P (PLP)

ABDUR RAHMAN, J.‑Charged with murder, Sarfaraz Khan and his son Ali Nawaz were committed to the Court of Sessions at Multan on the 10th December, 1948. They were tried by the Sessions Judge without the aid of assessors and in view of the proviso to section 36 of the West Punjab Public Safety Act, 1949 (hereinafter referred to as the Act) the procedure prescribed for the trial of summons cases by Chapter XX of the Code of Criminal Procedure was adopted. The trial resulted in their conviction. Both of them having been sentenced to transportation for life, they preferred an appeal to the High Court of Judicature at Lahore. The validity of the Act arid consequently the legality of the trial as a summons case, was impugned in this appeal, to start with on the ground that it (the Act) bad not received the assent of the Governor‑General of Pakistan. To satisfy themselves on this point, the Division Bench of the High Court, composed of Sharif and Kayani JJ., sent for the authenticated copy of the Bill which had been placed before the Governor General for his assent. On the receipt of the copy, it was discovered that although the Bill had received his assent, the words in His Majesty's name r after the words. I assent to this Bill ' printed on the form in accordance with section 76 of the Government of India Act, 1935, as it read at the time, had been scored out. The objection to the validity of the Act for want of assent by the Governor‑General then underwent an alteration and its validity began to be questioned for want of a proper assent. Since the matter was regarded to be of general importance, it was referred to a Full Bench for opinion. For reasons given by the learned Chief Justice, who was a party to it, the objection was found to be devoid of any force. In view, however, of the difficulty with regard to the interpretation of section 36 of the Act, an Act entitled `The Punjab Public Safety (Amendment) Act, 1950, was passed and received the Governor? General s assent on the 13th March, 1950. The relevant portion of section 3 of the amending Act reads as follows :‑

"

3. The following section shall be added after section 36 of the said Act, that is to say " 37. (1) Notwithstanding the provisions of section 36 the orders passed by the Court of Sessions before the enactment of this section shall not be illegal only because the cases in which the orders were passed were triable without the aid of assessors or without having been committed by the Magistrates in accor?dance with the provisions of sections 208 to 220 of the Code.? When the appeal came to be heard before the Division Bench again, another point of some difficulty in interpreting the word ' triable ' used in the first sub‑clause of section 37 of the amending Act was raised on behalf of the appellant. But it was repelled by the learned judges for certain reasons which have, on account of a second amending Act called ' The Punjab Public Safety (Second Amendment) Act, 1950, passed in October, 1950, become un?necessary to examine. The learned judges of the Division Bench after going into the merits maintained Sarfaraz Ali's conviction and sentence but acquitted his. son. They granted a certificate, however, under section 205(1) of the Constitution Act, as they were of the view that the decision of the High Court on the form of assent given by the Governor‑General to the Act of 1949 involved a substantial question of law as to the interpretation of the Government of India Act, 1935, and the Indian Independence Act, 1947. Armed with that certificate, the appellant preferred this Constitutional appeal under section 205(1) of the Government of India Act, 1935, which lies to this Court' as of right. Having regard to the subsequent legislation, which has already been referred to, and to section 5 of the Constitution (Amendment) Act, 1950, which was passed by the Constituent Assembly of Pakistan, it was frankly conceded by counsel for the appellant before us that he could not successfully assail the findings of the high Court either in regard to the form of assent by the Governor‑General or as regards the interpretation placed on the word ` triable ' used in section 3 (1) of the first amending Act, 1950. The counsel for the appellant has, however, craved for leave in the first instance to permit him to raise another legal point viz., that the Punjab Public Safety (Second Amendment) Act, 1950, was ultra vires the Provincial Legislature as it did not fall within either List II (Provincial Legislative List) or List III (Concurrent Legislative List) of the Seventh. Schedule to the Government of India Act, 1935. Had there been any force in the contention, there is no doubt that leave to urge this point would have been granted to him, particularly as this point could not have been raised by him before the High Court‑the legislation in question having come into existence after the decision of the appeal ; but after hearing him in full, we were of the view that it was fully covered by Entry No. 1 of List II and by Entries Nos. 2 and 15 of List III and the point not being one of substance, leave to advance this was, therefore, not granted. It was submitted by counsel for the appellant that leave may be granted to him under section 205 (2) of the Constitution Act and he may be permitted to go into facts to show that the appellant had not been rightly convicted both by the Sessions Judge and the High Court. It was then put to him that the jurisdiction vesting in this Court under section 205 (2) of the Constitution Act seems to have merged with the jurisdiction conferred on it by section 3 of The Privy Council (Abolition of Jurisdiction) Act, 1950, and if this be correct, it may not be possible for this Court to grant leave except on such grounds on which petitions for special leave to appeal have been granted by this Court. It was suggested, in other words, that the effect of amalgamation of the powers exercised by the Federal Court under section 205 (2) of the Constitution Act, with those conferred by section 3 of the Privy Council (Abolition of Jurisdic?tion) Act, appears to be to re‑instate the position as it had existed before the creation of the Federal Court ; with the result that every petition for special leave to appeal could only be granted, (in cases of appeals which were competent) if it fell within the four corners of such rules of practice as had been adopted by the Privy Council and that these petitions would now be determined in accordance with such restrictions as have been imposed by this Court on itself after due consideration of various reasons stated in a number of cases which have already been decided. The counsel was also reminded of the fact that in exercising its jurisdiction conferred on it either under section 205 (2) of the Constitution Act or under