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Petitioner: NAZAR MUHAMMAD VS Respondent: CROWN
P L D 1949 Lahore 494
P L D 1949 Lahore 494
DIVISION BENCH
Before Abdul Rahman and Marten, JJ
NAZAR MUHAMMAD and others‑Petitioners
Versus
CROWN‑Respondent
Criminal Miscellaneous No. 75‑W of 1947, decided on 19th March 1948, from the order of the Sessions Judge, Karnal.
(a) Interpretation of Statutes‑Judge ordinarily not entitled to add to or take out from statute except that there be adequate grounds justifying inference that Legislature intended something which it omitted to express.
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".
1940 A C 1014 and (1841) 2 M & Cr. 269, relied on.
(b) High Courts (Punjab) Order, 1947‑Article 13‑Jurisdiction of the High Court of Lahore is not ousted except in specific cases- Reference pending on 15th August, 1947 to be heard by the Lahore High Court.
The Governor‑General's intention 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 appel late side of this Court and on no other were to grand transferred under the third sub‑clause to the High Court of East Punjab. It seems 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 it would be acting more in harmony with the intention of the Governor‑General if it was held that this Court's jurisdiction was not ousted in regard to the appeals which were intimately connected with the references which had not been transferred and had been pending in this Court at the time when the High Courts (Punjab) Order was passed.
For the above reasons 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 confirma tion of their sentences.
(c) Criminal Procedure Code (V of 1898), S. 439‑East Punjab High Court has revisional jurisdiction‑But revisional jurisdiction already invoked by High Court at Lahore‑There is no provision of transferring revisional petitions‑Lahore High Court has to determine the petitions.
By virtue of section 439 of the Code the revisional jurisdiction 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 difficulty 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 peti tions 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".
The petitions of revision could not, therefore, be found to have been transferred to that of High Court and have therefore, to be determined by this Court for they cannot remain undisposed of.
(1823) 25 R R 534 relied on.,
(d) Prisoners Act (III of 1900), S. 3‑Detention of convicted persons in the Central Jail Lahore under orders of Sessions Judge, Karnal, to continue.
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 law.
M. Saleem and Iftikhar‑ud‑Din Ahmad for Appellant.
Advocate‑General for Respondent.
Judgment
A. Rahman, J.‑Nazar Muhammad and four other accused, three of whom were sentenced to death and the remaining two to transportation for life by the Sessions Judge of Karnal moved this Court under Section 491, Criminal Procedure Code, for their release on the ground that in the absence of an allegation that a crime had been committed by the accused the Dominion of Pakistan, their confident in the Central Jail of Lahore had become illegal after the 15th August 1947. It was also stated in their petition that in so far as no Extradition Act was in force between the Dominions of India and Pakistan, the extradition of the petitioners was not legally possible.
This petition came up originally before a learned Single judge of this Court who referred it to a Division Bench for disposal.
The facts which had led to this petition may be briefly stated. The petitioners who were the residents of Jandula (District Karnal) were arrested on the 31st May 1946, on a charge of murder. They were con victed by the Sessions Judge, Karnal, under section 302, Indian Penal Code, on the 26th February 1947. Nazar Muhammad, Muhammad Bashir and Gokal were sentenced by him to death and Bashir Ahmad and Nemat to transportation for life. The proceedings in regard to those who had received capital sentences were submitted to and received by this Court under section 374, Criminal Procedure Code, for confirma tion on the 20th May 1947. Before this however they had preferred a joint appeal Along, with Bashir Ahmad and Nemat on the 20th March 1947 (Criminal Appeal No, 327 of 1947). A petition for revision was filed against the latter two by one Ashraf on the 8th April 1947, (Criminal Revision No. 853 of 1947) for enhancement of their sentences. All the accused were transferred to the Central Jail at Lahore for under going their sentences in accordance with the rules then in vogue. All this took place before August, 1947.
The Indian Independence Act (10 and 11 Geo. VI C 30) was passed in up from the 15th August 1947 and two Courts (Punjab) Order was passed by the Governor‑General on the 11th August; 1947. Article 13 (1), (2), (3), (4) and (5) of the Order reads as follows :‑
13. (1) subject as hereinafter provided, 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 or in the Province of Delhi.
