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Petitions for Special Leave to Appeal Nos. 50 and 73 of 1950, decided on 9th April, 1951.
On appeal from the order of the General Court‑Martial dated 6th December 1949, at Malir Cantt., and confirmed by the Commander‑in‑Chief, Pakistan Army, on 8th February, 1950, at Rawalpindi.
On appeal from the order of the 1General Court‑Martial, dated 24th August 1950, at Risalpur, and confirmed by Air Vice‑Marshal on 7th October, 1950.
(a) Judicial Committee Act, [l.‑3 and 4 Will 4 c. 41 (1833)], S. 3‑Pre‑existing jurisdiction of His Majesty‑in‑Council -Merely affirmed, not enlarged‑Appeal from decision of Court Martial.
Section 3 of the Judicial Committee Act did not enlarge the jurisdiction of His Majesty‑in‑Council to hear appeals or petitions from Colonial Courts. It merely affirmed the pre‑existing jurisdiction of His Majesty‑in‑Council and regulated the exercise of such jurisdiction. If a person claims that His Majesty‑in‑Council has jurisdiction to entertain an appeal from the decision of a Court -Martial, he must refer to any law, statute or custom, whereby he is entitled to appeal to His Majesty‑in ‑Council.
(b) Common Law of Great Britain‑Signification.
The Common Law signifies rules, customs and recognized principles, which are not set down in writing in Acts of Parlia ment. The binding powers of the Common Law as a law emanate from long and immemorial usage and universal acceptance throughout the realm. The authenticity of these customs, rules and maxims, rests entirely upon reception, and usage, as declared by the judges. There are, therefore, only two sources of law which is applicable to Great Britain and the Colonies, namely, precedents and Statute Law.
(c) Prerogative of Crown‑Definition and scope--Appeals --Decision of Court‑Martial.
The phrase " prerogative of the Crown "signifies such special privileges as have been assigned to the Sovereign by the Common Law.
Powers which have been specially conferred upon the Crown by virtue of statutes do not form part of the prerogative. It is, therefore, incumbent upon a person, who claims the right of preferring an appeal to His Majesty‑in‑Council from a decision of a Court‑Martial, to indicate the rule, maxim or principle of Common Law whereby that prerogative has been created, He cannot merely state that as the King is the fountain head, of justice, the Privy Council is entitled to entertain appeals from all Courts in the exercise of all types of Jurisdictions.
Halsbury Laws of England, Vol. 6, p. 371 ref.
(d) Federal Court‑Appeal from decision of Court‑Martial ‑Whether competent‑ Government of India Act, 1935, S. 270 (1).
Per Abdul Rashid, C. J.‑The Indian Army Act intended the findings of a Court‑Martial as and when duly confirmed to be final, subject only to the power of revision for which the Act provided and there was, therefore, no room for an appeal to His Majesty- in‑Council consistently with the subject‑matter and scheme of the Act, the question Was not whether the prerogative of the Crown had been taken away in respect of cases that were tried by Court Martial, but that the real question for decision was whether the ordinary incident of appeal to the Crown ever attached to proceedings before a Court‑Martial by virtue of His Majesty's prerogative. A petition cannot succeed without establishing; that, by virtue of the Common Law the incident of an appeal to His Majesty‑in‑Council ever attached to the decisions of a Court- Martial at any time either in India or in England. He who invokes the jurisdiction of this Court, must bear the burden of substantiating his claim.
In the case of Muhammad Yakub Khan=1947 L. R. 74 I. A. p. 8 rel.
Frye v. Ogle = Halsbury's Laws of England, 2nd Edition, Vol. 28, p. 677=Manual of Military Law (Indian Re‑print 1944), p. 126 ref.
The prerogative of the Crown to hear appeals does not extend to all cases and to all Courts.
Halsbury's Laws of England Vol. 6 (Halsbury Edition) para. 656: (1876) 2 A. C. p. 102 ref.
Per Abdul Rashid, C.J.‑Where the highest Court of the Colony concerned was exercising a special jurisdiction no appeal was entertained by His Majesty‑in‑Council, as the Courts were not acting in the exercise of their ordinary civil or criminal jurisdiction. It is obvious that' in view of the special nature of the jurisdiction which the Superior Courts had exercised it was held that the incident of an appeal by virtue of the Royal preroga tive was not intended to attach to them. The various Acts under which the Supreme Courts had exercised jurisdiction were care fully examined, and from the nature of the enactments under consideration, it was observed that the object of the various enactments would be defeated unless the orders passed in the exercise of the special jurisdictions were not carried out ex peditiously. An examination of the Indian Army Act would show that these considerations were present in the mind of the Legisla ture when the Army Act was enacted.
(1896) A. C. p. 245 ; (1930) A. C. p. 285, ref.
Per Abdul Rashid, C.J.‑The provisions of the Army Act clearly show that sentences of Courts‑Martial were meant to be carried out expeditiously. In certain circumstances, a sentence of death can be carried out within a few hours after the sentence has been awarded.‑‑----------These considerations cannot be ignored in determining whether the Common Law right of an appeal to His Majesty‑in‑Council ever applied to convictions recorded by Courts‑Martial.
(1948) F. C. R. 77 ; 1926 A., C. 482 ; (1908) A. C. pp. 448, 449, 450.
Per Abdul Rashid, C .J.‑Even if it be conceded that Courts -Martial are Courts, and that the proceedings before Courts -Martial relate to criminal matters, it cannot be held that a right of appeal to His Majesty‑in‑Council attaches to the decisions of a Court‑Martial, unless it is shown that such a right attached to these decisions prior to 1833 by virtue of some law, statute or custom, so as to attract the provisions of section 3 of the Judicial Committee Act of 1833. If it be held that no right of appeal to His Majesty‑in‑Council existed in respect of the decisions of Courts‑Martial, it is obvious that the Army Act did not bring such a right into existence. The Army Act intended the findings of a Court‑Martial as and when confirmed by the proper confirming officer to be final, subject only to the power of revisions for which the Act provides. In the words of Lord Thankerton, " There is no room for an appeal to His Majesty‑in‑Council consistently with the subject‑matter and scheme of the Act."
Per Abdur Rahman, J.‑A study of the authorities cited on behalf of either party has not succeeded in persuading me to come to a decision either in favour of the petitioners or against them. Nor have I been able to find any case, barring that of Yaqub Khan, which has already been considered, in which the prerogative of the King‑in‑Council to entertain an appeal from a sentence passed by Court‑Martial had been recognised.
The ordinary rule of law is that the onus of establishing jurisdiction lies on the party who attempts to invoke it. And there can be no manner of doubt that the burden in the present case lies on the petitioners. This is also confirmed by section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950, the rele vant portion of which is as follows :‑
"As from the appointed day (1st May, 1950) the Federal Court shall----have the same jurisdiction to entertain and dispose of Pakistan appeals and petitions as His Majesy's prerogative or otherwise, immediately before the appointed day."
It was incumbent upon the petitioners to establish that this Court had jurisdiction to entertain and dispose of their petitions. And all this inquiry had to be undertaken as this Court's jurisdic tion was declared to be, for the purposes of petitions and appeals, the same as the judicial Committee of the Privy Council or the Privy Council had before the appointed day. The Judicial Committee and the Privy Council have not been shown to possess the jurisdiction to entertain such petitions from the sentences passes by Courts‑Martial, and this Court, therefore be found to have no jurisdiction to entertain them.
Per A. S. M. Akram, J.‑Courts‑Martial administering statu tory military laws are Courts of special Jurisdiction, not amenable to supervision or control by any judicial body or Court of justice, administering the general law, except where they may be found to have acted without jurisdiction or in excess of it‑ Courts. Martial while acting within their proper scope and sphere are supreme and their decisions, subject to revision by the confirming authority, are absolute and final.
(e) Court‑Martial‑Whether falls within term "' Court,----' Judicial Committee Act 1833 (3 and 4 Will. 4, c. 41).
Per Abdur Rahman, J.‑---The term " Court " in the Ac. was intended to include Courts Martial as distinguished from Martial Law Courts. The latter are created by the will of the Commander appointed to govern a territory or an army, either in time of war or when due to turmoil or disturbed conditions prevailing at the time, Civil Government comes to an end and extraordinary steps are taken to maintain public order. The Martial Law Courts' are essentially no Courts at all. They exist as such neither by statute nor by any law, are created by the will of the Commander ; their proceedings are executive in character and are defensible by necessity alone. The Courts‑Martial (sitting under what is called the Military Act in England, or under similar Acts known, as the Indian Army Act, 1911, the Indian Air Force Act, 1932 and other cognate measures) are, on the other hand, brought into existence by means of statutes which authorise them to decide cases placed before them and to pass orders or sentences in accordance with law.
The term " Court ", as used in the Act, covers the Courts Martial appointed under the Army Act, English or Indian.
Having regard to the object for which they are created, the functions which they perform and the sentences which they can pass, I have no hesitation in holding that they are Criminal Courts, and the proceedings before them are those of a criminal character.
(f) Courts‑Martial‑Jurisdiction‑Not same as of ordinary Courts.
Per Abdur Rahman, J.‑The jurisdiction exercised by Courts- Martial has not been derived by them from ordinary Courts of the land. And when it is remembered that the object with which they are created may, in certain cases, be frustrated or even defeated when it could not but have been intended, in certain circumstances at least, that the cases before them should be disposed of expeditiously and in some cases sentences passed by them executed immediately, without a possibility of recall, it would not, in my view, be possible to accept the contention that the jurisdiction exercised by the Courts Martial is not a new one and that they are exercising the same jurisdiction as is being exercised by ordinary Courts.
Iftikhar‑ul‑Haq Khan, for Petitioner.
Manzur Qadir, and Asadullah Khan, for Respondent.
Z. H. Lari and Ali Ahmzd Khan Lodhi, for Petitioner. .
Faiyaz Ali, for Respondent.
.‑This judgment will deal with two petitions for special leave to appeal from two decisions of two different Courts‑Martial.
The petitioner, Mohd Nawaz, was tried under section 41 of the Indian Army Act, read with section 302 of the Pakistan Penal Code, by a General Court‑Martial for the murder of Naik Mohd Ashraf and the attempted murder of Gunner, Fateh Mohd. He was found 'guilty of both the charges, and was sentenced to death by the Court‑Martial on the 6th of December, 1949. The sentence of death was confirmed by the Commander‑in‑Chief of the Pakistan Army on the 8th of February, 1950. The other petitioner, R. H. Shah, was tried by a General Court‑Martial on a charge under section 44 (a) of the Indian Air Force Act, 1932, and was sentenced to six months' rigorous imprisonment and dis missal from service on the 24th of August, 1950. The sentence awarded to him was confirmed on the a 7th of October, 1950.
At the hearing, an objection was taken on behalf of the Crown to the effect that this Court was not competent to hear appeals from decisions of Courts‑Martial, and consequently, no special leave to appeal could be granted. It was urged that before the '1st of May, 1950, not appeal lay to His Majesty‑in‑Council from the decision of a Court‑Martial by virtue of His Majesty's pre rogative, and that as the Privy Council (Abolition of Jurisdiction) Act, 1950, had conferred on this Court the same jurisdiction as was exercised by His Majesty‑in‑Council prior to that date, this Court could not entertain an appeal from a decision of a Court‑Martial.