section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950, this Court was not a Court of criminal appeal and there appears to be no reason why the jurisdiction vesting in it under section 205 (2) of the Government of India Act, 1935, should, in the circumstances, be regarded to be in any way more extensive or should be exercised more liberally than what had been conferred on it by section 3 of the Privy Council (Abolition of Jurisdiction) Act. If, therefore, the limitations imposed by the Judicial Committee of the Privy Council on its own powers in granting special leave and adopted by this Court from time to time are to be kept in view, the task of interference with concurrent findings of fact arrived at by the Sessions judge after trial and by, the High Court on appeal, would be found ‑to bristle with very great difficulties and that even if this Court could, on that very evidence, be‑ persuaded to come to findings opposite to those arrived at by the Courts below. It‑would, however, be different if inadmissible evidence is found to have been erroneously put‑, into scales against the accused and there was either no other evidence or such meagre evidence on which no conviction could have been safely based either by the Court of first instance or by the High Court on appeal or some other well‑known rule of procedure or .of natural justice were found to have been contravened so as ‑to have occasioned failure of justice. When he was confronted with this position, the counsel for the appellant had to admit that no inadmissible evidence can be said to have crept into the record and no rule of procedure or principle of natural justice appears to have been violated. He urged, nevertheless, that in view of the practice prevailing in the Federal Court of India in the exercise of its appellate jurisdiction under, section 205 of the Constitution Act, such as can be deduced from various reported decisions, we may examine the whole evidence once again and decide for ourselves whether the case under appeal has been, in our view, correctly decided. From the investigation made by the counsel for the appellant in regard to criminal appeals decided by the Federal Court of India from the time that it began to function till 1946, it appears that out of 28 judgments in criminal appeals (which could only have been preferred on certificates under section 205(1) of the Constitution Act), the learned judges had been persuaded to examine the evidence in seven cases, (Piharendu Dutt Majumdar v. The King Emperor) (1942) V. C. R. 38, (Afzalur Rahman, S. A. 1Vasim and Jubraj Prasad v. The King Emperor) (1943) F. C. R. 7. (Piare Dusadh and others v. The King‑Emperor) (1944) F: C. R. 61, (Rajagopalan 'rind another v, The King Emfieror) (1944) F. C. R. 169, (Sahdeo Gosain and another v. The King Emperor (1944.) F. C. R 223, ~(Lt. Hector Thomas Huntley v. The King Emperor) (1944) F. C. R. 262, (M. L. Bannerjee v. The King Emperor), (J. C. Bhattachariee v. The King Emperor) (1944) F. C. R. 365, Piare Dusadh v. The King Emperor (1944) F. C. R. 61, P. 113 Raiagopalan v. The King Emperor (1944) F. C. R. P. 1'17 but with the exception of two observations, quoted hereunder, which are to an extent indicative of the practice prevailing in that Court, no general principles were laid down by them in any of their decisions. These observations were as follows;

(1) "In some of these cases counsel made attempts to persuade ' us to assess the weight of evidence for ourselves in order to determine whether the conviction was 'or was not justified in each case on the evidence. This we declined to do as we hold the view that in cases of this description we should ordinarily accept as final the conclusions of fact at which the High Court has arrived unless it can be shown that the High Court has either misread any part of the evidence‑ or has overlooked any material portion of it". (2) "The question (of sentence) however is bound up with inferences of fact with which it is not the ordinary practice of this Court to interfere and, as my Lord and my learned brother think that the death sentence was justified, I leave the chatter there, with this expression of my doubt". But from the fact that the learned judges had examined the evidence in these oases, it was attempted to be argued that they had not felt themselves bound by the restrictions placed on itself by the judicial Committee of the Privy Council and regarded their discretion to go into evidence, more or less, free and unfettered. From the observations, however, which have been quoted above, no such principle can be deduced and when it is remembered that no grounds other than those covered by the certificates could be urged before them without leave, it must be presumed that, in the absence of any rules which could have been framed by them under the provisions of section 214 of the Constitution Act and in view of the position accepted by them in Afzalur Rahman's case (1943) F. G. R. 7 that they were not a Court of criminal appeal, they would not have undertaken to examine the evidence for a third time unless they had found very cogent reasons for so doing. As to what those reasons were, it is not possible to formulate them, except either from what they had themselves observed in Piare Dusadh's case (1944) F. C: R. 61, at pp. 113‑4 or from such gui?dance as they may have chosen to follow from the restrictions placed by the Privy Council on itself; particularly when they were asked to review the concurrent findings of fact arrived at by the trial Court in the first instance and confirmed by the High Court on appeal. As to the observations in Piare Dusadh's case, there is no matter of doubt that misreading or overlooking any material portions of evidence by the High Court would have fallen within the ambit of the rules of practice followed by their Lordships of the Judicial Committee in granting special leave to appeal when by doing so, failure of justice had been occasioned. A reference to the decisions by the Federal Court of India in civil appeals (for section 205 of the Constitution Act applies to appeals both civil and criminal) does not lead one to any different conclusion. It was laid down by that Court in Qudratullah. v. North. West Frontier Province A. I. R. (31) 1944 F. C. 72 that it would normally be very slow to come to a conclusion of fact contrary to what had been found unanimously by lower Courts although being doubtful as to whether there was proper evidence to support the concurrent findings, the learned judges tried to ascertain in that case whether such evidence had been produced. Finding, however, that there was such evidence, the appeal 'was dismissed. The only other civil case cited by the Advocate General during Ws reply to the arguments addressed to us by the counsel for the appellant was that of Gangadara Ayyar v. Subramania. A. I. R. (36) 1949 F. C.

