P L D 1954 Federal Court 87 (PLP)

AKRAM, J.--‑This is a petition by ex-Major‑General Akbar Khan and another praying for our leave to appeal from a judgment of the Special Tribunal constituted under The Rawalpindi Con spiracy (Special Tribunal) Act, 1951. The main point in the case which arises for our determination is, whether an appeal from the aforesaid judgment lies to the Federal Court, for the exercise of the prerogative powers of the Crown, which have now become vested in the said Court by virtue of section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950. Mr. Pritt, for the petitioners, contended that the Rawalpindi Conspiracy (Special Tribunal) Act, 1951, was ultra vires the Constituent Assembly inasmuch as subsection (1) of section 8 of the Indian Independence Act, 1947, limits the powers of the Constituent Assembly to "the purpose of making provision as to the Constitution of the Dominion"; that the impugned Act, the purpose of which was to make a special provision for the trial of a particular case only, could not therefore be regarded as an enactment for the purpose of making provision for the Constitution of the Dominion. But clause (e) of subsection (2) of section 8 of the Indian Independence Act, 1947, reads: the power of the Federal Legislature or Indian Legislature under that Act (Government of India Act, 1935) as in force in relation to each Dominion, shall, in the first instance, be exercisable by the Constituent Assembly of the Dominion in addition to the powers exercisable by that Assembly under sub section (1) of this section", while subsections (1) and (2) of section 6 are expressed in the fol lowing terms:‑ "Section 6 (1).

"The Legislature of each of the new Dominion shall have full power to make laws for that Dominion including laws having extra‑territorial operation." (2) "No law and no provision of any law made by tire legislature of either of the new Dominions shall be void or inoperative on the ground that it is repugnant to the law of England, or to the Provisions of this, or any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the legislature of each Dominion include the power to repeal or amend any such Act, order, rule or regulation in so far as it is part of the law of the Dominion." It is sufficiently clear from the above provisions that the Constituent Assembly of Pakistan as the supreme legislature of the Dominion is vested not merely with the function of "making provision as to the Constitution of the Dominion", but is further empowered to act as the Federal Legislature for the purpose of 13 the Government of India Act, 1935. The Constituent Assembly, therefore, much like the British Parliament, can make or unmake any kind of law and no question of vires with reference to any legislation passed by it under its plenary powers can be raised. Next, it was urged that assuming that the Act is intra vires, the prerogative powers of the Crown could be taken away only by express words and not by necessary implication:

In re. The Will of Wi Matua, Deceased ((1908) A C 448.); Natdan v. The King ((1926) A C 482 at pp. 491-92.). Halsbury's Laws of England (2nd Edition Vol. 6, paragraph 513.) ; but the trend of later judicial pronouncemepts does not seem to be in favour of the above view. In British Coal Corporation v. The King (A I R 1935 P C 158 at p. 163.), Viscount Sankey observed :- "No doubt the principle is clearly established that the King's prerogative cannot be restricted or qualified save by express words or by necessary intendment. In connexion with Dominion or Colonial matters that principle involves that if the limitation of the prerogative is by a Dominion or Colonial Act, not only must that Act itself deal with the prerogative either by express terms. or by necessary intendment, but it must be the Act of a Dominion or Colonial Legislature which has been endowed with the requisite power by an Imperial Act likewise giving the power either by express terms or by necessary intendment. The same view was taken by Lord Du Paroq in the case of Province of Bombay v. Municipal Corporation of the City of Bombay and another (73 I A 271 at p. 274.), "The general principle to be applied in considering whether or not the Crown is bound by general words in a statute is not in doubt. The maxim of the law in early times was that no statute bound the Crown unless the Crown was expressly named therein, "Roy West lie par ascun statute si il ne soft express. ment nosme." But the rule so laid down is subject to at least one exception. The Crown may be bound, as has often been said, "by necessary implication." If, that is to say, it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named. It must then be inferred that the Crown, by assenting to the law, agreed