Mohammad v Pakistan

• Date: 19 March 1948
• Docket Number: Case No. 28
• Court: High Court of Lahore (Pakistan)

Pakistan, High Court of Lahore.

(Abdur Rahman and Marten, JJ.)

Case No. 28

Mohammad and Others

and

The Crown.

JURISDICTION

Jurisdiction — Territorial — Enforcement of Criminal Sentences Passed by Foreign Court — Nature of Foreign Court — Acquisition of Foreign Status by Court Subsequent to Passing of Sentence — Partition of India — State Succession — Relationship of Undivided State to Successor States — India and Pakistan — Law of Pakistan.

State Succession — Binding Force of Judgments of Courts — Partition of India — Relationship of Successor State to Undivided State — Sentences Imposed by Court of Undivided India — Enforceability in Pakistan — Law of Pakistan.

The Facts.—The five petitioners in this case were convicted on February 26, 1947, by the Sessions Judge at Karnal, then in undivided India, under Section 302, Indian Penal Code, three of them having been sentenced to death and two to transportation for life. The proceedings for confirmation of the death sentences against the three accused were submitted to and received by the Lahore High Court on May 22, 1947. A joint appeal against conviction by all the five had already been filed on March 20, 1947, A petition for enhancement of the sentences of the transported accused was filed by one Ashraf on April 8, 1947. All the accused were transferred by warrant under the hand of the Sessions Judge, Karnal, to the Central Jail, Lahore, capital of the Punjab Province in undivided India, to undergo their sentences under the rules then in force. All these events took place before August 15, 1947, the date on which two independent Dominions (Pakistan and India) were set up. An Order known as the High Courts (Punjab) Order, 1947, had previously been promulgated by the Viceroy of India on August 11, 1947, defining the jurisdictions of the two High Courts of Lahore in what was to be Pakistan and of East Punjab in what was to be India and in which Karnal was situated after the partition of India. The present petition under Section 491, Criminal Procedure Code, was filed on behalf of the five accused urging that, since Karnal was not a part of Pakistan after the partition of India, the detention of the accused in Pakistan was illegal. It was argued by counsel for the petitioners that since the partition of India, any attempt by a court of Pakistan to enforce the warrant or judgment of the Sessions Judge, Karnal, would constitute an attempt to execute the sentence of a foreign court: such an attempt, it was...