P L D 1961 (W (PLP)

S. 420‑--Jail appeal‑

Engagement of pleader at Government expense‑--Necessity of amending Rules. Abdul Qadir Qureshi for Appellants. Khalid Ishaq, A. A. G for Respondent. Dates of hearing: 1st and 2nd August 1961. H. T. RAYMOND, J.‑A number of appellants in jail have applied requesting permission to attend the of their appeals. These requests are, so far as we know, dented in the area under this Bench, but after consulting the, authorities we considered that the matter should be argued in Court in this appeal as a test case, and for this purpose Mr. Abdul Qadir Qureshi was appointed by us as pauper advocate to argue on behalf of the petitioner, while the learned A. A. G. appeared State. The question is: "When, if at all, is an appellant in jail entitled to be present for the of his? Mr. Abdul Qadir Qureshi, basing his argument on the con tention that the disjunctive "or" appearing in 422, Cr. P.C. ("shall cause notice to be given to the appellant or his pleader") is to be construed as the conjunctive "and", argued that both the appellant and his pleader have a right of being present at and of being heard at the hearing of his appeal. The learned A. A. G., on the other hand, contended that the disjunctive "or" in this context must be construed in its natural sense and meaning and that if an appellant is represented by pleader then he has no right to be present at or to be heard at the hearing of his appeal, but conceded that if an appellant in jail has no pleader, he has a sight to be heard in person, if he so desires. The law relating to criminal appeals is set out in Chapter XXXI of the Code of Criminal Procedure. This Chapter begins with section 404 which provides that "No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force." It is thus apparent that criminal appeals are creatures of statutory law. The next relevant section in Chapter XXXI is section 4? 9, which so far as is material for the present purpose, provides that every appeal shall be made in the form of a petition in writing that it shall be presented by the appellant or his pleader and that it shall be accompanied by a copy of the judgment or order appealed against. Section 420, provides that if the appellant is in jail, he may present his petition of appeal and the copies accompanying the same to the officer‑in‑charge of the jail who shall thereupon forward such petition and copies to the proper Appellate Court. Then, comes section 421 which provides for summary dismissal of appeals either after calling for the record or not, subject to the proviso that an appeal presented under section 419 (i.e., by the appellant in person or his pleader), shall not be summarily dismissed unless the appellant or his pleader has had, a reasonable opportunity of being heard in support of the same. It necessarily follows, by implication, that no such opportunity need be given to an appellant who is in jail before dismissing his appeal summarily. Then we have section 422, which states that if the Appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader and to the proper representative of the State. It is important to note that this notice is regarding only the time and the place at which appeal shall be heard Then comes section 423, which sots out the powers of the Appellate Court and which, so far as is material for our present purpose, provides that "after hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears," the Court may dispose of the appeal. Section 424 provides that the rule in section 366 whereby an accused, if in custody, shall be brought up to hear the judgment delivered by the trial Court does not apply to an appellate judgment unless the Appellate Court other wise directs. The last material section in this Chapter for our present purpose is section 428, which empowers the Appellate Court, when dealing with an appeal under this Chapter, to take additional evidence or to direct that such evidence be taken by a subordinate Court, but when such evidence is being taken, the Appellate Court has power to direct whether the appellant or his pleader shall be present. These are the relevant sections of Chapter XXXI dealing with appeals in criminal cases and the tight, if any, of the appellant to be present thereat. We now turn to the case‑law. That a jail appeal, (i.e., present under section 420) car be dismissed summarily without having the appellant produced in Court even if he applies for production‑is well established. A I R 1938 Bom 279 decides this point directly, and, indeed since section 421 is clear, no authority is needed. Where, however, a jail appeal is not summarily dismissed, bat notice issued under section 422, while the early Full Bench decision in Queen Empress v. Pophi (13 All. 171) rejected the submission of Mahmood, J. that, once notice has issued, the jail appellant must be produced in every case, the later Full Bench decision in Lal Bahadur v. Emperor (A I R 1928 All. 84) distinguished the case where a, jail appellant desires to be heard in person, and decided that a jail appellant so desiring must be produced. Sir John Beaumont and Wassodew, J. in A I R 1938 Born. 279 and the East Punjab High Court in A 1 R 1949, Fast Punjab 321, followed this decision: the basis of the decision is that the obligation to issue notice involves that the appellant must have a right, if un-represented, to come before the Court to argue his appeal, if he so desires. The only judicial pronouncement to the contrary occurs in A I R 1927 Oudh 312, and this is strictly speaking