88. An attempt was made in that case before the Federal Court, after its jurisdiction had been enlarged, to reopen `conclusions on questions of fact concurrently arrived at in the two Courts below". But after referring to a large number of decisions of the Privy Council, the learned judges observed as follows:‑

"The rule as to concurrent findings is mot a rule based on any statutory provision. It is a rule of conduct which the Privy Council had laid down for itself. Following .this rule the Judicial Committee usually declined to review the evidence for a third time unless there were special circumstances which would justify a departure from this practice. In an appropriate case and on a suitable occasion this matter may have to be fully considered and elucidated in all its aspects, but for the purposes of this case it is enough to state that in the absence of circumstances justifying departure from this rule, this Court, would adhere to the practice developed by the judicial Committee during the course of a century". The remaining decisions of the Federal Court, civil or criminal, cited at the bar need not be mentioned as it is clear from their perusal that special circumstances were found to exist which justi?fied the learned judges, iii their opinion, to examine the evidence. In tracing the history as to how the restrictions placed by their Lordships of the Judicial Committee of the Privy Council on themselves in granting petitions for special leave to appeal develop?ed in course of time and what were the underlying principles on which they were granted, our attention was invited to Dr. Lushing?ton's observations at pp. 408‑1 in Edulji Byramji's, 3 Moore's Ind. App. 468, petition for special leave to appeal against the decision of the Supreme Court of Bombay. It was conceded by their Lord?ships that a right to appeal to the Crown could be reserved even in case of felonies. But in considering whether the Crown had done so or not, their Lordships laid emphasis on the following facts :‑ (a) that the right of appeal in felonies had never existed or been exercised either in England or throughout the Dominions of the Crown of Great Britain, and (b) that inordinate delay would be caused in deciding appeals, if leave to appeal were given, and the sentences passed on the accused would not only remain unexecuted for a long time thus subjecting the sentenced persons to a great mental torture on account of uncertainty as to their fates, but also that "the benefit to be expected from a public example Would be lost". The second reason given by their Lordships led the counsel for the petitioner to argue that limitations were placed by the judicial Committee merely on account of consequences which they did not desire to follow. This is not, however, the case as these reasons did not deter their Lordships from construing the Charter granted to the Supreme Court of Bombay, although after looking through all its provisions, they came to the finding that in view of full and absolute power of allowing or denying appeals in criminal cases conferred upon the Supreme Court of Bombay and in the absence of any express reservation of powers by that Crown to entertain a further criminal appeal from the decision of the Court it would be futile to contend that the Crown had intended to retain or retained a further right of appeal in criminal cases to itself. The decision of the judicial Committee next referred to us was that of Joykissan Mookerji 9 Moore's, Ind. App: 168, in which the judgment of the Board was delivered again by Dr. Lushington 15 years later. The petition for special leave to appeal was reject?ed in this case on the ground that no leave to appeal in criminal cases had ever been applied for or granted, although it was conced?ed by their Lordships that on the merits they were of the view that justice had not been very well administered in that case and they would have had no hesitation in granting leave to appeal, if the case were of a civil and not of a criminal nature. Chronologically speaking, the third case which came up before their Lordships in the following year was that of the Falkland Islands Company, 1 Moore P. C. 299 where having regard to what had been observed by Dr. Lushington in Joykissan Mooker?ji's case, they were, in granting leave, influenced by the circumstances that although the proceedings were in their forth criminal, they were in substance of civil nature, that a question of property which was of great general importance was being concluded by a summary conviction in a Police Court (being doubtful whether it could ever be raised in a Civil Court), and that the question of con?viction, if it had taken place in England,. could be brought before the Queen's Bench by a writ of Certiorari, although no such remedy was available to the petitioner in the colony from which the appeal had been preferred. A more liberal view appears to have been taken, however, in Reg v. Bertrand en 1887, Law Report 1 P. C. 520. when it was observed that the interest of the Crown was, in regard to due administration of justice and to the preservation of the due course of procedure, as great in Criminal cases as in cases of Civil nature. The following observation was made by their Lordships at pp. 529) 530 of the report :‑-- "Upon principle, and reference to the decisions of this Committee, it seems undeniable that in all cases, criminal as well ' as civil, arising in places from which an appeal would lie, and where, either by the terms of a Charter or Statute, the authority has not been parted with, it is the inherent prerogative right, and, in all proper occasions, the duty, of the Queen in Council to exercise an appellate jurisdiction, with a view not only to ensure, so far as may be, the due administration of justice in the individual case, but also to preserve the due course, of procedure generally". It was not considered necessary to point out all the grounds on which leave could be granted and appeals entertained but it was observed that when the suggestion as to a petitioner labouring under `great preliminary difficulty' is found to be correct and raises "questions of great and general importance, and likely to occur often, and also where, if true, they show the due and orderly administration of the law interrupted, or diverted into a new course, which might create a precedent for the future ; and also where there is no other means of preventing these consequences, then it will be proper for this Committee to entertain an appeal, if referred to it for‑its decision". It falls to be observed, however, that in spite of doing away with any distinction between civil and criminal cases, it was held that special leave could be granted within fairly well defined limits. These were laid down in the same year by their Lordships in Dillet's case L. R. 12 App. Cas. 459, where Lord Watson in delivering the judgment on behalf of the Board observed at p. 467 as follows :‑

