MIRZA AKBAR Vs. EMPEROR

JUDGEMENT

(1.) THIS is an appeal in forma pauperis by special leaves from a judgment and order of the Court of the Judicial Commissioner, North-West Frontier Province, dated July 10, 1939. The learned Judicial Commissioner dismissed the appellant's appeal from his conviction of an offence punishable under Section 302/120-B, Indian Penal Code, i.e., conspiracy to murder in consequence of which conspiracy murder was committed, and confirmed the sentence of death passed on him by the Additional Sessions Judge, Peshawar Division, on May 8, 1939.

(2.) THE appeal raises two main points, which are the only points calling in their Lordships' judgment for consideration here. THEy are independent of each other. THE first is a question as to the jurisdiction of the Court by which the sentence was confirmed. It was contended on behalf of the appellant that the Court was not legally constituted, because the appeal to the Court was dismissed and the sentence confirmed by a single Judge of the Court of the Judicial Commissioner sitting alone. THE second was whether if the objection as to jurisdiction failed, the decision of the Court was vitiated by misreception of evidence. As their Lordships announced at the conclusion of the arguments before them, they were of opinion that both points failed the appellant and that the appeal should be dismissed. THEy will now state their reason for coming to that conclusion.

(3.) RULE 3 provides that notwithstanding anything contained in these rules where a Judge of the Court has in a subordinate capacity exercised judicial functions at any stage of a criminal proceeding or is personally interested therein, he shall not hear any appeal or reference arising out of such proceeding, and if it is not practicable to constitute a Bench without such Judge, such appeal or reference shall be heard by another Judge sitting alone.