JUDGMENT

Page, C J - These are appeals by 71 accused persons tried by a Special Tribunal (Cunliffe, A.J. Darwood and U Ba U, JJ.) under the Burma Rebellion (Trials) Ordinance, 1931, and convicted of offences under Section 121, I.P.C. Section 121 runs as follows:

Whoever wages war against the Queen, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or transportation for life, and shall also be liable to fine.

2. One hundred and three persons in all were charged under Section 121 at the trial. Of these 15 were sentenced to death, 56 to transportation for life, five were discharged, 24 acquitted, and three were found to be absconders. The 15 accused who were sentenced to death and the 56 accused who were sentenced to transportation for life have appealed against their convictions and the sentences that have been passed upon them respectively. Notice has been served upon 23 of the accused under Section 435, Criminal P.C., calling upon them to show cause why the sentence of transportation for life that has been passed upon each of them should not be enhanced, and why they should not be sentenced to death. In the case of these accused the proceedings in revision and in appeal have been heard together.

3. A general argument by way of defense has been presented by Mr. Kyaw Din and Dr. Ba Maw on behalf of all the appellants, namely that the facts and circumstances proved at the trial were evidence of a riot and not of a rebellion, and that there was no evidence that the appellants or any of them had waged war or abetted the waging of war against the King-Emperor within Section 121, I.P.C. The same argument was urged at the trial, but the Special Tribunal refused to accede to it, and held that the appellants and each of them had been proved guilty of an offence under Section 121.

4. In this case therefore the first question that falls to be determined is: What is the meaning of the expression "waging war" in Section 121, T.P.C.?

5. Now, the words "wages war" in Section 121 are synonymous with "levying war" in the Statute 25, Edward, 3. Order 2, which offence is declared to be treason; and the meaning of these words has long been settled, although their, full significance is seldom understood. In this perverse and violent age in which tradition and authority have lost their sanction, and lawless agitators preach at the street corner that each man is "a law unto himself," it is necessary that a person "who, throwing off the duly of allegiance, arrays himself in open defiance of his Sovereign" and wages war against the King-Emperor, should realize the predicament in which he stands.

The crime of high treason, in its own direct consequences, is calculated to produce the most malignant effects upon the community at large; its direct and immediate tendency is the putting down the authority of the law, the shaking and subverting the foundation of all Government, the loosoning and dissolving the bands and cement by which society is held together, the general confusion of property, the involving a whole people in bloodshed and mutual destruction; and, accordingly, the crime of high treason has always been regarded by the law of this country as the offenc6 of all others of the deepest dye, and as calling for the severest, measure of punishment; per Tindal, C.J., in R. v. Frost [1839] 4 St. Tr. 89.

6. Be it known throughout the length and breadth of Burma that the life of every person who wages war against the King-Emperor is forfeit to the State, and that upon conviction he is liable to receive sentence of death. Let there be no illusion. It is not the function of the Court to draw fine distinctions in grading traitors. Those who seek mercy must go to the fount of mercy, and pray for respite or pardon from His Gracious Majesty the King-Emperor against whom they have so grievously offended. Rebels who wage war against the King are guilty of the most heinous of all crimes, and it is well, that such persons should