"The rule has been repeatedly laid down and has been invariably followed that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done". These observations have become more or less classical and we know of no case decided by the Judicial Committee where these limits have been transgressed. It was submitted by the counsel for the petitioner, however, that this was done in Vaithi?natha Pillai's, L. R. 40 Ind. Ap. 193 case in 1913. But a reference to p. 199 of the report would show that their Lordships proceeded to determine whether the case fell within the words of Lord Watson in Dillet's case. It was found in that case (p. 210) that a grave and substantial injustice was done to the appellant in admitting and thus using a large body of inadmissible evidence `some unim?portant in bearing and effect, some very prejudicial to the accused.' Reliance was Placed on this case in Arnold v. The King Emperor L. R. 41 Ind. Ap. 149, and inasmuch as the arguments in this Court proceeded on the same lines, we cannot do better than reproduce .as to what Lord Shaw observed at p. 174 in regard to this case. He observed :‑- "The second case founded on is that of Vaithinatha Pillai v. King Emperor, L. R. 40 Ind. Ap. ; 193 in which this Board sustained an appeal. The circumstances of the case, however, were of the most extraordinary character, and‑were such as appeared to the Board imperatively to demand that it 'should interpose, because the very foundations of justice seemed to have been attacked in the proceedings. A whole body of inadmissible evidence had been received in the case. The one witness whose evidence was relevant and who remained in the case was sup?porting another `witness who was a confessed perjurer. The remaining witness himself had given under oath conflicting and contradictory "accounts in previous judicial proceedings before the Magistrate and certain officials. "If true", observed Lord Atkinson, "they show that‑ these officials or at least the Sub. Inspector, induced the witness .to forswear himself and found in him a pliant instrument ready to give false evidence upon oath to secure the conviction of his own father; and if false they show that the witness was ready to commit deliberate perjury when?ever he was confronted with the inconsistencies in his former statements. There is no alternative." The simple ease accord?ingly confronting the Board was a case of a subject sentenced to death upon no evidence at all. In these circumstances, although the principle of Dillet's case, 12 App. Cas. 459, was again reaffirmed, their. Lordships did not see their way to refrain from interfering". Since the frequency of the applications made to the Board for leave to appeal against the judgments of criminal tribunals in various parts of the Empire and the thoroughness with which the forms and‑ practice of the Judicial Committee were discussed by Lord Shaw and had led their' Lordships to make a deliberate survey of a number of authorities which had been brought to their notice, it would be better to state the conclusion L. R. 41 Ind. Ap. 149 at p. 171, at which they had arrived. It was as follows :‑

"The question is not truly one of jurisdiction. The power of His Majesty under his Royal authority to review proceedings of a criminal nature, except where such power and authority have been parted with by statute, is undoubted. Upon the other hand there are reasons, both constitutional and adminis?trative, which make it manifest that this power should not be lightly exercised. The overruling consideration upon the topic has reference to justice itself. If throughout the Empire it were supposed that the course and execution of justice could suffer serious impediment, which in many cases might amount to practical obstruction, by an appeal to the Royal prerogative of review on judicial grounds, then it becomes plain that a severe blot'' would have been dealt to the ordered administration of law. within the King's dominions". Just about a month before, a decision was given by their Lordships in a forma Pauperis appeal by special leave from a judgment of the Supreme Court of Hong Kong affirming a convic?tion of one Ibrahim (1914) A. C. 599, for wilful murder. The appellant, a natural subject of the Ameer of Afghanistan, was enrolled in 1911 as a private in the 126th Baluchistan Infantry and was found by the Courts below to have murdered Ali Shafa, a Subedar in the regiment with a rifle. Since he was alleged to be a foreigner arid a subject of the Ameer of Afghanistan, various questions of jurisdiction etc. were raised before the judicial Com?mittee. After holding that their Lordships do not exercise the revising functions of a general Court of criminal appeal : (Clifford v. The King Emperor), (1913) L. R. 40 Ind. Ap. 241, their Lordships proceeded to lay down as to what their practice in such matters has been. They observed :‑ "Leave to appeal is not granted "except where some clear departure from the requirements of justice" exists‑: Riel v. Reg (1885) 10 App. Cas. 675, nor unless "by a disregard of the forms of legal process, or by some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done" : Dillet?s case (1887) 12 App. Cas. 459 Misdirection, as such, even irregularity as such, will not suffice : Ex carte Macrea (1893) A. C.

346. There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future Reg v. Bertrand (1867) L. R.

1. P. C. 520". Another petition for special leave to appeal carne up before the Judicial Committee in Humantrao v. King Emperor (1925) I. L. R. 49 Born. 455, and was disposed of by their Lordships on the 11th November, 1924. In, dismissing the petition Viscount Haldane observed to the following effect :‑ "The power to entertain appeals here arises, not from the relation of this Board to the "Court below, as a Court of Criminal Appeal, but as the Privy Council, advising the Sovereign with regard to the exercise of the prerogative: The prerogative is that remnant of the power of the Crown which remains to the Crown to interfere with tribunals of justice which does not exits in this country at all ; it has passed away in the historic development of the constitution ; it used to exists and it does exist to some extent, in the case of the Crown Colonies, because they are managed directly by the Crown through Ministers, but, when one comes to self‑governing dominions, I should by very sorry to say that even the principles of In re Abraham Mallory Dillet could be applied to the constitutions of Canada. The constitutions of Canada and of Australia, taking those as illustrations, have so developed that they are virtually self‑governing dominions, and it is a question, to my mind as to whether the principles of Dillet' case 1887 12 App. Cas. 459 apply in the case of self‑governing dominions. India is not yet in that state, but it has been publicly said that India is recognised by the Imperial Government as being on the way to becoming now a self‑governing dominion, and, therefore, even with regard to India, it is with the utmost care that we should pronounce any proposition that that disappearing fragment of the prerogative, of which I have spoken, remains. It follows, therefore, that, unless you can prove that there was no proper trial at all, that the forms of all judicial procedure were disregarded, not merely according to local ordinances, but according to what I may call the unvarying character, which is common to all, we cannot interfere. If there was anything very very gross, it might come under the same category, but even then the Crown has to be extraordinarily cautious in asserting the survivor even of the very restricted prerogative which existed fifty years ago, but which may not exist now". The next case to which reference may be made with advantage was that of Mohinder Singh and another v. The King Emperor L. R. (1932) 59 I. A.

