PLD 1950 FC 18 (PLP)

ABDUL RASHID, C. J.‑

This is an application for special leave to appeal to the Federal Court of Pakistan, under the Privy Council (Abolition of Jurisdiction) Act, 1950, from an order of a General Court‑Martial, dated the 29th September, 1949, sentencing the petitioner to death. The petitioner, Gunner, Raja Khan, together with several other comrades was on sentry duty on the evening of the 18th of June; 1949. Gunner Udla Khan said something to the‑ peti tioner which incensed him. The petitioner and Udla Khan deceased graphed‑with each other. Havildar Muhammad Razzak, deceased intervened and separated the parties. At 1‑30, .the same night, the petitioner was on duty while Havildar Muhammad Razzak and Gunner Udfa Khan were sleeping on cots close by. The petitioner fired four shots and killed both Udla Khan and Havildar Muhammad Razzak. Two eye‑witnesses actually saw the petitioner firing at the victims. Under the provisions of the Indian Army. Act, the death sentence awarded to the petitioner was confirmed by the Com mander‑in‑Chief on the 29th of October, 1949. An application made by the petitioner to the Governor‑General (or mercy was dis missed in January, 1950. It was contended on behalf of the petitioner that this Court has jurisdiction to grant special leave to appeal from a decision of the General Court‑Martial: In this connection reliance was placed on the case of Frye v. Ogle (1743) McArthur on Courts‑Martial, Vol. I, p.

406. The original report of this case is not available to this Court. The following observations, however, appear in the Manual of Military Law, 1929, (Indian Reprint 1944), on page 126:‑-- "Lieutenant Frye was brought to a Court‑martial at Port Royal by his Captain for his disobedience in refusing to assist another lieutenant in carrying an officer prisoner on board ship without a written order from the captain. Part of the evidence produced against him at the Court Martial consisted of depositions made by illiterate natives, whom he bad never seen or heard of, and reduced into writing several days before he was brought to trial and upon his objecting to the evidence he was brow‑beaten and overruled. Lieutenant Fyre was sentenced to 15 ears' imprisonment, and declared for ever incapable of serving His Majesty. It is doubtful whether the act charged against him amounted to an offence but in any case the Court had only power to award two years' imprison ment.. On his arrival in England, his case was laid before the Privy Council and the punishment remitted by His Majesty. Sometime afterwards he brought an action in the Court of Common Pleas against Sir Chaloner Ogle, the president of the Court‑martial, and obtained a verdict in his favour for 1,000 damages." It is not clear whether Lt. Frye was given special leave to appeal‑to the Privy Council against his conviction, or whether the case was laid down before the Privy Council by the Crown and‑ the punishment remitted by His Majesty. This case is, therefore, not of any great ,,assistance in determining whether the Privy Council could grant special leave to appeal against the decisions of Court‑Martial. On behalf of the Crown reliance was placed on the case 'of. Muhammad Yakub Khan v. King Emperor, L R 74 I A B. In this case it was observed by their Lordships of the Judicial Committee that the Indian Army Act, intended the findings of a Court‑martial, as and when duly confirmed, to be final, subject only to the power of revision for which the Act provides and there was, therefore, no room for appeal to His Majesty in Council consistently with the subject‑matter and scheme of the Act. The Counsel for the petitioner was not in a position to render any assistance to the Court in the determination of the question of law involved in the petition. We consider it, there fore, inadvisable to give any finding on the question of law, referred to above, as we are of opinion that this petition must be dismissed on the merits. It Las been laid down by the judicial Committee of the Privy Council in Dillet's case (1887) 12 App. Cas. 459 that .the Privy Council will not review criminal proceedings unless it be shown that by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or other wise, substantial and grave injustice has been done. It was contended on behalf of the petitioner that though under the Indian Army Act a prisoner is entitled to be defended by a counsel of his choice and though the father of the peti tioner made an effort to secure the services of an Advocate to defend his son, he was not allowed to make arrangements for the defence. In support of this contention an affidavit was filed by the Attorney for the petitioner. The father of the petitioner is alleged to have told the Attorney that he was not allowed to make arrangements for tie proper defence of his son at the trial before the Court‑Martial. It is admitted that no application was made to the Court‑Martial in writing. At the j trial the petitioner was defended by Major G. A. Tims, R. P. A. Had a request been made that an advocate should be allowed to appear on behalf of the petitioner, we' have no doubt that Major Tims would have brought the matter to the notice of the members of the Court‑Martial. It was alleged that the father of the petitioner was not even allowed to approach the military, authorities in order to secure the services of a counsel. It was not necessary for him to.‑approach the military authorities for permission. He could have engaged a counsel for the defence of his son and it would have been for the counsel to approach the military authorities for the necessary facilities. It appears to us that it was only after the petitioner had been‑sentenced to death that the father of the petitioner tried to interview certain military officers in the General Headquarters. In this case we cannot find any disregard of the forms of legal, process or any violation of the principles of natural justice. We, accordingly, dismiss this petition for special leave to appeal. A.H. Petition dismissed.