In order to determine the preliminary question raised on behalf of the Crown, it is necessary to refer to the provisions of section 3 of the Judicial Committee Act of 1833 (1) which runs in the following terms :‑---
"III. All appeals or complaints in the nature of appeals whatever, which either by virtue of this Act, or of any law, statute or custom, may be brought before His Majesty or His‑Majesty‑in' Council from or in respect of the determination, sentence, rule or order of any Court, judge or judicial officer, and all such appeals as are now pending and unheard, shall from and after the passing of this Act be referred by His Majesty to the said judicial Committee of his Privy Council, and that such appeals, causes and matters shall be heard by the said Judicial Committee, and a report or recommendation thereon shall be made to His‑Majesty‑,in‑Council for his decision thereon as heretofore, in the same manner and form as has been heretofore the custom with respect to matters referred by His Majesty to the whole of the Privy Council or a Committee thereof (the nature of such report or recommendation being always stated in open Court)."
It is clear that section 3 of the Judicial Committee Act did not enlarge the jurisdiction of His Majesty‑in‑Council to hear appeals or petitions' from Colonial Courts. It merely affirmed the pre‑existing jurisdiction of Ais Majesty‑in‑Council and regulated the exercise of such jurisdiction. If a person claims that I‑Its Majesty‑in‑Council has jurisdiction to entertain an appeal from the decision of a Court‑Martial, he must refer to any law, statute, or custom, whereby he is entitled to appeal to His‑Majesty‑in Council. On behalf of the petitioner, it was urged that though there was no statute or custom giving the right of appeal to a person, who had been sentenced by a Court‑-Martial, an appeal lay to his Majesty‑in‑Council under the Common Law.
It would, therefore; be convenient at this stage to define the nature and scope of the Common Law. Reference may be made in this connection to the following passage from Odgers on the Common Law (p. 59) :‑---
"The phrase Common Law is used in two very different senses. It is sometimes contrasted with equity, it then denotes the law which prior to tile judicature Act was administered in the three superior Courts of Law at Westminister as distinct from that administered by the Court of Chancery at Lincoln's Inn. At other times it‑is used in contradistinction to‑the Statute Law, and then denotes the unwritten law, whether legal or equitable in its origin, which does not derive its authority from any express declaration of the will of the Legislature. This unwritten law has the same force and effect as the Statute Law. It depends for its authority upon the recognition given by our law Courts to principles, customs, and rules of conduct, previously existing among the people. This recognition was formerly en shrined in the memories of legal practitioners and suitors in the Courts. It is now recorded in the voluminous series in our law reports which embody the decisions of our judges together with the reasons which they assign for the decisions."
It appears to me that the Common Law signifies rules, custom, and recognised Principle, which are not set down in writing in Acts of Parliament. The binding powers of the Common Law as a law emanate from long and immemorial usage and universal acceptance throughout the realm. The authenticity of these customs, rules,, and maxims rests entirely upon reception, and usage, as declared by the judges. There are, therefore, only two sources of law which is applicable to Great Britain and the Colonies, namely, precedents and Statute law. It is stated in Odgers on the Common Law (p. 60) that whenever any doubtful question of law arises, the difficulty must now be solved either by searching among precedents or by studying statutes. These sources embody the present law of the land.
With the exception of the case of Frye v. Ogle, which will be dealt with presently, no precedent has been brought to our notice whereby the right of a person, convicted by a Court‑Martial, to appeal to His Majesty‑in‑Council was ever recognized.
The phrase "prerogative of the Crown" signifies such special privileges as have been assigned to the Sovereign by the Common Law. Halsbury on p. 371 of Vol. 6 of the Laws of (England Edition) defines the prerogative as follows :‑
"The royal prerogative may be defined as being that pre eminence which a Sovereign enjoys over and above all other persons by virtue of the Common Law, but out of its ordinary course, in right of his regal dignity (o), and comprehends all the special dignities, liberties, privileges, powers and royalties allowed by the Common Law to the Crown of England (p)."......
"The prerogative is thus created and limited by the Common Law, and the Sovereign can claim no prerogatives except such as the law allows (q), nor such as are contrary to Magna Carta, or 'any other statute (r), or to the liberties of the subject (s)."...................................................................
"The Courts have jurisdiction, therefore, to inquire into the existence or extent of any alleged prerogative (t)."-------------.
Powers which have been specially conferred upon the Crown by virtue of statutes do not form part of the prerogative. It is, therefore, incumbent upon a person, who claims the right of pre ferring an appeal to His Majesty‑in‑Council from a decision of a Court‑Martial, to indicate the rule, maxim, or principle of Common Law whereby that prerogative bas been created. He cannot merely state that as the King is the fountain head of justice, the Privy Council is entitled to entertain appeals from all Courts is the exercise of all types of jurisdictions.
The point that requires determination in these petitions was specifically decided by the Judicial Committee of the Privy Council in the case of Mohammad Yakub Khan in 1947 L. R. 74 I. A. p. 8. Mohammad Yakub, who was a Commissioned Officer in the Indian Army, was tried by a Summary General Court‑Martial at Calcutta on charges of misappropriation of Government stores, embazzler4ent and insubordination. He was sentenced to 6 months, rigorous imprisonment and to be cashiered. The sentence was confirmed by the General Officer‑in‑Chief Commanding, Eastern Command. The petitioner in that case claimed that his conviction was bad owing mainly to the fact that the trial was vitiated by errors of law arid legal procedure, in that there had been illegal joinder of charges contrary to the provisions both of the Criminal Procedure Code and of the Indian Army Act which seriously hampered his defence. It was objected on behalf of the Crown that the petition was not competent and should not be heard. It was submitted that there was no jurisdiction in the Privy Council to hear cases of this kind before the judicial Committee Act of 1833 ; and that no jurisdiction had been created since the Act of 1833 to hear such appeals. It was also contended that there was no right of appeal under the prerogative from decisions of a Court‑Martial set up under the Indian Army Act. Mr. Pritt, Counsel for the Crown, contended that there was no trace any where of any law, statute, or instrument, allowing appeals from Court‑Martial to be brought before the Privy Council. It was urged that throughout the British Army and the Indian Army there never had been under the Courts‑Martial system any kind of appeal before a judicial tribunal. In reply, it was stated by the counsel for the petitioner that the Privy Council had entertained an appeal in 1746 in the case of Lt. Frye. It was urged that the case of Lt. Frye was clearly one in which an appeal was heard before the Privy Council and allowed, and that there was no suggestion that the sentence was remitted by the exercise of the prerogative of mercy. Reference was made by the counsel to Vol. 28 of the 2nd edition of Halsbury's Laws of England at p. 677, in this connection. When we turn to the foot‑note in Halsbury, the case is not described as Lt. Frye v. Crown, but as Frye v. Ogle. It is not stated anywhere that an appeal in this case was heard by his Majesty‑in‑Council or that the pro ceedings were quashed. The very heading of the case as given in Halsbury's Laws of England shows that it was a civil matter. The case is referred to in para. 1397 which deals with actions for damages which can be brought against members of Courts -Martial and Naval, Military, and Air Force authorities. This para. also deals with the civil rights and liabilities of sailors, soldiers, and airmen. It is obvious, therefore, that the action brought by Lieutenant. Frye was a Civil action or for damages. The counsel for the petitioner in Yakub Khan's case could not cite any other precedent for any principle of Common Law. The description of Frye v. Ogle given in the Manual of Military Law (Indian Reprint 1944) at p. 126 is in the following terms :‑---
"A well‑known case as to the liability of members of a Court‑Martial is Frye v. Ogle. Lieutenant Frye was brought to a Court‑Martial at Port Royal by his captain for disobedi ence, in refusing to assist another lieutenant in carrying an officer prisoner on board ship without a written order from the captain. Part of the evidence produced against him at the Court‑Martial consisted of depositions made by illiterate natives, whom he had never seen or heard of, and reduced into writing several days before he was brought to trial ; and upon his objecting to the evidence he was brow‑beaten and overruled. Lieutenant Frye was sentenced to 15 years' imprisonment, and declared for ever incapable of serving His Majesty. It is doubtful whether the act charged against him amounted to an offence but in any case the Court had only power to award two years" imprisonment. On his arrival in England, Iris case was laid before the Privy Council and the punishment remitted by his Majesty.
"Sometime afterwards he brought an action in the Court of Common Pleas against Sir Chaloner Ogle, the President of the Court‑Martial, and obtained a verdict in his favour for 1,000 damages."
This precedent cited by the counsel was ignored by the Privy Council, as evidently it had no bearing on the question that they were dealing with. It was held by their Lordships that the Indian Army Act intended the findings of a Court‑Martial as and when duly confirmed to be final, subject only to the power of revision for which the Act provided and there was, therefore, no room for an appeal to His Majesty in‑Council consistently, with the subject matter and scheme of the Act. Their Lordships laid particular emphasis‑on the fact that the question was not whether the pre rogative of the Crown had been taken away in respect of cases that were tried by Courts‑Martial, but that the real question for decision was whether the ordinary incident of appeal to the Crown ever attached to proceedings before a Court‑Martial by virtue of His Majesty's prerogative. I respectfully agree that the approach of their Lordships of the Privy Council is the correct approach in cases of this type, and that the petitioners cannot succeed without establishing that by virtue of the Common Law the incident of au appeal to His Majesty‑in‑Council ever attached to the decisions of a Court‑Martial at any time either in India or in England. The petitioners have invoked the jurisdiction of this Court, and they must bear the burden of substantiating their claim. They have utterly failed to do so.
The findings given above conclude these cases. I consider it, however advisable to deal with a number of reported decisions which were relied upon by the coups 1 for the parties as they contain some observations which have a bearing on the question involved in these petitions. It was contended on behalf of the Crown that the jurisdiction of His Majesty‑in‑Council to hear appeals from the Colonies extends only to appeals from the decisions of the highest Civil or Criminal Courts in the exercise of their ordinary Civil or Criminal jurisdiction. It was maintained that no appeal could be entertained by His Majesty‑in‑Council even from the decisions of the highest Civil Criminal Courts when such Courts were exercising a special jurisdiction or from Courts which could not be called in the ordinary sense the highest Civil or Crimi nal Courts of a Colony. Reference was made in this connection to para. 656 of Halsbury's Laws of. England Vol. 6 (Halsbury Edition). Reliance was also placed on the cases of Theburge v. Laudry (1876) A. C. p. 102, Moses v. Parker (1896) A. C. p. 245, and Strickland v. Grima (1930) A. C. p. 285. Some observations from the judgment of Lord Cairns in the first of these cases may be reproduced with advantage. The follow ing passage occurs at p. 106:‑---
"Their Lordships wish to state distinctly, that they do not desire to imply any doubt whatever as to the general principle, that the prerogative of the Crown cannot be taken away except by express words; and they would be prepared to hold, as often has been held before, that in any case where the prerogative of the Crown has existed, precise words must be shown to take away that prerogative."