233. In dismissing a petition for special leave to appeal against the judgment of the High Court of Lahore, which had confirmed the convictions and sentences as to the petitioner tassed by the Sessions Judge, Ferozepur, Viscount Dunedin observed as follows:‑-- "Their Lordships have frequently stated that they do not sit as a Court of criminal appeal. For them to interfere with a criminal sentence "there must be something so irregular or so outrageous as to shock the very basis of justice. Such an instance was found in Dillet's case (1887) 14 App. Cas. 459, which has always been held to be the leading authority on such matters". Our attention was invited to three cases decided by the judicial Committee in 1936 in all of 'which leave to appeal had been granted. It is, however, important to remember that in the first of these cases (Nazir Ahmad v. King Emperor). A. I. R. 1936 P. C. 253, their Lordships had, after stating the very exceptional nature of the circumstances in which, not being a Court of criminal appeal, they would advise His Majesty to grant leave to appeal in a criminal case, granted leave only on account of divergence of opinion which had prevailed in the Indian High Courts in regard to the interpretation of a section of the Code of Criminal Procedure, which was, of vital importance to an accused person and which they thought ought to be removed so that there should be no doubt as to the law declared by that section in future. Special leave to appeal was also granted by the Privy Council in Inayat Khan v. The King Emperor, (1936) I. L. R.‑17 Lah. 488, but only on the ground "that there was such a wrongful admission of evidence in the Courts below and such a consequent miscarriage of justice as to justify and require the interference of His Mijesty". But the appeal was dismissed when it was found by the Board that the matters of complaint in regard to procedure were of a technical character and had not, in reality, led to any injustice or caused any prejudice to the case of the accused. The third case on which reliance was placed by the counsel for the appellant was that of Stephen Seneviratne v. The King A. I. R. 1936 P. C. 289, in which‑ not only had the special leave to appeal been granted by the judicial Committee, but the appeal was also allowed and the conviction of the accused set aside. It was submitted by the counsel for the appellant that the rigor of the rules of practice declared by their Lordships of the Privy Council to be prevailing in earlier decisions was considerably relaxed in this case and misdirection to jury which had not been regarded in those cases to be sufficient so as to justify their interference, was taken to be enough for that purpose. A careful perusal of the, decision, however, does not substantiate this distinction. After finding that there was no direct, medical or circumstantial evidence justifying conviction in that case, their Lordships found that an adverse verdict had been arrived at "on the strength of opinions formed as to the conduct of the accused" which was according to their Lordships "to act upon the merest scintilla of evidence and to be impermissible". The contention advanced by the Attorney‑General that it was not for the Board "to interfere because its conclusion as to guilt or innocence might differ from that of the jury was repelled for in the view, which their Lordships had taken, there were "no grounds on the evidence, taken as a whole, upon which any tribunal could properly, as a matter of legitimate inference, arrive at a conclusion that the appellant was guilty, and any conclusion on the available materials" was regarded to be in the nature of "mere conjecture or guess", which were not, " in law or justice, permissible grounds on which to base a verdict". The only proper direction could, according to their Lordships, and in the circumstances of that case, be "that they must return a verdict of not guilty or that they could not safely or properly find any other verdict". The direction to the jury was, however, a different one and the verdict, in the opinion of their Lordships, could not stand. This is very different to what has been contended before us by the counsel for the appellant. This decision appears to us to stand ' in line with those cases where convictions had been set aside as having been based on no evidence at all. Five years later, another application for special leave in, Muhammad Nawaz v. The King Emperor I. L. R. 23 Lah. 36, came up before their Lordships of the Judicial' Committee. In dismissing this application, Viscount Simon, the Lord Chancellor, re‑affirmed the principle laid down in re. Dillet L. R. (1887) 12 A. C. 459, and l4IohinderSingh v. The King Emperor L. R. (1932) 59 I. A. 233, and observed as follows :‑ "The Judicial Committee is not a revising Court of criminal appeal, that is to say, it is not prepared or required to retry a criminal case, and does not concern itself with the weight of evidence or the conflict of evidence or with inference drawn from evidence, or with questions as to corroboration or? contradiction of testimony, or as to whether there was sufficient evidence to satisfy the burden of proof. Neither it is concerned to re‑view the exercise by the previous tribunal of its discretion as to permitting cross‑examination as a hostile witness or in awarding particular punishments" ??????????? As to the decision in K. R. Easwarmurthi Goundan v. The King Emperor, 71 I. A. 83 at p. 92, reliance was placed by the counsel for the appellant on the observations made in the concluding paragraph of their judgment which were as follows :‑?-- "Some reference was made to the rule relating to concurrent findings of fact in the Court below.? If that rule applied at all, it would involve concurrent findings in all the Courts below, whereas here there are such findings in only two out of three. But in a criminal appeal brought by special leave of His Majesty in Council, their Lordships are not concerned with formal rules, but only with the question "whether there ins been a miscarriage of justice, as in their opinion, for the reasons given, there has been in this case. In their judgment the appeal should be allowed and the conviction set aside. They will humbly so advise His Majesty" It must not, however, be overlooked that having arrived at the opinion expressed at p. 86 of the report "that the appeal should be allowed on the ground that there was no evidence admissible in law to prove the essential foundation of the case for the prosecution (namely, that any order had ever been made for the arrest of the two men said to have been "harboured") their Lordships observed at p. 91". But their Lordships think that the appeal should be allowed on the single ground that there is no evidence that the warrants or orders were ever issued". It was then suggested on behalf of the Crown that they should not interfere on account of the rule relating to concurrent findings of fact when normally no such interference was made by the Privy Council. But the Sessions judge having acquitted the appellant, who had again been convicted by a learned judge of the Madras Court on appeal by the Crown, it was pointed out by their Lordships that first of all there ware no concurrent findings of all the Courts and secondly, that there was, as stated before, no evidence on the record that the warrant or orders bad even been issued. It was in the absence of such evidence, observed by their Lordships, that it was impossible for them not to interfere, for they were not concerned with formal rules (such as that of concurrent findings), but with the question of miscarriage of justice which was found to have occurred in that case. This case is thus no authority for the proposition that the rule as to concurrent findings of fact (if there was one in criminal cases) was, being doubted or dissented from, but that in spite of concurrent findings of all the Courts‑although there were no such findings in that case they would not hesitate to interfere in a case if they found justice to have miscarried as a result of the findings based either on no evidence at all, or, what would be much the same thing, on evidence which was inadmis?sible in law. The last case cited by counsel for the appellant was of Harold White v. The King, A. I. R. (32) 1945 P. C. 181, in which the appeal was allowed from the judgment of the Court of appeal at Jamacia on very nearly the same grounds on which the appeal had been allowed in Stephen Seneviratne v. The King A.I.R. 1936 P. C.