to be bound by its provisions". The above principle is also stated in Maxwell on Interpretation of Statutes (9th Edition) page 145 in the following terms "The Crown, however, is sufficiently named in a statute when an intention to include it is manifest." As a matter of fact the prerogative jurisdiction being now a statutory right vested in the Federal Court by section 3 of The Privy Council (Abolition of g Jurisdiction) Act. 1950, no question of limiting or excluding the prerogative powers of the Crown itself arises. It is also to be observed that The Privy Council (Abolition of Jurisdiction) Act, 1950, was passed by the Constituent Assembly, and the said Act may, therefore, be legitimately amended by a subsequent enactment of the same Assembly. Next, it was said that there was nothing in The Rawalpindi Conspiracy (Special Tribunal) Act, 1951, which could be construed as excluding the right of appeal to the Federal Court, but section 10 subsection (1) of the said enactment directs :- "10. (1) No order, judgment or sentence of the Special Tribunal shall be called in question in appeal or revision or otherwise howsoever in any Court ; and no Court shall entertain any plea as to the jurisdiction of the Special Tribunal or as to the legality or propriety of anything done or purporting to be done by the Special Tribunal." Under this subsection, therefore, every Court is forbidden from examining "the legality or propriety of anything done or purporting to be done by the Special Tribunal" ; further more the added subsection (5) to section 6 prevents the Tribunal from giving a copy of any order, judgment or sentence to any accused person whom it concerns. All these seem to me to be a clear indication of the absence of any intention to make the decision of the Special Tribunal subject to the ordinary incident of an appeal even for the purpose of exercising the prerogative jurisdiction now vested in this Court. The petition for special leave to appeal is, therefore, dismissed as not maintainable. SMAHABUDDIN, J.-This is a petition for special leave to appeal to this Court ; and it is stated therein that the petitioners Ex-Major General Akbar Khan and Faiz Ahmad Faiz have been convicted of "treasonal conspiracy" and sentenced, the first petitioner to transportation for life and the second petitioner to rigorous imprisonment for four years, by the Special Tribunal constituted by the Rawalpindi Conspiracy (Special Tribunal) Act, 1951. This enactment shall be referred to hereafter as the Act. The petition is not accompanied by a copy of the judgment of the Tribunal nor does it contain the particulars of the case or the grounds of the convictions. Reason for this omission is that the Act makes disclosure of any document or information concerning the proceedings before the Tribunal, to any person who is not officially connected with the preparation or conduct of the case, punishable under the Official Secrets Act, and it also prohibits the grant of a copy of the judgment to the accused. The above is not the only difficulty in the way of the petitioners obtaining special leave to appeal to this Court. Section 10 of the Act prohibits an appeal to any Court. It is as follows :- "No order, judgment or sentence of the 'Special Tribunal shall be called in question in appeal or revision or otherwise howsoever in any Court, and no Court shall entertain any plea as to the jurisdiction of the Special Tribunal, or as to the legality or propriety of anything done or purporting to be done by the Special Tribunal". Mr. Pritt, appearing for the petitioners, submitted at the outset that the position he was taking was that this Court had, in spite of section 10 of the Act, jurisdiction to grant special leave, and that if his contention was accepted the advocates who appeared before the Tribunal could be beard on merits. We heard Mr. Pritt and the Advocate-General of Pakistan on the questions raised for the petitioners, leaving it to be determined later as to what course should be adopted for hearing the matter on merits in case it was established that we had Jurisdiction to grant special leave. The first point urged by Mr. Pritt was this. The prerogative of the Crown to grant special leave can be excluded by a Statute only by express words and not by necessary intendment. Under the Privy Council (Abolition of Jurisdiction) Act, 1950 this Court has the same prerogative jurisdiction, which was exercised by the Privy Council prior to the coming into force of the said Act. Section 10 of the Act does not exclude the jurisdiction of this Court by express words. In support of the contention that prerogative jurisdiction can be excluded only by express words reliance was placed on Josh Thebarge and another v. Philip Landry (2 A‑C 