or orders. The collusion, if any. in this case is thus rather on the side of the accused and his brother and nowhere else. In these circumstances, if the accused himself cannot get out of the earlier judgments, decisions or orders his brother can hardly be of any assistance to him. 1t will thus be seen that it is not a case where earlier petition was made by a third person and the second is being made by the accused himself or another third person. a Here the accused himself filed a petition and got the verdict that his conviction and sentence was, not without lawful authority. This judgment and order is binding on him and the second petition by his brother is a sheer) collusive exercise in futility and duplicity. This is enough to reject the plea of `parties' on the basis of which escape was being sought from the effect of the previous judgments, decisions and orders in this particular case.

52. As regards the plea that as in Article 199 (1) (b) (i) it was the satisfaction of the High Court which was to operate in determining whether a detention was not without lawful authority, therefore, that incident was sufficient to leave scope for institution of successive applications, I must say that I have not appreciated it and passing a general question before issuing directions or giving declarations under clause (1) (a) (i) and I (a) (ii) of Article 194 as High Court not to satisfy itself that the action or proceedings sought to be prohibited or orders impugned in those clauses respectively were not without lawful authority. As regards the plea that preservation of liberty was a fundamental right, therefore, in cases of habeas corpus the role of finality of judgments, decisions or orders should not be applied, I think there is no gradation in our country of fundamental rights and it cannot be said that one fundamental right is of grade No. 1. the other of grade No. 2 and still another is of grade No. 3 and so on and so forth. All fundamental rights are fundamental in their own nature and one has no preference over other inter se. If there is a fundamental right preserving right to property it is as fundamental as right to preserve right to property it is, as fundemental as right to preserve liberty. If to adjudications of High Court qua one the principle of res judicata or principle of finality of judgments, decisions or orders can be applied, application of that principle cannot be whittled down qua the other types of rights. I have also not appreciated the plan that since the question involved will be regarding liberty of a citizen, therefore, scope for successive approaches to the High Court should be left wide open. Take here, for example, the case of a convict who has been sentenced to transportation for life under section 302, P. P. C , by a Court of dismissal. Can it be suggested that since the question involved is one of liberty of citizen, therefore, the convict can file as many appeals as he likes on same or new grounds ? Similarly can he by ignoring the earlier Judgment of the High Court make an approach again by .means of a habeas corpus petition under Article 199 (1) (b) (i) of the Constitution. I am sure the answer will be in the negative for various obvious reasons. If the plea of "liberty of a citizen" can afforded no justification for filing repeated appeals or petitions of habeas corpus in the example which I have just quoted the same can hardly provide any basis for repeating successive petitions in cases of present type inasmuch as the process will essentially involve issuing writ (declaratory or of any other kind) with regard to the previous order or judgment of the High Court as well and obviously clause (5) of Article 199 specifically bars such a recourse wherein a High Court cannot issue a writ of any kind to its ownself about its own judgments or with regard to the judgments and orders of the Supreme Court.

(h) The next point raised was that in criminal matters it was a case of continuing wrong or day to day confinement and even if previous petition was dismissed it would at the most mean that confinement upto the date of the dismissal of that particular petition was not without lawful authority, but a confinement thereafter was a fresh wrong, or fresh confinement, therefore, a successive application would always be competent. To speak with respect to the learned counsel the argument is based on a slight misconception of the law on the subject. Cases of detention are of two kinds, namely, (a) preventive detention and (b) punitive detention. The present it a case of the latter category i.e. punitive detention where the accused was convicted and sentenced to an imprisonment of five years on 10‑4.1972. It was thus an order of punitive detention for a term certain i. e. the order of conviction and sentence and not of a day today detention or of a continuing wrong Such an order of conviction, in my opinion, cannot be questioned more that once. This must be so, because, the first dismissal of the application it such cases would be tantamount in any event to a declaration by this Court that the punitive detention for that term is a legal detention. The punitive detention is under a single inseparable order and the validity c the order having once been upheld is final. As against this no doubt preventive detention for an indefinite period (e.g. till further orders) under an order for detention from day to day, authority for each day's detention operating separately from that for any other day, and the dismissal of an earlier application for an order of release does not amount to more than a declaration that the detention continued to the day of dismissal was a lawful one. That dismissal cannot be interpreted to justify further detention for an indefinite period however lengthy it may be. Detention which is legal to a certain day may thereafter by a change in the relevant circumstances become illegal and when an application for directions in the nature of habeas corpus is filed that is being challenged by that application is the legality of the detention at the date of the application. It must be remembered, however, that in such subsequent application the court cannot allow the previous decision in respect of the same detention, so far as is relevant to the previous application to be challenged. The legality of the detention to the date of the dismissal of the previous application cannot be further conversed. However in the instant case the whole tenor of the petition shows that the petitioner is challenging the same conviction order even again which order, was already attended to and declared by the High Court as well falling within the validity coverage given by Article 281 of the Interim Constitution. That order both as regard the past and the present confinement is one and the same and is inseparable. It is here where the principle of res judicata or the principle of finality of judgments, decisions or orders of Court will apply, because, if it is not so applied then it will tantamount to an abuse of process of law which may lead to passing inconsistent judgments with regard to one and the same order. A case on all fours in this respect is Non show Bee v. The Commissioner of Police ((1949) B L R 157 (S C) ) which was reiterated and elaborated in Tinsa Mav Nolng v. The Commissioner of Police, Rangoon ((1950) B L R 17 (S C)) where it was held that in such cases i.e. case of detention for a term certain piecemeal arguments cannot be raised by successive peti?tioners and a fresh petition cannot be filed merely because certain points which otherwise could be raised and found with due diligence were not raised or found earlier. I respectfully adopt this view. (The latter judgment I.e. (1950) B L R(S C) 17) is published in extracts in "The Constitution of Pakistan through cases and comments" by A. C. Chaudhary (1968 Edition) at pages 150‑157).

(i) In the earlier paragraphs of this judgment I have opined that jurisdic?tion under Artice 199 is a constitutional jurisdiction and its classification into civil jurisdiction or criminal jurisdiction etc. may perhaps neither be feasible nor possible. However. if the necessity be there to find out whether proceedings under Article 199 (1)(b)(i) are of civil or criminal nature, my view is that they are by themselves proceedings of a civil nature, in the course of which High 'Court can examine the validity even of any criminal proceedings, judgments and orders pertaining to‑(confining myself to the facts of the present case)‑the trial and conviction of the accused by a Military Court to find out whether his conviction was not corum non judice or mala fide‑;this is the extent upto which the jurisdiction of this Court in the instant case extended as held in the earlier round of litigation)?Generally speaking a civil suit to examine the proceedings, judgment or order of a criminal conviction is not maintainable due to the bar contained in the very relevant law under which the accused was tried and convicted, or the general bar in the Scheme of that law or the law of land that judgments and orders passed thereunder are to be challenged in the manner provided in that law and not by any other recourse. The right to file a petition for examining the validity of any trial, conviction or sentence (i.e. punitive detention) as given in Article 199 (1)(b)(1) (or I can put it even under Article 199(1)(a)(ii) i.e. by certiorari)‑is an exception to the aforesaid rule. The jurisdiction is a civil‑(supervisory) jurisdiction inasmuch as it is, firstly to ex?amine whether a civil right that no person is to be deprived of his life, liberty or property save in accordance with law has not been violated and secondly whether the order is not mala fide. The proceedings therefore which are initiated to enforce this right, in my view are civil proceedings though it may involve scrutiny of civil matters or criminal matters, quasi civil matters quasi criminal matters, matrimonial matters, insolvency matters, commercial matters, probate matters and matters relating to minors or to the life liberty and property of citizens or alienees. The nature of the proceedings in High Court does not undergo a change due to the nature of the subject‑matter involved therein it remains original civil constitutional jurisdiction and though orders pasted thereunder may pertain to various subjects its basic concept remains the same. In ex parte in the matter of Commonwealth of Virgines ((1880) 100 U S 339 U S S C R (98‑101) 313) right to equal protection of law was called a civil right. In America habeas corpus. is a civil as distinguished from criminal proceedings. Riddle v. Rucha (262 U S 333), Kabadian v. Pathins ((1943) A C 147) and fisher v. Baker ((1906) 203 U S 174). Ferries in his book on Extraordinary Legal Remedies describes the writ of mandamus as equivalent to an action at law or a civil action (page 220) the writ of Prohibition as an "original remedial writ" as old as the common law itself (page 414) and the writ of certiorari at common law as "an original writ issued out of Chancery or the King's Bench (page 178). Even a writ of habeas corpus is characterised by the learned authority as "to all intents and prupose the commencement of a civil action a suit" though technically not a suit (page 26). It is there stated that habeas corpus is a civil, separate proceeding to enforce a civil right the right to personal .liberty whether the restraint be by virtue of criminal or civil process it is also stated that a question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried. This enunciation of law was quoted by our Supreme Court with approval in Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another ( P L D 1966 S C 276 ) Basu in his commentary on Indian Constitution Vol. 3 (4th Edition) while referring to English Law on the subject at page 435 states that proceedings for habeas corpus against an order of imprisonment for offences under the Military Law is not a criminal proceeding (see Anand v. Home Secretary ((1943) A C 147) and Clifforo v. O'soallivan (1921 S A C 570 ) and that same is the position of an order of preventive detention See R. v. Crose ((1910) K B 57 ). It appears that in English cases the position some times is regulated by the matter or cause involved. Consequently some cases are described as civil petitions for habeas corpus and some as criminal petitions for habeas corpus and this distinction stands statutorily created by section 14 of the Judicature Act reproduced above. It is doubtful whether our Article 199 can warrant any such division from a purely juristic point of view. In Niherenddu Dutta Mazumdra and others v. A. E. Portar and others (A I R 1945 Cal. 107) it was held that proceedings of habeas corpus were civil proceedings meant for the enforcement of civil right of liberty. Mitter, J. at page 118 observed that "a habeas corpus proceeding (and a proceeding under section 491, Criminal P. C. is of the same nature) is in essence a civil proceeding, for it is concerned with the private right of a citizen, namely, the right of personal liberty. The true nature of a proceeding by habeas corpus, whether civil or criminal, should be determined by its object, which is not to punish but to give relief from a civil wrong. It is the remedy which the law gives for the enforcement of the civil right of personal liberty. It does not mean that an order for release made on a writ of habeas corpus implies that the person released must be allowed to reach his home. It means that he cannot be arrested on a civil process on his way home after his release on a writ of habeas corpus, as a proceeding under that writ is in essence a civil proceeding". Also see Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (P L D 1970 S C 1), where it was held that proceedings under Article 98 of 1962 Constitution were civil proceedings which were reviewable on the lines of Order XLVII, rule 1, C. P. C. It was probably for this reason that when the case of Ex Cast. Muhammad Akram Khan v. Islamic Republic of Pakistan (P L D 1969 S C 147) came up in appeal to the Supreme Court, where the High Court had refused to issue a writ of habeas corpus, the Supreme Court held that proceedings under Article 98 of 1962 Constitution were civil proceedings and the same was the nature of appeal in the Supreme Court. This is clear from Muhammad Azim Khan and another v. The District Tribunal, Mianwali and another (4), which is a short order of the Supreme Court and can be reproduced with advantage. It reads as follows :‑

53. "Muhammad Yaqub Ali, J.‑This petition for leave to appeal from an order of the High Court passed under Article 98 of the 1962 Constitution is not properly stamped. It is contended that as the relief claimed in the High Court was release of the petitioners on bail pending the proceedings initiated against them under the West Pakistan Control of Goondas Ordinance. the petition for leave to appeal was of criminal nature and did not require the stamp of Rs. 250.

54. This Court has recently held in the case of Ex‑Captain Muhammad Akram Khan that a petition for leave to appeal arising from a writ petition under Article 98 is of a civil nature and requires a court‑fee stamp of Rs. 250. We see no reason to depart from the view formed by the Full Court and the uniform practice followed so far. The petition is, accordingly, found to be insufficiently stamped.

55. Two weeks time is granted to make up the deficiency in ‑the court‑fee stamp."

56. However, thereafter the practice of the Supreme Court has probably changed and they have for fiscal purposes started regarding such cases as crimi?nal proceedings but the fact remains that scope for arguing otherwise purely from the juristic point of view regarding the nature of the proceedings, still remains open and it can be asserted with some degree of force that since these proceedings are for enforcement of a civil right, their nature and characteristic the principle of finality of judgment of this Court. The observation that it is not in "every case" that the principle of res judcata or finality of judgment may operate shows that there may be certain cases in which the said principle may operate and I can say with respect that the present case is exactly of that type where the concept of review or the principle of res judicata or finality has a great application, (c) I have checked up from the relevant writ petitions involved in Mst. Nasim Fatima v. Government of West Pakistan and another (P L D1967 Lah. 103) and found that the orders impugned therein werein dated 16‑2‑1966 whereby preventive detention had been ordered till further orders and it was not a case of a detention for a term certain under conviction as is the case here. The law laid down in that case has, therefore, no relevancy to the facts and circumstances of the present case and to be more exact we should rather lave the case of a preventive detention open to be examined on some more appropriate occasion in the context of the facts and situation which may be brought before the Court at that time. I should be considered to have proceeded in this case on that premises.

57. Learned counsel for the petitioner referred to Mazhar Hossain Bhuiya v. The Province of East Pakistan and another (P L D 1970 S C 397) where one Hussain Ali, an accused, was convicted under sections 302/34, P. P. C. and was sentenced to transportation for life. A criminal miscellaneous application in High Court was filed by his friend Mezhar Hussain Bhuiya alleging that accord?ing to the remissions earned by the convict he had undergone the requisite period of sentence and should, therefore, be released. The application was dismissed by Dacca High Court against which a petition for special leave to appeal was filed in the Supreme Court. As on the record no adequate proof of remissions existed, therefore, the counsel for the petitioner begged to withdraw the petition for special leave to appeal with permission to file a fresh petition in the High Court on the subject. The Supreme Court allowed this request. The actual passage in the Judgment of the Supreme Court reads as follows:‑

58. "We feel that the matter required a deeper thought and consideration than that which has been bestowed upon it by the learned Judges of the High Court, as it involved a serious question of interpretation of the relevant provisions of the Penal Code and the vires of the rules in the Jail Manual which are apparently in conflict with them, as pointed out on behalf of the petitioner. We adjourned the case yesterday and asked the learned counsel for the petitioner to adduce proof regarding the period of remissions allegedly earned by the petitioner, particularly the one under section 401 of the Code of Criminal Procedure which must be based on some order of the Provincial Government. This we did, to discover whether a factual basis was furnished in the case to entitle us to proceed with the examination of the legal issue involved. The learned counsel for the ???? petitioner has submitted that no proof of the remission has been made available to him so far although he has made all efforts to get it. He has prayed that he may be allowed to withdraw this petition with permission to bring a fresh one in the High Court after ascertainment of the factual position."

