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Petition for Special Leave to Appeal No. 146 of 1955, decided on 16th November 1955.

(On appeal from the judgment and order of the High Court of Judicature at Baghdad‑ul‑Jadid (now High Court of West Pakistan, Bahawalpur Circuit, Baghdad‑ ul‑Jadid), dated the 24th March, 1955, in Criminal Appeal No. 5 of 1954 and Revision Petition No. 18 of 1954 and judgment of the Judicial Committee of Bahawaipur, dated the 25th August 1955 as confirmed by the Ameer of Bahawalpur on the 31st August 1955.)

S. 4 (1) (2)--Whether petition for leave to appeal to Federal Court lies against order of High Court at Baghdad‑ul‑Jadid (Bahawalpur State) passed and confirmed by the Ameer of Bahawalpur before integration of West Pakistan‑Privy Council (Abolition of Jurisdiction) Act, 1950, Ss. 2 and 3‑Indian Independence Act, 1947, S. 7.

Held, (on a petition for leave to appeal) that an order of the High Court at Baghdad‑ul‑Jadid (State of Bahawalpur) passed on 24th March, 1955 sentencing the petitioner to transportation for life, which sentence was enhanced to one of death by the Judicial Committee of the State; the Ameer of Bahawalpur confirming the death sentence on 31st August, 1955, was clearly causa finita in the context of the pre‑existing jurisdictions, both judicial as well as sovereign judicial, in the State of Bahawalpur, before the integration of West Pakistan took effect, and that there was no possible ground upon which the Federal Court could claim jurisdiction to interfere with that order. The petition was dismissed.

The Privy Council (Abolition of Jurisdiction) Act, 1950, came into force on the 1st May 1950. It purported to abolish the jurisdiction of His Majesty to hear and determine appeals from Courts in Pakistan, but this could have no effect in relation to Bahawaipur, because no such jurisdiction in His Majesty existed in relation to Bahawalpur on the material date. Also, no jurisdiction to deal with cases from Bahawalpur was conferred upon the Federal Court, by section 3 of the Act since what was created, in favour of the Federal Court, was " the same jurisdiction . . . as His Majesty in Council has . . . immediately before the appointed day."

The argument of petitioner's counsel was based on sec tion 4 (1) (2) of, West Pakistan (Adaptation of Courts Acts) Order, 1955 and sections (5) (i) (d) (bb), (2) and 46 (1) (3) of the Government of India Act, 1935 and was to the effect that the integration of West Pakistan must be assumed, in law, to have been effected oil the 15th August 1947, and therefore, notionally, Courts in Bahawalpur State were Courts in Pakistan even since the, establishment of Pakistan. An appeal against an order of a Court established in the territories which till the 14th October 1955 were included in Bahawalpur State were therefore a Pakistan appeal within the meaning section 2 of the Privy Council (Abolition of Jurisdiction) Act, 1950. Section 3 give the Federal Court jurisdiction in such a matter.

Held, that the argument raised a number of questions of considerable complexity, but it was by no means easy to accept the position that, in all respects, events which had happened in the period between the 15th August 1947, and the 14th October 1955, in the territories which were now integrated in the West Pakistan Province, should be deemed in the eye of law to have taken place in that Province.

By virtue of section 7, Indian Independence Act, 1947 it was inconceivable that as from the 15th August 1947, a right of appeal to His Majesty should nave come into existence. in relation to the Courts of Bahawalpur.

Mahmud All, Advocate, Federal Court, instructed by M. Siddiq, Attorney for Petitioner.

Nemo for Respondent.

Date of hearing : 16th November 1955.

By this petition one Baggu seeks Special Leave to Appeal to this Court against a " judgment of the previous High Court of Bahawalpur State dated 24th March 1955, judgment of the Judicial Committee of the said State dated 25th August 1955, as confirmed by the Ameer of Hahawalpur on 31st August 1955."

The facts of the case against Baggu are of little importance as the case turns mainly oil legal and constitutional con siderations, and they may be stated very briefly, as found by the High Court and the Judicial Committee of Bahawalpur State. Baggu was caught oil the spot by the people of village Ghani, as one of a gang of dacoits, armed with guns, who kit ed four persons and injured several others in the course of the attempted dacoity, which was unsuccessful. When caught he was in possession of a grin, which went off and injured one of his captors severely. He was put up for trial along with a number of others, who were acquitted for tack of identification. Baggu was however convicted under section 396 P. P. C., and sentenced to undergo transportation for life. He appealed to the High Court of Bahawalpur, and at the same time the Government of Bahawalpur, filed a petition asking for his sentence to be enhanced to death. It is alleged that the final order directing the filing of the latter petition was made by Mr. A. R. Khan, Mashir‑i‑Ala to the Ameer of Bahawalpur. The sentence of death awarded by the High Court of Bahawalpur needed to be confirmed by the Ameer, and it appears that the procedure required that the case should be laid before the Judicial Committee of the State, which heard arguments of counsel and in a considered order, of which a copy has been placed on the record, recommended to the Ameer that the death sentence should be confirmed. The Ameer made an order, under his own hand, confirming the death sentence.

The State of Bahawalpur was incorporated as a part of the Province of West Pakistan under an Act of the Constituent Assembly; by an order of the Governor‑General dated the 5th October 1955 to take effect on the 14th day of October 1955.

