Page 182 - Gulf Precis (VII)_Neat

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He should be asked whether any jurisdictions have been created for the cognizance of
minor offienccs, and if not, how has the crime committed at Bassidorc been dealt with ? He
should also be asked to'state the size of the population residing witlun the limits of the
station. 1 he Advocate General should, on this information being received, be requested
to advise on the general question. M

Thereupon the Advocate General expressd the following opinio n
No. 39, dated aand July 1868.
OPINION.
1. Assumed that the accused was not a British subject, (i) because it nowhere appeared
in the proceedings that he was one; and (2) because the evidence showed that the
accused and the deceased both came to Bassidorc together from Minnow about three years
ago (see deposition of Jaffer Scedcc), a statement winch was endorsed by Captain Way,
1st Assistant Political Resident, who says, in his letter to Colonel Pclly, that Saccd (the
accused) and the deceased came together to Bassidorc about three years ago. Minnow is
a town on the Persian mainland, some 15 miles fiom the sea.
2. In the event of the accused proving to be a British subject, I would not recommend
his being sent to Bombay to be proceeded against under Act I of 1849. I never intended
to intimate (though my language might certainly be considered to bear that construction)
that if he were a British subject, he could be prosecuted in any Court in this Presidency.
3. Act I ol 1849 provides for the punishment of offienccs committed in Foreign States,
and section a enacts that the persons therein specified shall be amenable to the law for all
offences committed by them within the territory of any foreign Prince or State.
4. Bearing in mind the fact already point out in paragraph 3 of my former Opinion
that, in the judgment of the Privy Council, statutes giving criminal jurisdiction must be
construed strictly, and that Great Britain has been in uninterrupted possession of
Bassidore for a considerable number of years, I think that no Magistrate in Bombay ought
to commit such a case as the present for trial, and that no Judge presiding at the Criminal
Sessions would tell the Jury that an offence committed at Bassidore was one which could
really be said to be committed within the territory of any foreign Prince or State. Indeed
I think I should feel bound, in opening such a case to the lury, to tell them that I could not
hope for a conviction, and that 1 must consent to a verdict of not guilty, on the ground that
the High Court had no jurisdiction to try such a case.
(Sd.) L. H. Bayley,
Advocate General.
150. The point was referred to the Government of India, and on the opinion
expressed by Lord Lytton and Sir Henery Maine, they replied to the Bombay
Government in letter No. 998, dated 8th September 1868:—

No. 998, dated 8:h September 1868.
From—W. S. Sp.ton*Karr, Esq., Secretary to the Government of India, Foreign Department,
To—C. Gonnb, Esq., Secretary to the Government of Bombay.
I am directed to acknowledge the receipt of your letter dated 9th ultimo, No. *77*
forwarding a copy of certain papers relative to the commission of a murder at the station
of Bassidorc on the island of Kishm in the Persian Gulf, and enquiring whether the
Government of India consider Bassidore to be British territory.
2. In reply I am directed to convey to you the opinion of His Excellency the Viceroy
and Governor General in Council that the station in question cannot properly bo considered
as British territory. It is pcrlectly true that we have occupied Bassidore either as a naval
or coaling station for nearly half a century. But the island has been always treated, by us
as a dependency of Bunder Abbas, and Bunder Abbas and its dependencies, including this
island of Kishm, and, consequently, Bassidore, have been leased to the Sultan of Muscat
by the Shah of Persia under circu'mstanccs with which the Government of Bombay is
perfectly familiar. It is unnecessary to say more on this head than to refer to the renewal
of the lease which has just been negotiated by Lieutenant-Colonel Pelly and to Axtchison s
Treaties, Vol. VII, page 204.
3. It follows in such circumstances that the lessee can have no greater rights, nor be
in a better position than his lessor, and as the British Government holds possession of the
town of Bassidore by permission of the Sultan of Muscat, while that potentate derives his
lease of Kishm, which includes Bassidore, from the Shah of Persia, it follows necessarily
that Kishm must still he considered as Persian territory. There may be some obscurity as
to the exact nature of our derivative title to the town of Bassidorc, and-it may have bee”
thought that our rights over the town existed by continued usage, or that we had obtauie
a prescriptive title; but in looking closely into the question, it becomes evident that our
rights are subordinate to those oj Muscat, which again are admittedly, entirely subordi­
nate to those oj Persia, and have been always so treated up to this very hour.