P L D 1954 Federal Court 240 (PLP)

ABDUL RASHID, C. J.

The petitioner, Ali Haider alias Shamim was sentenced to death under the provisions of section 302 of the P. P. C. by the Sessions Judge in Baluchistan by his judgment, dated the 13th October 1953. The convict preferred an appeal in the Court of the Judicial Commissioner in Baluchistan. This appeal was dismissed by the learned Judicial Commissioner and the sentence of death was affirmed on the 8th December 1953. The convict then K' made an application in the Court of the Judicial Commissioner praying the Court to grant him a certificate to enable him to prefer an appeal to the Federal Court. The learned judicial Commissioner was of the opinion that the Rules of this Court authorised him to grant such a certificate. Accord ingly, the Judicial Commissioner granted the petitioner a certificate to the effect that this was a fit case for further consideration by the Federal Court. The petitioner pre ferred a petition for special leave to appeal through the jail authorities on the 28th of December 1953. This petition was accompanied by the certificate which had been granted by the Judicial Commissioner on the 17th of December 1953. The question which requires determination is whether a High Court or any comparable Court in Pakistan can grant a certificate to a convict in a criminal matter for an appeal to this Court. Before the passing of the Privy Council (Abolition of Jurisdiction) Act, 1950, the Federal Court of Pakistan did not possess any criminal jurisdiction except in respect of cases which fell within the purview of section 205 of the Government of India Act 1935. That section authorised the High Courts to grant a certificate for an appeal to the Federal Court if the case involved a substantial question of law as to the interpretation of the Government of India Act, 1935, the Indian Independence Act, 1947, or any orders or rules made thereunder. Such appeals were in general known as "Constitutional Appeals". Most of these Constitutional Appeals referred to civil matters but some of them dealt with criminal matters also. The present case does not fall under section 205 of the Consti tution Act. The petitioner can approach this Court only under section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950. This section is in the following terms:- "3. (1) As from the appointed day the Federal Court shall, in addition to the jurisdiction conferred on it by the Government of India Act, 1935 (hereinafter referred to as the said Act), and the Federal Court (Enlargement of jurisdiction) Act, 1949, but subject to the provisions of this section, have the same jurisdiction to entertain and dispose of Pakistan appeals and petitions as His Majesty in Council had, whether by virtue of His Majesty's prerogative or otherwise, immediately before the appointed day." (The appointed day was the 1st of May 1950.) Section 3 of the Act gives us the same powers and jurisdiction in criminal matters as His Majesty in Council possessed before the 1st of May 1950. In criminal matters no convict could lodge an appeal before His Majesty in Council unless he was granted special leave to appeal by the Judicial Committee itself. No High Court or any other comparable Court in India or Pakistan, was entitled to grant any certificate in a criminal matter for appeal to His Majesty in Council. It was contended before the learned Judicial Commis sioner that rule 6 of Order XLIV of the Federal Court Rules made the provisions of Order XXII applicable to petitions and appeals in criminal matters also, and that, therefore, an appeal could be lodged in the Federal Court in pursuance of leave obtained from the Court appealed from, or in the absence of such leave in pursuance of special leave to appeal granted by the Court upon a petition in that behalf presented by the intending appellant. We take this opportunity of pointing out that the Rules of Court cannot enlarge the jurisdic tion or powers of a Court of Appeal. This can only be done by appropriate legislation. The Privy Council (Aboli tion of Jurisdiction) Act gives us the same powers as were possessed by his Majesty in Council prior to the 1st of May 1950. There is no precedent whatever where His Majesty in Council dealt with a criminal matter on a certificate granted by a High Court. Rule 6 of Order XLIV lays down that "The provisions with respect to civil appeals under the Federal Court (En largement of Jurisdiction) Act, 1949, in Part III of the Rules, shall, with the necessary modifications and adaptations, apply to appeals and petitions under the Privy Council (Abolition of Jurisdiction) Act, 1950." The words "with the necessary modifications and adaptations" are meant to show that as Order XLIV deals mainly with criminal matters certain modifications have to be made when applying the provisions of Order XXIF to petitions for special leave in criminal matters. Rule 6 of Order XLIV does not authorise the High Courts to grant a certificate to an intending appellant in a criminal case and thus confer powers on the High Court which it does not otherwise possess. Order XXII relates to civil appeals only which can be preferred in this Court either in pursuance of the leave obtained from the Court appealed from under the provisions of the C. P. C, or in the absence of such leave in pursuance of special leave granted by this Court. "The necessary modifications and adaptations" referred to in rule 6 of Order XLIV are that in criminal matters an appeal can be preferred to this Court only in pursuance of special leave to appeal granted by this Court. The certificate granted by the learned judicial Commis sioner is of no avail to the petitioner in this case. This petition, preferred through the jail authorities, is otherwise in order. The case will now be laid before a Bench of three Judges for disposal in accordance with law. An early date will be fixed for the disposal of this petition. A. H. Order accordingly.