102.), Charlas Cushing and Louis Depuy (5 A C 409:) and In re. The Will of Wi Matua (1908 A C 448.). In Thebarge v. Landry it was observed that the general principle was that the prerogative of the Crown cannot be taken away except by express words ; but in that case though the statute did not contain express words excluding the prerogative, special leave to appeal was refused. There, the petitioner's election as a member of the legislative assembly of the Province of Quebec had been declared null and void by the Superior Court, whose decision under section 90 of the Quebec Controverted Elections Act, 1875 (an Act of Parliament) was not susceptible of appeal'. Special leave to appeal to the King‑in‑Council was sought on the ground that section 90 did not take away the prerogative right of the Crown as it did not exclude that right by express words. Their Lordships held that having regard to the extremely peculiar character of the Quebec Controverted Elections Act there was not in that case, the prerogative right to admit an appeal ; and the petition for special leave was dismissed. The same general principle was stated in the other two cases. But in a later case British Coal Corporation and others v. Crown (1935 A C 500.) cited by the Advocate‑General of Pakistan, which was also a petition for special leave to appeal to the King‑in‑Council, the principle regarding the prerogative was expressed by Viscount Sanky L. C. in these words :‑ "No doubt the principle is clearly established that the King's prerogative cannot be restricted or qualified save, by express words or by necessary intendment. In Dennis Romain Reaouf v. Attorney‑General for Jersey (A I R 1936 P C 160.) where one of the points for decision was whether special leave could be properly given to appeal from the judgment of the Royal Court of Jersey in a criminal case, the following observation occurs:

" The discretion of the King‑in‑Council to grant special leave to appeal has been often described, not inconveniently as the prerogative right, and there is a whole body of authority tending to show that this prerogative right can only be taken away by the express words or the necessary intendment of a Statute or other equivalent act of State". In a still later case Attorney‑General for Anterio v. Attorney -General of Canada (1947AC127.) it was observed that before the passing of the Statute of Westminister 1931 the power vested in the Dominion Parliament by section 101 of the British North America Act 1867 to establish a general Court of Appeal for Canada was necessarily subject to the prerogative right to grant special leave to appeal as that right was not expressly or by necessary intend ment excluded. However, this question is not of real importance in this case, for, the Privy Council (Abolition of Jurisdiction) Act 1950, under which this Court has the power to grant special leave excluded in express words the prerogative of the Crown toll grant special leave to appeal as far as Pakistan was concerned. Section 2 of that Act is as follows :‑ "As from the appointed day, the jurisdiction of His Majesty- in‑Council in entertain, and save as hereafter provided to hear and determine, appeals and petitions (hereinafter referred to as Pakistan appeals and Pakistan petitions) from, or in respect of, any judgment, decree or order of any Court or tribunal (other than the Federal Court) in Pakistan, including appeals and petitions in respect of criminal matters, whether such jurisdiction is exerciseableby virtue of His Majesty's prerogative or otherwise, shall cease". The exception made in this section was in respect of cases that had already been entered in the list of business of the Judicial Committee for the Easter sittings of 1950, cases in which judgment had been delivered but the order in Council of His Majesty had not been passed and cases which had been heard but the judgment or order in which was pending on the appointed day. Section 3 conferred on this Court the same jurisdiction which was being exercised by the King‑in‑Council in the prerogative right or otherwise in respect of cases of Pakistan. Therefore when the Act in question was passed the prerogative of t the Crown was not in existence as far as Pakistan was concerned; and the powers conferred on this Court constitute its jurisdiction and cannot be termed the prerogative right. The royal prerogative is defined in Keth's Constitutional Law thus :‑ "The Crown's prerogative may be defined, in Blackstone's words, with a slight modification as being that 'special pre eminence' which the King hath over and above all other persons, by virtue of the common law, but out of its ordinary course, in right of his royal dignity". The Privy Council is often stated to exercise the residual