BASHIR AHMAD, CONVICT Vs. CROWN

JUDGEMENT

(1.) The following two questions have been referred to a F. B. for decision:

(2.) The reference arose in the following circumstances : One Bashir Ahmad was arrested at Jullundur on 8-3-1947 in connection with a murder said to have been committed on the same day at Jullundur. The learned Ses. J. tried him at Jullundur and convicted and sentenced him to death on 2-7-1947. On 11-7-1947 an appeal was preferred by the convict to the H. C. of Judicature at Lahore and on 1-8-1947 the learned Ses. J. submitted the proceedings' to the H. C. for confirmation of the sentence of death under the provisions of S. 374, Cr. P. C. Meanwhile the partition of the country took place and the whole case was transferred to the East Punjab H. C. under Arts. 5 and 13 of the High Courts (Punjab) Order, 1947, on 15-8-1947.

(3.) When the case came up before a Division Bench of this Ct. for disposal, Mr. Gurdev Singh who represented the applt., raised the preliminary objection that this Ct. had no jurisdiction to deal with either the appeal or the submission under S. 374, Cr. P. C. and that the transfer of the proceedings to this Ct. was inoperative and invalid. The objection was founded on the argument that under Art. 13 (2) of the said High Court's Order, such submissions could be dealt with by the Lahore H. C. alone, and the connected appeal could be heard and disposed of only by that Ct. The argument was based largely on recent decision by a Division Bench of the Lahore H. C. ('Nazar Mohammad v. The Crown', Cri. Misc. No. 75 W of 1947), decided on the 19-3-1948 by Sir Abdur Rehman, J. and Marten, J. In that case the offence had been committed and tried at Karnal which now forms part of the East Punjab and three persons had been sentenced to death and two to transportation for life. The convicts had preferred an appeal to the Lahore H. C. and the Ses. J. had submitted the proceedings to the H. C. for confirmation of the sentence under S. 374, Cr. P. C. before 15-8-1947. A petn. for enhancement of the sentence of those persons who had been sentenced to the lower penalty had been preferred by the complainant and the H. C. had issued a notice on this petn. also before 15-8-1947. The convicts were at the time in the Lahore Central Jail but the records of the case had been transferred to the East Punjab H. C. The Lahore H. C. was moved under S. 401, Cr. P. C., for the issue of a writ of 'habeas corpus' on the ground, 'inter alia' that even though the appeals filed by the convicts had been properly transferred to the East Punjab H. C., the warrants for the detention of the convicts in Pakistan Jail, which had teen duly issued by the Ses. J. of Karnal, were deprived of their validity and effect when the partition of the country took place, because the Ct. which had issued them ceased to be a Ct. having jurisdiction in the West Punjab where the jail in question was situate. In the petn. it was not challenged that the records of the case had been properly sent to the East Punjab High Court for disposal and the only ground on which the prayer was based was that the warrants which had been properly issued by the Ses. J. had ceased to have validity. The learned Single Judge of the Lahore High Court before whom this petn. was laid felt that a difficult question of constitutional law was involved and he referred the question to a Division Bench for disposal. Before this Division Bench Mr. Sleem, a leading Advocate of Lahore, raised a new contention on behalf of the convicts to the effect that the Lahore H. C. alone had jurisdiction to deal with the whole case - with the submission of the Ses. J under S. 374, Cr. P. C. for the confirmation of the sentence, as this submission amounted to "an original reference", and also with the appeal of the other convicts as this was intimately connected with the so-called reference and also because the Lahore H. C. was seized of the case because a notice of enhancement of sentence had been issued before 15-8-1947 to the applts. who had been sentenced to transportation for life.