59. "We permit the withdrawal of this petition and dismiss it as such. The petitioner shall be at liberty to file afresh petition in the High Court after ascertainment of the correct factual position, if so advised. if the detention of Hussain Ali is illegal, as alleged by the petitioner, it is a continuing wrong, and there can be no bar to the making of afresh petition under section 491 of the Code of Criminal Procedure, or to the moving of a petition for a writ of habeas corpus to set right that wrong. We order accordingly.

60. Learned counsel for the petitioner referred to the portion under?lined* in the above passage for arguing that where detention, is illegal then it is a case of continuous wrong and there can be no bar to the making of a fresh petition under section 491 of the Criminal Procedure Code or to the moving of a petition for a writ of habeas corpus to set right that wrong. The above observation is confined to a case where the earlier petition is being withdrawn with permission of the Court to file a fresh one. It is also not to be applied to cases where a matter has already been adjudicated upon for instance by the High Court or the Supreme Court. It was a case where detention upto a particular date and period was being admitted as correct but due to certain law the period of detention thereafter, it was alleged, had shortened and expired. The exercise did not involve bifur?cation of the order of confinement into two separate periods. The case was not where the order of conviction or detention had once been examined by the High Court and maintained. It did not involve review of the previous order. It was rather a case of confinement allegedly after the sentence had been undergone by the detenu. The said case, therefore, is distinguishable and has no reference to the point in hand or to the facts and circumstances of the present case. On the other hand, as already mentioned, where a person is convicted and sentenced I.e., where detention is for a term certain there is no question of a "continuing wrong". See the two Burma cases quoted earlier. Reference may also be made to the findings recorded by my learned brother M. A. Cheema, J. (as his Lordship at that time was)‑and Ata Ullah Sajjad J. who described the conviction of Muhammad Mukhtar Rana as a `past and closed' transaction in Ziaur Rehman v. The State (P L D 1974 Note 3 at p. 4 ) relevant extracts whereof are reproduced in later part of this judgment Ziaur. The Supreme Court in appeal and review did not disturb this finding and, in that view of the matter, to call it still as `continuing wrong' is not justified. Another case ? to be attended to is Ghulzar Hassan Shah v. Ghulam Murtaza and 3 others (P L D 1970 S C 335), where the Supreme Court held that a 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 of the 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. Learned counsel fort e petitioner wanted to spell out from this judgment that it was an authority for filing successive habeas corpus petitions under Article 199(a) (b) (1) of 1973 Constitution. In any opinion, this construction of the Supreme Court judg?ment is not correct. The case pertained to a bail matter and dealt with powers of High Court to' review its earlier judgment under the Criminal Procedure Code and not with the subject of filing successive applications of habeas corpus. So far as review is concerned I may state that I have ex?pressed my views in that respect elsewhere avid nee not repeat them at this place. Learned counsel for the petitioner referred particularly to the passage in the judgment where it was written that "general principles 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 with?out jurisdiction or without giving any opportunities to the parties of being heard". This passage, in my opinion, rather goes against the learned counsel, inasmuch as, it enunciates that the principle of finality of judgment applies to decisions and orders of High Court in criminal matters as well and it is not the case of the petitioner that the previous judgments of the High Court and the Supreme Court in the case of Muhammad Mukhtar Rana were without jurisdiction or were passed without hearing him or that it was an act of the High Court or of the Supreme Court which had caused ANY INJURY TO HIM. Moreover the Supreme Court has not said that any earlier judg?ment or order of the High Court should simply be ignored by a petitioner and rather they have suggested‑(to put it in a different language with respect)?that the remedy, if any, is to apply for review, alteration on or recalling of the earlier order of the High Court add if I may add respectfully not simply to treat it as non‑existent or ignorable order.

6. When confronted with the various above‑mentioned view points, learned counsel for the petitioner argued that if filing of successive petitions on the same cause of action, same facts, same grounds and same evidence may in any manner be doubtful then at least on new grounds, new facts, and new and fresh evidence, the institution of successive petitions should not be held to be barred. The plea advanced apparently has attraction but in my opinion cannot be applied to cases of present type where the detention is puni?tive for a term certain under order of a Court of trial which had earlier been examined and held valid by the Superior Courts in a previous petition, the reason being that the order being one its validity cannot be bifurcated. Again the phrases like new grounds, new facts and new and fresh evidence‑(or similar other terms)‑should not delude us because the aforesaid new grounds, new facts and new and fresh evidence in the present case have reference obviously only to such grounds, such facts and such evidence which already existed on the record but for reasons best known to the detenu were either not found out or discovered by him or were not alleged or pleaded earlier as was the position in the two Burma cases cited ibid. In such circumstances to state that they are new grounds new facts, and new or fresh evidence is not factually correct. Naturally to allow successive petitions in such a case and on such like concepts will be an abuse of process of law and will never bring a litigation to finality or a close, because every time when a petition has dismissed the detenu will get another petition filed by simply chang?ing his next friend or counsel and taking up the position that now he wanted to urge new factual or other grounds which had been omitted or remained un‑noticed by him earlier or his earlier next friend or counsel. This will be em?barrasing both for the changing counsel and the Bench. For cases of this type the obvious remedy is to apply for review, if otherwise it is competent and case for interference therein is made out. After the dismissal of the first petition the High Court became functus officio and cannot by pass its earlier judgment and order by entertaining a successive petition and placing it, for instance, every time before a new Judge and ‑in this way introduce the unwritten English common law practice of going from Judge to Judge. If once it is ruled out that the practice of going from Judge to Judge is not applicable in Pakistan and there is no scope for introducing such a practice in High Courts over here, then the practice of even going to the same Judge again and again on the same principle cannot be entertained, because, in that context the remedy may be of appealing against the verdict of the Judge concerned or applying for review as earlier mentioned but certainly not by repeating successive appli?cations in infinity. Munir in his book "Constitution of the.‑Islamic Republic of Pakistan" (1965 Edition) at page 377 under the heading "successive applica?tions‑(of habeas corpus)‑writes that "a rule by the High Court as to who may apply is necessary to avoid repeated applications, the Court always find?ing itself in an embarrassing position where a petition by a stranger has been dismissed and is followed by one by the detenu himself or someone interested in him who is more conversant with the facts. In England, each Judge having jurisdiction, as many applications on the same ground as the number of the Judges, may in theory be made but under our Constitution, it is suggested, there can be no scope for such successive applications, for the reason that the s power is the power of the High Court and not. of individual Judges, and_ once it is exercised, one way or the other, the Court is functus officio except for purposes of review, if review is competent, and the only remedy to the aggrieved party is a petition for leave to appeal under Article 58(3)" of 1962 Constitution. I very respectfully endorse the view of the learned author.

61. It is well settled rule of res judicata that res judicata is the decision of the Court and not its reasons and the effect of that decision cannot be avoided by every time urging new reasons, new grounds, new facts and new and fresh evidence which with due diligence could have been found, urged, or pleaded. See Explanation IV of section 11 of the C. P. C. (Act V of 1908) which enunciates the principle of constructive res judicata in this respect. If, how‑ T ever, a new ground, new fact and new and fresh evidence is such which came into existence after the decision of the earlier, petition, than obviously it is a new cause of action and can be pleased independently, because, in this recourse the validity of the earlier order is not challenged, but it, is to be shown that after coming into existence of the new grounds, new facts and new and fresh evidence the punitive detention for a term certain has now come to an end and that it should be so declared. In this exercise the validity of trial, convictions and sentence has not to be gone into over again. An illustrative example of this type of case may be where due to "remissions earned" by a convict his sentence has ended but he is still being detained as was the plea taken to Mazhar Hussain Bhuiya v. Province of East Pakistan and another. Again after the dismissal of earlier petition a law may come which may invalidate previous trial, conviction or sentence and direct release of the convict. It is these types of cases which will be covered by the phrases like new cause of action, new grounds, new facts and new and fresh evidence in that context. In these cases the cause of action being new, a new petition will always be competent but not in cases of the present type where no such situation has arisen and nor any new legal development has taken place, The present is simply a case of challenging the same trial, order, conviction, and sentence, which have earlier been examined by this Court and the Supreme Court with the only difference that now certain new grounds are sought to be argues which have not come into existence after the dismissal of the previous petition but which were either not noticed, not pleaded or from an?other point of view were abandoned earlier by the detenu himself. This is not a case of a new cause of action and hence cannot, in my opinion, be entertained.

7. Taking up the earlier writ petition of the accused the matter was examined by five Judges of this Court who held that the petitioner had not been able to mate out any case of corum non judice or mala fide, so as to get out of the validity coverage given to such proceedings by Article 281 of Interim Constitution. May learned brother A. R. Sheikh J. in Mir Zlaur Rehman v. The State wrote as follows :‑

62. "Taking up the other case, forming subject‑matter of Writ Petition No. 623 of 1972, against Muhammad Mukhtar Rana, in which he has already been convicted and sentenced, the impugned orders have not been shown to be corum non judice. The allegation of mala fide in law is neither specific nor has it been substantiated by any material on the record and, therefore, the same cannot be successfully convassed."

63. On page 598 Muhammad Afzal Cheema, J.‑(as then his Lordship was)?wrote as follows :‑

64. "The position in Writ Petition No. 625/1972 is, however, quite dis?tinguishable. A separate case under section 16(a) incorporating a subsequent speech made by Mr. Mukhtar Rana was registered against him. He was convicted by a special Military Court with an award of five years rigorous imprisonment and is now undergoing sentence. No material has been brought on the record to justify any inference of mala fide which alone could take out his case out of the extended scope of validation conferred by Article 281(2). In the circumstances, therefore, no exception can be taken to his conviction which is matter past and closed. Accordingly, the petition is dismissed.

65. On my part at page 676 in paragraph 23, I wrote as follows

66. "The averments in the writ petition do not make out any case for quash?ing his conviction. There were certain allegations of malice which were duly refuted in the written‑statement and I have not been able to find any ground to interfere in this case. The trial was held by a special Military Court and there is nothing on the record before us to find any illegality. Mr. S. M. Zafar raised serious constitutional points and argued them with great vigour but I have not agreed with him and have refuted them in earlier parts of this judgment. This writ petition merits dismissal."

67. My learned brother Ata Ullah Sajjad J. in para. 46 at page 729 wrote as follows :‑

68. "So far as Writ Petition No. 625 is concerned, it was filed in the High Court after the Constitution had come into force in the country. I have held above that the National Assembly had the power of ex post facto validation of the Martial Law Regulations and the actions taken thereunder. We have not teen addressed on the merits of the case except that we were told that the action was mala fide and the intention was to deprive Mr. Mukhtar Rana to join the National Assembly. There is no factual foundation for such submission. The conviction of Mukhtar Rana in this case is a tronsaction past and closed to every sense of the word. The case is covered by clause (b) of Article 295 of the Interim Constitution. The Fundamental Rights ,came into force on 21st of April, 1972, and were suspended on the same day by the President's Proclamation. I have indicated above the extent to which the High Court can go in order to examine the action taken and sentences passed under the Martial Law Regulations. It has not been shown that this case falls within those limitations. I have, therefore, no alternative but to dismiss this writ petition. There will be no order as to costs."

69. My learned brother M. A. Zullah, J. at page 821 wrote as follows:‑

70. "After having held that the detenus are entitled to the relief claimed for ? on the progressive interpretation of Article 281, which is in accord with ? the intention of the Legislature and is also not violative of its language, it is really not necessary for me to go into the question if the purely technical interpretation put forward by the learned counsel for the state were to be accepted, what would have been the result. But I ???????? am conscious that considerable amount of time was spent in finding out the effect of sub‑article (2) of Article 281 and meaning and conno?tation of expressions used therein. Therefore, I would like to observe ??? that if I were to accept this so called literal interpretation, I would then have agreed with my learned brother Karam Elahee Chauhan Ji , that the Journalists in Writ Petition Nos. 403 and 404 of 1972 are entitled to be released on the finding of mala fide and the case of Mukhtar Rana and his co‑accused in Writ Petition No. 223 and 335 of 1972 would be deemed to have become pending before ordinary Court as a result of the interpretation of the provisions ???? of President's Order No. 14 of 1972, with consequent results qua the prayer for confirmation of anticipatory bail in Cr1. Miscellaneous No. 330 of 1972. And as sufficient material had not been produced before us to properly consider the questions of mala fides in case of conviction of Mukhtar Rana by a Military Court for offences under Martial Law Regulations Nos. 16‑A and 89 nor any arguments have been addressed on the basis of factual mala fides, therefore in the above contest, I would have further agreed with my learned brother that Writ Petition No. 625 of 1972 would have been liable to be dismissed."