prerogative of the King‑in Council, but in form the appeal is to the King‑in‑Council, and the Privy Council does not itself grant or refuse leave but humbly advises the Sovereign to exercise that power; whereas this Court exercises that power itself. The second point of Mr. Pritt was that the intendment in section 10 of the Act was too indirect to affect our jurisdiction to grant special leave to appeal. It was argued that that section prohibited appeals under the ordinary law and it was not intended to affect the special powers which were taken away from the King‑in‑Council and conferred on this Court. This argument breaks down on an examination of the provisions‑ of the Act In the first place the language of section 10 clearly prohibits an appeal to any Court. Secondly, considering the composition of the Tribunal prescribed by the Act the only appeal possible in this case was to this Court with its special leave. Section of the Act seems to contemplate the setting up of a composite Tribunal of Federal Court and High Court judges and in fact the Tribunal that tried the case was composed of a Judge of this Court and two High Court judges, one of the High Court of Dacca and the other of the High Court of Lahore. The only forum to which an appeal from the judgment of such a Tribunal could possibly lie was this Court with its special leave ; and it would have been so, even if the Tribunal had been composed of three judges of the same High Court. Section 411 (a) Cr. P. C. which provides for an appeal in certain circumstances from a judgment of the High Court in its original criminal jurisdiction to a Division Bench of the same High Court, does not apply to the judgment of a Tribunal of Judges of the High Court constituted under a special Act. I am, therefore, of the opinion, that section 10 of the Act excludes by necessary intendment our jurisdiction to grant special leave in this case. It was then contended for the petitioners that the Act was ultra vires of the Constituent Assembly of Pakistan. The argument on this point was to the following effect. Under section 8 (1) of the Indian Independence Act, Constituent Assembly of Pakistan acting as such can make provisions only as to the Constitution of the Dominion. Provision for a special Tribunal only to try a single case cannot be said to be a provision as to the Constitution. Such a provision could be made only by the Constituent Assembly acting as Federal Legislature; but the Act was passed by the Constituent Assembly acting as such. This argument overlooks the fact that provisions regarding the jurisdiction of this Court are a part of the present Consti tution Act. Section 205 of the Constitution Act gave this Court jurisdiction only in these cases in which the High Courts certified that a substantial question regarding the interpretation of the Constitution Act or the Indian Indenendence Act or orders made under those Acts, was involved. Provision was, however, made under section 206 empowering the Federal Legislature to extend by legislation the jurisdiction of the Federal Court in civil cases and this power was exercised in January 1950 when the Constituent Assembly of Pakistan acting as Federal Legislature passed Act I of 1950. But there was no provision in the Constitution Act empowering the Federal Legislature to extend the jurisdiction of this Court in criminal matters or to abolish appeals to Privy Council in those matters. In May 1950 the Constituent Assembly acting as such passed the Privy Council (Abolition of Jurisdiction) Act, 1950, and under this enactment this Court was given the same powers in civil and criminal, matters which were being exercised by the King‑in‑Council prior to the date fixed in that Act and it is those powers that the petitioners now seek to invoke. This was an amendment of the Constitution and, therefore, those provisions were provisions as to the Constitution and only the Constituent Assembly acting as such could make them. That being so, any restriction of this jurisdiction even if it be in respect of a single case, cannot but 'be an amendment of a provision of the Constitution. As section 10 C of the Rawalpindi Conspiracy (Special Tribunal) Act is a restric tion on our jurisdiction as far as this case is concerned that measure could be passed only by the Constituent Assembly acting as such, and not in its capacity as a Federal Legislature. I, therefore, find that the Act is intra vires of the Constituent Assembly acting as such. For these reasons I would dismiss this petition. CORNELIUS, J.--‑I agree entirely with the reasoning of my learned brother Shahabuddin, to which I have nothing to add. In my opinion, no appeal is competent and the petition should therefore be dismissed. A. H. Petition dismissed.