(2) Notwithstanding anything contained in this order :‑
(a) any proceedings which, immediately before the appointed day, are pending in the High Court at Lahore on its original side, including any proceedings then pending in the said High Court as a Court of Reference, shall be heard and determined by that Court ;
(b) the High Court at Lahore shall have the like jurisdiction to hear a, pd determine any appeal from an order of a judge of the said Court on its original side as if this Order had not been made, and the High Court of East Punjab shall have jurisdiction to hear or, determine any such appeal; and
(c) the High Court at Lahore shall have the like jurisdiction, to receive any order made by any judge of the said High Court as it would pave had if this Order had not been made, and the High Court of East Punjab shall have no jurisdiction to review any such order.
(3) Subject to the preceding provisions of this Article, all proceedings pending on the appellate side of the High Court at Lahore immediately before the appointed day, shall, where the Court of origin 5, as from that day, situated in the Province of East Punjab or in the Province of Delhi, stand transferred by virtue of this order to the High Court of East Punjab.
(4) Subject to the following provisions of this Article with respect to appeals, any order made by the High Court at Lahore either‑
(a) before the appointed day ; or
(b) in any proceedings with respect to which the said High Court retains jurisdiction by virtue of paragraphs (2) and (3) of this Article ; shall for all purposes have effect not only as an order of the High Court at Lahore but also as an order made by the High Court of East Punjab ".
(5) Subject to the following provisions of this Article with respect to appeals, any order made by the High Court of East Punjab in proceedings transferred to that High Court by virtue of this Article shall for all purposes have effect not only as an order of that Court but also an order made by the High Court at Lahore".
Our attention was also drawn to Article 4 of another Order known as the Indian Independence (legal proceedings) Order passed by the Governor‑General on the 12th August 1947. It appears to be un necessary however to refer to its provisions which relate to proceedings pending before the appointed day in the subordinate Courts, to the form to which an appeal or revision would lie in such cases and to the enforce ability of orders passed by such Courts.
It will thus be seen that provision was made by these Orders in regard to proceedings pending either in the High Court or before the lower Courts on the 15th August 1947. The High Courts (Punjab) Order also specifies the class or proceedings pending on the appellate side of this Court on that date which would by virtue of that Order stand transferred to the High Court of East Punjab.
Learned counsel for the petitioner contends that since no provision was made in these Orders to validate the detention of prisoners who had been ordered to be detained before the appointed day the warrants issued for the purposes of detention had lapsed for the Court which had issued them had ceased to have any jurisdiction and his clients were thus entitled to a release notwithstanding the legality of sentence which had been passed against them. In other words, his contention is that although the sentences were legal, the execution of such sentences after the appointed day anywhere in this Dominion was illegal as the authority to execute them had ceased to exist with the partition of India into two independent Dominions and the Dominion of Pakistan had no authority to execute these sentences which must now be taken to have been passed by a foreign Court. Reliance was placed in this connection on the following passage at page 203 of Wheaton's International Law (5th Edition‑English) :‑
"A criminal sentence pronounced under the municipal law in one State can have no direct legal effect in another. If it is a sentence of conviction, it cannot be executed without the limits of the State in which it is pronounced upon the person or property of the offender ; and if he is convicted of an infamous crime, attended with civil disqualifications in his own country, such a sentence can have no legal effect in another independent State".
Now could the prisoners be, in the absence of any Extradition Act being in force between the two Dominions, it was urged by Mr. Saleem, extradicted from Pakistan to the East Punjab after the appointed day.
The second contention raised for the first time before this Bench was that in spite of what is contained in Article 13 (1) of the High Courts (Punjab) Order, the proceedings which had been submitted to this Court by the Sessions Judge, Karnal, for confirmation and were pending in this Court on the appointed day (i.e., the 15th August 1947) have to be heard and determined by this Court only and cannot be taken to have been transferred to the High Court of East Punjab under sub‑clause (3) of Article 13 as the words "any proceedings then pending in the said High Court as a Court of Reference" used in Article 2 (a) are in the nature of an exception engrafted on sub‑clauses (1) and (3) of Article 13 of the High Courts (Punjab) Order and would if correctly interpreted, cover the cases of the accused persons in regard to whom (and what are usually described as) 'murder references' had been made by the Sessions Judge, Karnal, before the appointed day.