289. The conviction and sentence passed on the accused in that case was quashed as their Lordships were of opinion ," that in view of the errors and omissions in the summing up, the case of the accused was never properly put to the jury and their minds were never directed to the real issues in the case." We have made a survey of all these cases to deduce the principles enunciated by their Lordships of the Judicial Committee on which the rules of practice relating to the decisions of petitions for special leave to appeal or appeals in criminal matters, were based; but since the jurisdiction to decide these cases had been exercised by them by virtue of section 3 of the Judicial Committee Act 1833 and the other amending Acts, which apply to civil cases equally and " the same jurisdiction to entertain and dispose of Pakistan appeals and petitions has, whether by virtue of His Majesty's prerogative or otherwise, immediately before " the 1st May, 1950, been conferred on this Court under section .3 of the Privy Council (Abolition of Jurisdiction) Act, 1950, it would be pertinent to refer briefly to the principles which had guided their Lordships in granting or refusing leave to appeal in civil matters. It would be unnecessary, however, to examine the various deci?sions of the judicial Committee in any detail as we find most of the leading cases on the question as to when a party is faced with the concurrent judgments of the Courts below on a pure question of fact, collected and reviewed by Lord Thankerton in Bibhabati v. Ramendra Narayan, A. I. R. (34) 1947 P. C.

19. On a study of various cases referred to m that judgment, their Lordships were of opinion that the following propositions could be deducted both as regard the practice of the Board prevailing at the time and the nature of special circumstances which would justify a departure from the present practice:‑-- " (1) That the practice applies in the case of all the various Judicatures whose final tribunal is the Board. (2) That it applies to the concurrent findings of fact of two Courts and not to concurrent findings of the judges who compose such Courts. Therefore a dissent by a member of the appellate Court does not obviate the practice. (3) That a difference in the reasons which bring the judges to the same finding of fact will not obviate the practice. (4) That, in order to obviate the practice there must be some miscarriage of justice or violation of same principle of law or procedure. That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot; or stand it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding is such a question of law. (5) That the question of admissibility of evidence is a proposition of law, but it must be such as to effect materially the finding. The question of the value of evidence is not a suffi?cient reason for departure from the practice. (6) That the practice is not. a cast iron one and the fore?going statement as to reasons which will justify departure is illustrative only, and there may occur cases of such an unusual nature as will constrain the Board to depart from the practice. (7) That the Board will"‑always be reluctant to depart from the practice in cases, which involve questions of manners, customs or sentiments peculiar to the country or locality from which the case comes, whose significance is specially within the knowledge of the Courts of that country. (8) That the practice relates to the findings of the Courts below, which are generally stated in the order of the Court but may be stated as findings on the issues before the Court in the judgments, provided that they are directly related to the final decision of the Court." From the various decisions examined by us and some of which have been referred to here, it would appear that special leave to appeal was not, as a matter of practice, generally granted by the Judicial Committee in criminal matters when a petitioner or an appellant was faced with findings of fact, unless it was felt by their Lordships that there had been a miscarriage of justice due either to a disregard of the forms of legal process or to the viola?tion of principles of natural justice. But in the absence of a statu?tory bar this practice could have been and was occasionally relaxed or deviated from in special cases which were found to have been of a very unusual nature and of public and general importance; but never, as far as we are aware, unless the justice was found to have miscarried as a result of either there not being a proper trial at all or on account of admission or reception of evidence which was not legally admissible, or something so shocking, so out?rageous or so gross as to shock the very basis of justice. It is also clear that not being a revising Court of criminal appeal, their Lordships of the Judicial Committee had consistently refused to assess or to examine the evidence once again, or, in short, to re‑try a criminal case if proper and admissible evidence had been before the court below and the findings of fact were and could be based on it. In such cases the rule enunciated by Lord. Watson in re. Dillet and by Viscount Simon in Muhammad Nawaz's case was to be followed. Nor is it possible to deduce any rules of practice adopted by the Federal Court of India other than those that can be gathered from the observations of the learned judges in the decisions given by them either before or after 1947 and referred to above. It is true that the rule as to concurrent findings of fact expres?sly stated by Lord Thankerton with reference to civil cases in Bibhabati's case has not been so stated by their Lordships in regard to any criminal matter, but this, we take it, was due to the fact that the Board was not, as repeatedly laid down by their Lordships in a number of cases, a‑ revising Court of criminal appeal and was not prepared or required to retry a criminal case and did not concern itself with the weight or conflict of evidence or with its sufficiency. In fact it appears to us that the practice prevailing in the Judicial Committee in regard to the grant of special leave to appeal in a criminal case was much stricter, even when the findings of fact arrived at by the lower Courts were not concurrent than what was permissible under the Code of Civil Procedure, when leave to appeal had been granted to a party by a High Court in cases where the judgment appealed against was not one of affirmance. In other words leave to appeal in criminal matters was not ordinarily granted unless the case fell within the limits laid down by Lord Watson and Viscount Dunedin in re. Dillett and in re. Mohinder Singh regardless of the position whether the finding appealed against was of one Court only or of all the Courts concurrently. And that is why we do not find the rule as to concurrent findings of facts so stated in criminal cases, although in view of the provisions of section 100 of the