P L D 1952 Federal Court 108 (PLP)

MUHAMMAD MUNIR, J.‑Dilawar petitioner was con victed by the Additional Sessions Judge, Larkana, under sections 302 and 364 of the Pakistan Penal Code and was sentenced to death on the former and to five years' rigorous imprisonment on the latter charge. His appeal to the Chief Court of Sind having been dismissed and the sentence of death confirmed by Tyebji C. J. and Muhammad Bakhsh J. he has petitioned for special leave to appeal. The Chief Court has found that on 23rd August 1950 the petitioner in complicity with one Jaffar murdered a young Pathan woman Mst. Jan Zeb and threw her body into a Rice Canal. The body has not been found and the conviction of the petitioner is based on circumstantial evidence and his own judicial and extra‑judicial confessions which were retracted at the trial. The circumstances found by the Chief Court are -- (1) that before her disappearance Mst. Jan Zeb had been living with the petitioner (2) that on the day of her murder she was seen being taken on a cart by the petitioner and his accomplice Jaffar in the direction of the place where she is alleged to have been murdered; (3) that the petitioner and Jaffar fabricated injuries on their persons and made a false charge of Jan Zeb having been kidnapped by one Haji Nur Muhammad; (4) that a hatchet recovered from the possession of the petitioner was stained with human blood ; (5) that human blood was found on the petitioner's clothes ; (6) that a tracker found the foot‑marks of the petitioner at a place where there were traces of human blood and where the murder is alleged to have been committed ; and (7) that the petitioner confessed before three private persons and later before a First Class Magistrate who recorded the confession under section 164 of the Code of Criminal Procedure. There can be no doubt that on the facts found the peti tioner has been rightly convicted of murder even though the body of the unfortunate woman has not been found. Learned counsel who appeared for the petitioner sought to attack the evidence as though we were hearing a Criminal Appeal but we refused to go into what were mere matters of evidence, and as petitions for special leave to appeal in crimi nal, cases are being presented to this Court indiscriminately) either without knowledge or in utter disregard of the special circumstances in which they were entertained by the Privy Council and can be entertained by this Court we take this opportunity once more to state the true position in this respect. The Privy Council had repeatedly observed, and these observations are equally applicable to this Court, that it would neither share nor assume responsibility for the administration of criminal justice in this country nor convert itself into a Court of criminal appeal and that its willingness to interfere with the decisions of Criminal Courts was limited to some special classes of cases which had this common feature that in them the Court had contravened some fundamental principle of criminal jurisprudence. Counsel who appear before us in petitions for special leave to appeal seem to assume that they can ask us to look at the case as if we were a Court of criminal appeal and then if after a review of the evidence they satisfy us that the decision of the High Court is wrong ask for special leave on the ground that there has been a miscarriage of justice. This is a wholly mistaken notion of our functions and the sooner attorneys and counsel understand it the better for them, their clients and the administration of justice. The true position has been set out in Arnold v. King Emperor 1914 A C 644 which has recently been followed by this Court in its judgment in the fully argued out case, Sarfraz Ali Khan v. Crown P L D 1951 (F C)

41. This is what Lord Shaw said in that case :‑ "This Committee is not a Court of Criminal‑ Appeal. It may in general be stated that its practice is to the following effect : It is not guided by its own doubts of the appellant's innocence or suspicion of his guilt. It will not interfere with the course of criminal law unless there has been such an interference with the elementary rights of an accused as has placed him outside of the pale of regular law, or unless, within that pale, there has been a violation of the natural principles of justice so demonstratively manifest as to con vince their Lordships, first, that the result arrived at was opposite to the result which their Lordships would them selves have reached and, secondly, that the same opposite result would have been reached by the local tribunal also if the alleged defect or misdirection had been avoided. The limited nature of the appeal in Dillet s case, 12 App. Cas. 459 has been referred to, and their Lordships do not think that its authority goes beyond those propositions which have now been enunciated." The cases in which the Privy Council expressed its readiness to interfere, and where on the principle of Sarfraz Ali Khan's case we would interfere, fall into two distinct categories : ' (1) Where some irregularity has occurred in the trial ; and (2) Where a manifestly mistaken view of the evidence has been taken. In regard to the first category the guiding consideration is whether the irregularity alleged is of a radical character