At p. 108 their Lordships state as following :‑
"These are considerations which lead their Lordships not in any way to infringe, which they would be far from doing, upon the general principle that the prerogative of the Crown, once established, cannot be taken away, except by express words ; but to consider with anxiety whether in the scheme of this legislation it ever was intended to create a tribunal which should have, as one of its incidents, the liability to be reviewed by the Crown under its prerogative. In other words their Lordships have to consider, not whether there are express words here taking away prerogative but whether there ever was the inten tion of creating this tribunal with the ordinary incident of an appeal to the Crown."
It is clear from the above observations that the prerogative of the Crown to hear appeals does not extend to all cases and to all Courts. In this, case, even 4 decision of the Superior Court under the Quebec Controverted Elections Act; 1875, was not held to b5‑ appealable as the Superior Court was exercising a special jurisdiction which had originally vested in. the Legislative Assembly itself, and had then been transferred to the Superior Court.
The facts in Moses v. Parker (1896) A. C. 245 were that by Tasmanian Act No. 10 of 1858, section 5, disputes concerning lands yet un-granted by the Crown were referred to the Supreme Court, whose decision was to be final ; and by section 8 the Court was directed to be guided by equity and good conscience only, and by the best evidence procurable, even if not required or admiss ible in ordinary cases. The Court was not to be bound by strict rules of law, or equity, or by any, legal forms. It was held, in these circumstances, that the Crown's prerogative to grant special leave to appeal was inapplicable to a decision given under the Tasma nian Act. The following observations of Lord Hobhouse indicate that the Supreme Court was exercising a special jurisdiction, and that its decision was therefore not regarded as a judicial decision at all :‑
"They cannot look upon the decision of the Supreme Court as a judicial decision admitting of appeal. The Court has been substituted for the commissioners to report to the governor. The difference is that their report is to be binding on him. Probably it was thought that the status and training of the judges made them the most proper depositaries of that power. But that does not make their action a judicial action in the sense that it can be tested and altered by appeal. It is no more judicial than was the action of the commissioners and the governor. The Court is to be guided by equity and good conscience and the best evidence. So were the commissioners. So every public officer ought to be. But they are expressly exonerated from all rules ‑ of law and equity, and all legal forms. How then can the propriety of their decision be tested on appeal What are the canons by which this Board is to be guided in advising Her Majesty whether the Supreme Court is right or wrong It seems almost impossible that decisions can be varied except by reference to some rule ; whereas the Court making them is free from rules. If appeals were allowed, the certain: result would be to establish some system of rules; and that is the very thing from which the Tasmanian Legislature has desired to leave the Supreme Court free and unflattered in each case. If it were clear that appeals ought to be allowed, such difficulties would doubtless be met somehow. But there are strong arguments to show that the matter is not of an appealable nature.
Strickland v. Grima (1930) A. C. 285 deals with the Malta Constitution Letters Patent, 1921, which, provided by Art. 33 that "all questions which may arise as to the right of any person to be or remain a member of the Senate or the Legislative Assembly shall be referred to and decided by Our Court of Appeal in Malta." The Court of Appeal held that the election of the appellants was null and void, and special leave to appeal to His Majesty was granted. In these circumstances, it was held that the intention of the above article of the Letters Patent was to designate the Court of Appeal a special tribunal finally to determine all questions of the nature stated, without annexing to the jurisdiction the ordinary incident of an appeal to the Crown under the prerogative. Accordingly the appeal was dismissed.
All the three cases referred to above were cases where the highest Court of the Colony concerned was 'exercising a special jurisdiction and no appeal was entertained by His Majesty‑in -Council, as the Courts were not acting in the exercise of their ordinary civil or criminal jurisdiction. It is obvious that in view of the special nature of the jurisdiction which the Superior Courts had exercised in the above‑mentioned cases, it was held that the incident of an appeal by virtue of the Royal prerogative was not intended to attach to them. The various Acts under which the Supreme Courts had exercised jurisdiction were carefully examined, and from the nature of the enactments under consideration, it yeas observed that the object of the various enactments would be defeated unless the orders passed in the exercise of the special jurisdiction were not carried out expeditiously. An examination of the Indian Army Act would show that these considerations were present in the mind of the Legislature when the Army Act was enacted.
In the case of Meads v. the King (1948) F. C. R. 77 it was held by the judicial Committee of the Privy Council that the phrase "proceedings civil or criminal" in subsection (1) of section 270 of the Government of India Act, 1935, means only the civil or criminal proceedings capable of being instituted under the ordinary law of the land, and does not include proceedings under the military law. The previous sanction of the Governor‑General was therefore not necessary for the trial of any Army Officer by a Field General Court‑Martial. The following observations are of some assistance in the determination of the question under consideration.
"Secondly, the necessity for speedy punishment is stressed by the preamble to the Army Act, but if section 270, subsection 1, applies to Court‑Martial proceedings, the trial would inevitably be delayed. Nor does the difficulty end there, for if section 270, subsection (1), applies to Court‑Martial proceedings, it would seem that it must equally apply to proceedings before a Com manding Officer, in which he is empowered to award summary punishments. It is inconceivable that the legislature intended such proceedings to be delayed until the consent of the Governor- General had been obtained."
Their Lordships quoted with approval the observations of the Chief Justice of the Federal Court that "There was no halfway house. Either all proceedings under the Army Act are criminal proceedings within section 270 (1) or no Court‑Martial proceedings are. If all Court‑Martial proceedings under the Army Act are criminal proceedings‑within section 270 (1)‑there is no way to escape from the fantastic results which would follow from such a decision."
The provisions of the Army Act clearly show that sentences of Courts‑Martial were meant to be carried out expeditiously. In certain circumstances, a sentence of death can be carried out within a few hours after the sentence has been awarded. These consi derations cannot be ignored in determining whether the Common Law right of an appeal to His Majesty‑in‑Council ever applied to convictions recorded by Courts‑Martial.
On behalf of the petitioners, it was contended by Mr. Lari that a Court‑Martial was a Court and that His Majesty‑in‑Council had power under His Royal authority to review proceedings of criminal nature from all Criminal Courts in the British Empire, except where such power had been expressly taken away by statute: It was maintained that proceedings before Courts Martial were judicial proceedings of a criminal nature, and the decisions of the Courts‑Martial were therefore appealable to His Majesty- in‑Council. Reliance was placed in this connection on the case of Nadan v. The King 1926 A. C. 482. It was held in this case that section 1025 of the Criminal Code of Canada, if and so far as it was intended to prevent the King‑in‑Council from giving effective leave to appeal against an order of a Canadian Court in a criminal case, was invalid. The legislative authority of the Parliament of Canada as to criminal law and procedure, under section 91 of the British North America Act, 1867, was confined‑to action to be taken in Canada. Further, an enactment annulling the royal prerogative to grant special leave to appeal would be inconsis tent with the judicial Committee Act, 1833 and 1844, and therefore would be invalid under section 2 of the Colonial Laws Validity Act, 1865. The royal assent to the Criminal Code could not give validity to an enactment which was void by Imperial statute; exclusion of the prerogative could be accomplished only by an Imperial statute.
This case, in my opinion, is no authority for the proposition that section 3 of the judicial Committee Act of 1833 confers juris diction on His Majesty in Council to hear appeals from all Colonial Courts. In fact, in this case, reliance was placed by their Lord ships on section 1 of the Judicial Committee Act of 1844 which runs as follows :‑‑‑--
"Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that it shall be competent to Her Majesty, by any order or orders to be from time to time for that purpose made with the advice of her Privy Council, to provide for the admission of any appeal or appeals to Her Majesty- in‑Council, from any judgments, sentences, decrees, or orders of any Court of Justice within any British colony or possession abroad, although such Court shall not be a Court of Error or a Court of Appeal within such colony or possession."
If His Majesty‑in‑Council had jurisdiction to hear appeals from all Courts within the British Dominions including Courts Martial in exercise of the powers conferred by section 3 of the judicial Committee Act of 1833, it was unnecessary to enact section 1 of the Judicial Committee Act of 1844. The following passage from p. 491 (1) must be reproduced in extenso in order to understand the true import of this decision:‑
"The practice of invoking the exercise of the royal prero gative by way of appeal from any Court in His Majesty's Dominions has long obtained throughout the British Empire. In its origin such an application may have been no more than a petitory appeal to the Sovereign as the fountain of justice for protection against an unjust administration of the law; but if so, the practice has long since ripened into a privilege belonging to every subject of the King. In the United King dom the appeal was made to the King in Parliament, and was the foundation of the appellate jurisdiction of the House of Lords; but in His Majesty's Dominions beyond the seas the method of appeal to the King in Council has prevailed and is open to all the King's subjects in those Dominions. The right extends (apart from legislation) to judgments in criminal as well as in civil cases: see Reg v. Bertrand L. R. I. P. C. 520". It has been recognised and regulated in a series of 'statutes, of which it is sufficient to mention two, namely, the Judicial Committee Act, 1833 (3 & 4 Will. 4, c. 41), and the Judicial Committee Act, 1844 (7 & 8 Vict. c. 69).. The Act of 1833 recites that "from the decisions of various Courts of judicature in the East Indies and in the Plantations, Colonies and other Dominions of His Majesty abroad, an. appeal lies to His Majesty‑in‑Council," and proceeds .to regulate the manner of such appeal; and the Act of 1844, after reciting that "the Judicial Committee, acting under the authority of the said Acts (the Act of 1833 and an amending Act) bath been‑found to answer well the purposes for which it was so established by Parliament, but it is found necessary to improve its pro ceedings in some respects for the better despatch of business and expedient also to extend its jurisdiction and powers," enacts (in section 1) that it shall be competent, to Her Majesty by general or special order in Council to "provide for the admission of any appeal or appeals to Her Majesty‑in‑Council from any judgments, sentences, decrees or orders of any Court of Justice within any British Colony or Possession abroad." These Acts; and other later statutes by which the constitution of the judicial Committee has from time to time been amended, give legislative sanction to the jurisdiction which had previously existed."
No Order in Council made under section 1 of the judicial Committee Act of 1844 has been brought to our notice whereby His Majesty had provided for the admission of any appeal from any judgments or sentences of Courts Martial. It is only after such an Order had been made that His Majesty‑in‑Council could entertain and determine in accordance with the provisions of the Judicial Committee Act of 1833 all appeals in respect of matters covered by the Order in Council. Nadan had been con victed by a Police Magistrate in Alberta on two charges. These convictions were affirmed by the Supreme Court of Alberta. The observations of the judicial Committee must, therefore, be taken to be limited in their application to ordinary criminal cases decided by a colonial Court in the exercise of its ordinary criminal jurisdic tion.
Another case which has some bearing on the question under consideration is In re. The Will of Wi Matua (1908) A. C. pp. 448, 449, 450. The facts of this case were as follows: In 1894 a Native Appellate Court was set up in New Zealand, the already existing Native Land Court being expressly continued. To these Courts the Legislature had given exclusive jurisdiction over the civil rights of natives in land and in matters of suc cession, probate and administration. The object of the legislation was to provide for the determination of disputes among those natives according to their own customs, so far as these were not repugnant to the general principles of humanity. The 93rd section of the Act of 1894 (No. 43 of 58 Vict.) declared that the decisions of the Native Appellate Court shall be final and conclusive. There was no express exclusion of His Majesty's pre rogative.