On the 9th October 1955 the Governor‑General made an order constituting the High Court of West Pakistan, to exercise within the territories included in the Province of West Pakistan, the same jurisdiction as the High Court at Lahore had previously exercised within the limits of its appellate jurisdiction. This order took effect oil the 14th October 1955, and from the same day, the jurisdictions exercised by "any other Court functioning as High Court " within the same territories, were abolished. The High Court of Bahawalpur was such a Court. As regards the validity of judgments and orders of such High Courts previously made, tile relevant provision is contained in Article 4 of the West Pakistan (Adaptation of Courts Acts) Order, 1955, which reads as follows :‑

".4 (1) Subject to the other provisions of this Order any order made by any High Court which has been replaced by the High Court of West Pakistan in any proceedings before the commencement of this Order, shall for all purposes, have erect not only as an order of that Court but also as an order made by the High Court of West Pakistan.

(2) Where any such order as is mentioned in sub paragraph (1) has whether before or after the date of com mencement of this Order been confirmed, varied or reversed on appeal, effect shall be given to the decision of the appellate Court as if the order appealed from were an order not only of the High Court by which it was made but also of the High Court of West Pakistan."

Mr. Mahmud Ali has further relied on two amendments to the Government of India Act, 1935, in sections 5 and 46 respectively, which, as amended, read as follows :‑

" S. 5 (1) There shall be united in a Federation by the name of Pakistan‑

(a) the Provinces hereinafter called Governors' Provinces,

(bb) any other areas that may with the consent of the Federation be included in the Federation.

(2) The fifteenth day of August 1947 is the date referred co in this Act as the date of the establishment of the Federation.

S. 46 (1) The following shall by Governors' Provinces, that is to say, East Bengal and West Pakistan.

(3) In this Act the expression " Province " means, unless the context otherwise requires, a Governor's Province, and 6 Provincial ' shall be construed accordingly."

The arguments he has advanced may be stated somewhat as follows. The integration of West Pakistan must be assumed, in law, to have been effected on the 15th August 1947, and therefore, notionally, Courts in Bahawalpur State have been Courts in Pakistan even since the establishment of Pakistan. An appeal against an order of a Court established in the territories which till the 14th October 1955 were included in Bahawalpur State is therefore a Pakistan appeal within the meaning of section 2 of the Privy Council (Abolition of Jurisdiction) Act, 1950. Section 3 gives the Federal Court jurisdiction in such a matter.

The argument raises a number of questions of considerable complexity, but we do not find it necessary to state or examine every such question. It is by no means easy to accept the position that, in all respects, events which have happened in the period between the 15th August 1947, and the 14th October 1955, in the territories which are now integrated in the West Pakistan Province, must be deemed in the eye of law to have taken place in that Province.

But even if that position be assumed, for the purposes of this case, so as to allow to the High Court of Bahawalpur, on the date when it pronounced its judgment in this case, the status of a " Court or tribunal in Pakistan ", that is by no means sufficient in itself to sustain the application of sections 2 and 3 of the Privy Council (Abolition of Jurisdiction) .Act, 1950. For it is accepted that the Judicial Committee never exercised, at any time, any jurisdiction in respect of judicial determinations of Courts and authorities, in the State of Bahawalpur, prior to the Partition of India, which took effect on the 15th day of August, 1947. As from that day, by virtue of section 7, Indian Independence Act, 1947, the suzerainty of His Majesty over the "Indian States" lapsed, and along with it, all treaties and agreements entered into by His Majesty, all functions and obligations, all jurisdictions and authorities of His Majesty, in respect of the "Indian States" also came to an end. It is therefore inconceivable that as from the 15th August 1947, a right of appeal to His Majesty should have come into existence, in relation to tile Courts of Bahawalpur. The clear position prior to the Partition was that judicial sovereignty had been conceded to the Ameer of Bahawalpur, as the Ruler of the State, by the British Govern ment, and the effect of section 7, Indian Independence Act, 1947, would necessarily be that, in the absence of a Statute of the British Parliament, no jurisdiction could thereafter come into being, in favour of His Majesty, to hear and determine appeals from Courts in Bahawalpur. The Privy Council (Abolition of Jurisdiction) Act, 1950, came into force on the 1st May 1950. It purported to abolish the jurisdiction of His Majesty to hear and determine appeals from Courts in Pakistan, but this could have no effect in relation to Bahawal pur, because no such jurisdiction in His Majesty existed in relation to Bahawalpur on the material date. It follows also' that no jurisdiction to deal with cases from Bahawalpur was conferred upon the Federal Court, by section 3 of the Act since what was created, in favour of the Federal Court, was "the same jurisdiction . . . as His Majesty in Council has . . . immediately before the appointed day."

Thus, the notion that the West Pakistan Province came into being on the 15th August 1947 is of no comfort to the petitioner. But even if there were a content in 'it, which in the relevant respect, was not wholly illusory, we feel no hesitation in saying that the present case is entirely unsuitable for the grant of special leave to appeal. It was clearly causa finita in the context of the pre‑existing jurisdictions, both judicial as well as sovereign‑judicial, in the State of Bahawal pur, before the integration took effect. We must decline firmly to interfere with a judicial matter which has been dealt with by two Courts under valid jurisdictions, and has there after‑been decided by the executive sovereign of the territory, exercising jurisdiction as the fount of justice, upon the recommendation of his Judicial Committee. Indeed the final order in the case is that of the Ameer of Bahawalpur, and is in no sense a judicial order. We cannot see that there is any possible ground upon which we can claim jurisdiction to interfere with that order.

The petition is accordingly dismissed.

A.H. Petition dismissed.

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