P L D 1949 Lahore 494 (PLP)

and after the appointed day. The learned Advocate‑General did not choose to address us in respect of the second contention advanced by Mr. Saleem, learned counsel for the petitioners, and as we were not in a position to order the Advocate‑General or any other law officer of the East Punjab High Court to appear and argue the various points raised before us, we decided to ask Mr. Asadullah Khan, an Advocate of this Court, to present the other side of the picture in order to enable us to come to a correct decision. He appeared before us in pursuance of our request but he was of no assistance as he confessed that he was unable to con trovert the arguments advanced by learned counsel for the petitioners in regard to his second contention. The learned counsel for the petitioners while replying to the learned Advocate‑General's arguments contended that the word 'Court' used in section 3 of the Prisoners Act could only apply to the Courts in Pakistan and that is why no discretion was left to the officer‑in‑charge of a prison in taking a prisoner into his custody and in detaining him in accordance with the warrant issued by a Court in this Dominion‑but section 15 of the Prisoners Act might have applied when dealing with prisoners who had been committed to his custody before the 15th August 1947 or may be so committed by a Court which has now become or is a foreign Court but in that case it was discretionary with the officer‑in‑charge of a prison to take a person convicted by such a Court. It was urged that if this discretion was exercised arbitrarily and the officer‑in‑charge of the prison took or kept a person in his custody who should not have been so taken, it would be open to that person to apply for his release under section 491 of the Code of Criminal Procedure on the ground that his custody was improper. It was con tended that any reference to sections 4 and 5 (5) of the Punjab Partition (Miscellaneous Institutions) Order was wholly out of place as the period for which certain persons had to be kept in custody was only six months from the appointed day which has by now expired. As to the contention based on section 8 of the Punjab Partition (Adaptation of Laws) Order it was urged by learned counsel for the petitioners that there was a distinction between a sentence and detention in Jail, that we are only concerned in the present case with the obligation of an officer‑in‑charge of prison to detain or continue to detain a person in his custody and that in the absence of a continuing clause or a provision regarding continuance of jurisdiction, the warrant committing the accused to his custody must be taken to have lapsed although the sentence passed against them may be legal unless it has been set aside by a competent Court. Since the question which forms the subject‑matter of the second contention advanced by learned counsel for the petitioners is a question relating to the jurisdiction of this Court to hear and determine the joint appeal preferred by all the five accused in this Court before the 15th August 1947, and the decision of that question may possibly affect the determination of the first contention raised on their behalf, we consider it advisable to go into that question first although we do consider it unfortunate that both the sides of that question were not placed before us which they might have been. This has made us examine the conten tions even more closely. Four kinds of 'jurisdiction were conferred on this Court by His Britanic Majesty under the Letters Patent :‑ (a) Civil‑(clauses 9 to 12 of the Letters Patent). (b) Criminal‑(clauses 14 to 21 do ). (c) Testamentary and Intestate‑ (clause 24 Letters Patent), and (d) Matrimonial‑(clause 25 do ). it is unnecessary in this case to subdivide the types of jurisdiction which this Court exercises on the Civil side. But it was empowered to exercise the following jurisdiction on the Criminal side :‑ (i) Ordinary original criminal jurisdiction (clauses 15‑16). (ii) Extraordinary original criminal jurisdiction (clause 17). (iii) Appellate jurisdiction (from the criminal Courts of the Province of the Punjab and Delhi) (clause 20). (iv) Jurisdiction as a Court of Reference and (clause 21). (v) Revisional jurisdiction. It is thus clear that the appellate jurisdiction of this Court was different according to the Letters Patent from the jurisdiction exercised by it either as a Court of Reference or as a Court of Revision. And since the arguments addressed to us by learned counsel for the petitioners largely depend on the correct interpretation of the words 'as a Court of Refer ence' used in section 13 (2) (a) of the High Courts (Punjab) Order, and on the powers exercised by this Court as a Court of Revision, it would be better to bear the provisions of clause 21 of the Letters Patent in mind. It reads as follows :‑ "

