Judgement

Appeal (No.15 of 1940), by special leave, from a judgment and order of the Court of the Judicial Commissioner, North-West Frontier Province (July 10, 1939). The Judicial Commissioner (Almond J.C.) dismissed the appeal of. the appellant, Mirza Akbar, from his conviction of an offence punishable under s. 302/120-B, Indian Penal Code, namely, conspiracy to murder in consequence of which conspiracy murder was committed, and confirmed the sentence of death which had been passed upon him by the Additional Sessions Judge, Peshawar Division, on May 8, 1939.

The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee.

This appeal raised two main points First, whether there was admissible evidence on which the Courts in India could convict the appellant; and secondly, the appellants appeal to the Court of the Judicial Commissioner having been heard, and the sentence of death passed on him having been confirmed, by only one judge of that Court, whether that Court was legally constituted to dispose of the appeal having regard to the provisions of the notification of May 19, 1939, made pursuant to s. 7 of the North-West Frontier Province Courts Regulation (I. of 1931), as amended by the North-West Frontier Province Courts Regulation (Amendment) Act (III. of 1939).

1940. May 27, 28. H. D. Cornish and G. Greenwood for the appellant. The conviction is bad because it is founded upon irrelevant and inadmissible evidence, and if that evidence is eliminated there is no case left to sustain the conviction. The Sessions Judge and the Appellate Court were in error in holding that the recorded statement of Mst. Mehr Taja before the Examining Magistrate was relevant under s. 10 of the Indian Evidence Act, 1872, against the appellant. On the question of jurisdiction, it is submitted that it is intended, where it is reasonably possible, that such an appeal as the present should be heard by a bench, and where it is possible to constitute a bench within a reasonable time, as was the case here, by adjournment until the judge on leave returned— a matter of about 20 days—the appellant ought to have had the benefit of the statutory provision. The disposal of the appeal by the Judicial Commissioner sitting alone, and not by a bench, was contrary to law and without jurisdiction, and the conviction and confirmation of the sentence of death cannot stand.

G. D. Roberts K.C. and W. Wallach for the respondent. The judge in this case was adjudicating under a system under which in a certain eventuality he was entitled, and, indeed, had a duty, to adjudicate alone. The question of the duration of time before it would be possible for two judges to hear the appeal becomes a matter of degree. It is submitted that in accordance with the law and the rules and regulations it was "not practicable" on July 10, 1939, to constitute a bench. The Judicial Commissioner was therefore acting within the law in applying his mind to the matter that it was not practicable for him to get a colleague to sit with him—he exercised his discretion. The question of practicability has to be decided by the Judicial Commissioner. The authorities on s. 274 of the Code of Criminal Procedure, 1898, which contains the words if practicable,” are Serajul Islam v. Emperor (( 1927) I. L. R. 55 C. 794.); Superin tendent and Remembrancer of Legal Affairs, Bengal v. Benozir Ahmad (A. I. R. ( 1930) Cal. 716); and Emperor v. Damullya Molla.(( 1930) 34 C. W. N.1127, 1128.) The only suggestion in the present case as to impracticability is that there should have been an adjournment; that, however, is not the relevant consideration under the rules; the question is what was practicable on the day fixed for hearing the appeal? Shaheb Ali v. Emperor.(( 1931) I. L. R. 58 C. 1272, 1279.) That case (4) was rather dissented from in Emperor v. Benat Pramanik.(( 1935) I. L. R. 62 C. 900.) The Judicial Commissioner acted in accordance with the law regulating the constitution