P L D 1967 Supreme Court 498 (PLP)

MUHAMMAD YAQUB ALI, J.‑Abdul Rashid Munshi, appellant No. 1, Chairman, Union Council, Charbhairabi, district Comilla, was convicted by the Special Judge, 1st Court Comilla, under sections 409 and 471, P. P. C. for criminal breach of trust of a sum of Rs. 2,500 out of the development fund of the Union and falsification of accounts in relation thereto and sentenced to six months' rigorous imprisonment and to pay a fine of Rs. 2,000 on the first count and to two months' rigorous imprisonment and to pay a fine of Rs. 1,000 on the second count. Karamat Ali Munshi, Fazlul Karim Ukil and Tajul Islam Bepari, appellants, were convicted of abetment of the offence of criminal breach of trust by the appellant No. 1 and sentenced to suffer rigorous imprisonment for 15 days and to pay a fine of Rs. 200 each against their respective convictions and sentences the appellants preferred an appeal in the High Court of East Pakistan, Dacca, under section 409, Cr. P. C., in which it was inter alia urged:‑ (i) that the appellant No. 1 was not a public servant; (ii) that there was no entrustment in law of the money allegedly misappropriated; (iii) that the joint trial of the appellants was not permissible in law; (iv) that the trial was vitiated by mis-joinder of charges and persons as offences under sections 409 and 471 of the Penal Code could not be tried jointly; (v) that there was no proper examination of the appellants under section 342 of the Code of Criminal Procedure; and (vi) that upon the defence evidence produced in the case a reasonable doubt had been cast upon the prosecution case. The counsel for the appellants being absent, when the appeal was called for hearing, the learned Judges dismissed it summarily under section 421 of the Code of Criminal Procedure. The operative part of the order was in the following terms:‑ "The learned Special Judge found sufficient evidence for the purposes of conviction of the appellants. We find no ground to interfere with this order of conviction and sentence of the appellants before us." No reasons were given in support of this conclusion nor were the grounds urged in the appeal noticed by the learned Judges. Leave to appeal was granted to consider the scope of the power of the appellate Court to summarily dismiss an appeal without giving reasons under section 421 of the Code of Criminal Procedure and without adverting to the question of law raised in the grounds of appeal and the defence evidence produced before the trial Judge. The rule on the point is firmly laid down in the case of Khalil v. The Crown (P L D 1953 F C 133). On noticing the provisions of sections 418 and 423(2) of the Code the learned Chief Justice concluded that an appellate Court is a judge of fact as well as of law when trial is held with the aid of assessors and not by means of a jury and that in a case involving complicated questions of fact the High Court should not have made the Sessions Judge, when holding a trial with the aid of assessors, the final Judge of fact. In continuation it was observed:‑ "It is a fundamental principle that every person shall be given the substance of a fair hearing in accordance with law in an appellate Court. This enjoins on the appellate Court the duty of exercising its discretion in a sound and judicial manner. Where discretion vested in a High Court has been exercised arbitrarily and has resulted in the substance of a fair hearing being denied to the accused, this Court must interfere in order to ensure that the appellant gets a fair hearing in the appellate Court. In a case of this magnitude involving complex questions the record should have been sent for, so that the learned Judge could deal adequately with the grounds of appeal preferred before him and come to an independent finding and form his own conclusions. No hard and fast rules can be laid which would govern the applicability of section 421 in all cases. This Court can only indicate that, in cases which are not tried by jury, the appellate Court should be most reluctant to exercise the discretion vested in it under section 421 unless the case is of such a simple nature that a mere perusal of the judgment shows unmistakably that no substantial argument can be addressed to the Court on behalf of the convicts." We are in respectful agreement with the above dictum and may usefully add that under section 367 which by virtue of section 424 is applicable to judgments delivered by an appellate Court, it is necessary that every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision. This seems to be vouched by the provisions of section 421 also which is to the effect:‑ "On receiving the petition and copy under section 419 or section 420, the appellate Court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily: Provided that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. (2) Before dismissing an appeal under this section, the Court may call for the record of the case, but shall not be bound to do so." Thus while the summoning of the records may be dispensed with the necessity to record a decision that "there is no sufficient ground for interfering" remains and the reasons in support of such a decision must be given in the judgment. This, however, does not mean that a full and complete judgment should be recorded under section

421. It nevertheless must appear on the face of the judgment dismissing the appeal summarily that the Court has applied its judicial mind to the question of fact and law raised in the grounds of appeal and come to its own independent conclusions thereon. In the above view the order of the High Court dismissing the appeal preferred by the appellants summarily does not conform to the requirements of section 421 of the Code of Criminal Procedure. We accordingly allow this appeal and direct that Criminal Appeal 392 of 1965 preferred by the appellants from the order of the Special Judge Ist Court, Comilla, dated the 4th September 1965, be restored and disposed of in accordance with law. A. H. Case remanded.