21. And we do further ordain that the High Court of Judicature at Lahore shall be a Court of Reference and from the Criminal Courts subject to its appellate jurisdiction, and shall have power to hear and determine all such cases referred to it by the Sessions Judges, or by any other officers in the Provinces of the Punjab and Delhi who were, immediately before the publication of these presents, authorised to refer cases to the Chief Court of the Punjab and to revise all such cases tried by any officer or Court possessing criminal jurisdiction in the Provinces of the Punjab and Delhi, as were immediately before the publication of these presents, subject to reference to or revision by the Chief Court of the Punjab. A perusal of this clause makes it abundantly clear that the appellate jurisdiction of this Court was provided for separately (clause 20) and thus treated to be different from the jurisdiction exercised by this Court either as a Court of Reference or as a Court of Revision. The powers which a High Court can exercise as a Court of Revision are given in sections 435, 436 and 439 of Chapter XXXI (Part VII) of the Code of Criminal Pro cedure and those which it exercises as a Court of Reference under sec tions 432 and

433. But this Court cannot exercise the powers as a Court of Reference under these sections as there had never been a Presidency Magistrate (and no Presidency town) at any time within the old Province of the Punjab ; but in so far as this Court has been authorised to act as 'a Court of Reference' under the Letter Patent of this Court, it must follow that the powers to be exercised by it in that capacity must be found within the ambit of clause 21 of the Letters Patent. This has been already quoted in extenso. A careful examination of the language employ ed in this clause would show that this was meant to act as a Court of Reference in respect of cases which were to be "referred to it by the Sessions Judges or by any other officers in the Province of the Punjab who were * * * * authorised to refer cases to the Chief Court of the Punjab". Similarly, this Court was intended by the Letters Patent to act as a Court of Revision and thus "to revise all cases tried by any officer or Court possessing criminal jurisdiction in the Provinces of the Punjab and Delhi, as were, * * * * subject to reference to or revision by the Chief Court of the Punjab". But the powers which this Court may be called upon to exercise either as a Court of Reference or as a Court of Revision would have to be exercised in accordance with the provisions of the Code of Criminal Procedure. Now we know that those provisions are when it is acting as a Court of Revision (sections 435, 436 and 439). But there is nothing in Chapter XXXII which could apply to this Court as a Court of Reference (vide sections 432 and 433). Chapter XXXI of the Code relates to appeals only. This exhausts Part VII. The question then is as to when this Court can be deemed to be a Court of Reference under the provisions of the Criminal Procedure Code? Part VI of the Code deals with Proceedings in Prosecutions. It consists of 16 Chapters. But the term 'reference' does not seem to have been used any where in it so far as I could see. There must, however, be some proceedings to which this term can be correctly applied if the provisions in clause 21 of the Letters Patent are to have any meaning (and they cannot be assumed to be meaningless) particularly when they expressly describe this Court as a Court of Reference in respect of cases `referred' to it by the Sessions Judges, etc. What can then those cases be ? Take section 307 of the Criminal Procedure Code for instance. When a Sessions judge disagrees with the verdict of jurors or of a majority of them and 'is clearly of opinion that is necessary for the ends of justice to submit the case to the High Court', he is bound to submit it without recording his judgment and "in dealing with the case so submitted, the High Court may exercise any of the powers" which it could have exercised on an appeal. It is clear that the High Court would neither be acting in such a case as an original Court and thus exercising its ordinary or extraordi nary original criminal jurisdiction, nor as a Court of Appeal and thus exercising its appellate jurisdiction. It cannot also be correctly stated to be called upon to exercise its revisional jurisdiction. By process of elimination one must necessarily come to the conclusion that the High Court would be in that case acting as a Court of Reference in respect of a case which has been referred to it by the Sessions Judge. And this is exactly what is contained in the Letters Patent. It is noteworthy that the term `reference' has not been used in section 307 but all the five judges in a Full Bench of Calcutta High Court were unanimously of the view in the matter of Horace Lyall (I L R 24 Cal. 286) that the jurisdic tion exercised by a High Court in hearing a case submitted to it under section 307, Criminal Procedure Code, is not its original criminal jurisdic tion but it hears the case of a Court of Reference in the exercise of the jurisdiction vested in it by clause 28 of the Letters Patent (it corresponds,: to clause 21 of the Lahore Letters Patent) which is co‑extensive with its appellate jurisdiction. Guru Das Banerji, J. in agreeing with the learned Chief justice of that Court observed at page 303 "The accused is not brought before this Court, nor are any witnesses examined before it. It hears the case as a Court of Reference, in the exercise of the jurisdiction vested in it by clause 28 of its Charter, which is, by the terms of that clause, co‑extensive with its Appellate Jurisdiction". Similarly this High Court would be acting as a Court of Reference under clause 21 of the Letters Patent if the proceedings were forwarded to it either by a Sessions judge or a Magistrate either after commitment or conviction on the ground that the accused, though not' insane, could not be made to understand the proceedings. The words relating to the submission of proceedings to