In this connection emphasis was laid by learned counsel for the petitioners on the opening words "subject to the preceding provisions of this Article" of sub‑clause (3) and it was submitted that only such proceedings as were pending on the appellate side of this Court but which did not fall within any of the exceptions enumerated in sub clause (2) of Article (13) stood transferred to the High Court of East Punjab and the murder references which were to be determined by this Court as a Court of reference could not be taken to have been transferred to the High Court of East Punjab. It was also urged that in so far as this Court was, while dealing with murder references, entitled to exercise all the powers which a Court of Appeal was entitled to exercise, the joint appeal itself filed on behalf of the accused under sentences of death (Criminal Appeal No. 327 of 1947) could not be found to have been transferred to the High Court of East Punjab and must be decided by this Court. Not only would such a decision, it was urged, avoid a possible conflict of findings of the two highest Courts of two Dominions on the same material and in regard to the same offences committed by the same persons but the transfer of appeals to the East Punjab High Court would be in conflict of what the saving words "subject to the preceding provisions of this Article" used in sub clause (3) were intended to provide against. We must according to learned counsel for the petitioners so construed these words as would avoid an anamolous situation which would be created if we held the appeal preferred on behalf of these three persons to be determinable by the High Court of East Punjab, whose decision is declared by sub‑clause (5) to have the effect of a decision of this Court.
Although this argument was confined to the case of the three accused whose proceedings were submitted to this Court for confirma tion, it was urged by learned counsel that the appeal preferred by those who have been ordered to be transported for life cannot be, in view of the revision filed by Ashraf to this Court before the appointed day for enhancement of their sentences, held to have been transferred as the revisional jurisdiction of this Court alone had been invoked and there is nothing in the High Courts (Punjab) Order which would warrant a transfer of revisions to the High Court of East Punjab particularly when this Court is under section 439, of the Criminal Procedure. Code, entitled to and may in its discretion exercise any of the powers conferred on a Court of Appeal by section 423 of the Code and cannot pass any order to the prejudice of the accused who is under sub clause (6) of section 439, in showing cause why his sentence should not be enhanced, entitled to show cause against his conviction. In short, the argument is that since the accused persons under sentences of transporta tion are entitled to have the correctness of the conviction against them examined and decided by this Court on the revision side in the petition made against them for enhancement of sentence, it would be futile to have the appeal by these prisoners determined by the High Court of East Punjab which if determined by that Court will have the effect of the order made by this Court, and the considerations which existed in case of those who are under sentences of death would equally apply to those who were sentenced to transportation for life.
In relying to the first contention advanced on behalf of the petitioners, the learned Advocate‑General contended that in fact of the provisions contained in section 3 of the Prisoners Act (III of 1900) which were still in force in this Dominion, the accused had been duly committed to the custody of the Officer‑in‑Charge of the Central Jail at Lahore who was bound not only to receive but to detain them according to the exigency of the warrant by which they had been committed until they were discharged or removed in due course of law. In the alternative it was urged that if section 3 was not found to apply, the Officer‑in‑Charge of the Central Jail was in any case entitled under section 15 of the Act to give effect to the sentence or warrant for the detention of any person passed or issued by a Court acting, whether within or without Pakistan, under the general authority of the Indian or of any Provincial Government. It was also pointed out that in accordance with section 8 of the Punjab Partition (Adapta tion of Laws) Order,'1947 passed by the Governor of the Punjab under section 9 of the Indian Independence Act, 1947 (10 & 11 Geo. V I C 30) and notified in the Punjab Gazette under Notification No. 488‑Leg. nothing in that Order would "affect the previous operation of or any thing duly done or suffered under, any existing Central or Punjab Law or any obligation or liability already accrued or incurred under any such law or any penalty or punishment incurred in respect of any offences already committed against any such law".
In the end reliance was placed on sections 4 and 5 (5) of the Punjab Partition (Miscellaneous Institutions) Order which had also been similarly passed by the Governor of the Punjab on the 13th August 1947 and notified in the Punjab Gazette under Notification No. 496‑Leg., according to which the "controlling Province (which would be the Province of West Punjab in the present case) shall be bound to allow to the external Province (which would be East Punjab) in relation to each institution specified in column 2 of the schedule annexed hereto, the facilities specified in column 3 for the period specified in column 4 and on the terms specified in column 5". The relevant entry is at No. 5 of section 5 which reads as follows :‑
Name of Facilities reserved Terms on which Serial Institution or to the external Period of and extent to No. Class of province reservation which facilities Institution or to be enjoyed.
____________________________________________________________________ 1_________2_____________3_______________4___________________5_______
5 Jails To require con‑ Six months On payment of victed and un‑ from the the usual dertrial prison‑ 15th August charges, viz., the ers and detenus 1947. cost per pri‑ who are con‑ : soner of feeding, fined in jails im‑ clothing, care mediately before and custody, an the appointed well as pro rata day, to be kept overhead in such Jails, on charges. 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…
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