71. The above passage will show that the Full Bench focussed its attention to the questions of mala fide, legal or factual and alto to the question of coram non judice and held that no case for its interference on those counts had been made out. At that time neither violation of auy of the provisions of the Army Act XXXIX of 1952 nor of the Pakistan Army Act Rules was pleaded or argued at the Bar before us. Rather at that time the stand of the detenu was that Martial Law was no law and that he did not accept the jurisdiction of the Military Court set up there under which had tried and convicted him. It was the same plea which he had raised before the trial Court and on the basis of which he bad refused to cross‑examine the witnesses who had made statements in his presence and had also refused to lead defence before that forum. That was, however, his own outlook. On our part as the judgments rendered in the parallel cases at that time will show this Court in the circumstances was concerned with the broad fact whether the charge was brought home to the accused, whether the evidence was led in his presence, whether he was given opportunity to cross‑examine the witnesses and whether he was afforded an occasion to lead defence. No point was raised before us with regard to any of the aforesaid aspects of the trial or the alleged violation of the Act or the Rules, though the counsel and parties concerned in other cases did argue in certain respects points regarding the alleged violation of the relevant law and the rules to which we attended but Muhammad Muthtar Rana and his counsel did not plead anything of that kind in his case probably due to the plea taken or attitude adopted by him during the trial. In these circumstances it cannot be said that the detenu or his counsel were not aware of the availability of such like pleas if they were minded to rely on them. It appears that probably either they did not consider that those grounds were available to them on factual plane or other?wise thought that they had no merits in view of rule 132 of the Pakistan Army Act Rules wherein it is written that "Whenever it appears that a Court martial had jurisdiction to try any person and made a finding and that there is legal evidence or plea of guilty to justify such finding, such finding and any sentence which the court martial had jurisdiction to pass thereon may, if confirmation is necessary, be confirmed, and shall, if so confirmed, and in all cases where confirmation is not necessary, be valid, notwithstanding any deviation from these rules, or notwithstanding that the charge‑sheet has not been signed by the commanding officer, provided that the charges have, in fact, before trial been approved by the commanding officer and the convening officer, or notwithstanding any defect or objection technical or other, unless it appears that any injustice has been done to the offender, and where any finding and sentence are otherwise valid they shall not be invalid by reason only of a failure to administer an oath or affirmation to the interpreter or shorthand writer, but nothing in this rule shall relieve an officer from any responsibility for any willful or negligent disregard or any of these rules". Be that as it may, the findings recorded above by five judges of this Court are quite explicit on the point that case of Muhammad Mukhtar Rana could not be taken out of the validity coverage given to such cases by Constitution makers themselves under Article 281 of the Interim Constitution ‑(now Article 269 of 1973 Constitution)‑and looked at from whatever angle I see no justification to do the same exercise over again and re‑examine the applicability or non‑applicability of that coverage. I find no scope for the maintainability of the present successive writ petition based on the same cause ? of action pertaining to the same record and the same facts and circum?stances, and hold that on the facts and in the peculiar circumstances of the present case it is incompetent.

72. Re : effect of the Supreme Court Judgments.

8. Stage is now ripe to attend to the effect of the Supreme Court Judg?ments in appeal and review. In The State v. Zia‑ur‑Rehman and others ( P L P 1973 S Q 499 ) while dealing with the appeal of the accused, the Supreme Court at page 95 held as follows :‑

73. "So far as Criminal Appeal No 69 of 1972 which arises out of Writ Petition No. 623 of 1972 is concerned, it has been dismissed by the High Court on the ground that in the writ petition there is no allegation even of any mala fides arid, therefore, it cannot be said that the trial of Muhammad Mukhtar Rana for the offences under Martial Law Regulations recorded by the Special Military Court on the 10th of April, 1972, was not protected by clause (2) of Article 281 of the Interim Constitution.

74. We have examined the grounds set out in the writ petition and are in agreement with the High Court that Writ Petition No. 625 of 1972, was rightly dismissed. We, accordingly, dismiss Criminal Appeal No. 69 of 1972."

75. The accused then applied for review which was dismissed by the Supreme Court on the 15th of October, 1973 and is reported in Muhammad Mukhtar Rana v. The State and 2 others (). The Supreme Court at page 61.6 observed as follows :‑

76. "Muhammad Mukhtar Rana came to this Court in appeal by Original Appeal No. 69 of 1972. This Court, however, also held that the "validity given by clause (P L D 1973 S C 61:4) of Article 281 of the Interim Constitution to acts done or purported to be done in the exercise of the powers given by Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers do not have the effect of validating acts done corurn non judice or without jurisdiction or mala fide. Then it went on to examine whether the proceedings before the Military Court challenged in the High Court were either corum non judice or without jurisdiction or mala fide, and came to the conclusion agreeing with the High Court, after re‑examining the grounds set out in the writ petition filed by Mr. Muhammad Mukhtar Rana in the High Court, that since no grounds of mala fides were alleged, the High Court had rightly dismissed his writ petition. The proceedings before the Special Military Court were also not found to be coram non judice or without jurisdiction."

77. Then at page 618 they dealt with the review petition of the accused and wrote as follows :‑

78. "So far as the Review Petition No. 2 of 1973 is concerned, the learned counsel points out that the reasons which impelled the Court to dismiss the Government's Appeals Nos. 63 and 64 of 1972 applied with equal force to the appeal of the said petitioner, namely, Criminal Appeal No. 69 of 1972. We are unable to agree with the learned counsel because this appeal arose out of a Writ Petition (No. 625 of 1972) which had been filed to challenge the validity of an entirely different proceeding and had nothing whatever to do with the other proceedings. The convictions which were challenged in the High Court by Writ Petitions Nos. 223 and 335 of 1.972 and from which Criminal Appeals Nos. 63 and 64 of 1972 arose were recorded on the 4th April 1972 whereas the conviction that was sought to ba challenged by Writ Petition No. 625 of 1.972 was recorded on the 10th of April 1972.

79. The main reason on whioh the proceedings of the Military Court were held to be vitiated in the other cases (Criminal Appeals Nos. 63 and 64 of 1972) was that the Military Court had attempted to violate an undertaking given to this Court. There was no such undertaking given to this Court in respect of the proceedings from which Writ Petition No. 625 of 1972 arose nor was there any evidence that any date had been advanced hurriedly in this case. Therefore the two cases did not stand on the same footing and each case had to be decided on ? the basis of its own facts. In Writ Petition No. 625 of 1972, we are satisfied that there was no allegation of any improper or hasty action or of any mala fides and, therefore, that writ petition and Criminal Appeal No. 69 of 1972 arising there from were rightly dismissed.

80. The Review Petition No. 2 of 1973 is also without any substance and is, accordingly, dismissed."

81. It is well‑settled that an appeal is nothing but a continuation of as this term is used in legal parlance the suit or a cause in the higher Court. It is removal of a case from an inferior Court to a superior Court. See Chappan v. Moidin Kutti ( 1 L R 22 Mad. 68 ), with reference to the expression of the term 'appeal' in Whartons' Law Lexicon. It is in fact a complaint made to the higher Court that the decision of the lower Court is unsound and wrong. It differs from review in the sense that the primary intention of the review is the reconsideration of the subject by the same Judge under certain conditions while appeal is rehearing by another Tribunal Maharaja Meheshur Sing v. The Bengal Government ((1957‑60) 7 Moor. I A 283 ? ). When a decision is appealed against it is the appellate Judgments which must be looked into in order to decide a question of res judicata or finality of judgments, decisions or orders. In the instant case the operative judgments in the field after appeal and review are those of the Supreme Court and, in my opinion, the present petition which has the propensity of getting out of the effect of these judgments is not maintainable from that point of view as well. The field being occupied by judgments of a Court superior to us we cannot resort to any recourse, which may lead to whittle down their import and efficacy as it is our constitutional duty to respect those judgments as laid down in Article 190 that "all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court" and not in derogation thereof. Even otherwise it is well settled that if the matter has been decided and confirmed by an appellate Court its order cannot be interfered with by taking objection by means of a petition for habeas corpus to the proceedings of the trial Court and I would respectfully add that this principle is all the more attracted when the appellate Court is the Court superior to the Court where petition for habeas corpus is filed. See In re : Warton ( (1855) 139 E R 692 ), Greene v. Secretary of State for Home Affairs ( (1942) A C 284 ), In re : Eno Mally Gopta ( 1 L R 44 Cal. 723 ), Janardhan Reddy and others v. State of Hyderabad and others (A I R 1951 S C 217 ) and Maganlal Jivabhai Patel v. Government of Bombay ( A I R 1953 Bom. 59 ).

82. Apart from all this it was laid down in Fazal Elahi and others v. The Crown ( PLD 1953 FC 35 ) that "judicial dignity" suggests that subordinate Courts cannot take exception to any Federal Court (now Supreme Court) decision on any particular issue of fact. The actual passage in this respect at pages 55 and 56 reads as follows :‑

83. "So far as we are aware, from our own knowledge of judicial practice and precedent and from the assistance provided by learned counsel appearing before us for the parties, and as amicus curiace (from among whom we select the learned Advocate‑General of the Sind Province, Mr. A. K. Brohi, for special measure of gratitude), such treatment, accorded to the highest appellate tribunal of a country by a Court from whose judgments and orders, it is empowered to receive and hear appeals of every kind, is altogether unprecedented. No words are needed to emphasis the departure from the attitude which is traditionally adopted by Courts, however high by their status, towards other Courts to whose appellate jurisdiction they are subject. The Federal Court of Pakistan is the successor, by virtue of a constitutional instrument, viz., the Privy Council (Abolition of Jurisdiction) Act, 950, of the entire jurisdiction previously exercised by the Privy Council, in relation to the High Courts in Pakistan. The solitary occasion which finds mention in the published judgments of the Privy Council when a Court in India purported to disregard findings of fact and of law recorded by the Privy Council occurred as for back as 1925, and the judgment delivered by Mr. Ameer Ali in that case Mata Prasad v. Nageshar Sahai (1521 A 398) lays down with clarity and completeness the limits which all Courts in India must observe in dealing with judicial pronouncements by the Judicial Committee. Having reconsidered ? observations of the Judicial Committee, we hereby declare out considered opinion that precisely the same limits apply to the Courts in Pakistan in relation to judicial pronouncements by the Federal Court, and the Federal Court will not hesitate to enforce them, in such manner as may seem appropriate. It is therefore of great importance that these observations should be reproduced in this judgment in their entirety :‑

84. "In view of the peculiar course adopted by the Subordinate Judge in dealing with this case, and in order to prevent other Courts in India from falling into the same error, their Lordships think it desirable to point out that it is not open to the Courts in India to question any principle enunciated by this Board, although they have a right of examining the facts of any case before them to see whether and how far the principle on which stress is laid applies to the facts of the particular case. Nor is it open to them, whether on account of "judicial dignity" or otherwise, to question its decision on any particular issue of fact. Any application for review of judgment on ground permissible by law only lies to the Judicial Committee."

85. Respectfully following this recourse I find myself unable to hold that the resent writ petition is maintainable.

86. Still another factor to be taken note of as already pointed out, is that rider clause 5 of Article 199 a High Court cannot issue a writ of any kind? (declaratory or otherwise)‑to the Supreme Court‑(and I may elaborate it with regard to the judgments and orders of the Supreme Court. At the time f arguments, learned counsel for the petitioner was trying to justify the restitution of the present writ petition on the ground that the Supreme Court ad refused to allow him to raise some of such grounds as were being urged efore us now. We stopped learned counsel for the petitioner to comment upon the proceedings and judgments of the Supreme Court in that manner rid speaking for myself one reason for my holding that successive application n such cases as present should not be allowed is that it will provide platform for indiscriminate and indefinite comments on judgments of Superior Courts without caring to apply for review‑a job which does not all within the scope of Article 199. However, the contention raised by the earned counsel does not appear to be correct, because, the Supreme Court toes appear to have taken the entire review petition into consideration when towards the close of their judgment they wrote that "the review petition No. 2 of 1973 is also without any substance and is accordingly dismissed." :earlier when the accused wanted to bring his case at par with other cases where plea of violation of Rules had been given effect to, the Supreme court observed that in the case of the present accused his case could not be brought at that level because in the parallel case there was an additional actor of an undue `baste' on the parts of the Military Court which distinguished the other case or cases from the present case where this element !id not exist. In the absence of the aforesaid element of `haste' all the ;rounds taken in review were considered by the Supreme Court to be of no force or to quote the words of the Supreme Court itself "the review petition s also without substance". . What the accused has now done is that he has repeated those or some of those grounds which were contained in his review ?etition and has also added few more. This recourse even otherwise is not permissible, because, it is well settled that when review is refused by a Court that is no ground for filing a new suit on those very grounds. See Raml Gopal Mazumdar and others v. Prasunna Kumar Sanial and others(10 C W N 529), Kallash Chandra Podder v. Gopal Chandra Poddar (AIR 1915 Cal. 161) and Malegoan Budruk Co‑ w_ operative Credit Society v. Gangadhar Naryan Chavre and others (AIR 1940 Bom 284). This principle is all the more applicable, because, here the review was dismissed by the highest Court of the country, namely, the Supreme Court. As I am holding' that the present writ petition is incompetent I refrain from attending to the] merits of the new grounds which have now been taken or added in the amended writ petition filed by the convict in this Court.

9. In conclusion coming to the questions referred to the Full Bench my answers are as follows

87. Serial No.

88. ? Question

89. ? Answer

90. 1

91. Whether a Judge or Judges who have already dealt with the habeas corpus petition ???????????????????? are by any rule of law or propriety precluded from hearing a second horbus corpus petition which contains fresh grounds? ?????

92. ? This point was not pressed by any of the learned ? counsel appearing for the parties and ? the learned Attorney‑General specifically stated that he withdrew the question. The question in ?? these circumstances does not call for any answer from the Full Bench and is accordingly disposed of.

93. 2

94. ? Whether this Court ? can entertain afresh application ?? for habeas corpus ? which contains grounds ??????? which were not raised earlier either before it or before the ? Supreme Court ?

95. ? I would like to split the answer to this question in the following way

(a) There is a distinction between preventive detention till further orders punitive detention brought about after trial and conviction of the detenu for a term certain. The present is not a case of preventive detention and, therefore, the question of explaining the law on the subject with regard to preventive detention ?? does not arise. Holding accordingly I reserve my views regarding cases of preventive detention to be expressed ??? at some more appropriate stage and in some more appropriate case to be answered with reference to the questions which may be brought before the Court at the relevant time. At ? present the discussion of such a subject will be merely hypothetical which I do not want to enter into.

96. ?????? (b) As regards the punitive detention ?? where the detenu is being detained in pursuance of a trial by a Court which has found him guilty of the offences charged and has passed an order sentencing him to a term certain, if the ? High Court has once examined that order and has pronounced upon its validity, a successive petition after the ? aforesaid verdict is incompetent as the validity of that order cannot be ? bifurcated as explained in detail with various reasons in the body of my judgment which should be read as a ? part of this answer.