An objection was taken in the. Privy Council that no appeal lay to His Majesty‑in‑Council from the decision of the Native Appellate Court. Their Lordships repelled the objection with the following words-‑
"The difference between those cases (i.e. Theburge v. Laudry (1876) 2 A. C. 102 and 11 loses v. Parker (1896) A. C. 245 and the present is of the broadest and most essential kind. In them the subject‑matter of the protected jurisdiction connoted func tions conferred on the Court by statute which would not otherwise have belonged to it as the general distributor of justice. In the one case Theberge v. Laudry the subject matter was actually a part of the privilege of Parliament, and therefore, entirely alien to the Legion of prerogative. In the other case, the duties imposed on the Court were truly not judicial, but administrative, in their nature, and historically they had been originally vested in an administrative commission.
"Turning to the present case, their Lordships have to deal with rights which are the ordinary legal rights of subjects of the King. The legal rights of this particular people in the matters of land, succession, and probate are subjected to the newly‑created tribunal. But for the creation of this Court the Law Courts would have had to determine those rights as best they could, and an appeal would clearly have lain to His Majesty. The exclusion of the right to appeal to His Majesty would, therefore, be a forfeiture of existing rights on the part of Sovereign and subject."
The conclusion to be drawn from the above‑quoted observa tions is that ordinarily an appeal lies to His Majesty‑in- Council from the highest Civil and Criminal Courts in a Colony when they are exercising their ordinary criminal or civil juris diction if the highest Courts are exercising a special juris diction, no appeal lies to His Majesty‑in‑Council. On the other hand, if a special Court is created, and the ordinary legal rights of the citizens are made the subject‑matter of adjudication by such a Court, the decision is appealable to His Majesty‑in‑Coun cil on the ground that the special Court is dealing with the ordinary legal rights of subjects of the King, and that the exclusion of the right to appeal to‑His Majesty would amount to a forfeiture of existing rights relating to appeals.
Even if it be conceded that Courts‑Martial are Courts, and that the proceedings before Courts‑Martial relate to criminal matters, it cannot be held that a right of appeal to His Majesty- in‑Council attaches to the decisions of a Court‑Martial, unless it is shown that such a right attached to these decisions prior to 1833 by virtue of some law, statute, or custom, so as to attract the provisions of section 3 of the Judicial Committee Act of 1833. If it be held that no right of appeal to His Majesty‑in‑Council existed in respect of the decisions of Courts. Martial, it is obvious that the Army Act did not bring such a right into existence. The Army Act intended the findings of a Court‑Martial as and when confirmed by the proper confirming officer to be final, subject only to the power of revisions for which the Act provides. In the words of Lord Thankerton "There is no room for an appeal to His Majesty‑in‑Council con sistently with the subject‑matter and scheme of the Act."
Mr. Manzur Qadir, counsel for the Crown, contended that even if the incident of an appeal to His Majesty‑in‑Council, by virtue of the Royal prerogative, attached to the decisions of Courts‑Martial, that right had been taken away by the enact ment of Indian Army Act. Mr. Lari, counsel for the petitioner, on the other hand, urged that such a right could not be taken away except by express words, and by a legislature competent to alter an Imperial statute, and that in fact the Indian Army Act, or the Indian Air Force Act, had not taken away such a right. It is unnecessary to determine this question, in view of the findings at which I have already arrived. Both these petitions are dismissed.
Two petitions for special leave to appeal against two sentences passed by two General Courts‑Martial, one appointed under the Indian Army Act, 1911, and the other under the Indian Air Force Act, 1932, against two persons were presented to this Court. One of the General Court‑Martial appointed under the former Act had passed a sentence of death against Muhammad Nawaz, while the other appointed under the latter Act had passed a sentence of imprisonment .for six months against R. H. Shah. In view of the identical nature of preliminary objections raised on behalf of the Crown, by the Advocate‑General of Pakistan in Shah's petition and by Mr. Manzur Qadir in the petition filed on behalf of Muhammad Nawaz, as to the competency of these petitions, the short question that arises for determination is whether they are maintainable
Inasmuch as section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950, has conferred the same jurisdiction on this Court as the judicial Committee of the Privy Council (i.e., His'‑Majesty‑in -Council) had by virtue of His Majesty's prerogative or otherwise immediately before the 1st May, 1950, the question referred to above depends for its answer on the ascertainment of jurisdiction possessed by the Judicial Committee to deal with such petitions up till that date. Not to mention the advisory jurisdiction conferred on the Judicial Committee which could only be invoked at the instance of His Majesty alone under section 4 of the judicial Committee Act 1833, 3 and 4 Will. c. 41 (hereinafter referred to as the Act) or under the amending Acts, the jurisdiction which their Lordships could be called upon to exercise at the request of an aggrieved party, is contained in section 3 of the Act. It reads as follows :‑----
"Appeals to King‑in‑council from sentence of any judge, etc., shall be referred to the committee, to report thereon...All appeals or complaints in the nature of appeals whatever, which either by virtue of this Act, or of any law, statute, or custom, may be brought before His Majesty‑in‑Council from or in respect of the determination, sentence, rule, or order of any Court, judge or judicial Officers and all such appeals as are now pending and unheard, shall from and after the passing of this Act be referred by His Majesty to the said judicial Committee of his Privy Council, and such appeals, causes and matters shall be heard by the said judicial committee, and a report or recom mendation thereon shall be made to His Majesty‑in‑Council for his decision thereon as heretofore, in the same manner and form as has been heretofore the custom with respect to matters referred by His Majesty to the whole of his Privy Council or a committee thereof (the nature of such report or recommendation being always stated in open Court)."
As the jurisdiction exercised by the Judicial Committee of the Privy Council, ever since sections 1 and 3 of the Act have been brought on the statute book, is purely statutory, I first propose to examine the point whether ‑the Courts‑Martial (as distinguished from Martial Law' Courts) fall within the term "Court" as used in the Act.
In the absence of a definition of that term in the Act or in the Interpretation Act (52 and 53 Vict. C. 63) and having regard to the object with which this enactment (3 and 4 Will.+ c. 41) was passed; one must give to it as wide a meaning as can be legitimately done. Amongst other things to which the term "Court" applies, it has been (in accordance with the meaning of that term given in New English Dictionary, Vol.‑ 11. pp. 1090, 1091) stated in the foot‑note to para. 1 of the 9th Volume of Halsbury's Laws of England (1st edition) to consist of, "An assembly of judges or other persons legally, appointed and acting as a tribunal to hear and determine any cause, civil ecclesiastical, military, or naval." Applying this ordinary dictionary meaning to the term (and not to speak of explanation 1 to section 193 of the Pakistan Penal Code, or of section 195 of the Indian Evidence Act, which cannot be called in aid to construe a Parliamentary ' statute), and keeping in mind the other terms Judge or judicial Officer' referred to in section 3 of the Act, which must, in' my opinion, be taken to have been employed ejusdem generis, and having regard to the duties entrusted to and discharged by Courts Martial -General, District or summary as soon as they were or are brought into being in consequence of section 96 of the Government of India Act, 1813 (53 Geo., c. .155) or as a result of section 73 of the Government of India Act, 1833 (3 & 4 Will. 4, c. 85), which remained in force under section 22 of the Indian Councils Act, 1861(24 and 25 Vict. c. 67), and even under the Government of India Act, 1915.(5 and 6 Geo. 5, c. 61), I am of the view that the term "Court" in the .Act was intended to include Courts Martial as distinguished from Martial Law Courts. The latter are created by the will of the commander appointed to govern a territory or an army, either in time of war or when due to turmoil or disturbed conditions prevailing at the time, Civil Government comes to an end and extraordinary steps are taken to maintain public order. The 'Martial Law Courts' are essentially‑ no Courts at all, and as observed by the Earl of Halsbury an "attempt to make these proceedings of the so‑called 'Courts‑Martial' administering summary justice under the supervision of a military commander, analogous to the regular proceedings of Courts of justice is quite illusory. "(See Tiloko v. Attorney‑General of Natal. 1907 A. C. 93. They exist as such neither by statute nor by any law, are created by the will of the commander; their proceedings are executive in character and are defensible by necessity alone. The Courts Martial (sitting under what is called the Military Act in England, or under similar Acts known as the Indian Army Act, 1911, the Indian Air Force Act, 1932 and other cognate measures) are, on the other hand, brought into existence by means of statutes which authorise them to decree cases placed before them and to pass orders or sentences in accord ance with law.
I cannot, therefore, assent to the contention put forward by the Advocate‑General of‑Pakistan that Courts Martial do not fall within the term "Court" as employed in section 3 of the Act (which section he curiously enough insisted on characterising. in his arguments as a merely 'procedural section' although having been created by section 1 of the Act, the jurisdiction to hear appeals, causes and matters was vested for the first time in the Judicial Committee of the Privy Council by virtue of section 3 of the Act). Reliance was placed by him on the decisions of the Federal Court of India and that of their Lordships of the Judicial Committee on appeal in A. W. Meads v. The King‑Emperor (1944) F. C. R. 355; 65, Ind. Ap. 185. They are inapplicable to the present case as the Federal Court of India and their Lordships of the Judi cial Committee were then concerned with the interpretation of the term 'proceedings civil or criminal' used in section 270 of the Constitution Act. It is noteworthy, however, that in view of the speeches made by their Lordships in re., Clifford and O'Sullivan and Amand v. Home Secretary, (1921) A. C. 570, (1943) A. C. 147, the learned judges of the Federal Court stated that in certain contexts the phrase criminal proceedings' would be held to include Court Martial proceedings. This was also conceded before their Lordships of the Judicial Committee by Sir Walter Monckton, who appeared for the Crown, at p. 196 of the report and the concession finds a place in the advice tendered by their Lordships to His Majesty. I am, therefore, of the view that the term Court as used in the Act, covers the Courts Martial appointed under the Army Act, English or Indian.
Having regard to the object for which they are created, the functions which they perform and the sentences which they can pass, I have no hesitation in holding that they are Criminal Courts, and the proceedings before them are those of a criminal character, although they were held in Mead's case (1944) F. C. R. 355 not to be criminal proceedings' within the meaning of one particular section of the Constitution Act.
