P L D 1961 Dacca 78 (PLP)

T. H. Khan for Petitioners. No one for Opposite‑Party. This is an application in revision for setting aside the con viction of the accused petitioners under sections 379 and 323 of the Pakistan Penal Code passed by Mr. M. N. Ullah, Magistrate, Netrokona, on 26‑8‑57, who sentenced each of them to pay a fine of Rs. 10 in default of payment of fine to rigorous imprisonment for three days under section 379 of the Code and to pay a fine of Rs. 30 each, in default, to rigorous imprisonment for 10 days each under section 323 of the Pakistan Penal Code.

2. The petitioners preferred an appeal against their conviction and sentences but that appeal was summarily dismissed and they came up in revision before this Court and this Court directed that the appeal should be re‑heard. Consequently the appeal was posted for hearing, on different dates and ultimately it was trans ferred to M. M. Huq, Assistant Sessions Judge, 1st Court, Mymensingh. On that date he took up the appeal for hearing but as the lawyer, who filed the appeal on behalf of the accused petitioners, made an endorsement on the order sheet that his clients had taken back all papers and that he had no instruction to argue the appeal, the learned Assistant Sessions Judge dismissed the appeal for default. Hence the accused‑petitioners have again come up in revision before this Court for setting aside the order passed by the learned Assistant Sessions Judge dismissing the appeal for default and the Rule was issued by this Court calling upon the District Magistrate of Mymensingh to show cause why the order complained of should not be set aside or such other or further order or orders passed as to this Court may seem fit and proper.

3. Mr. T. H. Khan, learned Advocate, has appeared on behalf of the accused‑petitioners while none has appeared either on behalf of the State or on behalf of the complainant opposite party.

4. Mr. Khan has urged that the Appellate Court committed an error in law in dismissing the appeal for default and that what he should have done in the circumstances of the case was that he should have written out a judgment according to law. The contention of Mr. Khan is of substance. The Appellate Court Must dispose of the appeal on the merits and is not to dismiss the appeal for default, for non‑appearance of the appellant or his lawyer. In this case when the lawyer of the appellant stated that he had no instruction to argue the appeal, it was the clear duty of the Court below to peruse the entire record to dispose of the appeal according to law in accordance with the provisions of section 423 of the Code of Criminal Procedure. Once an appeal is admitted to a full hearing, the Court should not dismiss it for default summarily but should pass a reasonable order thereon, As has been stated above it is the duty of the Appellate Court to examine the record and to disposal of the appeal on merits, and this duty is cast upon the Court of appeal notwithstanding that the appellant or his lawyer does not appear. The order of the Appellate Court dismissing the appeal for default is, therefore, clearly illegal and as such it must be set aside.

5. The Rule is accordingly made absolute. The order passed by Mr. M. M. Huq, Assistant Sessions Judge, 1st Court, Mymensingh, dated 31‑8‑59 dismissing the appeal for default, is set aside and it is directed that the appeal be heard on merits and disposed of according to law in the light of the observations made in the order passed by the Court in the previous remand order in Revision Case No. 81 of 1958. A. H. Rule made absolute.