obiter. This was not a case where the appellant in jail had desired to be present, but it was a case in which the appellant in jail had refused to give the pauper counsel instructions stating that he did not wish to be represented by that pleader. The Bench stated: "a person appealing from jail is not permitted to argue in person and ordinarily jail appeals are heard ex parte." It then said that the concession given by the Local Government to pauper pleader of appellants condemned to death does not affect the conduct of the appeal. The pauper pleader, therefore, was to conduct the appeal on behalf of the jailed appellant without considering what the appellant's views might be on the subject. The Sind case in 27 Cr. L. J., 1933, merely decides that a jail appeal summarily dismissed, being res judicata, bars the hearing of an appeal lodged later by an advocate. The last case to be cited before us is the ease of Chief com missioner Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45), decided by our own Supreme Court. We have carefully, considered this case, and' it appears to us that the ratio decidendi of this ease is that the common law principle of audi alteram partem "no man shall be condemned unheard" 'Is not confined to proceedings before Courts, but extends to all proceedings, by whom‑so‑ever held, which may affect the person or property or other right of the parties concerned in the dispute. It was also suggested in this case that where the statutory law providing for an appeal is silent on this point, then this common law principle may well be imported into such a statute. Their Lordships said: "When a statute gives a right of appeal, it should be understood as silently implying when it does not expressly provide that the appellant shall have the right of being heard." Rules of general jurisprudence, however, must yield to enactment: the Code itself has rejected the right of a jail appellant F to be heard before his appeal is summarily dismissed, and in other cases has stated expressly or by necessary implication when an appellant is entitled to appear in person. From a perusal of the relevant sections, it is apparent, that all that is required is that a notice of the time and place of hearing of the appeal be served upon the appellant or his pleader, and that the appellant or his pleader, if present at the hearing, be heard. It is important to note that as between the appellant and his pleader the word used by the statute is the disjunctive "or" and not "and". Plainly, the conclusion to be drawn from the use of the disjunctive, and not the conjunctive, is that there is a choice between the appellant or his pleader and, therefore, it is only one of them that is required to be present at the hearing of the appeal. Moreover, it would be noticed that in section 423 the words are "hearing the appellant or his pleader, if he appears." Here again the pronoun used is the singular "he", and not "they", and hence this served an another indication that the choice is between the appellant or his pleader, and that only one of them is required to be present at and has a right to be heard at the hearing of the appeal. 1f, therefore, the appellant has his pleader, notice may well be served on this pleader only, and if in consequence thereof this pleader alone attends the hearing, he is empowered to do so and to address the Court on behalf of his client, the appellant. There is no legal necessity for his client, the appellant, also to be present. Equally, there is no legal right vested in his client, the appellant, to be so present or to be heard by the Court hearing the appeal. It is perhaps necessary to emphasise that the language used in the relevant section referred to above is: "the appellant or his Pleader." The obvious meaning of the word: "His" is that the appellant is represented by a pleader of hits own choice, appointed by the appellant and who has filed a Vakalatnama on behalf of his client, the appellant. A pauper pleader appointed for a jail appellant is not, we consider, his pleader within the meaning of sections 422 B and

423. A jail appellant would, therefore, be entitled to appear, if he so desired despite the appointment of a pauper pleader. It requires consideration whether the Rules relating to appointment 1 of pauper pleaders (chiefly in capital cases) should be amended so as to provide that if the appellant desires to be heard in person, no advocate need be appointed on his behalf. If the amendment is made then the notice to the appellant should state that if he does not desire to be heard in person, an Advocate will be appointed for him at Government expense. The Prisoners Act (III of 1900), contains, we think, no limitations on the powers conferred by the Code, expressly or by necessary implication, on the Appellate Court to order the production of an appellant. Our answer to the question propounded above is‑as follows:-- Where an appeal has been lodged under section 420, Cr. P. C. the appellant has no right to present before summary dismissal, Where do appellant in jail has engaged a pleader, only the pleader, and not the appellant, has a right to be present. Where the appellant it‑, jail has not engaged a pleader, he has a right to be present, if he so desires, notwithstanding the fact that a pleader may have been appointed for him at Government expense. It remains to add the words of Sir John Beaumont:‑ "The Court will, I need hardly say, always consider whether the ends of justice require that an appellant should be heard". S. B. Question answered.