the High Court used in section 374 of the Code of Criminal Procedure are almost identical with those used in section 307 and when after the proceedings of a case have been submitted to a High Court, if is called upon either to confirm or not to confirm a death sentence pronounced‑ by a Sessions judge, it cannot but he said to be acting as a Court of Reference within the meaning of clause 21 of the Letters Patent. The provision in the following two sections (sections 375 and 376) would have been super fluous if the High Court were called upon to exercise its appellate or revisional jurisdiction as powers which a High Court can exercise when these jurisdictions are invoked are provided in the Code of Criminal Procedure in other places. It might have been argued that since the words "including any pro ceedings then pending in the said High Court as a Court of Reference" are followed by words which related to the proceedings in this Court on its original side, the latter must be construed as to confine their operation to proceedings pending on the original side of this Court. I agree that the latter words would cover such proceedings as well but there is nothing in them which would limit their operation to such proceedings only for if they did, there would be no Court left to exercise jurisdiction in cases remitted to this Court before the appointed day for confirmation of death sentences, The italicised words in Article 2 (a) are general and it is not possible for me to limit their operation in the absence of anything in the order‑to the proceedings pending on the original side only. Moreover it be remembered that proceedings pending ors the appel late side of this Court above which were transferred to the High Court of East Punjab under sub‑clause (3) of Article 13 I am thus clearly of opinion that the proceedings to the confirma tion of death sentences of the three accused persons were pending in this Court as a Court of Reference and must be heard and determined by this Court as provided in Article 13 (2) of the High Courts (Punjab) Order, 1947. But what then about the appeals which were filed by these three accused persons? section 376 of the Code reads :‑ "

376. In any case submitted under section 374, whether tried with the aid of assessors or by jury of 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 person 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". The proviso to this section is important as according to what is contained in it the order of confirmation of a death sentence is to follow and cannot precede the decision of the appeal preferred by or on behalf of an accused. But when proceedings are submitted in any case under sec tion 374, Criminal Procedure Code, it is open to the High Court to pass any orders contained in section 376 (a), (b) or (c). A High Court is therefore fully competent either to acquit a person or to confirm the death sentence or to pass any other sentence warranted by law or to annul the sentence passed against the accused acid to convict him of any other offence of which he could have been convicted by a Sessions Judge when it is hearing a reference made by him under section

374. And this inde pendently of the fact whether an appeal was preferred by the accused or not. It is true that ordinarily an appeal by an accused person against his convictions and the proceedings of confirmation submitted by a Sessions judge are heard by the same Court at one and the same time. But when (a) the area over which the High Court of Lahore had jurisdiction before the appointed day has been divided, (b) a separate High Court (High Court of East Punjab) has been created and a portion of the area formerly within the jurisdiction of the High Court of Lahore has been declared to fall within the jurisdiction of the East Punjab High Court, and (c) it is followed by an order of the Governor‑General before the division of the country into two Dominions declaring that the High Court at Lahore shall have no jurisdiction in respect of the territories for the time being included in the Province of East Punjab * * * * and that (subject to certain exceptions to which I would advert later), "all pro ceedings pending on the appellate side of the High Court at Lahore immediately before the appointed day and shall where the Court of origin, is, as from that day situated iii the Province of East Punjab * * (as Karnal is) stand transferred * * * * to the High Court of East Punjab" the question arises whether the appeals made by these three accused persons against their convictions shall not be entertainable by the High Court of East Punjab although the proceedings for confirmation are found to be determinable by the High Court of Lahore ? If the provision in Article 13 (3) had not been "subject to the preceding provisions of this Article" and if there had been no provision in sub‑clauses (4) and (5) of this Article as to what effect the decision of this Court and that of the High Court of East Punjab would have, the answer would have been easy to find and would probably have been that the appeals of these three accused would be entertainable by the High Court of the East Punjab although this Court would be entitled to come to its own decision as a Court of Reference on the submission of the proceedings to this Court under section