It was also urged on behalf of the petitioners that the nature of jurisdiction exercised by these Courts in respect of offences which had been either declared to be so by the civil Laws of the country and were made punishable by the military law as well, or even in respect of offences which are made indictable under the military law alone, is the same. The nature of jurisdiction, in their counsel's submission, be hold to change simply because certain persons could, on account of their service and agreement, be legally tried by Courts Martial; or because on account of exigencies of their service, they had agreed to submit or had been subjected to additional liability by the military law for certain offences, which were not otherwise punishable. It is true that the ordinary criminal Courts would have been, in the absence; of special tribunals provided by the enactments like the Indian Army and the Air Force Acts, fully competent to deal with the persons subject to military law even for the breach of military laws had the offenders been placed before them for being tried just as they try a large number of persons charged with offences under special Acts. But it is not possible for me to accept this contention when ‑I find that a special tribunal has to be creates under these Acts for trying certain offences whether they had been declared so by the ordinary laws of the land or not and that tribunal is equipped with the necessary jurisdiction to deal with them. The fact that the jurisdiction of ordinary criminal Courts has not been taken away is significant. They are competent to try persons over again even if they have been punished or acquitted by Courts Martial (section 71 of the Indian Army Act 1911) although in passing sentences they are directed to take into consideration those already awarded by Courts Martial. Moreover, the procedure provided by the Indian Army and Air Force Acts is peculiar. They are not, like juries, required to give reasons for their findings and their sentences have in cases tried by District and General Courts Martial got to he confirmed before they can be effective (see sections 94 and 96 of the Indian Army Act). Even in Summary Courts Martial they are required to be confirm, s in certain cases (see section. 98 of the Indian Army Act; These peculiarities would go to show that the jurisdiction exercises by these Courts has not been derived by them from ordinary Courts of the land. And when it is remembered that the object with which they are created may, in certain cases, be frustrated or even defeated when, it could not but have been intended, in certain circumstances at least, that the cases before them should be disposed of expeditiously and in some cases sentences passed by them executed immediately, without a possibility of recall, it would not, in my view, be possible to accept the contention that the jurisdiction exercised by the Courts Martial is not a new one and that they are exercising the same jurisdiction as is being exercised by ordinary Courts. Whether an incident of appeal attaches to the exercise of their jurisdiction is, however; a different matter and will have to be dealt with separately and decided on different considerations.
In view of what I have said, it is unnecessary for me to decide whether the officers presiding over such courts fall within the definition of the term Judge or Judicial Officer' as used in the Act, although I am, as at present advised, inclined to the view that they would be covered by the one or the other, if not by both, at the time when they are functioning in that capacity.
The next question then is whether the judicial Committee had, under section 3 of the Act, power to entertain appeals or to grant special leave to appeal, if a person convicted and sentenced by such a tribunal in Pakistan, were to have approached it before the 1st May, 1950 The decision of their Lordships in Yaqub Khan's case,(1947) L. R. 74 1. A. p. 8 on which great reliance was placed on behalf of the Crown, gives an answer in the negative. It was held in that case that having regard to the subject matter and scheme of the Indian Army Act, 1911, there was no room for an appeal to His Majesty in Council "as that Act had" intended the findings of a Court Martial as and when confirmed by the proper confirming officer, to be final." It may, however, be observed that their Lordships were not dealing in that case with the competency of the. Judicial Committee to deal with decisions of Court Martial generally but only with the competency of appeals under the Indian Army Act, 1911. The question whether the decision of a Court Martial was intended by the Indian Army Act to be final did arise in that case; but the further question whether the Indian Legislature was competent to pass an Act which could, expressly or by necessary intendment, preclude His Majesty or His Majesty‑in‑Council from exercising the power to entertain, an appeal either because the Indian Legislature had plenary powers of legislation in that matter, of the same nature and as large as enjoyed by the British Parliament, or because it had been authoris ed to legislate by the Parliament and the Crown had, therefore, itself agreed to surrender its jurisdiction under section 3 of the Act, do not appear to have been canvassed before their Lordships and did not arise for a decision. 'Had their Lordships undertaken the task of going into those matters, not only from the point of time when the Indian Army Act was legislated and from the point of view of the scheme of the Indian Army Act, but also as to their own competency to hear appeals from the decisions of Courts Martial, or of the competency of the Indian Legislature to pass an enactment (Indian Army Act) of the nature such as had been deduced by them from a study of its provisions, the pronouncement would not have been only entitled to great respect but had been of considerable help to me in deciding this case. In the absence of any consideration bestowed upon these matters, however, the decision of their Lordships, although naturally entitled to very great respect and even helpful to the limited extent that it goes, does not seem to be capable of being pressed into service any further.
The competency of appeals to the judicial Committee from sentences passed by Courts Martial generally, has to be determined with reference to‑section 3 of the Act, whilst the competency of the Indian Legislature to make the decisions of Courts Martial appointed under the Indian Army Act, 1911, would depend on (a) whether it had the power to take away the right of His Majesty‑in- Council to entertain an appeal from the decision of the Court Martial and (b) if the Judicial Committee is found to have juris diction to hear such appeals under section 3 of the Act, whether such jurisdiction had in fact been taken away by the Indian Army Act, 1911, and the Indian Air Force Act, 1932
Addressing myself, therefore, first to the question as to the competency of the judicial Committee to entertain an appeal from the decision of a Court Martial, I find that section 3 of the Act provides that "All appeals or complaints in the nature of appeals whatever, which either by virtue of this Act, or any law, statute, or custom, may be brought before His Majesty or His Majesty‑in‑Council 'from or in respect of the ..sentence of any Court, Judge or Judicial Officer shall from and after the passing of this Act be referred by His Majesty to the said Judicial Committee of his Privy Council "Having come to the conclusion that the term Court' referred to in the section covers Courts Martial' as well, the next question that falls to be decided is whether an appeal could be laid before the Judicial Committee either by virtue of the Act, or of any law', statute' or 'custom' In the absence of any specific provision in the Act which would allow appeals from decisions of Courts‑Martial to His Majesty or His Majesty‑in- Council, the right of an aggrieved party to prefer an appeal against the decision of a Court‑Martial must depend upon "law, statute, or custom" referred to in that section : and since no suggestion has been made by the parties before us that it lay under any statute' or custom', the existence or non‑existence of that right would depend, firstly, on ascertaining the meaning of the term law' as used in the Act, and secondly, on the determination whether an appeal was entertainable within the meaning of that term
It was argued on behalf of the petitioners that the term law' has been used in the Act in a generic sense and would include both the Common Law of England and the prerogative right of the King under which these appeals could have been heard by His Majesty or His Majesty‑in‑Council before the Act was brought into force. It has been contended on the other hand that whatever may have been the source or 'prerogative' of the Kings of England as a matter of history, it is now created and limited by the Common Law of England and that the term law' has been used in the Act in that sense only.
The prerogative was defined by Blackstone as "special pre eminence which the King hath over and above all other persons, by virtue of the Common Law, but out of its ordinary course, in right of his royal dignity". Dicey has given a slightly different definition, which has met with the approval of the House of Lords (in Attorney General v. De Keyser's Royal Hotel) (1920) A. C. 508. According to Dicey, the prerogative "appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown" "The present state of the prerogative", as stated by Keith in his work on Constitutional Law (7th edition) at p. 201" is the result of a long and bitter struggle between the Crown and Parliament to fix its limits, whose course is marked by the four 'great statutes, viz., Magna Carta, 1215; the petition of right, 1628 ; the bill of rights, 1689, and the Act of Settlement, 1701. With the last of these the struggle was practically ended, and the limits of the prerogative were fixed in accordance with the popular will".
There may be a slight difference between the definitions of prerogative given by Blackstone and by Dicey, but it is hardly necessary to go into that difference minutely for, in the present case, we are not concerned with merely the prerogative which, being a, right, could not as such be regarded to be the law, although like custom, it may also form the source of law and find expression in the decisions of the judges in England. Once that right has been recognised by them (and they professedly make no attempt to create it), it comes to be known as common law. This is, I take it, the reason why the Common Law of England is loosely described as judge‑made law. It appears to me that the term 'law ' has been used in section 3 of the Act in that sense. Whether the prerogative is, as contended for on behalf of the respondent, created by virtue of (and thus limited by) Common Law or connotes the residuary powers legally, left in the bands of the Crown it appears to be fairly clear that a Sovereign can claim no prerogative except such as the law recognises or in other words as the judges have found it to exist and thus declared to be the law. This is, I understand, the effect of the word " legally " even in Dicey's definition.
In ascertaining the extent .of the prerogative, therefore, as to the King's right to entertain an appeal in respect of decisions from Courts Martial, one must necessarily turn to the Common Law of England, regardless of the fact whether the trial by a Court Martial, was held in one of His Majesty's possessions, as British India was until August, 1947, or in any of the Colonies or Dominions or in England itself, for the right to hear an appeal must be found to exist in England, where the King resides and exercises his privileges and where the Judicial Committee sat, and sits, to discharge its functions under the Act.
It is not possible to lose sight of the fact that the powers with which this Court has been clothed by section 3 of the Privy. Council (Abolition of Jurisdiction) Act, 1950, to adjudicate on Pakistan petitions and appeals, were limited to those which had been exercised by His Majesty‑in‑Council (i.e., the judicial Committee) before the 1st May, 1950, whether by virtue of His,, Majesty's prerogative or otherwise. That is why the counsel for the petitioners strenuously contended that the Sovereign being a source and fountain of justice and being the head of the law as well as of the army, a presumption should be raised in favour of the King having the prerogative right to entertain an appeal from the decision of the highest Courts in India‑whether civil or military and that his residuary powers must be found to continue to exist unless they were shown to have been expressly barred or surrendered. It was, therefore, urged that the judicial Committee has had the powers to entertain appeals from the sentences passed by the Courts Martial since 1833 and that His Britannic Majesty and His Majesty‑in‑Council had possessed these powers by virtue of the prerogative before the Act. In short the contention is that the Sovereign had always had the power to entertain appeals from every decision of the highest Court and that these powers used to be exercised by him through his council before 1833 and through the Judicial Committee of the Privy Council afterwards. It was denied that this power had never been parted with or surrendered by the King. The absence of reported cases was attempted to be explained away by the fact that the Courts Martial in England had no authority to try serious cases of murder, manslaughter, treason, felony or rape committed in United Kingdom and that the offences of murder culpable homicide not amounting to murder and rape, committed in peace time, could not be tried by such Courts in India until 1934. Reliance was placed on behalf of the petitioners in this connection on the case of Lieut. Fry referred to in the counsel's arguments in Yaqub Khan's case, (1947) L. R. 74 I. A. 8 ; on Arnold v. The King Emperor, (1914) L. R. 41 I. A. 149 ; Falkland Island Company v. The Queen, 15 Moo P. C. (E R.) 713; The Queen v. Joykissan Mukerji, 9 M. I. A. 172, at p. 195 ; Charles Cushing v. Dupuy, (1880) 5 A. C. 409 ; Nadan v. The King, (1926) A. C. 482, at. p. 491 ; Moses v. Parker,, In the matter of the will of Wimatua and on paragraph 1158 of Vol. XXVIII of Halsbury's Laws of England (2nd edition).
It was admitted on behalf of the Crown that the prerogative, if once found to exist, cannot be taken away except by express words of a competent legislature ; but it was submitted that it was wrong to assume that the prerogative existed with reference to all species of jurisdiction. It was, therefore, urged that a special inquiry would have to be made in order to ascertain whether the incident of prerogative appeal does or does not attach to the particular jurisdiction under consideration And in so far as the jurisdiction only to entertain and to dispose of Pakistan appeals and petition's has been conferred on this Court under section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950, and that jurisdiction had been exercised by the judicial Committee under section 3 of the Act, we must necessarily confine our investigation to that jurisdiction alone and ascertain whether the Judicial Committee had ever had the right to entertain and dispose of appeals against the sentences passed by Courts Martial by virtue of the Royal Prerogative The existence of such a prerogative was vehemently denied. In support of these contentions our attention was invited on behalf of the Crown to the following cases and references :‑
(1) Joseph Theberge and another v. Philippe Laudry, 1876 (2) A. C. 102 ;
(2) Strickland v. Giuseppe Grime, (1930) A. C. 285 ;
(3) British Coal Corporation v. The King, (1935) A. C. 500 ;
(4) Maharaja Madho Singh v. The Secretary of State, L. R.
