Mohammad Ashraf Wani and Another vs State and Others

Vide judgment dated 25th of September, 2004, the Court of Sessions Judge, Budgam convicted accused persons for having committed the

offences as under:

(a) Mohammad Ashraf Wani and Ali Mohammad Dar were found guilty of offence and convicted under Sections 302/426/336/341 and 323

RPC.

(b) Mohammad Ashraf Sheikh was found guilty of offence and convicted under Sections 307/426/336/341 and 323 RPC

(c) Ali Mohammad Wani, Riaz Ahmad Wani were found guilty of offence and convicted under Sections 354/323/426/336 and 341 RPC

(d) Abdul Rashid Rathor, Bashir Ahmad Rathore, Mohammad Yousuf, Mohammad Abullah Sheikh, Ama Ganai, Abdul Samad Rather, Ghulam

Mohi-ud-din Malik and Mohammad Yousuf Malik were found guilty of offence and convicted under Sections 426/336/341 and 323 RPC.

Whereas all the accused were acquitted vis-`-vis commission of offences punishable u/s 149/120-B/34 RPC, as a result thereof conviction has

been recorded on the basis of individual acts committed by the accused. Aggrieved thereof, the instant appeals have been filed, in addition Criminal

Reference as made by the learned trial court was also received. The Division Bench of this Court heard the appeals and delivered dissenting

judgments i.e. Hon'ble Brother Justice Imtiyaz has held that the accused, namely, Mohammad Ashraf and Ali Mohammad have been rightly found

guilty and convicted under Sections 302/426/336/341 and 323 RPC whereas Brother Justice Hali partly allowed the two appeals and modified

conviction recorded by the trial court to Section 326 read with 149 RPC and also concluded that in view of the orders passed in Criminal Appeal

No. 07/2004 and Criminal Appeal No. 08/2004, the Criminal Reference No. 45/2003 is answered accordingly.

Brother Justice Imtiyaz in his Lordships judgment concluded that the matter be placed before the Hon'ble Chief Justice for constitution of Full

Bench in terms of Section 378 Cr.P.C, accordingly Full Bench has been constituted.

While deciding the appeal when there is difference of opinion, then in terms of Section 429 Cr. P.C, the case has to be laid before another

Judge of the same Court. It shall be quite relevant to reproduced Section 429 Cr. P.C.:

Procedure where Judges of Court of appeal are equally divided:

When the Judges composing the Court of appeal are equally divided in opinion, the case, with their opinions thereof, shall be laid before another

Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow

such opinion.

In terms of Section 378 Cr. P.C. when a reference for confirmation of sentence or for annulling the conviction is heard by a Bench of Judges

and when such judges are equally divided in opinion, then the case has to be heard by a Full Bench. It shall be quite relevant to reproduce Section

378 Cr. P.C.:

Procedure in case of difference of opinion: When any such case is heard before a Bench of Judges and such Judges are equally divided in

opinion, the case shall be heard by a full Bench, and the judgment or order shall follow the opinion of the Full Bench or of the majority of the Full

Bench.

Confronted with the said position, learned Counsel for the appellants while referring to proviso to Section 376 Cr. P.C., contended that until

appeal is decided or until the period allowed for preferring appeal has expired, no order of confirmation can be made under this section. It shall be

apt to reproduce Section 376 Cr. P.C. which reads as:

Power of High Court to confirm sentence or annual conviction:

In any case submitted u/s 374, the High Court

(a) may confirm the sentence, or pass any other sentence warranted by law; or

(b) may annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on

the same, or an amended charge; or

(c) may acquit the accused persons:

Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an

appeal is presented within such period until such appeal is disposed of.

Learned Counsel for the appellants rightly submitted that Section 378 Cr. P.C. is not applicable as the decision on the appeal is a precondition

for deciding the reference.

Learned Advocate General made a similar submission that as a matter of fact it is Section 429 Cr. P.C. which is applicable as the appeal has to

be decided first. The procedure prescribed u/s 378 Cr. P.C. will not apply until appeal is decided.

We are of the view that essentially both the learned Judges while preparing the judgment have focused on the determination of the appeal and in

concluding para learned Judge Mr. Hali has held that reference shall also stand accordingly answered but in effect it is determination of appeal

which has been made. When it is an admitted position and also it emerges from the perusal of the two judgments delivered by the two Learned

Judges that it is the appeal which they have disposed of in accordance with their respective opinion, therefore, appeal is required to be dealt with in

terms of Section 429 Cr. P.C. As a necessary corollary Section 378 Cr. P.C. is not applicable.

In the upshot, the case is required to be dealt with in terms of Section 429 Cr. P.C, therefore, Registrar Judicial is directed to place the case

before Hon'ble Chief Justice for orders.