97. ? (c) Second portion of this question envisages a situation where the case of the detenu has been through the Supreme Court as well and is linked with ? question No. 3 where I have recorded my view.

98. 3

99. Whether such an application can be ?? proceeded with in the ? High Court in spite of ? the fact that the detenu's appeal and review petition had been ? dismissed by ??????? the Supreme Court ?

100. My answer for the various reasons recorded in the body of the judgment will be in the negative.

101. 4

102. Whether the detenu's remedy lies in approaching the Supreme Court because the matter was finally dealt with by that Court in review ?

103. This question in the form in which it ??? is couched has the propensity of tempting ???????? this Court to express the view whether resort to the Supreme Court on the facts and in the circumstances of the present case is the detenu?s remedy?. I think I cannot express my view with regard to proceedings in a Court superior to us, because, it is not within ?????? my domain to say that certain proceedings in that Court will be well maintained or not. The question of propriety or justification of, or jurisdiction regarding any proceedings, ???????????????? in the Supreme Court, is the sole ?? authority of that Court to decide and not for us. ???? However, if answer to this question ?? is in any manner necessary my reply will be that any remedy if at all open to the detenu is only to approach ???????????????????? the Supreme Court and not by filing present writ petition as laid down in M ata Parasad v. Nagesher Sahaie and reiterated in Fazal Elahi and others v.The Crown.

104. The upshot of the above discussion is that the present writ petition is liable to be dismissed as not maintainable which I hereby do. There shall be no order as to costs.

105. A. R. SHEIKH, J.‑This reference to the Full Bench in Criminal Mis?cellaneous No. 328/11 of 1974, a petition filed by Muhammad Ajmal Khan under Article 199(1)(b)(f) of the Islamic Republic of Pakistan, 1973, read with section 491 of the Code of Criminal Procedure, is for consideration and return of answer to the following four questions of law:

(i) Whether a Judge or Judges who have already dealt with the habeas corpus petition are by any rule of law or propriety precluded from hearing a second habeas corpus petition which contains fresh grounds ?

(ii) Whether this Court can entertain a fresh application for habeas corpus which contains grounds which were not raised earlier either before it or before the Supreme Court?

(iii) Whether such an application can be proceeded with in the High Court in spite of the fact that the detenu's appeal and review petition bad been dismissed by the Supreme Court?

(iv) Whether the detenu's remedy lies in approaching the Supreme Court because the matter was finally dealt with by that Court in review?

106. For disposal of these questions, it is necessary to briefly state the facts of the case. Muhammad Mukhtar Rana detenu was proceeded against under sections 148, 302/149 and 452 of the Pakistan Penal Code, read with Martial Law Regulation No. 16‑A and section 13 of the West Pakistan Arms Ordinance XX of 1965, and against that prosecution by the Martial Law Authority, he filed Writ Petition No. 223 of 1972. During the course of hearing of that writ petition, alongwith other petitions, namely, Writ Petitions Nos. 355, 403 and 404 of 1972, in which similar points of law were involved, by the Full Bench of five Judges, when Muhammad Mukhtar Rana was on his way back from the High Court after Court attendance, he was arrested under Martial Law Regulations Nos. 16‑A and 89 in another case on the allegation that on the 14th of March 1972 he had made certain objection‑" able speeches and as a consequence be preferred Writ Petition No. 625 of 1972. Before the hearing on merits concluded the detenu was convicted to five years' rigorous imprisonment by the Martial Law Authority on the 4th of April 1972 and the sentence was confirmed by the Governor as Martial Law Administrator on the 9th of April 1972 and promulgated by the President, Special Military Court on the 10th of April 1972. As a result of the deliberations of the Bench, Writ Petition No. 223 of 1972 of the detenu was allowed by the majority on the ground that the Summary Military Court bad acted with indecent haste and as such the proceedings were tainted with mala fides and the same should be quashed, for the added reason that the Advocate‑General bad given an undertaking before the Supreme Court that the Tribunal would not pronounce final orders during the pendency of the writ petition before this Court. As regards the second Writ Petition No. 625 of 1)72, the Full Bench found and held that the trial and conviction was not a case of coram non juice and no grounds of mala fides, factual or legal, having either been urged or proved, a writ of habeas corpus will not issue. The judgment of the Full Bench is reported as Mr. Ziaur Rahman v. The State ( 1933 P L R 373 ). Against this judgment the detenu filed an appeal before the Supreme Court. The State also preferred appeal in the other four cases and the Supreme Court while rejecting the appeals of the State also dismissed the appeal of the detenu. See State v. Ziaur Rahman (P L D 1973 S C 49). The detenu preferred a review petition. The grounds for review have not been made ,,available to the Bench despite assurance given by counsel for the parties to do so. The consolidated judgment of the Supreme Court, by which this Review Petition as also the Review Petition of Ijaz Hassan petitioner in Writ Petition No. 403 of 1972 have been disposed of, is reported as Ijaz Hasan v. State (P L D 1973 S C 614) and the ground for review noted therein at page 618 of the report reads:

107. "So far as the Review Petition No. 2 of 1973 is concerned, the learned counsel points out that the reasons which impelled the Court to dismiss the Government's Appeals Nos. 63 and 64 of 1972 applied with equal force to the appeal of the said petitioner, namely, Criminal Appeal No. 69 of 1972. . . . . ."

108. The petitioner has moved this second petition in the nature of habeas corpus on the following main grounds:‑

(1) That orders passed by Mr. Ghulam Mustafa Khar in respect of convening of some Special Military Court, issuing of directions to the Special Military Court, to punish the detenu and confirmation of the sentence by him offend against the Proclamation of 21st Decem?ber 1971.

(2) That the composition of the Special Military Court was in contraven?tion of section 87 of the Army Act, 1952.

(3) That the Special Military Court has to take an oath in the terms of section 106 of the Army Act, i.e., oath given to members of the Court, and section 107 visualizes the administering of an oath to the other officers in the Special Military Court. In this case no oath was administered to other officers, namely, the prosecutor and the shorthand writer. The proceedings as such being hit by section 107 are rendered illegal.

(4) That while conducting the trial of the detenu, the Special Military Court has violated the provisions of sections 87, 97, 102, 104, 106, 110, 118, 119 and 123 of the Army Act, 1952, and grossly flouted rules 13, 14, 15, 23, 24, 35, 41, `,46, 50, 53, 63, 64, 75, 81, 91, 130, 135, 138, 139 and 145 of the Army Act Rules, 1954. This short circuiting of procedure was deliberate act to furnish this Court with a fait accompli.

(5) That it is borne on the record that summary of evidence and the charge‑sheet were never given to the detenu before the commencement of the trial. In fact, according to a letter of the S. S. P., Lyallpur, dated the 5th of April 1972, the summary of evidence was being supplied to him. This bespeaks the fact that the police was contemplating supplying of charge‑sheet and summary of evidence after the detenu had suffered the trial. This amounts to mockery of justice and fair trial.

109. The learned Single Judge hearing the case at the preliminary stage has examin?ed the various authorities cited, and considering the case of considerable importance passed an order for placing it before a larger Bench for a more pronounced judgment on the aforesaid four questions formulated by him.

110. As regards question No. 1, the parties agree that there is no rule of law or propriety precluding a Judge or Judges who have already dealt with the A habeas corpus petition from hearing a second habeas corpus petition on fresh grounds. I would, therefore, answer question No. 1 in the negative.

111. The proposition that emerges from the second question raised is whether or not repeated or successive applications lie before the Court for issuance of a writ of habeas corpus on the same facts and grounds and what are the principles and guide rules in such cases. Learned counsel for the petitioner has mainly relied on the following observations of their Lordships of the Supreme Court in the appeal at page 97 of the report and in the review petition at page 618 (reproduced below) that the case has been disposed of without examining the violation of rules 25, 41, 137 and 145 of the Pakistan Army Act, 1952, which go to the root of the case and affect the jurisdiction of the Summary Military Court resulting in vitiating the order of conviction of the detenu and as such the confinement of the detenu is illegal:

112. Appeal (P L D 1973 S C 49 at p. 97) :

113. "The learned counsel appearing for Muhammad Mukhtar Rana has also drawn our attention to other violations committed by the Military Court by referring us to rules 25, 41, 137 and 145 to show that undue haste was displayed by the Military Court in producing an order of conviction. The procedure adopted by the Military Court clearly suggested that it was out to flout the undertaking given to this Court. It could not have honestly committed so many mistakes. The High Court was therefore right in taking the view that the conviction and sentence recorded by the Summary Military Court were tainted by mala fides.

114. I have given my anxious consideration to these arguments and am inclined to agree with the majority view in the High Court that the Military Court acted with improper haste in this matter not only in clear disregard of the undertaking given to this Court but also in disregard of the rules of procedure prescribed under the Pakistan Army Act. It gave no notice of its intention to try all the accused jointly nor did it enquire of any of the accused if he had any objection to such joint trial nor did it go into the plea of jurisdiction raised by the accused nor did it before recording sentence receive any evidence as to previous convictions and character. The contention that the Military Court was out to flout the undertaking is not without substance."

115. Review (P L D 1973 S C 614 at p. 618):

116. "The main reason on which the proceedings of the Military Court were held to be vitiated in the other cases (Criminal Appeals Nos. 63 and 64 of 1972) was that the Military Court had attempted to violate an undertaking given to this Court. There was no such undertaking given to this Court in respect of the proceedings from which Writ

117. Petition No. 625 of 1972 arose nor was there any evidence that any date had been advanced hurriedly in this case. Therefore, the two cases did not stand on the same footing and each case had to be decided on the basis of its own facts. In Writ Petition No. 625 of 1972, we are satisfied that there was no allegation of any improper or hasty action or of any mala fides and, therefore, that writ petition and Criminal Appeal No. 69 of 1972 arising therefrom were rightly dismissed."

118. The learned Attorney‑General has joined issue on the question of competence of a'second application for a writ of habeas corpus after the dismissal of the first. The objection is based on three‑fold ground: It has been firstly con?tended that if the previous application is considered to be one under section 491, Cr. P. C , then any pronouncement in that case being a judgment in a criminal matter, review of that judgment is barred under section 369 of the Code of Criminal Procedure. Kishori Lai v. The Crown ( I L R 1945 Lah. 573 ???? ) is relied on. Secondly, if it is to be considered not a case under section 491, Cr. P. C., then the general principles of res judicala are to be applied to the case and the matter having been fully considered by a Full Bench of this Court cannot be re‑agitated on the same facts and the same grounds. Incidentally, it may be mentioned that the earlier Writ Petition No. 625 of 1972 was not under section 491 of the Code of Criminal Procedure. Thirdly, the matter having been considered by the Court of Appeal and further in review by the highest Court of the country cannot be re‑canvassed before this Court. This third aspect of the objection on the part of the learned Attorney‑General pertains to questions Nos. 3 and 4 and will be dealt with while considering those questions. The learned Attorney‑General further argued that unless and until the detenu has a fresh cause of action, no second writ petition lies for habeas corpus. By fresh cause of action, the learned Attorney‑General meant that there is some change in law under which the detenu is being detained or there are some other facts width make his detention or confine?ment in jail illegal, but not because of facts which were already on the record, whether within the knowledge of the detenu or not. In other words, the learned Attorney‑General wants the Court to invoke the principles of constructive res judicata even in cases of habeas corpus under Article 199. On the question of successive applications, the learned Attorney‑General has strongly relied on the judgment in (Re Hasting No. 3 i ((1959) 1 A E R 698

119. ). The applicant, Edward Thomas Hastings, was convicted in July 1957 on all counts of indictment containing five counts, the first count being in regard to felony and the other four counts in regard to misdemeanour. He was sentenced to B four years' corrective training but no part of the sentence was stated to be on any particular count‑ On appeal against conviction on the first three counts, the Court of Criminal Appeal quashed the conviction on the first count. There was no alteration of sentence. On an application to a Divisional Court of the Queen's Bench Division for a writ of habeas corpus, the applicant claimed that the sentence of four years' corrective training related exclusively to the first count of indictment and that, therefore, he was entitled to be released. The Divisional Court refused the writ holding that as a matter of construction the words used by the learned recorder amounted to concurrent sentences of four years' corrective training on each count and that accordingly, the quashing of one count had no effect on the sentence, which remained a valid sentence (see Re Hastings (3). From the decision of the Divisional Court the applicant carried an appeal to the Court of Appeal, who refused to enter?tain the appeal on the ground that it arose in a criminal cause or matter in which they had no jurisdiction. Thereafter, the applicant made another original application for an order of writ of habeas corpus to the Queen's Bench Division. The Judges constituting the second Divisional Court of the Queen's Bench Division were different Judges from those who constituted the Divisional Court to whom the previous application had been made, and the question arose whether the second Divisional Court had jurisdiction and were bound to hear the second application for a writ. It may be mentioned that the second application was on exactly the same grounds and on the same evidence as in the previous application. After tracing the transfer of jurisdiction in regard to the issue of the writ of habeas corpus from the old Courts of Common Law to the High Court, the Judges held that the applicant having already once been heard by a Divisional Court of the Queen's Bench Division is not entitled to be hard again by another Divisional Court of the same Division. This was a departure from the view expressed by the Judicial Committee in Eshugbayi Eleko v. Government of Nigeria (Officer Administer? ing) (1928 A C 459), in which Lord Hailsham. L. C., observed:

120. "If it be conceded that any Judge has jurisdiction to order the writ to issue, then in the view of their Lordships each Judge is a tribunal to which application can be made within the meaning of the rule, and every Judge must hear the application on the merits. It follows that, although by the Judicature Act the Courts have been combined in one High Court of Justice, each Judge of that Court still has jurisdiction to entertain an application for a writ of habeas corpus in term time or in vocation, and that he is bound to hear and determine such an applica?tion on its merits notwithstanding that some other Judge has already refused a similar application."