(5) Dawkin v. Lord Rokbey, 176 E. R 800 ;
(6) Jhonston v. Sutton, I. R. R. 257 ;
(7) Grant v. Gould, 3 R. R. 343 ;
(8) Yaqub Khan v: ‑The King Emperor, (1947) L. R. 74
(9) Halsbury's Laws of England, Vol. VI, paragraphs 544, 608, 649 and 657.
This brings me to an examination of cases and authorities cited by either party with the object of ascertaining whether the King had ever exercised his prerogative and allowed an appeal from the sentences passed by Courts Martial to be entertained by his Privy Council before the Act, or by the Judicial Committee of his Privy Council afterwards Apart from the case of Lieut. Frye referred to in 'the arguments before their Lordships in Yaqub Khan v. The King Emperor, (1947) L. R. 74 I. A. 8; all other cases are of a period after the Act had come into being. I must, therefore, try' and find out if these cases are of any help in coming to the conclusion whether the judicial Committee had either determined any petition or appeal in regard to any case decided or sentence passed by any Court‑Martial, or had ever expressed themselves in such a manner as to make it clear that they had jurisdiction so to do. It was conceded on behalf of the petitioners that with the exception of the cases of Lieut. Frye and Yaqub Khan, no other, case has been reported which would show that their Lordships had an occasion to review the decision of a Court‑Martial. But it was nevertheless argued that they had expressed themselves in such a manner as would lead one to conclude that they possessed the necessary jurisdiction to entertain an appeal in the exercise of Royal Prerogative. Reliance was placed on Joykissen Mookerjee's case 9 M. 1. A. 172 at p. 191 where in delivering the judgment of the Board, Dr. Lushington observed at p. 191 "that no expression should fall from them which in the slightest degree would throw doubt on the existence of that prerogative, not only under the existing circumstances, but in others which might arise, with reference to the other dominions of the Queen which may have been acquired by conquest:' Similarly it was observed by Lord Kingsdown in Falkland Island Company s case 15 Moo. P. C. (E. R.) 713 that "it may be assumed that the Queen has authority, by virtue of Her Prerogative, to review the decision of all Colonial Courts, whether the proceedings be of a civil or criminal character, unless Her Majesty has parted with such authority", and by Lord Shaw in Arnold's case (19:4) L. R. 41 I. A. 149 that "the power of His Majesty under his Royal Authority to review proceedings of a criminal nature, except where such power and authority have been parted with by statute, is undoubted." It is, however, not possible for me to read these observations, general as they are, detached from the facts of the cases in which they were made. All the three cases were decided by ordinary Criminal Courts in the exercise of their ordinary criminal jurisdiction and. it is not reasonable to infer that their Lordships had anything like the proceedings of Courts‑Martial‑criminal as I have held them to be‑in mind when the observations referred to above had been made by them. It is not possible for me to tear them from their context and to apply them to an entirely different type of cases. I cannot see how can the decision in Moses v. Parker (1896) A. C. 24S be of any help to us in the present case. It appears to be unneces sary to give the facts in great detail. Suffice it to say that the reports to be made by Commissioners before 1858 in respect of claims to land in Tasmania vested in the Crown were to be merely in accordance with equity and good conscience'. The Commis sioners were expressly relieved from all rules of law, all technicalities and legal forms in submitting their reports to the Governor: The Tasmanian Legislature thought it right to transfer the jurisdiction possessed by the Commissioners to the Supreme Court by Act 10 of 1858. Its report could, however, in no sense be regarded to be judicial and inasmuch as the Court was expressly exonerated from all rules of law and equity and all legal forms, the correct ness of its opinion could not be possibly tested and altered by appeal. It was in these circumstances that a petition for leave to appeal against the conclusion of the Supreme 'Court was not entertained by the Judicial Committee as it was found that, while dealing with claims to land under Act 10 of 1858, it (the Supreme Court of Tasmania) was functioning as a non‑judicial body.
The decision in Cushing v. Dupuy L. R. 1880 (5) A. C. 409 may be an authority for the propositions :‑---
(a) that the power of the Crown to admit an appeal as an act of grace i. e. by virtue of the prerogative, can only be taken away by express word;
(b) that section 91 of the British North America Act, 1857, is assigning to the Dominion Parliament the subjects of bankruptcy and insolvency, intended to confer and did confer on it legislative power to interfere with property, civil rights etc , and that consequently section 28 of the Dominion enactment (40 Viet c, 41) providing that the judgment of the Court of Appeal in matters of insolvency should be final i. e , not subject to appeal as of right to Her Majesty‑in‑Council allowed by Art. 1178 of the Civil Procedure Code is within the competence after Canadian Parliament; and
(c) that a provision such as contained in .the 28th section in an Act of the Parliament of Canada (40 Viet. 2,41) to the effect that the judgment of the Court to which, under this section, the appeal can be made shall be final, does not trench on the Royal prerogative although it may prohibition appeal as of right to Her Majesty‑in- Council allowed by Article 1178 of the Code of Civil Procedure of that Dominion.
But I do not see how this decision can help the petitioners when any scheme for the administration of insolvent estate trust, as pointed out by their Lordships, necessarily interfere with and modify some of the ordinary rights of property and other civil rights. And the Courts which were dealing with those rights must be found to have been exercising their ordinary civil jurisdiction. Those Courts were not special Courts brought into existence by any special statute for any special purpose. They were the ordinary Courts of the land which were exercising their ordinary functions and no parallel can be drawn between such Courts and Courts‑Martial which are special Courts and exercise a. new and special jurisdiction created by the Mutiny or Army of England and India.
Similarly in the absence of an express exclusion of His Majesty's prerogative in the Act of 1894 (No. 43 of 58 Viet.), which had declared the decisions of the Native Appellate Court in New Zealand to be "final and conclusive" and which had conferred on it exclusive jurisdiction over the civil rights of natives in land and in matters of succession, probate and administration, it was held in re the will of Wimatua, (1908) A. C. 448, the right to appeal to His Majesty was still intact, that their Lordships had to deal with the ordinary legal rights of subjects of the King and that the Native Appellate Court had not, in dealing with the matter, exercised any special jurisdiction. This case was obviously cited on behalf of the petitioner for the quotation printed at the bottom of p. 449 of the report‑but the words "that in any case where the prerogative of the Crown has existed" appear to have been missed.
As to Nandan v. The King, (1926) A. C. a great deal of emphasis was laid on behalf of the petitioners on the following observation of their Lordships of the Judicial Committee appearing at p. 491. of the report :‑--
"The practice of involving the exercise of the Royal prerogative by way of appeal from any Court in His Majesty's Dominions has long obtained throughout the British Empire. In its origin such an application may have been no more than a petitory appeal to the Sovereign as the fountain of justice for protection against an unjust administration of the law ; but if so, the practice has long since ripened into a privilege belonging to every subject of the King. In the United Kingdom the appeal was made to the King‑ in Parliament, and was the foundation of the appellate jurisdiction of the House of Lords but in His Majesty's Dominions beyond the seas the method of appeal to the King‑in‑Council has prevailed and is open to all the King's subjects in those Dominions. . The right extends (apart from legislation) to judgments in criminal as well as in civil cases: see Reg. v. Bertrand." L. R. 1 P. C. 520.
and it was strongly contended that the right to appeal to His Majesty in all criminal cases‑including the cases before the Courts -Martial‑which have now been found by me to be criminal in character‑was admitted.
It must, however, be pointed out that nothing was said in this case with reference to cases heard by Court‑Martial. Moreover, it must be remembered that the appeal was against two convictions made by a Police Magistrate presiding over an ordinary Criminal Court in Alberta, convicting the petitioner of having intoxicating liquor in his possession within the province without having the package officially sealed and for transporting the same through the Province otherwise than by means of a common carrier by water or by rail. This conviction was upheld‑on appeal subject to a minor alteration in regard to the second conviction. Leave was, however, granted by the Appellate Court to appeal to His Majesty in Council. At the hearing before their Lordships of the Judicial Committee it was contended by His Majesty's Attorney‑General and the Attorney‑General of Canada that the Appellate Court had no jurisdiction to grant leave to appeal as the King had assented to the British North America Act, 1867, and the Parliament of Canada had, therefore, complete legislative power in the matters in respect of which the legislative authority was given by the British North America Act. This contention was not upheld by their Lordships of the Judicial Committee. It was pointed out by Viscount Cave, who delivered the judgment on behalf of the Board, that section 1025 of the Canadian Criminal Code, if and so far as it had intended to prevent the Sovereign‑in‑Council from giving effective leave to appeal against the order of a Canadian Court, was repugnant to the Judicial Committee Acts of 1833 and 1844 and was, therefore, void and inoperative by virtue of section 2 of the Colonial Laws Validity Act, 1865 (28 and 29 Viet., c. 63). The Statute of West minister of 1931 (22 Geo. v, c. 4), I may say in passing, had not by then been enacted and the Dominion Legislature were still subject to the limitations imposed by the Colonial Laws Validity Act.
It may be observed, however, that in extending the jurisdiction and powers of the Judicial Committee section 1 of the Judicial Committee Act, 1844 (7 and 8 Viet., c. 69), enacts that it shall be competent to Her Majesty by General or Special Order in Council to "provide for the admission of any appeal or appeals to Her Majesty‑in‑Council for any judgments, sentences, decrees or orders of any Court of Justice within any British Colony or Possession abroad." Now Courts‑Martial may be Courts and covered by the expression Courts of Justice', as employed in the Statute; and it was open to the Crown under this Statute to provide for an appeal against the decisions of Courts‑Martial, had it chosen so to do, but it was not done. Moreover the Judicial Committee Acts of 1833 and 1844 and other later statutes by which the constitution of the judicial Committee has from time to time been amended, as stated at p. 492, "give legislative sanction to the jurisdiction which had previously existed." And it is the extent of that jurisdiction that I am trying to ascertain from the decisions of various cases.
Reliance was, also placed on paragraph 1158 of the XXVIII Vol. Of Halsbury s Laws of England (2nd edition). It reads as follows:---
No provision is made in the Naval Penal Code for appeals either on the law or on the facts from the findings of naval Courts‑Martial. In practice the minutes of all Courts‑Martial are referred to the judge Advocate of the Fleet for‑his report. On this report the Admiralty acts as it may be advised.
It is submitted, however, that there is an inherent right of appeal to the Crown.
The question of jurisdiction may, in many cases, be tested by an action for false imprisonment, or by application for writ of habeas corpus ; but it is submitted that no prohibition lies to a naval Courts Martial, for it ceases to exist as soon as sentence is pronounced.
No instance exists of a writ of certiorari being granted to bring up the sentence of a naval Court‑Martial", (para. 1158).
