P (PLP)

ABDUR RAHMAN, J.‑This is a petition on behalf of five persons asking for special leave to appeal to this Court under the Privy Council (Abolition of Jurisdiction) Act, 1950, against the judgment of the High Court of judicature at Lahore passed on the 28th March, 1950, maintaining their convictions, although the capital sentences passed against three of them only were converted into those of transportation for life. In order to appraise the contentions advanced by counsel for the petitioners before us, to which we shall refer later, it is necessary to recapitulate the facts leading to this petition. The petitioners were tried by the Sessions Judge, Kamal, and convicted on the 26th February, 1947, for several offences including that of murder. For this offence, three of them (Nazar Muhammad, Bashir and Gokal) were sentenced to death and the remaining two (Bashir, son of Niaza and Niamat) to transportation for life. They preferred a joint appeal to the High Court of Judicature at Lahore (Criminal Appeal No. 327 of 1947) on the 20th March 1947. This was followed by a petition for revision (Criminal Revision No. 853 of 1947) filed on behalf of one Ashraf on the 8th April 1947 asking for enhancement of sentences passed against Bashir, son of Niaza and Niamat. The Sessions Judge, Karnal, had referred the case to the High Court, Lahore, under section 374 Criminal Procedure Code' for confirmation of capital sentences passed by him. The record of the case is said to have been received in Lahore with the Sessions Judge's recommendation on or about the 22nd May, 1947. In accordance with the rules then in force all the petitioners were removed to the Central jail at Lahore for undergoing the sentences passed against them. All this had happened before August, 1947. While these proceedings were awaiting determination by the High Court, Lahore, the Indian Independence Act (10 and 11 Geo. VI C. 30) was passed in July 1947 and two Dominions (Pakistan and India) were set up as from the 15th August 1947. Karnal fell within the province of East Punjab, in the Indian Dominion, and Lahore within the province of, what was then called, West Punjab in the Pakistan Dominion. An Order known as the High Courts (Punjab) Order was passed by the then Governor‑General on the 11th August, 1947, according to which the High Court at Lahore was, subject to certain exceptions, to have no jurisdiction in respect of the territories included in the province of the East Punjab, for which a new High Court of East Punjab had been created. Basing its opinion on what was contained in Article 13 of the Order, the office of the High Court at Lahore, despatched the record of the case, along with the appeal preferred on behalf of all of them, and the revision petition for enhancement of sentence presented by Ashraf, to the High Court of East Punjab for disposal. There can be no denying the fact, that communal feelings between the two major communities residing in both of the Dominions were running so high at the time as to verge on madness and this in all probability accounts for the lack of confidence which the petitioners‑being Muslims‑exhibited by showing their anxiety in trying to have their appeals heard and determined by the High Court of Lahore and not that of East Punjab. The communal situation in the country coupled with the fact that their appeal had been dismissed by the High Court of East Punjab on the 25th February, 1948, and the sentences of death passed against Nazar Muhammad, Bashir and Gokal confirmed (of which it is more likely than not that the petitioners were aware, but as to which the High Court of Lahore does not appear to have cognisance at the time) must have made the petitioners extremely apprehensive about themselves. This led them to present an application under section 491, Criminal Pro cedure Code (being in the nature of habeas corpus) to the High Court of Judicature at Lahore. The grounds taken in that application are significant and will be found to have been reported in the Pakistan Law Reports 1948: Nazar Muhammad and others v. The Crown, P. L. R. 1948, Lahore 19, p.

