Judgement

Appeal (No. 9 of 1928) by special leave from a judgment of the High Court (April 29, 1929) which confirmed a judgment of the Sessions Judge at Mianwali (February 1, 1929) convicting the appellant of murder and sentencing him to death.

The material facts appear from the judgment of the Judicial Committee.

Special leave to appeal was granted by the Lord Chancellor, Lord Darling and Lord Tomlin on July 29, 1929. (The terms of the charge, and other material particulars of the case, were not fully before the Board. It appeared that an adjournment of the hearing of the petition over the long vacation might cause delay which would be avoided by granting special leave.—A. M. T.)

1929. Dec. 6. Morey for the appellant. Under s. 221, sub-ss. 1 and 4, of the Code of Criminal Procedure the appellant was entitled to have all the sections under which he was charged clearly stated. He was charged only under ss. 149 and 34 of the Penal Code, which relate respectively to unlawful assembly and the acts done by several persons in furtherance of a common intention. All the other accused being acquitted the appellant could not be convicted under the charge as framed. There was no reference to s. 300 (murder), and though s. 302 was referred to that was only as to the punishment to which he would be liable upon a conviction under either s. 149 or s. 34. The circumstances above stated constitute so serious an error of procedure that this appeal should be allowed; that course would be in accordance with the practice of the Board in criminal matters Dal Singh v. The King-Emperor. (( 1917) L. B. 44 I. A. 137, 146) Further, it was not explained to the appellant that under the charge framed he could be convicted as though he had been charged under s. 300. Had he so understood, he might have put forward the defence that he personally acted in self-defence, but that would have been no defence on the charge framed of causing death in conjunction with others. [Reference was made also to King-Emperor v. Mathura Thakoor (( 1901) 6 Cal. W. N. 72, 78.) and Aiyavu v. Queen-Empress.(( 1885) I. L. R. 9 M. 61.)]

Dunne K.C. and Wallach for the respondent. A charge of murder against the appellant was clearly involved in the charge framed, as it stated that he had committed an offence punishable under s. 302 of the Penal Code, which in terms provides the punishment for murder. The form of the charge was in accordance with that provided by the Code of Criminal Procedure, Sch. V., Form 28. There was no error in stating the charge; if there was, the accused was not misled, and the error was therefore immaterial under s. 225 of the Code of Criminal Procedure. Though the accused was represented by a pleader, he did not raise the present objection upon appeal to the High Court. Even if there was an irregularity, which is not admitted, it was merely one of procedure which resulted in no injustice whatever. Morey replied.

The judgment of their Lordships was delivered by

VISCOUNT SUMNER. As this is a capital case, and as the conviction took place so long ago as February last, their Lordships think it best to give their reasons for the conclusion at which they have arrived, without taking further time to put them into writing.

The appellants conviction and sentence having been confirmed on appeal, he applied to their Lordships last July for special leave to appeal. His petition was allowed, his point being in substance that he had been convicted without having had a fair opportunity of knowing what the charge was that he had to meet, and particularly of raising defences other than the one raised, or of relying on any circumstances which would have reduced the offence to a minor one. Under those circumstances their Lordships did what they rarely have occasion to do, and advised His Majesty in Council to grant special leave ex abundanti cautela, so that it might be discussed at length whether he had in truth been deprived of so important an opportunity.

Mr. Morey has put t