It was contended by the counsel for the petitioners, on the strength of the second sub‑clause, that there was inherent right of appeal to the Crown in regard to the decisions of Courts. Martial. That might or might or might not have been so, but it must be remembered that in view of the terms of section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950, we are only concerned with such right as the Privy Council i. e., the judicial Committee of the Privy Council possessed by virtue of His Majesty's prerogative or otherwise and not merely with such rights as a party to the Court Martial proceedings possessed to appeal to the Crown. It may be that if a party did so appeal, the King might have had the power to ask his Privy Council or possibly the Army Council to advise him as to what he should do in the circumstances. But that is very different from the right of a party appealing to the judicial Committee under section 3 of the Act.' Section 4 of the Act recognises the powers of the Crown to refer any matter whatsoever even to the judicial Committee for its advice. That is, however, the power of the Crown' and has nothing to do with the right of a party to Court Martial proceedings to go to the Judicial Committee to ask it for special leave to appeal. The case of Admiral Byng, referred to in the foot‑note to the second sub‑clause, to which our attention was invited on behalf of the petitioners, confirms my view. As petition for review of sentence was made to the Lords of Admiralty and it was they who had submitted a memorial to the King (and not to the judicial Committee), praying "that the opinion of the judges might be taken, whether the sentence was legal". This was nothing to do with the question which we have been called upon tb answer. An inquiry as to the existence or non‑existence of the prerogative has only been undertaken with the object of ascertaining whether the judicial Committee did or did not have the right to entertain a petition for special leave to appeal or an appeal under section 3 of the Act.
This brings me to the case of Lieut. Frye, which was referred to by the counsel for the petitioner in Yaqub Khan's case before their Lordships of the Judicial Committee and stated to have been decided in 1743. The original report of the case is not before us but it is cited at p. 677 in the note of the 28th Vol. of Halsbury's Laws of England as Frye v. Ogle. The citation of this case in paragraph 1397 was made with the object of sup porting the statement that Members of Court Martial and naval, military, and air force authorities generally are responsible as individuals to any person injured by reason of their having acted either without, or in excess of, this jurisdiction." This leads me to think that some action was brought by Frye against Ogle, who had probably played some part in the Court Martial which had convicted Frye The action might have been for damages, as the note in the margin of paragraph 1397 indicates ; but it is clear from what has been stated at p. 126 of the Manual of Military Law, 1929 (1941 edition) that on Frye's arrival in England, his case was laid before the Privy Council and the punishment remitted by His Majesty. This cannot help the petitioners as it is not possible to conclude that the case was laid before His Majesty‑in‑Council by virtue of his prerogative or was merely referred to by the King to his Council in the exercise of his inherent right as Fountain of Justice, or head of the law and army on the principle recognised in section 4 of the Act. If it was referred to by the King, as appears to be likely, it would be similar to Admiral Byng's case to which reference has already been made. I have been attempting to ascertain the jurisdiction of the Judicial Committee to entertain an appeal or an application for leave to appeal, inherited by it from its predecessor the Privy Council as it had been before the Act, in a case decided by a Court Martial by virtue of the King's prerogative. And from that point of view it affords no assistance to the petitioners. This is probably the reason why Frye's case was not even referred to by Lord Thankerton in the judgment which he wrote on behalf of the Board in Yaqub Khan's case.
The contention advanced on behalf of the petitioners, that the absence of reported cases can be accounted for by the fact that serious offences like murder etc. could not be tried by Courts Martial in England (Proviso to section 41 of the British Army Act) and were not triable even in India, if committed in peace time before section 41 of the Indian Army Act was amended by section 12 of Act XXXIII of 1934, is of no avail to them (the petitioners), as it is impossible to believe that no case in which a person had been convicted of a less serious offence by a Court‑Martial in England, and no case convicting a soldier who was found guilty of having committed a civil offence at any place beyond British India, or when on active service in British India, before the amendment of section 41 of the Indian Army Act, or even after its amendment was not taken to the Judicial Committee for all these years‑If an appeal either with or without special leave was competent. Nor is it sufficient to find in the present case that the King as a source and fountain of justice and as the head of the law as well as of the army, had the necessary, power to review the decisions of Courts‑Martial as the cases of Lieut. Frye and Admiral Byng seem to suggest, for we are not concerned with the powers and rights of the King ‑which he possessed as a sovereign but which had .not been exercised by his Privy Council before the Act, or by the judicial Committee after the Act had been passed by the Parliament in 1833. We are concerned on the other hand, with the prerogative of the King which had come to be recognised by Courts and in pursuance of which appeals, with or without leave, from the decisions of Courts‑Martial could have been, as of right, laid before His Majesty‑in‑Council i.e., either before the Privy Council prior to 1833 or before the Judicial Committee of the Privy Council subsequently. The authorities cited on behalf of the petitioners do not thus afford any help in coining to a conclusion in their favour.
Let me now turn briefly to the authorities cited by Mr. Manzur Qadir, on behalf ‑of the Crown, and see if they bear out the contention that the incident of, prerogative appeal does not attach to the decisions of Courts‑Martial, and the Judicial Committee or its predecessor had never had the right to entertain and dispose of appeals against the sentences passed by Courts- Martial.
The first case on which reliance was placed is that of Theberge v. Laudry 1876 (2) A. C. 102. That this case is of consider able importance admits of no doubt for it provides the foundation for the decision in Yaqub Khan's ease 1947 L. R. 74 I.A. 8 the only case in which leave for special appeal against the decision of a Court‑Martial had been asked for. As to Theberge v. Laudry, it appears that while creating a special tribunal for the trial of election petition, the legislature of Quebec had, by section 90 of the Act of 1875, declared that the judgments of that tribunal should not be susceptible of appeal". In delivering the judgment on behalf of the Board, it was held by Lord Cairns that this provision prevented an appeal to his Majesty‑in‑Council. But in coming to that decision, the Board had rested the decision on the very peculiar character of the enactment and had held that it was the intention of Quebec legislature, when conferring this jurisdiction on the Superior Court, not to create it with the ordinary incident of appeal to the Crown. It maybe observed that the jurisdiction to decide election petition and to determine the status of those who claimed to be members of Legislative Assembly which was to be exercised by the Superior Court after the Act, 1875, used to be exercised by the Legislative Assembly itself before that Act. It may also be stated that the Act of 1875 had been assented to by the Crown and to which the Crown was, therefore, a party. There is no doubt that the subject‑matter of the legislation of 1875 was a part of the privilege of the Legislative Assembly even before the Act of 1875 had been passed and was, therefore, entirely foreign to the region of the Kings's prerogative. And the King had by assenting to the Act, authorised the Quebec legislature to bring a tribunal into existence whose judgments would not be susceptible of any further appeal to him or to any other authority. Whichever way the matter might have been looked at, no appeal to the judicial Committee could be held to have been competent and it was, if I may respectfully say so, rightly held not to lie. But this decision‑ cannot be held to be an authority in respect of decisions of Courts‑Martial which have been held by me to be Courts and the proceedings before them to be proceedings of criminal nature. It may be that the scheme and structure of the Indian Army and Air Force Act may be similar to the Act of 1875. But it is impossible for me to as so as I have not had the advantage of studying its provision, the Act itself not being avail able here. I must, however, agree that expedition being one of the objectives of the Act of 1875, as mentioned by Lord Cairns in his judgment as well as of the two Acts under which the two Courts Martial were appointed to decide the cases against the petitioners; there is similarity between them to that extent. But it is not possible for me to go any further.
The decision in Strickland v. Grima 1930 A. C. 285 was also in respect of elections. Having regard to the partiality of the Commons in such matters; which for the sake of their own independence they had insisted on and succeeded in obtaining after a great deal of struggle with the Kings of England, it is not surprising to find that the King had himself, by Art. 33 of the Letters Patent, declared in case of Malta, to which responsible Government in internal affairs had, been granted in 1921 that all questions which may arise as to the right of any person to be or remain a member of the Senate or the Legislative Assembly shall be referred to and decided by our Court of Appeal in Malta ". In view of the fact that the Court of Appeal of Malta was the Highest Judicial Tribunal of the Island which bad peen designated to determine the question of election, its decision was held to be final and without any incident of appeal attached to it.
British Coal Corporation v. The King, (1935) A. C. 500. In a judgment of great ability and learning delivered by the distinguished Lord Chancellor on behalf of the Judicial Committee not only were the nature of prerogative appeal and functions of the judicial Committee under the Judicial Committee Acts of 1833 and 1844 explained by Viscount Sankey, but the competency of a petition for special leave to appeal to the King‑in‑Council from a judgment of the Court of Appeal of the Province of Quebec in a criminal matter by reason of the prohibition of appeals to His Majesty in criminal matters by section 17 of the Canadian Statute (23 and 24 Geo. 5, c. 53) was fully examined. It was held :‑---
"that the petition was incompetent. Before the Statute of Westminister, 1931 (22 Geo. 5, c: 4), the Canadian Legislature was subject to the limitations imposed by the Colonial Laws Validity Act, 1865 (28 and 29 Vict. c. 63) by which legislation repugnant to an Act of the Imperial Parliament was declared void, by section 129 of the British North America Act, 1867 (30 and 31 Vict. c. 3), and also by the doctrine forbidding extra territorial legislation. These limitations were abrogated by the Statute of Westminister. The extent of the legislative competence conferred on the Canadian Legislature in regard to appeals to the King‑in‑Council in criminal matters must now be ascertained from its constituent Act, the British North America Act 1867. The right of appeal to the King‑in‑Council is a prerogative right, and the prerogative cannot be restricted or qualified save by express words or necessary intendment. Section 91 of the Act read with the rest of the Act, not by express words, but any necessary intendment, does invest the Canadian Legislature with power to regulate or prohibit appeals to the King‑in‑Council in criminal matters. Appeal to the King-in‑Council is prohibited in precise words by section 17 of the Canadian Statute 23 and 24 Gen. 5, c. 53 ".
The decisions in Maharaja Madhava Singh v. The Secretary of State, L. R. 31 I. A. 239 and Dawkin v. Lord Rokbey, 176 E. R. 800 are of no relevancy as in neither of these cases was a report made by a Court.
" In the first case certain Commissioners had been appointed by a resolution of the Government of India in the Foreign Department to enquire into the circumstances in which the Maharaja of Parma's uncle had died, to afford to him (Maharaja Madhava Singh of Panna) " an opportunity of freeing himself from the grave imputation that Rao Khuman Singh had been poisoned by persons instigated thereto by him." On a report being made by the Commissioners that the imputation against the Maharaja was true‑that he was a member of 'the conspiracy to murder his uncle, the Government had resolved that this finding was correct and deposed him from the Chiefship of the Parma State. It was held by their Lordships that it was " a political act‑an act of State done by the Viceroy in Council in the interest of the State of Panna, and for the peace and good government of India generally. " It was also held that their Lordships were precluded from entertaining a petition for leave to appeal against an act of that character. The contention to the effect that the appeal was against the convic tion of the Maharaja was repelled with the remark that the " Commission in question was also appointed by the Viceroy himself for the information of his own mind " ..and was not in any sense a Court, or, if a Court, was not a Court from which an appeal lies to His Majesty‑in‑Council." Similarly in Dawkin v. Lord Rokbey, 176 E. R. 800, the two Courts of inquiry were appointed merely to collect evidence and to report and could not be treated as Courts '. Nor were their reports to be regarded as judgments. In holding that no cause of action had accrued to Dawkins in the civil suit which he had filed against Lord Rokbey, Willes, J., observed "with respect to persons who enter into military state, who take Her Majesty's pay, and who are content to act under her commission " that " although they do not cease to be citizens in respect of responsibility, yet they do, by a compact which is intelligible, and which requires only the statement of it to recommend it to the consideration of any one of common sense, become subject to military rule and military discipline."