Code of Civil Procedure and even otherwise, there was need for so doing in civil appeals. It has been contended by the counsel for the appellant that the 'administrative ' and ' constitutional ' reasons which had led their Lordships of the Judicial Committee to form certain rules of practice in accordance with which they had been granting or refusing petitions for special leave to appeal in criminal matters have, with the attainment of independence by Pakistan and with the creation of a Court in this country, which is possessed of the same jurisdiction as used to be exercised by His Majesty in Council, ceased to have the value which they possessed earlier and freed from the control of a foreign Government, the powers of granting leave to appeal should now be exercised by this Court more freely. But the argument overlooks the provisions of section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950, accord?ing to which the jurisdiction actually possessed by His Majesty in Council, no more and no less, has been conferred on this Court with the result that we cannot exceed the limits imposed on the Privy Council by section 3 of the Judicial Committee Act, 1833 (3 and 4 Will. 4, C. 41) and other subsequent amending Acts. It is true that the limitations as to the circumstances in which their Lordships used to grant special leave to appeal or go into facts in criminal 'appeals, imposed on themselves in the exercise of the power conferred on them by the above‑mentioned Act or Acts were voluntary and could be, in suitable cases, transgressed. But the reasons for not exercising their power lightly had been given by the Board in a number‑of cases during the span of‑ almost a century and were summed up by Lord Shaw in Arnold's case as being based on "administrative and constitutional " considerations. They are, in our view, as compelling now as they had been during all these years. That this Court is not a Court of criminal appeal as the Judicial Committee was not, is as true today as it had been over since the Board had started to function. The criminal Courts mentioned in section 6 of the present Code of Criminal Procedure or in the corresponding sections of its predecessors, do not make any reference to the Judicial Committee of the Privy Council as a Court of criminal appeal in spite of its having been in existence when the rules of procedure were embodied in any Code. The High Courts were the final Courts of appeal on law and fact to which appeals in graver cases or revisions in comparatively less serious ones could or do lie. The authority to come to final decisions had to be given to some tribunal and in the absence of special circumstances, such as mentioned by Lord Watson in re. Dillet or by Viscount Dunedin in re. Mohinder Singh, it was left with the High Courts in India. It is true that once upon a time the King by virtue of his position as a Sovereign could, on account of his prerogative be persuaded to intervene and undo an act of injustice, but it must not be for?gotten that this was so only in extraordinary circumstances when any principle of natural justice had been contravened or something so shocking had happened as to make it impossible to tolerate the injustice which had been done to a subject. It is a matter of history that with the lapse of time this prerogative came to be exer?cised less and less as working of Courts in India conformed more and more to judicial principles on which the Courts in England had worked. Eventually, the powers exercised by the Sovereign through his Councillors were by virtue of section 3 of the judicial Committee Act, 1833 (3 and 4 Will 4, c. 41) entrusted to the Judi?cial Committee of the Privy Council. It was normally an advisory body but to all intents and for all practical purposes, it was a tribu?nal exercising judicial functions and the so‑called advice tendered by it to His Majesty, which was and could not be disregarded by him, was nothing short of a judgment. But in the exercise of these functions, this tribunal never lost sight of the fact that it was not a revising Court of criminal appeal and that is why it adopted a stern attitude from the beginning and as time went on the principle on which the tribunal had worked came to be stated more definitely. It did not allow the High Courts, appointed by the Legislature to be final Courts of appeal or revision, to be reduced to the position of subordinate Courts, whose decisions or judgments could be lightly treated or easily interfered with. The reason that sentences passed by the Courts in Pakistan should be promptly executed is still as strong and compelling as it has been from the beginning. The sentences can only be suspended or delayed when it is apprehended that some gross injustice has been done as a result of the contravention of any legal forms of process or of the violation of principles of natural justice or other?wise. These reasons are as good and sound today as they always have been and must be accepted. It seems to be unnecessary to multiply the reasons which had led their Lordships to adopt rules of practice in the disposal of the petitions for special leave to appeal or in deciding criminal appeals. Suffice it to say that we can con?ceive of nothing that has happened in the way of the development of facilities of transport or communication, on which great emphasis was laid by the counsel for the appellant, which had anything to do with the administrative reasons that had led their Lordships to act within certain limits. The facts that Pakistan became a self-?governing Dominion in 1947, or that this Court was created in consequence to sit in this contrary with jurisdictions, subsequently enlarged, are beside the point. To urge that their Lordships had adopted these rules of practice as they were not conversant with the customs or habits of people in India, such as possessed by the Courts in this sub‑continent itself, and did not, therefore, have the necessary confidence is, to put it mildly, far from being correct. Apart from the eminent judges who had adorned and still adorn that tribunal, their Lordships have had the advantage of the experience of distinguished Chief justices and judges of various Indian High Courts who have been sitting with them for a large number of years. That this Court happens to be sitting in this very country now and not at' a distance of several thousand miles, as their Lordships used to do, does not make any difference when we find that the rules of practice were, generally speaking, never relaxed even during the last two or three decades during which the suggested facilities of transport and communication had been within easy approach of almost every individual. As for the constitutional reasons, it seems to 'be unnecessary to state them after what Viscount Haldane had himself visualised as early as' 1924 (Hunmantrao v. King Emperor). I. L. R. 1925 49 Bom.