121. The learned Judges, however, refrained to express any concluded opinion to the extent of an applicant's right to go from Judge to Judge as distinct from going from Divisional Court to Divisional Court of the Queen's Bench Division (see Re Hastings No. 2 ((1958) 3 A E R 625). Hastings did not accept defeat and filed a third application before a Divisional Court of the Chancery Division for a writ of habeas corpus directed to the Governor of Liverpool Gaol, relying on observations made in Eshugbayi Eleko v. Government of Nigeria (Officer Administering). The learned Judges of the Divisional Court (Vaisey and Haiman, JJ.) dismissed the application taking the view that since the Supreme Court of Judicature Act, 1873, the Chancery Court, as it was previously called, was no longer a separate Court, and that the Judges of the Chancery Division were, no less than the Judges of the Queen's Bench Division, or of the Probate, Divorce and Admiralty Division, Judges of the High Court; from which it followed that, if the Divisional Court, presided over by Lord Goddard, C. J., on the original application had spoken for the Queen's Bench Division, it must also be taken to have spoken for the personnel of the High Court as a whole and as a single entry (see Re Hastings No. 3) ((1959) 1 A E R 698). The applicant appealed to the Court of Appeal. The view taken by the Divisional Court has not been adversely commented upon, although the appeal has been dismissed as incompetent, having regard to the language of section 31(1)(a) of the Supreme Court of Judicature (Consolidation) Act, 1925, which says:

122. "No appeal shall lie‑(a) except as provided by the Criminal Appeal Act, 1907, or this Act, from any judgment of the High Court in any criminal cause or matter . . . ."

123. (See Re Hastings (No. 3) (1959) 3 A E R 221 (C A)

124. Thereafter, the British Parliament enacted the Administration of Justice Act, 1960, wherein section 14(2) (reproduced below) lays down that no application for habeas corpus shall be made on the same grounds to the same Court or Judge or any other Court or Judge, unless fresh evidence is adduced:‑

125. "Notwithstanding anything in any enactment or rule of law, where a criminal or civil application for habeas corpus has been made by or in respect of any person, no such application shall again be made by or in respect of that person on the same grounds, whether to the same Court or Judge or to any other Court or Judge, unless fresh evidence is adduced in support of the application; and no such application shall in any case be made to the Lord Chancellor."

126. A study of the provisions of the Administration of Justice Act, 1960, shows that distinction has been maintained in civil and' criminal applications for habeas corpus. Au application for habeas corpus in respect of detention in a criminal cause or matter may be granted by a Single Judge, but such an application can be refused only by a Divisional Court of the Queen's Bench Division. In other words, `an applicant for habeas corpus may still have two bites at the cherry before he need lodge an appeal'. A writer on Constitu?tional Law has remarked:

127. "This enactment has not, unfortunately, resolved all difficulties. It is still by no means clear what the position of the applicant for habeas corpus is in vacation as distinct from term time. In vacation there is normally only one (or, in the Long Vacation, two) of the Judges of the High Court available. The Act of 1960 (section 14(1)) specifically prohibits a Single Judge from refusing, as distinct from granting, a writ of habeas corpus in a criminal case. Such an application can be refused only by a Divisional Court‑ In the Long Vacation the two vacation Judges may act as a Divisional Court (R. S. C., Ord. 63, rule 12), but the position in other vacations is not clear. The old learning on the right to go from Judge to Judge in habeas corpus cases may therefore still be important."

128. (Essays in Constitutional Law by R. F. V. Heuston 1964 Edition, page 127).

129. After the passage of Administration of Justice Act, 1960, there has been one case reported as Ex parte Schtraks ( (1964)1QB191 ). The facts therein show that the petitioner after having failed in the habeas corpus petition went in appeal and the Court of Appeal having refused to permit adducing of further evidence in support of the petition and the appeal, the petitioner moved the Court for a second time and further evidence adduced in view of section 14(2) of 1960 Act was considered by the learned Judges while entertaining the second habeas corpus petition, although on merits the petition was dismissed.

130. Applications of the nature of habeas corpus have been the subject of debate even in British Indian Courts, and without attempting to trace the history of this jurisdiction, suffice it to say that in C. P. Matthen and others v. District Magistrate, Trivandrum and another (AIR 1959PC213) their Lordships of the Judicial Committee made a very strong observation to the effect that the relief by a writ of habeas corpus was not available under the English Common Law in India but was solely governed by the provisions of section 491 of the Code of Criminal Procedure. Then arose another controversy amongst the various British Indian High Courts and conflict of opinion came to the fore. It was held in some cases that once a petition under section 491, Cr. P. C. is dismissed, the order was not subject to review by virtue of section 369, Cr. P. C., as review of judgment was expressly barred. In view of the observations in Hori Ram Singh v. Emperor (AIR1939FC43) that the word `judgment' has has not been defined in the Code of Criminal Procedure, the decision in other cases was that such an order was not a judgment and that the principles of res judicata are not applicable to criminal cases, as there is nothing like res judicata in a criminal trial as long as it does not terminate in either acquittal or conviction so as to attract the provisions of section 403, Cr. P. C. With the dawn of freedom in the Indo‑Pakistan sub‑continent the position under?went a change, with writ jurisdiction having been conferred on the various High Courts. The fact remains that despite this constitutional jurisdiction of habeas corpus which was enshrined firstly in section 223‑A of the Government of India Act, 1935, then in section 170 of the 1956 Constitu?tion, again in section 2(4) of the Laws (Continuance in Force) Order, 1958 and then in Article 98 of the 1962 Constitution and subsequently in Article 201 of the Interim Constitution of 1972 and Article 199 of the Con?stitution Act of 1973, section 491 of the Code of Criminal Procedure, has remained on the statute book and is not contended to be in any manner ultra vires the Constitution or otherwise rendered obsolete. The same position obtains in the Indian Union. The issue that arises is that if a person moves an application under section 491, Cr. P. C., he is entitled to get relief in a second application under the Code of Criminal Procedure and an order passed in that case will perhaps not be hit by section 369, Cr. P. C., will an order made in exercise of writ jurisdiction under Article 199 of the Constitu?tion Act be subjected to any such restriction? There is authority for the) view that jurisdiction under Article 199(l)(b)(i) is much wider thaw section 491 of the Code of Criminal Procedure (See Mian Ghulam Mani, Maj‑1 Gen. (Retd) v. Federal Government of Pakistan (P L D 1974 Lah. 153). The argument advanced by the learned Attorney‑General, however, is that a petition under Article 199 of the Constitution for review is not permissible because there is no such power of review given to the High Court for that purpose. When it was pointed out to him that if the proceedings in writ jurisdiction under Article 199 of the Constitution are of the nature of civil proceedings, then as held by the Supreme Court in Hussain Bakhsh v. Settlement Commissioner. Rawalpindi and others (P L D 1970 S C 1) the orders passed are reviewable by virtue of the provisions of section 114 read with Order LVII, rule 1, Code of Civil Procedure, the learned Attorney‑General did not contend to the contrary. To the same effect is Mirza Muhammad Yaqub v. Chief Settlement Commis?sioner, Lahore, and another (PLD 1965SC254). The view in various other authorities (which pertain to cases arising out of writ jurisdiction other than applications for habeas corpus) of the Supreme Court, listed as Commlssioner of Income‑tax, East Pakistan, Dacca v. Wahiduzzaman (PLD1965SC171), Abdul Majid and another v. Muhammad Riaz Hashim and another (1968 S C M R 816), Muhammad Suleman and another v. Settlement Authorities and others (1969SCMR162), Muhammad Chiragh.ud‑Din Bhatti v. The Province of West Pakistan ( 1971 SCMR 447 ) and Fazal Din and 14 others v. The Custodian, Evacuee Property, Lahore and 21 others (PLD 1971 SC 779), is that even if certain facts were within the knowledge of the petitioner and they are not urged in the first petition, the party is precluded from raising those grounds in a fresh petition because of the attraction of the principles of constructive res judicata. There has been an argument addressed at the bar that proceedings in a petition of the nature of section 491, Cr. P. C. under Article 199 of the Constitution Act are not, however, proceedings in the sense of a suit, etc.. considered under the Code of Civil Procedure, and, therefore, it has to be treated on a different plane. It has also been argued on behalf of the detenu that the rules of procedure (Chapter 4‑F, High Court Rules and Orders, Volume V) for such petitions under Article 199 partake of the character of criminal proceedings because it is a writ of return and orders passed thereon and action taken and procedure adopted is that of Criminal Procedure Code and, therefore, strictly speaking these are constitutional proceedings in a criminal case, not civil proceedings in the sense in which they are understood by students of civil law and as such these proceedings have to be viewed from a different angle. There has been conflict of judicial authority as to the proceedings under section 491, Cr. P. C. being civil or criminal but with powers of issuing a writ of habeas corpus having been vested in the High Court it need not be examined in detail. There is no dearth of authority for the view that the habeas corpus proceedings may be civil or criminal proceedings according to the nature of the proceedings out of which the application for the writ arises. This view finds support from the statement made at the bar by the Deputy Attorney? General, who has addressed the Court in the absence of the Attorney ?General on the last two days of the hearing of the case, that in the Supreme Court the petitions of the nature of the habeas corpus are being registered as criminal appeals.

131. The learned Attorney‑General has next contended that even if these proceedings are to be considered of criminal nature, the principle of finality, founded on the . general rule that 'a man shall not be twice vexed for the same cause' (Broom's Legal Maxims, Tenth Edition, page 217) is applicable and once this Court has given its verdict by a Bench of five Judges that the detenu has averred no m ala fides, factual or legal, and the tribunal trying him not being coram non judice, the same matter cannot be re‑agitated. Mazhar Hussain Bhuiya v. The Province of East Pakistan and another (PLD 1970 SC 397) has been relied on by both the sides. In that case an application under section 491 of the Code of Criminal Procedure was moved by Mazhar Hossain Bhuiya in the High Court of Dacca calling in question the continued detention of his relative Hussain Ali on the ground that the prisoner had earned such remis?sions as added to period of imprisonment already undergone covered period of sentence inflicted and as such he was entitled to release. The application was dismissed by the High Court. In the special leave to appeal proceedings the applicant was unable to submit proof of remissions. He prayed for withdrawal of the petition for special leave to appeal with permission to bring a fresh application in the High Court. The prayer was allowed by the Supreme Court observing

132. "We permit the withdrawal of this petition and dismiss it as such. The petitioner shall be at liberty to file a fresh petition in the High Court after ascertainment of the correct factual position, if so advised. If the detention of Hussain Ali is illegal, as alleged by the petitioner, it is a continuing wrong, and there can be no bar to the making of afresh petition, under section 491 of the Code of Criminal Procedure, or to the moving of a petition for a writ of habeas corpus, to set right that wrong. We order accordingly."

133. It has been argued by the learned Attorney‑General that although the learned Judges of the Supreme Court have termed 'detention' as a 'continuing wrong ?it is not an authority for the view that successive or repeated applications could be made. On the other hand, Dr. Khalid Ranjha, Advocate, strongly relies on this precedent and argues that although it has been held by the Supreme Court in petitions under Article 199 of the Constitution, which are of the nature of mandamus, certiorari or prohibition, that principles of res judicata are applicable and a second petition would not lie unless and until the petitioner is able to establish before the Court that there is fresh evidence and there are fresh grounds which are not hit by the principles of res judicata and even constructive res judicata, yet the Supreme Court has considered petitions under Article 199(1)(b)(i) of the nature of habeas corpus to be different and the words 'continuing wrong' is indicative of that fact, which has weighed with the learned Judges of the Supreme Court. Dr. Khalid Ranjha has further argued that because liberty of the subject has been enshrined in the Constitution itself, the Court is not to invoke technicalities of procedure. Learned counsel has next strongly relied on the Full Bench decision of this Court reported as Msr. Nasim Fatima v. Government of West Pakistan and another ( P L D 1967 Lah. 103 ) and has argued that after a careful consideration of the develop?ment of the case‑law in England and the Indo‑Pakistan sub‑continent, the learned Judges have come to the conclusion that a second application under section 491, Cr. P. C. is competent if fresh facts have emerged and on fresh grounds. For appreciation of the full discussion, paras. 46 and 47 of the report may be reproduced:‑

134. "46. For an examination of the question whether these petitions are competent, it is necessary to state that the grounds of challenge in these petitions are not the same as in the earlier two petitions, which were dismissed. They are based on entirely different grounds and on different facts. Therefore, the first objection is misconceived. We are not inclined to accept the second contention that because some grounds have not been raised in the first petition, they cannot be raised in the second or the third petition. It is practically settled that a habeas corpus petition can be instituted on fresh grounds and that the principle of res judicata in section 11, C. P. C., has no application. We agree with the learned Judges of the East Punjab Full Bench that the principle of res judicata cannot be prayed in aid of declining to set at liberty a person, who is being illegally confined, even if a former application of his has been dismissed on other grounds and the ground on which the detention has been shown to be illegal was not taken in the earlier petition.

47. The question does not arise for our consideration whether if a petition has been dismissed, a second petition can be entertained on the same facts, if it is shown that the detention is illegal and we will confine ourselves to the consideration of the question whether on different facts and on fresh grounds a second or successive petitions are not competent under clause (b)(i) of Article 98(2) of the Constitution.