374. Criminal Procedure Code, after the appeals had been disposed of. What then is the effect of the opening words of sub‑clause (3) and the provisions contained in sub‑clauses (4) and (5) of Article 13 ? The opening words mean that the appeals would be heard and determined by the High Court of East Punjab only if the subject‑matter of the appeals cannot be heard by this Court under the preceding provisions of Article

13. It could not have been possibly intended that both Courts would possess jurisdiction in regard to the same subject‑matter and be entitled to give, if they are so minded, two conflicting judgments so much so that one of the High Courts may acquit the accused of the offence and the other High Court may convict them of the same offence and condemn them to death ? There is no provision in the Order passed by the Governor‑General as to whose judgment would prevail if a contingency of this nature arises ? And the position was certainly made worse by what is contained in sub‑clauses (4) and (5) of this Article. According to these provisions any order made by the High Court of Lahore in proceedings with respect to which it retains its jurisdiction, shall have the effect of an order passed by the High Court of East Punjab and the decision of the appeals transferred to that Court shall have the effect of the orders passed by this Court this means that the decision by this Court of Reference in cases which have not been transferred to the Hitch Court of East Punjab (the proceedings Pending on the appellate side alone of this Court being covered by sub‑clause (3) are to have the effect for all purposes not only of an order passed by this Court but also that of the High Court of the East Punjab, while the effect of the decision of the appeals by the High Court of East Punjab would be as if they have been decided by this Court as well. If the decisions by the two High Courts happen to be conflicting, it would seem to follow that while the decision of one High Court is in fact one way, it would be taken, by virtue of the contrary decision by the other High Court, to have decided the other way or, in the words of the sub‑clauses (4) and (5), to have the effect for all purposes of a contrary decision by the same High Court in regard to the same facts, pertaining to the same accused and for the same offence. This is absurd and one must neces sarily struggle against a construction of the opening words in sub clause (3) which would lead to such anomalous results. If we construe the words "subject to the preceding provisions of this Article" narrowly and hold that "proceedings then pending in the said High Court (of Lahore) as a Court of Reference" are alone to be excluded, the absurdity would not be avoided. But if we were to hold that the proceedings which are so intimately connected with those which were pending in this High Court as a Court of Reference would also be covered by the opening words of clause 3 and would thus include appeals which have neces sarily to be decided before the determination of references made by the Sessions Judge, Karnal, this inconsistency could be avoided. This is on the principle laid down in Nokes v. Done Ster Amalgamated Collieries ((1940) A C (1014) (1022)) that "if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the wider construction based on the view that Par liament would legislate only for the purpose of bringing about an effective result", I am fully aware of the general rule that a judge is not ordinarily entitled to add or take out anything from a statute which he is called upon to interpret but this is permissible when there are "adequate grounds to justify the inference that the Legislature intended something which it had omitted to express". (See Evrett v. Wells ((1841) 2 M & Cr. 269 (277)) ). Similarly it was held in a number of cases that‑ Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a cons truction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual mean ing to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the Legis lature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language and really give the true meaning * * * * The rules of grammar yield readily in such cases to those of common sense." Alderson v. A. G. Lockwood((1842) 2 M & W 398) Miller v. Salomons ((1853) 7 Ex. 475.) Lord Denman, Jubb v. Hull Dock Co. ((1846) 9 Q B 443) Lord Campbell, Wigton v. Spaith ((1851) 16 Q B 503.) Parke B. Becke v, Smith ((1836) 2 M & W 195.), Wright v. Williams ((1836) 1 M & W 99.), Hollingworth v. Palmer ((1849) 18 L J Ex. 409, 414 James L J Rashleigh, Ex. p. (1875) 2Ch.D13GrotedeB&Pb2,c16s12(4).). It might have been contended that if we were willing to enlarge the meaning of the words "including any proceedings pending in the said High Court (of Lahore) as a Court of Reference", why could we not so construe the third sub‑clause in such a way as to include the references pending in this Court to be determinable by the High Court of East Punjab? The answer is that references were expressly excluded from its jurisdiction and if we were to construe the sub‑clause in that manner, we would be violating the express provisions of the Order passed by the Governor‑General. Moreover, it was not possible to overlook that the Governor‑General's intention which obviously was to leave the juris diction of the High Court of Lahore untouched except in certain specific cases and that is why the proceedings pending only on the appellate side of this Court and on no other were to stand transferred under the third sub‑clause to the High Court of East Punjab. It seems to me that those who were