20. A perusal of these grounds and of the report of the decision given by one of us in the High Court, would clearly show the persistence with which the contention that the High Court of Lahore alone was possessed of the jurisdiction to dispose of the appeal was pressed, not only by the prisoners who had been condemned to death, but, in view of Ashraf's application for revision for enhancement of sentence, also by those who had been transported for life. And these contentions were upheld although the petition for setting them at liberty on the ground " that Karnal not being a part of Pakistan, after partition, the detention of the accused in Pakistan was illegal " was not accepted. A petition for the release of the petitioners on bail (Criminal Miscellaneous No. 625 of 1948) was subsequently moved before the High Court of Lahore on the plain assumption that the Court had jurisdiction to deal with them and this was granted by a Division Bench of that Court (Cornelius and Jan, JJ.) on the 21st December, 1948. The last words of the order are to the following effect :‑

" Bearing these matters in mind, we consider that this is a proper case in which bail may be granted, but in order to ensure that the case is not lost sight of after the proposed order has been made, we direct that our order, which will be for grant of bail to the satisfaction of the District Magistrate, Lahore to each one of the petitioners, shall not take effect until the petitioners shall first have filed a fresh memorandum of appeal and the appeal has been admitted. The petitioners shall also be required, a condition of the grant of bail, to render all assistance within their power towards the reconstruction of the record, when called upon by this Court. No written undertaking to this effect need be demanded of the petitioners. In the first instance, an effort will be made through the Provincial Govern ment to procure the record of the case from the East Punjab, High Court." In pursuance of this order the grounds of appeal were again presented to the High Court. As to the direction in regard to the reconstruction of the record‑it appears that the High Court of East Punjab subsequently sent to the Lahore High Court a copy of the order passed by that Court dismissing the petitioners' appeal and confirming the, sentences of death. It was stated by counsel for the petitioners before this Court that along with this order, a copy of the paper‑book (prepared from the record either at Lahore‑before the file was transferred‑or in East Punjab) was also attached. On the receipt of this paper‑book, the record of the case seems to have been reconstituted and the appeal was heard by a Division Bench of the High Court at Lahore (Munir, C. J. and Shabir Ahmad, J.). .No objection was, however, taken before the High Court as regards the jurisdiction of the Court, or in regard to the admissibility of the record. And this does not appear to us to be due to any accidental omission. Having been released on bail‑although sentenced to death and transportation‑the petitioners appear to have been under the impression that their appeals would be, in all likelihood, allowed at least as regards sentences of death and transportation. But after hearing the arguments on behalf of the petitioners, the Division Bench of the High Court at Lahore dismissed their appeal on the 28th March, 1950. In view of the long delay that had occurred between the conviction by the Sessions judge and the decision of the High Court, however, the sentences of death were not confirmed but converted into those of transportation for life. Being thus disappointed by failing to get a verdict in their favour, the petitioners filed the present petition for special leave to this Court. In this they have chosen to attack the decision not only on the ground of lack of jurisdiction in the High Court of Lahore, which they had been until then trying to insist on, but also on the ground of inadmissibility of the record, prepared in the High Court of Lahore, into evidence to which no exception appears to have been taken in the High Court and the case argued on its basis without any demur. These were the only two points which had emerged out of the arguments addressed to us at the bar. To take up the latter point first. Conceding, without admitting, that there was any force in this contention, the failure to raise this objection in the High Court, where the record, had to be, in the circum stances mentioned already, reconstituted, is, in our view, fatal for if the objection had been raised on that score, it might have been possible for the opposite party to meet it and to make up any deficiency which might have existed. The petitioners' counsel must have, necessarily, relied themselves on the record the admissibility of which is now being questioned. It may well have been that the petitioners were not, as suggested by their counsel in this Court, required to render any assistance towards the reconstruction of the record. But this was a duty which they had been by the order of the High Court, passed on the 21st December 1948, ordered to discharge, when called upon by the Court and not a right for the failure to exercise which, the petitioners can be regarded to have any grievance at all. The objection is in our view, devoid of any force and must be repelled. This takes us to the first objection as to the jurisdiction of the