135. This sub‑Article imposes a sacred trust on this Court to preserve the liberty of the subject and to safeguard against unlawful or improper manner of detention. This duty cannot be shirked and if it is shown to the Court that a detention is unlawful, it must release the person in custody. It may be that even where an order of detention has been upheld on the ground that it is lawful, it may be shown on a sub?sequent application that the continued detention is either unlawful or that the person is being detained in an unlawful manner. Supposing a person is detained under rule 32(1)(b) under the orders of a Deputy Commissioner within his jurisdiction and his order, though challenged, is upheld by the Court, but the person is removed under the orders of the Deputy Commissioner to a place of detention outside his jurisdic?tion, his detention outside his jurisdiction would be unlawful manner of detention. Would it not be open to this Court to entertain an application and to grant relief to the petitioner on a second application? Instances can be multiplied to show that an application on fresh grounds can never be barred. It can be visualised that the decision or rejection of a former petition of this nature may not in every case operate as res judicata or have finality. Even in a case in which the Court has determined that on the day of the order the person in custody is being lawfully detained, a subsequent petition, if directed against the continued detention, on a date subsequent to the order of the Court, need not involve a review of the earlier order of the Court, dismissing the earlier petition, nor may violate the principle of finality of judgment of the Court. If the detention is shown to be either unlawful or unlawful manner (sic), it is the duty of this Court to release the person in detention and it‑is no answer to the petition that an earlier petition has been dismissed. The purpose of the Constitution will be defeated if a second application is not entertained on the technical ground that a former petition has been dismissed. We cannot visualise a techicality to stand in the way of setting at liberty a person, who is being detained without lawful authority or in an unlawful manner. If the question is to be decided on general principles of public policy, then obviously the Courts must lean in favour of granting the relief rather than refusing it, unless there is a prohibition in the rules or the statute, but there is no prohibition on successive applications in the rules or the statute. The wording of the Constitutional provision enables a challenge to an order of detention and the Court is authorised to satisfy itself that the person in custody is not detained without lawful authority. This duty the Court must per?form. The Court is not relieved of this duty, because a certain ground, or a question of law, or fact, or a certain reasoning, which could have shown the order of detention to be unlawful, was not raised or taken before the Court in an earlier petition. Therefore, a second petition on fresh grounds is not barred by reason of the dismissal of earlier peti?tion, for the Court is concerned with the examination of the question whether the custody is in fact lawful or not, which depends upon the lawfulness of the order and not on the resection of an earlier petition. It is generally accepted and we may refer to only two canes, S. Dilbagh Singh v. Emperor A I R 1944 Lab. 373 and Ramji Lal v. Rex A I R 1949 E P 67 that a second application under section 491 is competent if fresh facts have emerged and on fresh grounds since in these petitions fresh grounds have been raised, there is no force in the contention of the learned Advocate‑General that they cannot be entertained."

136. The objection on the other side to this authority is that their Lordships of the Full Bench have relied on Common Law of England which was not available in this country after the enactment of section 491 of the Code of Criminal Procedure as held by their Lordships of the Privy Council in C_P. Manhan and others v. District Magistrate, Trivandrum and another ( AIR 1939 P C 213 ) and once we come to the conclusion that the principles of Common Law were not applicable, they could not be invoked while considering petitions of the nature of habeas corpus either under the 1962 Constitution or the present Constitutional document of 1973. The parties have also referred to some case‑law of Indian jurisdiction. There has been conflict of opinion and I need not go into those decisions in detail. The matter has been before the Supreme Court of India also in Daryao v. State of U. P. ( A I R 1961 S C 1457 ) and therein after survey of the case‑law in England pertaining to Hastings case, referred to above, the learned Judges refrained from expressing any opinion on the question of repeated applications of habeas corpus. Two cases of the Burma jurisdiction reported as 1950 Bur. L R (S C) 17 and 1949 Bur. L R (S C) 1.57 have been referred on behalf of the Attorney‑General. Unfortuna?tely these reports are not available to the Court and only a short note appearing at page 2934 of the A I R Manual, Volume 111, has been referred. The note reads as under:‑

137. "Where the second application is made on the ground of discovery of fresh facts, which, although they existed at the time of the previous application, were yet not known to the applicant at that time, the second application is really an application for review, and on the principle that no review will lie in the absence of a statutory provision granting the right to review the second application must fail."

138. In the United States of America, the other cradle of democracy and freedom in the West, the law of habeas corpus, has been dealt with by Forrest G. Ferris in Part I of his celebrated treatise. `The Law of Extraordinary Legal Remedies? 1926 Edition. While discussing the question of applicability of the principle of res judicara to applications for a writ of habeas corpus, the learned author observes in para. 55 at pages 69‑70 as under:‑

139. "By the great preponderance of authority the principle of res judicata , when not otherwise provided by statute, has no application to habeas corpus proceedings where there‑is a refusal to discharge; a decision on one writ is no bar to subsequent proceedings . . . ."

140. In American Jurisprudence 2d (1968), Volume 39, the exposition of law obtaining in the United States as given in section 159 at pages 290 to 292 is as under:‑

141. "159. Effect of judgment; res judicata.‑At early Common Law, the rule was that the doctrine of res judicata did not extend to a decision on habeas corpus refusing to discharge a prisoner, and the Courts have generally accepted or given effect to that rule where not modified by statute, so that in the absence of statute, a decision on one writ of habeas corpus, refusing to discharge a prisoner, is generally not a bar to the issuing of another writ, based on the same state of facts, or to a hearing and discharge thereon. This rule, however, is not so inflexible as to preclude a Court from giving some consideration to the denial of a discharge to the same petitioner in a prior proceeding. It does not preclude a Court from exercising its jurisdiction in refusing a discharge on the ground of abuse of the writ by the petitioner in a prior proceeding in which he sought to be discharged, but failed, for no good reason shown, to offer proof then available to him.

142. In some jurisdictions, statutes expressly prohibit the commencement of a second habeas corpus proceeding for the same cause while the deter?mination in the first remains unreversed. Such statutes, in combina?tion with other statutes providing for a review, on application of either party, of a decision that constitutes a final determination of a habeas corpus proceeding, operate to render the doctine of res judicata applicable to the same extent as in other proceedings. Under some statutes, an order or judgment in habeas corpus is res judlcata where the identical question with no change of status is again presented to the same or to another tribunal, and this applies not only to issues actually determined but also to matters that could properly have been deter?mined. Generally, however, where the petitioner's previous applica?tion was denied without a decision on the merits, such denial does not preclude a subsequent application on the tame grounds.

143. The general rule is that the doctrine of res judicata is applicable to judgments discharging prisoners and judgments in controversies involving custody of infants."

144. In the Dominion of Canada, the aright of successive applications for habeas corpus has not been denied. In the Indian Constitution, as stated by Basu in his Commentary on the Constitution of India, Volume III, page 469, Fifth Edition (1967), the right is considered to be still intact. Even in the United Kingdom, as already stated above, the right of going from Court to Court or from Judge to .fudge was recognised up to 1928) see Eshug?bayi Eleko v. Government of Nigeria (Officer Administering). This aspect of the case has, however, been re‑considered in Re : Hastings and as already observed above, it has been held that right of going from Court to Court cannot be there because now the High Court is one, but the right of going from Judge to Judge remained undecided. Even Lord Parker, C. J., observed in Re Hastings (No. 2) that the decision whether or not to issue a writ for habeas corpus is not a judgment so that there is no res judicata. Thereafter comes the Administration of Justice Act, 1960, salient features of which have been noticed in an earlier‑ part of this judgment. In this statute also the right of second application has been retained although on adducing fresh evidence or grounds. The position under section 491 of the Code of Criminal Procedure has already been surveyed and the preponderant view appears to be that decision of an application under section 491 of the Code of Criminal Procedure is not a judgment, the question of bar of section 369 of the Code of Criminal Procedure does not arise and reconsideration of the matter on a successive application is not barred it. case is made out on fresh grounds. The observations in Koshori Lal v. The Crown (ILR 1945 Lah 573) to the contrary cannot be supported by reason of the decision ,in Hori Ram Singh v. Emperor ( A I R 1939 F C 43 ). The correctness of the opinion expressed was also doubted in S. Dilbagh v. Emperor ( A I R 1944 Lah. 373 ), and that is what has been held by the learned Judges of the Full Bench in Mst. Nasim Fatima v. Government of West Pakistan and another ( P L D 1967 Lah. 103) ? Analysing the position from both angles of the proceedings being civil or criminal, if the proceedings are of civil nature, the matter stands clinched by the decision of the Supreme Court in Fazal Din and 14 others v. The Custodian, Evacuee Property, Lahore, and 21 others (1) that the principles of res judicata apply but at the same time it cannot be argued with success that the case cannot be reviewed if the applicant can bring his case within the purview of Order XC,VII, rule 1, C. P. C. (see Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others. On the other hand treating the proceedings as of criminal nature, since the issue is not of guilt or innocence but the legality of the custody, the principle of finality much less the technical rule of procedure embodied in res judicata is not invocable, in case a second application is filed on fresh grounds. The observations of their Lordships of the Supreme Court in Mazhar Hossain Bhuiya v. The Province of East Pakistan and another, as to the illegal detention being a continuing wrong and the following rule of law laid down in Gulzar Hassan Shah v. Gulam Murtaza and 4 others, as to finality of orders passed in criminal cases do support the contention of the petitioner:‑

145. . . ,General principles 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 after 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. . ."

146. Considering the various aspects of the right of a citizen to enjoy liberty and how jealously this right has been guarded and enshrined in the Constitution of the country from time to time, my answer to the second question is that the view taken in Mst. Nasim Fatima v. Government of West Pakistan and another is the correct exposition of law and needs no further re‑statement.

147. Coming to the last two questions as to the effect of the judgment of their Lordships of the Supreme Court in appeal and review proceedings, the argument advanced on behalf of the learned Attorney‑General is that the judgment of this Court having merged in the judgment of the Supreme Court in appeal and the matter having been further considered in the review petition moved by the detenu, if at all, the proper forum for the petitioner is the Supreme Court itself as that Court is a Court of unlimited jurisdiction and is also charged with the duty of the doing complete justice as observed by their Lordships in Miss Asma Jilani v ? Government of the Punjab and another ? that the rule of stare declsis does not in any manner fetter the jurisdiction of that Court. Therefore, if the detenu felt aggrieved by the judgment in appeal or the review petition, there was no bar in the way of the detenu to seek redress before that Court. The various grounds as to violation of the rules are not denied to have been urged in the review petition. The appeal of the detenu was dismissed by the Supreme Court on the following grounds as they appear in the report:

148. "So far as Criminal Appeal No. 69 of 1972, which arises out of Writ Petition No. 625 of 1972 is concerned, it has been dismissed by the High Court on the ground that in the writ petition there is no allegation even of any mala fides and, therefore, it cannot be said that the trial of Muhammad Mukhtar Rana for the offences under Martial Law Regulations recorded by the Special Military Court on the 10th of April 1972, was not protected by clause (2) of Article 281 of the Interim Constitution.

149. We have examined the grounds set out in the writ petition and are in agreement with the High Court that Writ Petition No. 625 was rightly dismissed. We, accordingly dismissed Criminal Appeal No. 69 of 1972."

150. The appeal of the Government against of the judgment of this Court in the connected Writ Petition No. 223 of 1972 of the detenu was also dismissed on the ground that the decision had been taken in haste. The argument in review on behalf of the detenu that the violation of the rules or the hasty manner in which the other case of the detenu had been dealt with by the Special Military Court, out of which Writ Petiton No. 223 of 1972 had arisen, is also to be considered as factors in the Writ Petition No. 625 of 1972 and their Lordships refused to do so both in appeal and in the review petition holding that both the cases have to be dealt with separately on their own facts and merits and considerations in one could not be imported in the other case, especially when those grounds had not been urged in the writ petition before the High Court or even before the Supreme Court in the grounds of appeal. Dr. Khalid Ranjha argues that because there has been no decision of the additional grounds now being raised by him in this petition or which had been urged in review and we have not the benefit of the findings of their Lordships of the Supreme Court on that aspect of the case, the field is not covered and this Court is not precluded from considering those grounds as also the other grounds which have been raised by him in the present petition. I am, however, not persuaded to agree. The under?mentioned paragraph in the judgment in review is explicit enough and leaves no room for doubt that these grounds had been considered by their Lordships of the Supreme Court and not found as sufficient for interference even in review:

151. "So far as the Review Petition No. 2 of 1973 is concerned, the learned counsel points out that the reasons, which impelled the Court to dismiss the Government's Appeals Nos. 63 and 64 of 1972 applied with equal force to the appeal of the said petitioner, namely, Criminal Appeal No. 69 of 1972. We are unable to agree with the learned counsel because this appeal arose out of a Writ Petition (No. 625 of 1972) which had been filed to challenge the validity of an entirely different proceeding and bad nothing whatever to do with the other proceedings. The convictions which were challenged in the High Court by Writ Petition Nos. 223 and 335 of 1972 and from which Criminal Anneals

152. Nos. 63 and 64 of 1972 arose were recorded on the 4th April 1972 whereas the conviction that was sought to be challenged by Writ Petition No. 625 of 1972 was recorded on the 10th of April 1972."

153. The question having been raised and considered by the Supreme Court cannot be re‑agitated before this Court. As regards other additional grounds raised, even if the principles of constructive res judicata be not held to apply strictly, the matter having been considered by the Supreme Court in appeal and also in review, I agree with the contention raised that `judicial dignity, does not permit any consideration of those aspects of the case H and if at all the petitioner may seek redress before the higher forum where detenu's appeal and review petition have failed. My answer to questions Nos. 3 and 4 is that in view of the judgment in appeal and review by the Supreme Court, it is not a fit subject of writ jurisdiction before this Court for the second time because of the field being occupied and for reasons of 'Judicial dignity'.

154. ATAULLAH SAMD, J.‑I have gone through the judgments proposed to be delivered by my brothers A. R. Sheikh and Karam Elahi Cnauhan, JJ. No reply is necessary to question No. 1 of the reference as it was conceded that if a fresh application lies, the same Judge who may have disposed of the first petition, may hear it. With regard to question No. 2 1 agree with my brother A. R. Sheikh, J. in terms of the dictum in Nasim Fatima's case (PLD 1967 Lah 103)1 that in a matter of habeas corpus successive applications would lie on fresh grounds or fresh evidence and that the rule of res judicata, constructive o X otherwise, is not applicable to the petitions for habeas corpus. In order to discover the philosophy of this principle, one has to examine the nature of the relief provided by a petition for habeas corpus. A citizen can move a High Court under section 491, Criminal Procedure Code for an order in the nature of habeas corpus. This relief has further been magnified into a constitutional guarantee in Article 199 of our Constitution which provides Y that whenever it is made to appear to a High Court by "any person" that a person is in illegal confinement, the High Court shall forthwith make a order directing that the person in custody within its territorial jurisdiction be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.

2. The habeas corpus has its roots in the most valuable and most sacred of human rights i.e. the personal liberty and it has been the endeavour of all civilized societies that the personal liberty of a citizen is not jeopardized and if the restraint on him is illegal and without any legal sanction, the Courts should come to his aid and remove his shackles. The writ of habeas corpus commands general recognition as the essential remedy to safeguard a citizen against imprisonment by State in violation of his constitutional right. It is the basic safeguard for the rights and dignity of the citizens. An English author remarked. "Of what avail are the rights of man if he has no means of escaping arbitrary, improper, or wrongful imprisonment? Habeas corpus is the means wherby the validity of imprisonment is tested". (An Introduction to the Law by C. Gordon Post).