and in substance amounts to the denial of a fair trial to an accused person, which is his elementary right. It follows, therefore, that a mere irregularity or departure from a statutory direc tion or a mistake of law or misdirection cannot be a sufficient reason for granting special leave and that to justify a petition for special leave‑to appeal the irregularity complained of must amount to a violation or disregard of some rule of procedure which is an essential constituent of a fair trial. Thus if the Court has approached the case as if the burden of proving this innocence lay on the accused person or if the accused has not been informed what the case against him is or if in the Judge's charge the case of the accused has not been properly put to the jury and their minds have not been directed to the real issue in the case or if the accused has not been given an oppor tunity to defend himself or permitted to cross‑examine witnesses for the prosecution or if the Judge has converted himself into a witness or become a judge in his own cause in ‑all these cases a case for interference is made out because the accused has been denied an elementary right. In such cases there is not only a disregard of the forms of legal process or violation of the principles of natural justice but the irregu larity committed is so outrageous that it shakes the very foundations of justice. Another class of cases which falls in this category is where the trial has been conducted, as was the case in N. A. Subramania Iyer v. King Emperor 28 I A 257 in a manner which is prohibited by law. There may also be cases falling in this category where the suggestion, if true, raises questions of great and general importance or show the due and orderly administration of law interrupted and diverted into a new course. The second category of cases which would justify access to this Court may generally be described as comprising that class of cases in which a fundamentally wrong view of the evidence has been taken. Thus where a man has been convicted on no evidence, or were the finding of guilty is based on a vast body of inadmissible evidence or the uncorroborated testimony of an accomplice or on the judge's personal knowledge and not on evidence, or where .the evidence has been misread, or where the jury have been given a complete misdescription of the whole bearing of the evidence, or where a man has been convicted solely on circumstantial evidence and the facts found by the High Court are reasonable compatible with his inno cence, or where some material evidence to favour of the accused, which appears to this Court to be almost decisive, has been overlooked, this Court will have little hesitation in grant ing special leave to appeal. For the same reason, this Court will not hesitate to interfere where the Court whose judgment is complained of has made no real endeavour to judge the case, or having made such endeavour, has arrived at a result so atrocious or ludicrous that no reasonable man could possibly approve of it. In all such cases this Court will interfere because in the circumstances assumed a principle of natural justice has been contravened and the very basis of justice shocked. Special leave, however, cannot be granted where the question is merely one of proper interpretation of a provision of criminal law unless that provision embodies a rule of general importance to the administration of criminal justice and appears to have been wrongly construed or unless its interpretation presents a divergence of opinion among the High Courts which it is expedient to set at rest. Of course the cases just enumerated are not exhaustive of the instances where a petition for special leave would be entertained and there may be many another reason for this Court's attention and interference which it is not possible to formulate with precision beyond this that the decision complained of must involve a contravention of some general principle of law and resultant injustice. And where any such contravention is alleged, it is the duty of counsel distinctly to formulate the breach of principle alleged and if, as in this case, he can do no more than bring up a question of mere evidence, he needs to be reminded of what Lord Buck master said in Toba Singh v. King Emperor I L R 48 Bom. 515 "it is a grevious thing", said that noble Lord, "to think of the distress and the anxiety which must be caused to the relatives and friends of the condemned man by holding out to them vain and illusive hopes that the penalty which has been inflicted can be mitigated or reversed by this Board except in the special circumstances to which I have referred * * * * I desire to repeat with emphasis the statements I made just now, and to regret greatly that the necessities and the troubles of the relatives and friends of a man under sentence in India should be used by careless or ignorant legal practitioners for the purpose of extorting from them money for a hopeless appeal." In the present case the petition raises no question of principle and counsel has sought to present the case as if we were hearing a regular appeal. This he cannot be permitted to do. The result, therefore, is that this petition for special leave to appeal fails and is dismissed. A. H. Petition dismissed.