responsible omitted to consider that certain appeals would be linked with references pending in the High Court of Lahore and failed to provide for those appeals which must be, in order to avoid a conflict, decided by the same authority and I think I would be acting more in harmony with the intention of the Governor‑General if I held that this Court's jurisdiction was not ousted in regard to the appeals which were intimately connected with the references which had riot been transferred and had been pending in this Court at the time when the High Courts (Punjab) Order was passed. I would for the above reasons hold that the appeals preferred by the accused against their sentences of death should be heard simultaneously by this Court with the references made by the Sessions Judge, Karnal, for confirmation of their sentences. What then is to happen to the appeals referred by Bashir Ahmad and Nemat against their sentences of transportation for life. It is true that only one appeal was filed by all the five accused persons jointly but this does not mean that every accused was not appealing for himself only but on behalf of the other co‑accused as well. Although written on one piece of paper, this appeal must be held to consist of five appeals made by every one of them for himself. It must also be conceded that if no petition for revision had been filed by Ashraf against the two accused for enhancement of their sentences, the appeals preferred by them would have to be held as having been transferred to the High Court of East Punjab under the third sub‑clause of Article 13 of the Governor‑General's Order. But can these be found to have been so transferred in spite of Ashraf's petition for revision which had been filed in this Court before the appointed day and in regard to which the revisional jurisdiction of this Court had already been invoked ? While recalling the arguments advanced by learned counsel for the petitioners in respect of these accused I have already referred to section 439 (6) of the Criminal Procedure Code on which reliance was placed on their behalf. It is true that the exercise of the powers by a Court under section 439 is discretionary‑but it must be pointed out that discretion to be exercised is not arbitrary but judicial. Can any Court reasonably refuse to exercise its discretion if it finds that having regard to the facts, the sentence passed by the trial Court is wholly insufficient or can the Court refuse to acquit an accused who is shown to be innocent simply because it was hearing the case on the revisional side ? If it can, the provisions of section 439 of the Code of Criminal Procedure generally and its 6th sub‑clause in particular would fail to achieve the object for which they had been enacted. And if this Court in hearing Ashraf's petition comes to hold that the sentences of transportation imposed against both or either of the accused were insufficient which necessarily implies that the accused were guilty of the offence with which they had been charged or after hearing the accused persons against their convictions is of the view that they were innocent and must therefore be acquitted, would it not led to an impossible situation if the High Court of East Punjab were after hearing the appeals, to come to an opposite conclusion. Which of the judgments are in that case to prevail particu larly when the judgment of each Court is declared to have effect for all purposes as a judgment of the other Court ? I am not unmindful of the fact that by virtue of section 439 of the Code the revisional jurisdic tion also exists in the High Court of East Punjab and can be exercised by it without any provision in the Governor‑General's Order but the diffi culty in the present case is that it had already been invoked here before the appointed day and unless there was a provision of transferring the petitions of revisions to that Court. Ashraf's petition will have to be heard and determined by this Court for there is a general presumption against an intention to disturb the established state of the law and it will have to be presumed that the law making authority "would not make any important innovation without a very explicit expression of its intention". Nor could it be inferred "from the grant of a jurisdiction to a new tribunal over certain cases that the Legislature intended to deprive the superior Court of the jurisdiction which it already possessed over the same cases" Shaftbury v. Pussell (10). I know that this Court cannot now be regarded to be a superior Court when compared with the High Court of the East Punjab but the principle underlying the observa tion in Shaftbury's case (10) would equally apply to the present case. It has already been pointed out by me elsewhere that proceedings pending on the appellate side alone of this Court were subject to certain exceptions declared by sub‑clause (3) to stand transferred to the High Court of East Punjab. The petitions of revision could not therefore be found to have been transferred to that High Court and have therefore to be determined by this Court for they cannot remain undisposed of. And this may lead to two conflicting orders or judgment passed by two Courts on the same facts, pertaining to the same persons and in regard to the same offences. The position then becomes the same with which I was faced when dealing with the case of the accused persons who were sentenced by the Sessions Judge Karnal, to death. And I must more or less for