455. The passing of the Independence Act in 1947 (10 and 11 Geo. 6, Ch. 30) has made no difference whatever, for the Constituent Assembly has, in its wisdom, chosen to confer only such powers on this Court as had been possessed of by the judicial Committee of the Privy Council before the 1st May, 1950, and no further. It is possible to conceive as an abstract proposition that larger powers could have been conferred by the Constituent Assembly of Pakistan on this Court or on any other tribunal, and not only could the judicial Committee Act of 1833 be superseded but it could have been provided that the voluntary limitations im?posed by their Lordships of the Privy Council on themselves in disposing of petitions for special leave in criminal appeals, of which they must be presumed to be aware, should not be observed by this tribunal in adjudicating on Pakistan appeals and petitions. This was, however, not done and in the absence of any such legis?lation we cannot but hold that the constitutional reasons although of a different type, still hold the field. For the above reasons, we are of the view that the rules of practice adopted by their Lord?ships of the Judicial Committee in granting or refusing special leave to appeal in criminal cases has correctly been and should ordinarily be applied by this Court. This practice is, however, not in the words of Lord Thankerton, a cast iron one and this Court has and would have, in the absence of a statutory bar, full power to grant special leave to appeal or to hear appeals in suitable cases and pronounce such judgments as it deems to be just and proper. But it may be laid down for the‑ sake of clarity that a mere technicality or even a disregard of forms of legal process would not usually be enough for our interference unless injustice to a party has thereby been occasioned. It was in the end contended by the counsel for the appellant that whatever the limitations imposed by their Lordships of the Judicial Committee in disposing of petitions for ‑special leave or in deciding criminal appeals, and whatever the practice of this Court or its attitude in relation to such petitions or appeals, the same (imita?tions or restrictions. cannot be extended to constitutional appeals preferred by a party under section 205 of the Constitution Act and in which he prays for leave as provided by subsection (2) of that section, to go into facts and to show that the findings of fact arrived at against him are, being incorrect, liable to be set aside. Leave to urge grounds other than the one in respect of which a certificate had been given by the High Court may be granted, in his submission, not in accordance with the rules of practice observed by their Lordships of the Privy Council, or by this Court, while adjudicating on the petitions for special leave to appeal, but with much lesser rigour as the appellant had preferred the appeal as of right and did not have to ask the Court for the removal of the bar Which a petitioner for special leave is required to cross before his appeal can be admitted. It was argued that the capacity in which this Court is acting in dealing with the present appeal may not be allowed to be confused with the capacity in which it functions when dealing with petitions for special leave and with appeals after leave has been granted. It is indisputable that the Federal Court had come into being under section 200 of the Government of India Act, 1935, and an appellate jurisdiction had been conferred on it under section 205 (1) of the Act, and an appellant could question the decision of the High Court as regards the interpretation of the Govern?ment of India Act, 1935, and of the Independence. Act, 1947, and orders! .n Council, or orders mentioned in section 205 (1) of the Constitution Act, as of right, if a certificate had been granted to him by the High Court in that respect. But he cannot urge any other ground without leave of the Court. The question that arises for consideration thus is on what grounds has that leave to be granted? Section 205 of the Constitution Act applies to appeals which may either be civil or criminal. Before the enactment of the Government of India Act, 1935, a civil appeal could lie from any decree, or final order of a High Court under the provisions of the Code of Civil Procedure to the King in Council after leave was granted by the High Court. If leave was not granted, an appeal could be preferred with special leave of the King in Council, or, in other words, ‑ of the judicial Committee of the Privy Council as the Code of Civil Procedure did not limit the prerogative of the Crown to admit the appeal. There was, however, no corresponding provision in the Code of Criminal Procedure for appeals to the King in Council from a judgment of a Criminal Court. The person desirous of filing a criminal appeal, therefore, could only do so with special leave of His Majesty in Council. And it was in this connection that the limitations were imposed by their Lordships of the Judicial Committee which have been referred to in this judgment. A new Court was created under the Constitution Act and with its creation a new right to hear appeals in respect of constitutional matters had to be granted to that Court. And since the Federal Court had to adjudicate on an appeal on the point or points covered by the certificate granted by a High Court, it must have been thought expedient to confer an authority on the former to go into other questions which might arise for decision, provided leave to do so was granted. It does not seem to be correct to say, as contended on behalf of the respondent that this authority was conferred only with the object of facilitating a decision on the constitutional point or points with which the facts and evidence adduced on other points involved in the appeal might have been inextricably mixed. Had that been the intention of the legislature, it could have been so stated but it was not. In view of the language employed in section 205 (2) of the Constitution Act, we are unable to conclude that leave to urge other grounds could only be granted in cases where it was found to be necessary to decide them with the object of adjudicating on the constitutional point or points covered by the certificate. Nor was it right to urge, as contended on behalf of the appellant, that once a party had been able to secure an entry into the Court by virtue of a certificate granted to him by the High Court under section 205 (1) of the Constitution Act, permission to urge other points, if asked for, was to be invariably granted. Had that been the intention of the legislature, the condition as to the grant of leave by the Court would have been superfluous and could not have found a place in subsection (2) of the section. The liberty to urge any point or points other than the one or those covered by the certificate referred in section 205 (1) of the Constitution Act is conditional on the grant of leave and being a judicial Act it has to be performed for good and sound reasons It does not seem to be necessary to go over the whole ground again‑but if the Federal Court is not a Court of Criminal appeal?s it is not a Accept to the extent that it is called upon to decide a constitutional point or points covered by the certificate granted by the High Court, and finality has still to be attached to the decisions of the High Court with the limitation indicated here, its position in regard to the points which can only be 'urged with its leave, must necessarily be that of the Judicial Committee when it is hearing petitions for special leave to appeal. We see no ground to hold that the reasons held by the Board, not to be good or sufficient for granting leave must be so regarded, after they have stood the test of time, for granting leave by the Federal Court under section 205 (2) of the Constitution Act. We do not see why the proceedings before the Federal Court on points which are not of constitutional nature and in respect of which a certificate has not been granted should not be governed by the same rules of practice and considerations with which petitions for special leave to appeal had been granted 'by their Lordships of the Judicial Committee. The position in the present case, as would appear from the facts already stated, is similar to what had happened before their Lordships of the Judicial Committee in The Corporation of the Town of St. John's and another v. The Central Ver?mont Railway Company, L. R. 14 Appl. cas. 590, where the appellant wished to argue the appeal before their Lordships on facts after he had found that the points on which Leave was granted could not be successfully assailed. In repelling that contention Lord Watson observed as follows :‑ "But it must be understood that parties who get such leave, upon the distinct representation that they desire to raise a parti?cular question of law of great and general importance, cannot be permitted, at the hearing of the appeal, to change front and say that no such question arises, and to argue that the case turns upon a question of fact which the Supreme Court has wrongly assumed or decided. If the appellant corporation, in petitioning for the exercise of Her Majesty's prerogative, had stated the same case which they attempted to present in argument, it is almost matter of certainty that leave to appeal would have been refused." We would, in the absence of any convincing reasons to the contrary, hold that the ests laid down by their Lordships for granting special leave in criminal cases could hold good for the applica?tion for leave to urge other points under section 205 (2) of the Constitution Act. In view of what has been held, the counsel for the appellant may now show cause why leave should be granted in this case. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly. Attorney for appellant :‑S. Zahir abbas. Attorney for respondent :‑Muhammad Siddiq.