3. It has to be remembered that a writ of habeas corpus is to be decided on the return I.e. the reply of the State to the allegations made in the petition itself. If a prisoner who has unsuccessfully applied earlier, files a fresh application with fresh grounds, a fresh return shall have to be called for, and it will be in the light of the fresh return that the case shall be decided. If the Court has once decided the question of the legality of the confinement of a citizen against him. on certain facts it does not mean that his right to liberty has been foreclosed for ever and in spite of lack of fullness of bearing Z in the first instance or failure to present the whole case he shall continue to suffer illegal restraint because of the procedural rule of finality of judicial orders. This statement of law is however subject to any statutory provision regulating or barring successive applications.

4. The learned Attorney‑General and in his absence the Deputy Attorney General laid great emphasis on the fact that the petition for habeas corpus was a criminal matter and its review was barred under section 369, Cr. P. C. A number of authorities, including Kishori Lai v. The Crown (A I R 1948 Born. 326 \), Haridas Damaji Awade v. Provincial Government C. P. and Berar (2), Milnari Ramaji Chikate v. Emperor (A I R 1948 Born. 326 \ 3), Mt. Haydari Begum v. Jawad Ali Shah ( A I R 1934 All. 22 ) and Raghunandan Yadav and another v. Province of Bihar ( A I R 1949 Pat. 262) were cited in support of this submission. Support was also taken from the fact that Lahore High Court and the Supreme Court of Pakistan treat habeas corpus petitions as criminal matters It was also urged that the Supreme Court had said in Mirza Muhammad Yaqub v. The Chief Settlement Commissioner and another ( A I R 1934 All. 22 ) and Commissioner of Income‑tax v. Wahiduzzaman ( P L D 1965 S C 171) that rule of res judicata applies to proceedings taken in writ jurisdiction. It was always asserted with reference to Barkat v. Haji Ghulam Muhammad (P L D 1970 Quetta 10 ) that successive writ petitions are barred.

155. In most of the cases cited on behalf of the State in support of the proposition that a revival of a petition for habeas corpus in respect of the same detenu would be hit by the provisions of section 360, Cr. P. C., it was not considered whether a second application would or would not lie on fresh facts and on fresh grounds. In Haridas Damaji Awade's case referred to above, a second application was moved on a fresh legal ground but was turned down because the Court thought that it was barred by section 369, Cr. P. C. The Lahore view as expressed in Kishori Lai's case was not expressly dissented from in S. Dilbagh Singh v. Emperor (A I R 1944 Lah. 373 = 217 1 C 162 ), but it was said that a second application would lie on statement of fresh facts which were not before the first Judge and were never considered by him.

156. ??????

5. As would appear from the phraseology of section 491, Cr. P, C., the High Court under this section gives directions or passes orders, but does not deliver a judgment in the technical sense of the word as contemplated in Chapter XXVI of the Criminal Procedure Code. It may be pointed out with great respect that in holding that section 369, Cr. P. C. was applicable to proceedings under the habeas corpus, the true import of section 491, Cr. P. C. was not comprehended. The powers to issue directions in the nature of the habeas corpus are a specie in themselves and are quite distinct from the rest of the pattern of the Criminal Procedure Code. These are the powers veste 3 in the High Court to afford relief to people who are suffering illegal restraints by the orders of the Executive or that of any Judicial Tribunal. The British Courts, before the enforcement of Administration of Justice Act of 1960, termed a decision in a habeas corpus matter as an award) and not a judgment and this was one of the reasons for holding that no appeal lay against such a decision.

6. Mr. Ranjha had argued that an order in a habeas corpus matter was not a judgment as contemplated by section 369, Cr. P. C. and was at par with a bail matter which could be revived on fresh grounds. The Supreme Court of Pakistan in Gulzar Hasan Shah v. Ghulam Murtaza (1) which was a bail matter, observed :‑

157. "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 Proedure 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."

158. Elucidating the point further, the Court observed that general principle of finality of judgment attaches to a decision or order of the High Court passed in criminal cases but the Court has inherent power to revoke, review or alter its own earlier decisions in cases which are not covered 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. A direction issued in a habeas corpus matter is obviously not covered by sections 369, 424 and 430, Cr. P. C.

159. ??????

7. Proceedings under section 491, Cr. P. C. are not in the form of a trial but they are the substitute for the writ of habeas corpus which was issued under the Common Law of England. Chapter XXVI of the Criminal Procedure Code deals with judgments in criminal trials. The Chapter opens with section 366 which pointedly says:‑ ???????????????????????????????

160. "The judgment in every trial in any Criminal Court of original jurisdiction a shall be pronounced, or the substance of such judgment shall be explained . . . ."

161. The bar provided in section 369 against review clearly relates to original trials. It does not apply to habeas corpus matters.

8. With the greatest respect I say that the judgments which held that a second application under rection 491, Cr. P. C. was barred by the operation of section 369 were not correctly decided.

9. There is another reason for coming to the same conclusion. Section 491, Cr. P. C. starts:

162. "Any High Court may, whenever it thinks fit direct . . . . . . ."

163. The word "whenever" according to the dictionary, means. "At whatever time, on whatever occasion, as soon as, every time that." It lends continuity of jurisdiction to the High Court. It is true that the Privy Council held in Matthan v. Dis!rict Magistrate Trivandrum and another ?? ( A I R 1,949 Nag‑ 201 ) that after the, introduction of section 491, Cr. P. C. the powers of the High Courts in D India were not as extensive as that of the English Courts under the Common a Law, but the procedure for the decision of habeas corpus matters remains the same as in England and a fresh application has to be decided in the light of the fresh return. In Hertdas Dammiji v. Provincial Government (1) the word "whenever" was sought to be given a restricted meanings by saying that it only meant that the High Court could pass an order at any time. But the phrase "any time" is not confined to a particular hour of day or night, but would ordinarily mean "any time a fit case is made out". The interpretation put on this word by the Nagpur High Court, in my view, does not restrict the continuity of the special jurisdiction which the High Court has in such matters. The Legislature purposely used this word in view of the urgency and confedera?tiveness of the proceedings and where a provision is beneficial to the subject, the words used in the Statute are to be given the most extensive meanings. The choice before the Court is either to let a man suffer illegal and unconstitu. tional restraint because his first attempt to demonstrate the illegality of his restraint had not succeeded, or, to give effect to the intention of law which empowers it to issue directions in the nature of habeas corpus whenever a case is made out for that.

10. Now coming to the constitutional provision, Article 199 of the Constitution again creates a clear distinction between the orders in the nature of mandamus and certiorari and an order in the nature of habeas corpus. It is to be noted that while the application in cases of writs of mandamus and p certiorari has to be filed by an aggrieved person, the application under P clause (b)(1) of Article 199 for the release of a person illegally detained can be made by "any person". The writs provided for in sub‑clauses (1) and (2) of clause (a) postulate a lis between the two adversaries. A final adjudication of their dispute, may for good reasons be visited by the bar of res judicata.

164. A petition for babeas corpus cannot be said to be bound by the conventional rule of res judicata. The very nature of the, relief is such that it cannot be said that the rule of res judicata can be permitted to perpetuate the misery of a person whom the Constitution gives a right to ask for his release. The constitutional duty cast on the High Court is to satisfy itself as to whether or not a person is being held in confinement without lawful authority or in an unlawful manner. The relator can be any person, not a person necessarily interested in the detenu or a person conversant with full facts.

11. Though section 11 of the Civil Procedure Code does not cover the entire field of the rule of res judicata, it does incorporate the main features of the rule and the most important of its feature is that the matters already decided must have been decided between the same parties and between parties litigating under the same title. A relator in a habeas corpus petition is not a party in the sense that he is seeking any redress having any personal interest in the matter and for this reason a second relator in a subsequent habeas ? corpus petition is not in any sense of the term "a successor‑in‑interest of the previous relator" nor is he litigating under the same title. In fact, the expression "litigating under the same title" is suggestive of some sort of proprietary interest in property and that the rule relates to civil litigation.

12. Whether we call the decision of the High Court in a habeas corpus matter, a judgment, an order, a direction or a declaration, the nature of the relief provided by section 491, Cr. P. C. and Article 199 of the Constitution is not changed. The cases of Commissioner, Income‑tax v. Waheeduzzaman and Mirza Muhammad Yaqub v. The hief Settlement Commissioner, referred to above, related to writs of certiorari and the dictum therein in my humble view cannot attracted to a case of habeas corpus. Similarly, the dictum in Barkat Ali v. Haji Ghulam Vuhammad is applicable to the peculiar facts of that case and the nature of the writ asked for.

13. To say that the rule of constructive res judicata would apply to the petition for habeas corpus, is to completely ignore the type of relief that a habeas corpus petition is meant to provide to a citizen and the higher question of public policy involved in it. True that ses judicata is also based on public policy. Its aim is to bring finality to disputes of civil nature between the same parties and to indicate to a contumacious and pertinancious litigant "`thus far and no further". But there is a higher public policy involved in eligibility of successive applications the provision in habeas corpus matters' and that is that a man cannot be condemned to undergo an illegal restraint simply because in his earlier application he was not able to marshal full facts or had failed to raise grounds which lend substance to his demand for discharge. When there is clash between the two matters of public policy, the higher one shall prevail.

14. As has been held by the Supreme Court in Mazhar Husain Bhulya v. The Province of East Pakistan ( PLD1970SC397 ), illegal detention is a continuing wrong and justification has to be shown by the detaining authority for its order. It cannot be said that ones an application has been dismissed no new grounds can be urged in a subsequent application. Every time the right of the detain?ing authority is challenged, the petitioner in fact says "State has no right to detain me and these are the reasons for saying this". The disposal of the prior application in which the case of the detenu was not presented in a fuller form, shall not have such a controlling effect on the subsequent application that it may be dismissed without a hearing even if there is substance in the new grounds raised. The grounds may be discoverable from the record and the relator might have missed them in the earlier application, but if there are grounds which require a fresh hearing, for instance, if they go to the root of the jurisdiction of the Court, or point out other defects which render the impugned order or judgment a nullity, the Court on considerations of higher public policy cannot refuse to hear it. A possible argument which could be advanced against a fresh petition is that the failure of the relator to urge grounds not raised in the earlier petition, had resulted in a waiver. The principle of waiver, I say with all respect, would not be strictly applicable to detention matters in which the sole consideration is the legality of the order. Waiver or consent cannot confer jurisdiction upon a tribunal which is not possessed of lawful jurisdiction to decide a matter.

15. In the Annotation headed "Habeas Corpus Prior denial" (92 L ed. page 1378) the following quotation from the dissenting opinion of Stephens, Circuit Judge in Price v. Johnston ( 1947CCA9thCAL ) finds place at page 1386:‑

165. "It will be a very serious blow to the great writ if it is ever authorita?tively decreed that one deprived of his liberty has but one shot for his freedom. This one shot must have everything; missing anything, and the legal right to show the injustice and illegality of the imprison?ment is gone for ever. The impact: of such a holding cannot be exaggerated:"

16. Even in the case of Re Hastings (No. 2) ((1958) 3 A E R 625 ), it was observed by Lord Parker, C. J. that the decision whether or not to issue a writ for habeas corpus is not bit by res judicata. This judicial principle was also kept in view while enacting Administration of Justice Act of 1960, the object whereof was to give legislative sanction to the judicial pronouncement made in Hasting's .case, referred to above. It was provided in section 14 of the Act that no fresh application for habeas corpus shall be entertained unless fresh ‑evidence is adduced in support thereof. My brother A. R. Sheikh, J. has noticed the case of Ex parte Schtraks ((1964) 1 Q B 191) whereafter the appellate Court had refused to consider the evidence relied upon by the detenu, the Divisional ,Court in the second petition for habeas corpus considered the evidence which was already on the record and had been considered by the Home Secretary during the proceedings for extradition. The writ was refused because the evidence was found to be inadmissible for the purposes of rendering the ,order of extradition illegal. The judgment, in my view, lays down the following principles:‑ .

(i) A subsequent application was permissible if fresh evidence, whic may already be on record, be adduced.

(ii) That questions of lack of jurisdiction and fraud or collusion with a witness could be decided on the basis of the same evidence, but in this J case the evidence was inadmissible and fell short of establishing that conduct.

17. The American Supreme Court has repeatedly and forcefully said that the conventional notions of res judicata would not apply to petitions for .habeas corpus because they involve the life and liberty of a person. Personal liberty is the most precious right of men and all other rights are subordinate to it. Cases are not lacking in American jurisdiction where matters of habeas corpus on same grounds were re‑agitated on the allegation that the prior presentation was defective. I may reproduce here the observations made in Re Wright ((1942) De Cal. 1393 of 92 Led.) and quoted‑

166. "One cannot refuse to consider a petition in which, as developed at the hearing, the merits finally appear so clear, however, much the petitioner may have‑failed to make them clear in the other proceedings."

167. This is, however, not to say that the prior disposal of previous application is to be completely ignored in disposing of the latter one. The prior disposal has to be given due weight, and if it appears that a subsequent application was a mere manoeuvre to take time or was made only to obtain a re‑hearing .of the points earlier raised, the application should be refused. In Wong Doo v. United Stares (265 U S 23968 L Ed 999) the detenu who was under an order of deportation raised two grounds in his petition for habeas corpus. The Return categorically ,controverted both the grounds. The detenu failed in succeeding on the first ground and withdrew the second. He filed a second application reviving the second‑ground with some elaboration but without any enlargement of substance. The petition was dismissed on the ground that the detenu had resorted to a manoeuvre for postponing the order of deportment which had already been delayed by four years. It was observed that the doctrine of res judicata did not apply but where a prisoner presents a second petition the weight to be given to the prior refusal is to be determined .according to sound judicial discretion guided and controlled by whatever has a rational bearing on the subject. It is, however, clear that where new grounds have been raised without any indication of any manoeuvre on the part of the applicant, they have to be considered on their merits without treating the dismissal of the former petition as of any material significance.