High Court to entertain the appeal. As already observed, the petitioners or their counsel had not only omitted to raise such an objection before the High Court, but they had been, for the reasons which have been stated elsewhere, at pains to try and to establish that the High Court of Lahore had alone the jurisdic tion to hear and dispose of their appeal. It is quite true that a party's consent cannot confer jurisdiction where none exists ; but the petitioner's contentions had in this regard found favoar with the Division Bench of the High Court at Lahore, which had heard their application under S. 491 Cr. P. C. and obviously as a result of which the petitioner had first of all succeeded in being ordered to be released on bail by another Division Bench of the High Court and succeeded again in getting their appeal heard by a third Division Bench of the same Court‑although by then the last two Division Benches had come to know that the petitioner's appeal had already been dismissed. by the High Court of East Punjab. But in view of the decision that the jurisdiction to hear the appeal presented on behalf of the petitioners vested in the High Court of Lahore alone, the decision of the East Punjab High Court was treated by every one concerned as non‑est. When called upon to address us on the merits of his objection as to the absence of jurisdiction in the High Court of Lahore to deal with the petitioner's appeal, counsel for the petitioners wished to take us through certain orders passed by the then Governor-General under the Indian Independence Act on the 11th August, 1947, which had come up for the interpretation before the Division Bench that had heard the petition under s 491 Cr. P. C. Since an appeal has been declared by s. 205 of the Constitution Act as amended to " lie to the Federal Court from any judgment, decree or final order of a High Court, if the High Court certifies that the case involves a substantial question of law as to the interpre tation of this Act, or any Order in Council made thereunder or as to the interpretation of the Indian Independence Act, 1947, or of any order made thereunder ", we put it to counsel as to why no attempt was made by the petitioners to secure a certificate from the High Court at the time when their appeal was dismissed in March 1950, or when their petition under s. 491 Cr. P. C, was negatived in 1948, even if the High Court had not suo moto granted a certificate, which they were, by the terms of the section, under a duty to give if any such question of law were involved. It was submitted in reply that no attempt was made to secure a certificate at the time when their application under S. 491 Cr. P. C. was dismissed as the order of the High Court was not regarded to be final. This does not, however, seem to be correct. The fact seems, to be that the contentions advanced on behalf of the petitioners, which involved the interpretation of the Governor-General's order were decided in their favour and the contention which was negatived and which had led to the dismissal of the application for their release, did not involve the interpretation of either the Constitution, or the independence Acts, or of the Orders made thereunder. No reply was, however, given as to the reason why no application was made after the dismissal of their appeal in March 1950. It was urged by counsel that this Court's jurisdiction under the Privy Council (Abolition of jurisdiction) Act, 1950, could not be taken away by the absence of a certificate and he drew our attention in this connection to the decision of their Lordships of the Privy Council in Punjab Co‑operative Bank, Limited. Amritsar v. Commissioner of Income Tax, Lahore, 67 Indian Appeals p. 464, where their Lordships had observed at p. 474: " It is clear that the section does not provide for a case where no such certificate is given, however plain it may be that it ought to have been given. There is no provision, express or implied, taking away the right of direct appeal to His Majesty in Council in a case where no substantial question of law of the specified character could by any reasonable possibility arise." On the basis of this observation it was contended that this Court has. in the absence of a certificate, a right to deal with the appeal, particularly when the High Court failed to grant a certifi cate suo moto, which it was under a duty to give as soon as it was satisfied that there was a substantial question of interpretation of the Orders made by the Governor‑General under the Indian Independence Act. In this connection the following observations by their Lordships in that very case at p.474 et seq are pertinent. They observed :‑

" It is plain that it is for the High Court, not this Board, to determine whether the question is involved, and, if so, whether it is substantial. In such an event, although the jurisdiction of His Majesty in Council has not been affected, since there has been no certificate, nevertheless there has been a dereliction of duty by the High Court, and the Board, in accordance with the princi ples on which it is accustomed to act in tendering advice to His Majesty, would not think it right to hear the appeal until a proper certificate has been obtained, or it is on record that a certificate has been withheld. " The precise event in fact happened in the recent case of Errol Mackay v. Oswald Forbes. (1940) L. R. 67 I. A.