the same reason hold that the appeals in these cases would, to save anomalous position have to be determined by this Court. This disposes of the second contention advanced on behalf of the petitioners. In view of the conclusion at which I have arrived it is unnecessary to examine the contention advanced on behalf of the petitioners that in the absence of the Extradition Act being in force between the two Dominions, his clients cannot be extradited now to the East Punjab for the question of extradition would not now arise. I must however say that if this contention were found to have any force after it was examined, it might have afforded a further ground for holding that the appeals, the murder references and the revision must all be heard and decided by this Court on their merits rather than the accused should be, although guilty, set at liberty without their being found to be (10) (1823) 25 R R 534: innocent‑or kept indefinitely in jail if they are found to have been duly committed to the Central jail at Lahore. It could never have been the intention that accused persons may be set at liberty even if they were guilty of a serious offence like murder. Their appeals and murder references have to be heard by some Court and determined in their favour before they can be discharged from the prison. This takes me to the first contention advanced by learned counsel for the petitioners. The principle of International Law on which the argument in this connection was partly based has no application to cases such as the present where the sentence was pronounced by a Court in the Punjab Province which was being administered at the time by the Governor of the Punjab and was subordinate to this Court and continued to be so until the appointed day. That is why appeals and the revision were filed in this Court and that is why proceedings were submitted by the Sessions Judge, Karnal to this Court for confirmation. Nor could this principle of International Law have any application if the accused were after conviction retained by the 'Sessions Judge, Karnal, for enforcing the sentences passed against them. They were transferred to the Central Jail at Lahore under the directions contained in the Jail Manual which applied both to Karnal and Lahore at the time. The opening words "The criminal sentence pronounced under the Municipal Law in one State" occurring in the quotation from Wheaton's International Law could have no application as it assumes the existence of two States at the time when the sentence was pronounced but this was not the case on the 26th February 1937 when the petitioners were convicted by the Sessions Judge Karnal. Similarly paragraph 620 at page 840 from Story's Conflict of Laws (8th Edition) which states that "the common law considers crimes as altogether local and cognizabe and punishable exclusively in the country where they are committed; and no other nation therefore has any right to punish them or is under any obligation to take notice of or to enforce any judgment rendered in such cases by the tribunals having authority to hold jurisdiction within the territory where they are committed" has any application when the crimes were committ ed and the accused were convicted by a Court which was at the time subordinate to this Court and that the accused were according to rules then in force transferred to Lahore to undergo their sentences passed against them in accordance with law. The subsequent partition of the Punjab into two Provinces is hardly of any importance as we have to take notice only of the dates when they were as convicted and as transferred to the Central Jail at Lahore. Story assumes as Wheaton had that there were two separate countries at the time when the crime was punished and then states that the crimes committed in one country cannot be punished by the other. I have now to examine the contention that regardless of the sen tences against the accused persons being right or wrong, their detention by the Officer‑in‑Charge of the prison at Lahore is illegal as he had no authority to retain them in his custody after the appointed day. The learned Advocate‑General based his reliance in his reply to this conten tion firstly on sections 3 and 15 of the Prisoners Act (III of 1900). They read as follows :‑ "

3. The Officer‑in‑Charge of a prison shall receive and detain all persons duly committed to his custody, under this Act or otherwise, by any Court, according to the exigency of any writ, warrant or order by which such person has been committed, or until such person is dis charged or removed in due course of law." "15. (1) Officers‑in‑Charge of prisons outside the Presidency‑towns may give effect to any sentence or order or warrant for the detention of any person‑ passed or issued‑ (a) by any Court or tribunal acting, whether within or without British India, under the general or special authority of Her Majerty, or of the Central Government, or of the Crown Representative, or of any Provincial Government, or of the Government of Burma ; or (b) by any Court or tribunal in any Indian State :‑ (i) if the presiding Judge, or if the Court or tribunal consists of two or more Judges at least one of the judges, is an officer of the Crown authorised to sit as such judge by the State or the Ruler thereof or by the Central Government or the Crown Representative ; and (ii) if the reception, detention or imprisonment in any Province of British India of persons sentenced by any such Court