JUDGMENT

Agha Haidar, J. - The facts of this case are as follows:

2. Five persons were convicted under Section 302, I.P.C. and sentenced to death They filer) a joint appeal on the 25th May 1927, in this Court through Mr. Byrne, a Barrister-at-law and Advocate of this Court. The case came on the list for the week commencing from Monday, 26th September 1927, and stood sixth on the said list. The days on which criminal appeals and murder references are heard are only the first four days in the week and the last of these four days was Thursday, 29th September, 1927. The case, Criminal Appeal No. 559 of 1927, Gangi and others v. Grown was not put up on the daily list during that week. On Friday the 30th September, according to the practice of this Court, the list for the following week was prepared and it was open to Mr. Byrne to have the list "adjusted", on a reference to the Deputy Registrar. The Court was closed for the Dusehra holidays from the 2nd to the 6th October, 1927, both days inclusive, and, therefore, the case remained on the week's list as heretofore. The Court reopened after the Dusehra holidays on Friday, the 7th October 1927 and, as the list for the following week was being prepared in the office on that day, it was again open to Mr. Byrne to get such an adjustment of the list as would have the effect of putting off the hearing of his appeal until he was able to argue it before the Court.

3. According to Mr. Byrne's own affidavit, the Punjab Government had engaged him to appear on behalf of the Grown in a certain forgery case at Pakpattan and the dates for the hearing of that case were originally fixed from the 10th to the 15th October 1917, both days inclusive. Inspite of his knowledge of these days, and although he had two Fridays, namely Friday, 30th September, and Friday, the 7th October 1927, on either of which he could have made suitable arrangements for the appeal, still Mr. Byrne took no steps to keep out the-" case out of the" list, for the dates on which he was to appear at Pakpattan. On Monday, the 10th October 1927, Mr. Byrne's case stood fifth in the weekly list but did not appear on the daily list Mr. Byrne says that he was to be engaged in the case at Pakpattan from the 10th October onwards; but that he obtained the permission of the Magistrate to leave Lahore a day later, i.e., on the 11th October. His point is that up till the 10th October he was waiting for his appeal to be taken up by the High Court and was anxious to conduct it personally. However, some time on the 10th October 1927, Mr. Byrne handed over his brief in the murder appeal (Gangi and others v. Grown) to Mr. Muhammad Amin, a Barrister-at-law and Advocate of this Court, paying him a sum of Rs. 32. The case stood third on the day's list for the 11th October 1927, and it appears that it was called on for hearing almost at the end of the day, when the counsel who was holding Mr. Byrne's brief, opened the case on behalf of the appellants. Soon after the Court rose for the day. It appears that, as a result of a telegram despatched by Mr. Saunders, who was also representing one of the appellants in the case, the clients reached Lahore on the morning of the 12th and came to know from Mr. Byrne's clerk that, as Mr. Byrne was engaged on Government work, he had engaged another counsel for them and furthermore "that Mr. Byrne had told Sir Shadi Lal that he was sending another man in his place." On the following day the case, which had been left over as part heard on the previous day, was called on for hearing and, as Mr. Muhammad Amin opened the case, one of the clients, namely, Munshi, who had instructed Mr. Byrne and had paid him a sum of Rs. 1,000 as his fee and another Rs. 100 as his clerk's fee, stood up and addressed the Court in the following words:

We engaged Mr. Byrne to conduct oar case. But he has not put in an appearance today. Another Barrister (pointing to Mr. Muhammad Amin Advocate) has appeared on his behalf. We do not want Mr. Muham