64. It seemed to the Board that a question of interpretation arose under an Order in Council made by virtue of s. 293 of the Government of India Act, 1935. There was no certificate by the High Court. It was suggested by Counsel for the appellants that the Court might have considered s. 205, and might have decided to withhold a‑ certificate though that decision was not expressed. Their Lordships expressed the view that this was unlikely in that case, and in the absence of a certificate they thought that the appeal should be dis missed with costs. They added, however, that if the High Court should thereafter make an order withholding a certi ficate under s. 205, the appellants were to be at liberty apply to His Majesty in Council to have the to appeal restored. " Their Lordships are of opinion that this order was perfectly correct, not because S. 205 took away the juris diction in a strict sense of His Majesty in Council, but for the more general reason indicated above. They will add that the course taken of dismissing the appeal was, no doubt, to some extent due to circumstance that the Board entertained little doubt that the certificate would be given. If the case had been one in which there was a real doubt whether the certificate would be given or withheld, a more lenient course might have been taken, and the appeal might have been directed to stand over until the High Court had either given a certificate or decided to withhold it. It follows from these observations that in spite of the jurisdiction which the Privy, Council possessed in directly dealing with constitutional appeals which fell within the ambit of S.205 of the Government of India Act, but in regard to which the High Court had failed to grant a certificate, .as they were by virtue of the provisions of that section bound to give suo moto, the Privy Council would not have exercised it, unless an opportunity was given to the appellant to apply to the High Court for the certificate which should have been granted by it. And in the manner in which they would deal with the appeal pending in the Privy Council would generally depend on the chances which in their Lordships' opinion the appellant would have for the certificate being either granted by the High Court or withheld by it. In the former case they were likely to have dismissed the appeal with permission to the appellant to have it restored if by any chance the certificate was eventually withheld by the High Court ; while in the latter case, they would adopt a more lenient course of keeping the appeal pending until the time when the High Court decided to grant or withhold the certificate. If the certi ficate, were granted, the appeal would have to be dismissed as the appellant was then free to prefer an appeal to the Federal Court ; but if the certificate were withheld, the pending appeal would be taken up and decided by the Privy Council. Relying on the procedure which their Lordships would adopt when they were of the view that a certificate would not be granted, counsel for the petitioners asked us to keep the present application for special leave to appeal pending and to dispose of it after his clients had tried their luck before the High Court. We are not, however, prepared to adopt this course in this case, firstly, as no appeal is pending in this Court and the question of granting special leave to appeal has to be determined on princi ples which have been laid down by their Lordships of the Privy Council as well as by this Court in a number of cases. This is not a Court of criminal appeal and no special leave would be granted by this Court unless injustice has been caused owing to a disregard of the forms of legal process or due to a violation of some principle of natural justice, Secondly, it must be remembered that subsequent to the enactment of the Privy Council (Abolition 'of Jurisdiction) Act, 1950, this Court has been functioning in a dual capacity. It is still, possessed of the jurisdiction which has been exercised by it as a Federal Court; but this should not be allowed to be confused with the jurisdiction which has been subsequently conferred .on it. This is not a matter of mere form but one of substance. While dealing with appeals falling within the scope of s. 205 of the Constitution Act, it is not possible for this (Federal) Court to entertain an appeal without a certificate granted by the High Court under that section. And once a certificate has been granted, the appeal would lie to this (Federal) Court as of right. If on the other hand the dual func tions of this Court were not kept in, so to say, two compartments, and persons who found themselves aggrieved by a decision of the High Court in regard to a matter covered by S. 205 of the Government of India Act, 1935, were allowed to move this Court for grant of special leave to appeal under the Privy Council (Abolition of Jurisdiction) Act, 1950, not only would the terms of the Constitution Act be rendered inoperative and the High Court in a way allowed to be by‑passed, but also the persons who would have had a statutory right to appeal to the Federal Court, would have to remain content with the petition for grant of special leave under the subsequent Act, which may or may not be granted and', which is not granted except on the principles' which have been enunciated in this judgment earlier. We are, therefore, clearly of the view that the two capacities in which this Court does no," function, should remain distinct. It may be that once an appeal is decided by this Court functioning as a Federal Court, a further appeal to the same Court in the exercise of its jurisdiction under the Privy Council (Abolition of Jurisdiction) Act, 1950, may not be competent. But the appellant would have at least the satis faction of having his appeal adjudicated on the merits by the same tribunal and would have no grievance, which he might have had if his petition for the grant of special leave were dismissed on the limited grounds on which such petitions are disposed of. For the above reasons, we do not propose to decide the question of jurisdiction without a certificate under S. 205 of the Constitution Act. As it is not the function of this Court to grant special leave to appeal to rectify any technical errors, even if they be found to exist, unless some grave injustice has been caused as a result of, them anal no injustice is shown to have been caused to the petitioners in the present case, we would dismiss the application reserv ing, however, their right to appeal to this Court in its capacity as a Federal Court, if they succeed in securing the certificate from the High Court under s.' 205 of the Constitution Act. A. H. Application dismissed. Attorney for Petitioner;

‑Muhammad Siddiq.