or tribunal has been authorised by general or special order by the Provincial Government ; or (c) by any other Court or tribunal in any Indian State, with the previous sanction of the Provincial Government in the case of each such sentence, order or warrant Provided that effect shall not be given to any sentence or order warrant for detention passed or issued by any Court or tribunal in Burma without the previous sanction of the Provincial Government concerned. (2) Were a Court or tribunal of such a Ruler or State has passed a sentence which cannot be executed without the concurrence of an officer of the Crown, and such sentence has been considered on the merits and confirmed by any such officer specially authorised in that behalf, such sentence, and any order or warrant issued in pursuance thereof, shall be deemed to be the sentence, order or warrant or a Court or tribunal acting under the authority of the Central Government or the Crown Representative." It is contended by Mr. Saleem that according to the Pakistan (Adaptation of Existing Laws) Order made by the Governor‑General on the 14th August 1947, the Prisoners Act extends only to the Courts within Pakistan, but not to Courts in India which were situate in a separate Dominion after the appointed day. He argues that this is a case of causus omissus and although the omission was unintentional and there was no good reason why the omission should have been made, yet the case not being provided for by any of the Orders of the Governor‑General, it cannot be dealt with by the Courts and the omission attempted to be remedied. It may be that in view of the Pakistan (Adaptation of Existing Pakistan Laws) Order L947, the officer in charge of a prison in Pakistan as the Lahore Central Jail now happens to be, is bound to receive and detain all persons committed to his custody only by Courts in Pakistan after the appointed day, (i.e., the 15th August 1947). This does not however mean that the persons who had been duly committed to his custody before that date are not bound to be detained or rather retained according to the exigency of the warrant or order by which they had been duly committed to the prison. We have to see the date on which the accused persons were committed to the custody of the officer in charge of the prison. If they were duly committed on that date; their detention would have to continue until they were discharged or removed in due course of law. No other event like the dismissal or retirement of the officer presiding over the Court which had committed the accused to the custody of the officer in charge of a prison or even the abolition of that Court would affect the validity of the sentence or order passed by that Court if it was valid on the date on which it was passed and the persons would have to be kept in detention according to the exigency of the warrant by which they had been Committed. The amendment of the section by the Pakistan (Adaptation of Existing Laws) Order could not have any retrospective operation and would not affect the legality of detention which had stated before the Dominion of Pakistan had come into being and which would have to continue according to the exigency of the warrant unless it was terminated by a discharge or removal in due course of law. The detention is one of the necessary consequences of the sentence and must continue as long as the sentence subsists. I am therefore of the view that the warrant issued by the Court of Session at Karnal did not lapse with Karnal ceasing to be a part of Pakistan and the accused persons would have to remain in custody of the officer in charge of Central jail or any other prison where they may be legally transferred until they are discharged or removed in due course of lava. Since section 3 of the Prisoners Act is in my view applicable to the present case, it is unnecessary to consider the applicability of section 15 of that Act although I may say in passing that it is not in my opinion applicable. It would apply to a Court or tribunal which is acting under the general or special authority of Her Majesty or of the Government of India . . . . . . . . . or of any Provincial Government or by a Court or tribunal in any Indian State. Courts of Session came into being on the other hand under section ‑6 of the Code of Criminal Procedure and their powers were defined by section 31 of that Code. The Sessions judge at Karnal was thus acting in accordance with the powers conferred on him by virtue of this section and not under any special and general authority of Her Majesty . . . . . . . . . . . or of any Provincial Government. The fact that his appointment must have been made by the Provincial Government under section 9 (1) of the Criminal Procedur Code does not mean that he was invested by it with any special or general authority referred to in clause (a) of section 15 of the Prisoners Act (III of 1900). In view of what I have said above, I need not examine the other contentions raised by the learned Advocate‑General although I might indicate that they had failed to impress me. Since the accused are in legal custody of the officer in charge of prison at Lahore and no question of 'extradition arises in view of my decision that this Court is competent to dispose of the murder references the appeals by all the five accused and the petition for revision filed by Ashraf, this application must fail and is hereby dismissed. Marten J.--‑ I agree. K. M. A. Application dismissed