MIRZA AKBAR Vs. KING EMPEROR

JUDGEMENT

(1.) This is an appeal in forma pauperis by special leave from a judgment and order of the Court of the Judicial Commissioner, North-West Frontier Province dated 10 July 1939. The learned Judicial Commissioner dismissed the appellant's appeal from his conviction of an offence punishable under S. 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 8 May 1939. 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 reasons for coming to that conclusion.

(2.) The appellant was charged with conspiracy to murder, in consequence of which conspiracy, murder was committed under the joint effect of S. 302/120B, Indian Penal Code. He was convicted and sentenced to death by thetrial Judge, Mr. Mohammad Ibrahim, Additional Sessions Judge, Peshawar Division, assisted by four assessors who were unanimously of opinion that all three accused including the appellant were guilty. The facts of the case and the circumstances under which they were convicted will be dealt with so far as relevant in this appeal, in connexion with the second question, that of evidence. When, after some preliminary proceedings, the appeal came on for hearing before the Court of the Judicial Commissioner on 10 July 1939, it was heard by Almond, the Judicial Commissioner, sitting alone. Kazi Mir Ahmad A. J. C., the Additional Judicial Commissioner, was absent on leave. The period of his leave was for two months with effect from 30 May 1939. The Hon'ble Mr. M.A. Soofi had been appointed under S. 222 (2), Government of India Act, 1931, to act as a Judge of the Court during the absence of Kazi Mir Ahmad A. J. C. But it happened that in this particular case Mr. M.A. Soofi was disqualified from sitting on the appeal because, as the Judicial Commissioner at the outset of his judgment on the appeal explained, Mr. M.A. Soofi had exercised judicial functions in the proceedings. The question whether in those circumstances the Court was properly constituted by Almond J. C. sitting alone falls to he determined on the basis of Rr. 1 and 3 of the Rules made on 19 May 1939 by the Governor of the North-West Frontier Province in the exercise of the powers conferred on him by S. 7 of the North-West Frontier Province Courts Regulations, 1931 (as amended), for the purpose of specifying the classes of civil and criminal proceedings which were to be heard by a Bench of the Court of the Judicial Commissioner, North-West Frontier Province. The Rules provide respectively as follows : Rule 1 of the said rules provides that the following classes of criminal cases are to be disposed of by a Bench, viz., any appeal from a sentence of death or of transportation for life and any cases of confirmation or revision of any such sentence.

(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. That Mr. M.A. Soofi was disqualified under R. 3 was not disputed, but it was contended on behalf of the appellant that in the circumstances of the case compliance with R. 1 was not excused and that the appeal could only be legally disposed of by a Bench. It was not established, so it was contended, that it was not practicable to constitute a Bench without such Judge (that is Mr. M.A. Soofi) and accordingly the appeal could not legally be heard by another Judge (in this case the Judicial Commissioner), sitting alone. Their Lordships are of opinion that the objection is not well founded. On 10 July 1939, when the appeal came on for hearing, it was not practicable to constitute a Bench without Mr. M.A. Soofi, because there was no other Judge of the Court available to sit with Almond J. C. In the event the precise language of R. 3 was thus satisfied. It was however contended that the appeal might have been adjourned until the return of Kazi Mir Ahmad A. J. C. from his leave, say, until 30 July 1939, an adjournment of 20 days. But their Lordships find in the rule nothing to justify this qualification of the words of the Rule. If however there is some reservation implied, so that the rule is to be construed as meaning "not reasonably practicable" there must be some authority to decide what is reasonable in the circumstances. Their Lordships think that this authority could be no other than the Judge. To decide whether or not an appeal should be adjourned is particularly a matter for the discretion of the Judge. It is not here necessary to decide whether in any case the decision of the Judge under R. 3 can be overruled, but their Lordships think that if the exercise of this discretion, which is a judicial discretion, is to be in any case overruled, strong grounds for doing so must be shown. It is enough to say that no such grounds are shown here.