18. Habeas corpus is a great constitutional privilege and there is no highe duty in a superior Court than to refuse to maintain restraints which cannot be shown to conform to the fundamental law. This duty does not become i less imperative if the order placing restraints is judicial in nature. Whether it is a punitive imprisonment for a term certain or whether it is preventive detention for a certan period or till further orders the basis for attraction the jurisdiction of the Court is the illegality of the imprisonment. Habeas corpus lies to test the proceedings which are lawless and imprisonment pursuance to which is void. The jurisdictional pre‑requisite is that a detention whether by a judicial or executive order, is illegal, improper or unconstitu?tional. There are innumerable cases from the English and American jurisdiction where habeas corpus petitions were moved by or on behalf of convicts and 1W interference was not refused by the Courts on the ground that the impugned order was judicial in nature and appeal had already failed. See Re Hastings No. 2.

19. In Bushell's case ( 124 E R 1006 ) the convict who was a juryman, was imprisoned for contempt of the King. It was said that a. writ for habeas corpus was the most usual remedy by which a man was. restored to his liberty if he had been deprived of it against law. Of course, finality attaches to the judicial pronouncement of Criminal Courts and on. general principles judgment delivered by a Court of competent jurisdiction is in itself the evidence of its correctness, but where the convict can show that there was a complete lack of jurisdiction in the Court which decided the: case or where other fundamental lack of legality is pointed out, relief by habeas corpus shall be granted by the High Court, irrespective of the fact whether an appeal has already been decided against the detenu or a first application for habeas corpus was adversely decided on the facts stated therein. In the matter of Hans Nielson ( 131 U S 176=33 Led. 118 ) it was held that if a Court which renders a judgment has not the jurisdiction to do so, either because the proceedings or the law under which they are taken, are unconstitutional or for any other reason, the judgment is void and may be questioned collaterally by way of petition of habeas corpus. It was held in Ex parte : Albert Frederich ( 37 Led. 653 ): that a writ of habeas corpus can be granted:‑

(i) Where there is complete want of jurisdiction in the Court;

(ii) Where the Court has exceeded its jurisdiction, or

(iii) Where there has been such illegality which renders the whole proceedings void.

168. It was observed in Ex parte Albert Siebold ( 25 Led. 717 ) that where personal liberty is concerned, the judgment of an inferior Court affecting it, is not so~ conclusive, but the whole question of its authority to try and imprison the' party may be reviewed on habeas corpus by a superior Court or a Judges having power to award the writ. In such cases, the burden, however, will be on the petitioner to show any of the circumstances pointed out above. The constitutional provision regarding habeas corpus is unlimited in its effectiveness and is not circumscribed to the cases of preventive detention for a term or an indefinite period.

20. There is no constitutional or statutory provision in our country placing bar on successive applications for habeas corpus or regulating their institution. The matter has, therefore, to be dealt with under what the erican

169. Law calls sound judicial discretion. Under the American Law the StatCourts as well as the Federal Courts have powers to issue the writ of habeas corpus. The procedure for hearing and regulating successive application ? for habeas corpus has been given statutory form in the Judicial Code in the shape of 28 U. S. C. section 2244. The relevant portion of the section reads as under:‑

170. "If it appears that the legality of such detention has been determined by a Judge or Court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not heretofore presented and determined and the Judge or Court is satisfied that the ends of justice will not be served by such inquiry."

171. It would thus appear that while dealing with a subsequent application the Court has to be guided by whatever has a proper bearing on the propriety of the discbarge. The basic requirement of law is that while dealing with a successive application the Court will refuse to consider it if it finds that o the ends of justice will not be served by a second enquiry. Clause (b) ofl0 the same section further sets out a guideline for entertainment of successive applications. It says that a subsequent application need not be entertained by a Court:‑

172. "Unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the Court, Justice, or Judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ."

173. The above quotation would show that the decision to entertain successive application has been left to the sound judicial discretion of the Court and the Court while dealing with a subsequent application has not only to be guided by whatever has a proper bearing on the propriety of the discharge, but may in view of the prior disposition refuse to entertain the subsequent application. If the legality of the detention has been determined on a prior application for a writ of habeas corpus and the petition presents no new ground, the Judge in view of the phraseology of section 2244 will not be obliged to entertain it. The overriding consideration and guideline for the Judge or Court to follow is "the sound judicial discretion and the ends of justice."

21. The principle has now firmly been laid down by the Supreme Court of America that a latter petition presenting fresh grounds for discharge is to remain unaffected by the determination made under the prior petition.

174. In this connection, I would like to examine, particularly, three cases from the American Jurisdiction which indicate that the technical rule of res judicaia has never been permitted to interfere with what the Supreme Court of America thinks to be the demands of Justice.

(1) The first case is that of Price v. Johnston ( 334 U S 266 = 92 L ed 1357 ). It was a case in which a person had filed four successive habeas corpus petitions before the District Court and having been unsuccessful had taken each one of these matters to the Court of Appeal. The Supreme Court in respect of the two first petitions had refused certiorari and in respect of the third had refused leave. It was for the fourth, time when the petitioner went to the Supreme Court that he got the relief. Price had been convicted for a bank robbery in 1940 to a term of maximum imprisonment of sixty‑five years. In his first petition, he had referred to the objectionable way in which evidence was procured against him, but in the fourth application he added an additional plea to the effect that the prosecutor, had, during the interval in Court proceedings, an interview with the solitary witness against him and had knowingly used the false testimony which was procured by putting undue pressure upon the witness. The argument raised before the Supreme Court as also before the subordinate Courts on behalf of the State was that the facts as alleged by the petitioner in his amended petition were already known to him and his failure to state the same debarred him from raising the point in his further petition. It was also averred that there was no evidence to support the factual contentions raised by the petitioner. The Supreme Court by a majority decision, repelled these conten?tions and held that while a prior refusal to discharge a prisoner in a habeas corpus is not without bearing 'on the subsequent petition, a prior refusal had no bearing or weight on the new issues raised in the subsequent application. The Supreme Court allowed the petition and remitted the case for rehearing on questions of fact. It was observed:‑

175. "The primary purpose of a habeas corpus proceedings is to make certain that a man is not unjustly imprisoned. And if for some justifiable reason he was previously unable to assert his rights or was unaware of the significance of relevant facts, it is neither necessary nor reasonable to deny him all opportunity of obtaining judicial relief."

(II) In Eward M. Fay v. Charles Noia ( 372 U S 391=9 Led 837 ) the petitioner had been convicted together with others for murder and the sole evidence against each accused was his own-signed confession. The co‑accused of the petitioner appealed, but the petitioner did not. The appeals of the co‑accused were unsuccessful, but subsequent legal proceedings in the State Court resulted in the release of the co‑accused of the petitioner on the ground that their confessions had been obtained under coercion. The petitioner approached the United States District Court for habeas corpus. It was conceded that the confession was the result of coercion but relief was denied on the ground that he had not availed of the remedy of appeal and had not exhausted the remedies in the State Courts. The Court of Appeals set aside the conviction and discharged the petitioner from custody. The Supreme Court affirmed the decision of the Court of Appeals. It was held that the failure of the detenu to appeal at the proper time was no bar to entertain the petition for habeas corpus. It also held that the doctrine of res judicata was inapplicable in habeas corpus proceedings and conventional notions of finality could not be permitted to defeat the constitutional right of personal liberty even if the impugned restraint is pursuant to the conviction of a Court of competent jurisdiction.

176. Emphasizing the universal application of habeas corpus in matters of all sorts of restraints and its ascendency over the formal rules of procedure the Supreme Court of America observed:‑

177. "Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental lights of personal liberty. For its function has been to provide a prompt and efficacious remedy, for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, Government must always be accountable to the judiciary for a man's imprisonment: if the imrpisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release."

178. Justice Brennan in another place of his opinion said:‑

179. "It should be unnecessary to repeat what so often has been, and what so plainly is the case, that the availability of the Great Writ of habeas corpus in the Federal Courts for persons in the custody of the States offends no legitimate State interest in the enforcement of criminal justice or procedure. Our decision today swings open no prison gates. Today as always, few indeed is the number of State prisoners who eventually win their freedom by means of federal habeas corpus. Those few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair‑minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his codefendants Caminito and Bonino, is conceded to have been the victim of unconstitutional State action. Noia's case stands on its own, but surely no just and humane legal system can tolerate a result where by a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet a Noia, whose confession was also coerced, remains in jail for life. For such anamolies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy . . . . . . "

(111) The third case Sanders v. United States ( 373 U S 1=10 L ed 2d 148 ) requires notice on account of the fact that it evolves a rule of successive applications in habeas corpus and again points out to the supremacy and extensiveness of the remedy of habeas corpus. The detenu in this case was convicted of bank robbery and was sentenced to fifteen years' R. I. He had waived the right to the assistance of a counsel and the right to proceed by indictment and pleaded guilty to the charge. He filed a petition for habeas corpus before the District Court which dismissed the application on the ground that the allegations were not supported by facts. He then filed a second motion alleging that at the time of the conviction and sentence he was mentally incompetent as a result of narcotics administered to him. This motion was also denied without hearing on the grounds:

(1) that there was no reason why the prisoner could not have raised the issue of mental incompetency at the time of the first motion, and

(ii) that the prisoner's allegations were without merit in fact.

180. The Court of Appeals affirmed this decision on the ground that there was no reason why the prisoner could not have raised the plea of mental in competency earlier. The Supreme Court on certiorari reversed the decision of the Court of Appeal. It was emphasized that conventional notions of finality of litigation had no place where life or liberty was at stake and infringement of constitutional rights was alleged. According to the doctrine of successive applications as evolved by the Supreme Court of America in the precedent case, a subsequent application may be refused-

(i) if it contains the same grounds which were presented and decided adversely to the petitioner;

(ii) if the prior determination was on merlt vis‑a‑vis the grounds raised;

(iii) if the ends of justice would not be served by exploring the merits of the subsequent application.

22. If factual issues are involved in the determination of the successiv application, the application is entitled to a new hearing upon showing that the prior determination was not full and fair, if the evidentiary hearing on purely legal questions, are involved, he may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application. The Court observed that a subsequent application for such relief cannot be denied on the ground that a prior application has been previously heard and determined if a different ground is presented by the new application or if the same ground was earlier presented but not adjudicated on the merits unless there has been an abuse of the writ, which the Government has the burden of pleading. The Supreme Court distinguished the case of Wong Doo and observed that in the latter case there was a manoeuvre and a sort of trickery which disentitled the petitioner to the relief asked for.

181. Explaining the scope of the rule that controlling weight is to be given to the denial of a prior application for habeas corpus, it was observed that this doctrine applied only if the same ground was again presented in the subsequent application and that same ground had been finally decided adversely to the applicant on the prior application. The Court explained that the word "ground" meant "a sufficient legal basis for granting the relief sought by the applicant." Any doubt, if the grounds are the same, is to be resolved in favour of the relator. The detenu shall have a right to a new hearing upon showing that the hearing on the prior determination was not full and fair.

182. In the same case Mr. Justice Harlan, who was joined by Mr. Justice Clark, in dissenting on facts, emphasized that the question of human liberty should not be sacrificed at the altar of the technical and procedural rule of res judicata. The learned Judge said‑

183. "The Court is at great pains to develop the theme that denial of a prisoner's application for collateral relief is not res judicata. But the Government recognizes, as indeed it must in view of the decisions, that strict doctrines of res iudicata do not apply in this field. The consequences of injustice‑loss of liberty and sometimes loss of life?are far too great to permit the automatic application of an entire body of technical rules whose primary relevance lies in the area of civil litigation."

23. There is, however, to be an ultimate end of litigation even in matters of habeas corpus. The rule of finality has its significance and successive applications are to be examined in the light of the rule of controlling weight enunciated by the American Supreme Court. The inapplicability of rule of res _iudicata is inherent in the very role and functioning of the habeas corpus.

184. ??????????????

24. I would, therefore, bold that whatever the nature of the order, 10 ? punitive or preventive, whether for a terra fixed or indefinite, successive .applications would lie to examine the illegality of the detention if fresh ground are raised. The technical rule of res judicata, whose primary relevance ,lies in the area of civil litigation, will not be applicable to the petitions for ,habeas corpus. It shall of course be left to the judicial discretion of the Court ,to determine whether the successive petition raises legal or factual grounds .of some substance or is a reproduction of the old grounds in the garb of new phraseology. In the latter case the petition may be dismissed as al procedural manoeuvre.

25. Coming to the factual position, the detenu was arrested on 24th' of March 1972, allegedly outside the premises of the High Court where he had come in connection with another case in which he had been granted bail ,by a Bench of three Judges. He was produced before a Special Military Court on 4th of April 1972, and was convicted on the same day, under Martial Law Regulations 89 and 16‑A. During the hearing of the first writ petition filed by the detenu, namely, Writ Petition No. 625 of 1972, the s record of the case was not before the Bench of the five Judges which heard ? this case earlier and the only point raised was that of mala fide for which no factual or legal foundation was laid before the Bench. Similar was the position before the Supreme Court in appeal.

26. Mr. Ranjha in his grounds which have been referred to in some ,details by my brother A. R. Sheikh, J. has now raised some points regarding the mode of trial and constitution of the Special Military Court. The case so afar has not been presented in the present shape before any Court and in my view the detenu is entitled to re‑agitate the matter of his conviction on fresh grounds. Where the record of the case during the hearing T of the previous application is not before the Court, the petitioner has a right to file a fresh application on new grounds discoverable from the record. It was held in Farnworth v. Zerbugs ( 1938 CCA5thGa=98F2d541 ) that if the record in the prior proceedings is imperfect in that it does not fully present the case, a better presentation may be made by means of afresh application.

27. With regard to questions Nos. 3 and 4. I agree with both my brothers that since the part of the argument addressed to us in this case ‑was also addressed to the Supreme Court during the hearing of the Reviewlp rpetrtion, our respect for the Supreme Court demands that we may sta iv .our hands and leave the relator, if ho is so advised, to seek his remedyl from the Supreme Court.

ORDER BY THB COURT

185. In view of the unanimity of answers to Questions Nos. 3 and 4, the Criminal Miscellaneous Petition No. 328/H of 1974 fails and is dismissed. There will be no order as to costs.

186. Petition dismissed