"Nor is Jhonston v. Sutton, 1 R. R. 257 in point. It was held by that eminent judge, Lord Mansfield, in that case that an action did not lie by a subordinate officer in the naval service against his superior for accusing, arresting and bringing him to a Court‑Martial for disobedience to orders. The passage at page 296 of the report, however correct, has nothing to do with the point which awaits determination in these petitions."
The head-note of the judgment in Grant v. Gould, 3 R. R. 342 which is sufficient for the purpose, reads as follows :‑--
" Martial Law" as the phrase is used by Hale and Blackstone, has no place in Great Britain. The Jurisdiction of Courts‑Martial is the creation of positive law under the Mutiny Acts. The receiving pay as a soldier subjects the receiver to this military jurisdiction. This Court, therefore, will not grant a prohibition to prevent the execution of the sentence of a Court-Martial passed against A., who has received pay as a soldier but has assumed the military character merely for the purpose of recruiting, in the usual course of that service ; though the proceedings of the Court‑Martial appear to be in some instances erroneous.
This would show that the case had arisen out of a motion (which is to be adjudicated on entirely. different principles and has nothing to do with the present case) to prevent the execution of a sentence passed by a Court‑Martial. After stating the grounds on which a writ for prohibition can be entertained, Lord Loughborough summed up the position as hereunder :‑
" I have stated the observations generally, upon the nature of an application for a prohibition. "
" The foundation of it must be, that the inferior Court is acting without jurisdiction: It cannot be a foundation for a prohibition, that in the exercise of their jurisdiction the Court has cited erroneously. That may be a matter of appeal where there is an appeal, or a matter of review : though the sentence of a Court‑Martial is not subject to a review, there are instances, no doubt, where, upon application to the Crown, there have been orders to review the proceedings of Courts‑Martial."
In the concluding paragraph of his judgment, his Lordship referred in his inimitable style as to whom the petition should have been filed. He observed as follows :‑--
" With respect to the sentence itself and the supposed severity of it, I observe that the severe part is by the Court deposited where it ought only to be, in the breast of his Majesty. I have no doubt but that the intention of that was to leave room for an application for mercy to his Majesty, from the goodness and clemency of whose disposition, applications of this nature are always sure to be duly considered, and to have all they can possibly deserve. "
It is unnecessary for me to refer to Yaqub Khan's case, (1947) L. R. 74 I. A. 8 at this stage. As indicated in an earlier portion of this judgment, the decision of their Lordships cannot help me on the point now under consideration. If there is any need to do so later, I shall advert to it again.
As to paragraph 544, 608, 649 and 657 of the 6th Volume of Halsbury's Laws of England (1st Edition), I have already referred to what yeas contained in paragraph 544. Paragraph 608 describes the Crown in relation to the law and lays down that " The ultimate Court of appeal, in all matters where appeal was per missible, was represented originally by the Sovereign, as being the source and fountain of justice, and to the King‑in‑Council, represented since 1833 by the judicial Committee of the Privy Council .." This states in unmistakable term that the Sovereign was and the Judicial Committee is the ultimate Court of appeal in all matters, but qualities that statement with the word where appeal was permissible.' Whether or not an appeal was or has been permissible from decisions of and sentences passed by Courts‑Martial has not been even touched upon. And in the absence of that statement, one way or the other, this paragraph renders no help to me. Paragraph 649 deals with the acquire ment of territory by England and with the authority of the Crown in respect of territories so acquired. Paragraph '657 contains a general statement as to the jurisdiction of the Crown to entertain appeals from the highest Civil or Criminal Court ; but in doing so, the learned compiler confined himself, if I understand him rightly, to the ordinary Civil and Criminal Courts and did not apparently have special Courts like Courts‑Martial in mind.
A study of the authorities cited on behalf of either party has not succeeded in persuading me to come to a decision either in favour of the petitioners or against them. Nor have I been able to find any case, barring that of Yaqub Khan, which has already been considered, in which the prerogative, of the King‑in‑Council to entertain au appeal from a sentence passed by Court‑Martial had been recognised.
The ordinary rule of law is that the onus of establishing, jurisdiction lies on the party who attempts to invoke it. And' there can be no manner of doubt that the burden in the present case lies on the petitioners. This is also confirmed by section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950, the relevant portion of which is as follows :
" As from the appointed day (1st May, 1950) the Federal Court shall --------have the same jurisdiction to entertain and dispose of Pakistan 'appeals and petitions as His Majesty's prerogative or otherwise, immediately before the appointed day."
It was incumbent upon the petitioners to establish that this Court had jurisdiction to entertain and dispose of their petitions. And all this inquiry had to be undertaken as this Court's jurisdiction was declared to be, for the purposes of petitions ands appeals, the same as the judicial Committee of the Privy Council or the Privy Council had before the appointed day. The Judicial Committee and the Privy Council have not been shown to possess the jurisdiction to entertain such petitions from the sentences passed by Courts‑Martial, and this Court, therefore, be found to have no jurisdiction to entertain them.
In view of this conclusion it is unnecessary for me to go into tire other questions formulated by me in the beginning of my judgment.
I must, however, say that justice in Muhammad Nawaz's case does not appear to me to have been well administered. I entirely agree with the statement made by the Judge Advocate to tire Court‑Martial that motive is not a part of the definition of the offence of murder' and is, generally speaking, not "required to establish a crime". But when I find from the statement of Lt.‑Col. Dhundjibhoy, I.M.S. (Rtd.), who was a consultant Psychiatrist to the Pakistan Army at Karachi that the accused (Muhammad Nawaz) had been under his treatment and observa tion from the 16th November, 1948 to the 9th March 1949, and was during that period found by the medical expert to be suffering from 'Maniac Depressive Psychosis in both the stages during that period, the absence of motive assumes considerable importance for it is unusual for a person to commit an offence, and much less a heinous offence like murder, without a motive or under provocation. And that is why Col. Dhundjibhoy appears to have stated "that in the circumstances of this case there can be no doubt, especially when there was no motive for the crime, the offence was .committed by the petitioner when he was of unsound mind. It is true that Captain Thakar Dass, who was examined on behalf of the prosecution, appears to have found the accused to be normal but the judge Advocate‑remarks that Muhammad Nawaz was required "to pass through C. M. H. Lahore" before going to the mental hospital and that the R. A. I. Rules required examination in such cases to be done by two Psychia trists leave me cold, for if Muhammad Nawaz .was really non compos mentis‑he would have been unable to comply with these rules and in assuming to the contrary the judge Advocate seems to have presumed Muhammad Nawaz to be a sane person. The fact that Muhammad Nawaz was kept under observation for a period of approximately four months during which he 'vas never found to be 'in the lucid intervals' should have not only been stated by the judge Advocate, but emphasised by him before the Court‑Martial. I have not bad the opportunity to compare Col. Dhundji's statement with that of Captain Thakar Das and since I have also found that this Court has no jurisdiction to grant leave to appeal or to entertain an appeal from the sentence of Court‑Martial, I would not be entitled to go into these matters. Moreover, the murder was alleged to have been com mitted as far back as the 15th August, 1948, and the sentence has not been executed up till now. It was confirmed on the 8th February, 1950, by General Gracey, the Commander‑in‑Chief of Pakistan Army, and the petition for leave to appeal was not filed in this Court until the 9th September, 1950.
The question of Muhammad Nawaz's mental condition is one of great' difficulty and I have no doubt that the authorities will carefully consider this question before the sentence is exe cuted. I will, therefore, recommend this case to the Central Government for a further consideration and have no doubt that when the authorities come to know that this suggestion ema nates from this Court, they will not be reluctant to examine into the circumstances of the case and to do that which justice may require.
Before concluding this case, I must pay a tribute both to Mr. Manzur Qadir counsel for the Crown and Mr. Lari, counsel for one of the petitioners for the hard work which they put in and for their laudable efforts in assisting us to come to a conclusion in this difficult case.
.‑I have had the privilege of perusing the judgments which have just been delivered; the material facts have been set out there and it is not necessary for me to repeat them over again. The short, but somewhat difficult point, which arises for our consideration, is, whether the Federal Court is competent to grant special leave to appeal from the decision of a Court‑Martial constituted under a statutory military law, and thereby sit in judg ment over the said decision.
It was contended before us on behalf of the petitioners that inasmuch as the jurisdiction of His Majesty‑in‑Council, by virtue of the Royal prerogative or otherwise, has become vested in the Federal Court under section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950, the Federal Court is now entitled to grant special leave to appeal and to hear the appeal from de cisions of Courts‑Martial; and review the same, and pass proper orders; but it is somewhat curious indeed that no decision pre cisely in point showing interference with the decision of a Court Martial by virtue of the prerogative of the Crown could be cited before us, by Counsel, from the numerous Law Reports of over 200 years which are in existence; keeping this circumstance in view, as also the whole purview and purpose of the Army and Air Force‑ enactments, especially sections 31 (g) and 28 (a) of the Indian Army Act and the cognate sections 45 (b) and 43 of the Indian Air Force Act, under which malingering or insolence, or even unbecoming behavior of an officer, may be treated as a criminal offence, I think it may be fairly inferred that Courts Martial administering statutory military laws are Courts of special jurisdiction, not amenable to supervision or control by any judicial body or Court of justice, administering the general law, except where they may be found to have acted without jurisdiction or in excess of it. Courts‑Martial while acting within their proper scope and sphere are supreme and their decisions, subject to revision by the confirming authority, are absolute and final. In this connection, it may be pertinent to observe that while military laws are statutory laws by which discipline is maintained in the armed forces in normal times, martial laws (which in a strictly legal sense are no laws at all) are merely exceptional methods adopted by the military for pre serving order and safeguarding the interests and integrity of the State during war or insurrection: As in the present case the petitioners have failed to establish their claim that after a conviction and sentence by Court‑Martial there is yet a remedy open by way of appeal to His Majesty in Council by virtue of the prerogative of the Crown, I fully agree with the view ex pressed by My Lords, that these petitions for special leave to appeal, submitted to this Court, on the strength of the provi sions of section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950, do not lie. and must, therefore, be dismissed.
Both the petitions are dismissed.
The question of the mental condition of Muhammad Nawaz at the time of the commission of the crime is one of great diffi culty. We have no doubt that this question will be carefully considered by the executive authorities before the sentence is executed.
A.H Petitions dismissed
Attorney for Petitioner :‑A. R. Niazi:
Attorney for Respondent :‑Iftikhar‑ud‑Din Ahmad.
Attorney for Petitioner :‑Shamim Hussain Kadri.
Attorney for Respondent :‑Iftikhar‑ud‑Din Ahmad.
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