P L D 1973 Lahore 448 (PLP)

3. The evidence is that on the night of the occurrence the deceased and his brother Ahmad Husain, the first informant, had gone to the Railway Station to receive their elder brother Faizullah Khan who had to come from Multan in connection with the marriage ceremony of Ahmad Husain P. W. which was to be celebrated on 29th of August 1964. Their brother did not arrive by the evening train and they started back to their house. Ahmad Husain sat to urinate when the deceased went ahead. While he had gone thirty‑five karams' distance he was assaulted by the appellant with a knife. Ahmad Hussain ran towards the place of occurrence and saw the appellant inflicting knife blows on the deceased from a distance of ton karams. Allah Bakhsh (P. W. 3) came to the spot and also saw the actual infliction of the injuries. Mulazim Husain (P. W. 4) saw the appellant when he was running away after the commission of the offence. The deceased died instantaneously. Leaving Allah Bakhsh and Mulazim Husain with the dead body, Ahmad Husain went to his father who told him about the motive for the commission of the offence. Abmad Husain then went to lodge the first information report Exh. P. C. in Police Station Leiah which is at a distance of one and a half furlongs from the place of occurrence.

4. The appellant was arrested the same night from his house. He was wearing chaddar Exh. P. 5 which was taken into possession vide memo. Exh. P. D. because it was stained with blood. He led to the recovery of knife Exh. P. 4 and shirt P. 6 vide memos. Exh. P. F. and P. G. both of which appeared to be stained with blood. All these three articles were sent for chemical examination and according to the Serologist were found to have been stained with human blood.

5. The appellant filed Appeal No. 65 of 1966 through jail and an intimation was sent to him on 15th of February 1966 by the office of the High Court at Lahore that his case will be fixed for 28th of February 1966, or soon thereafter. He thereafter filed another appeal through counsel which was presented in Lahore on 9th of May 1966, but since it related to Bahawalpur Region, the counsel was asked to present it there. The appeal was registered in Bahawalpur Registry as Appeal No. 59 of 1966, on 17th of June 1966. While this latter appeal was pending, the jail appeal filed by the appellant came up before a Division Bench at Lahore. The Bench after hearing the learned counsel appearing for the State dismissed the same on 5th of March 1968.

6. When the appeal came up before a Division Bench at Bahawalpur the counsel argued that the appellant having engaged a counsel the latter was entitled to a notice for the date of hearing and since no notice had been sent either to the appellant or his counsel, the decision of the jail appeal in the absence of any notice was a nullity. The Division Bench sitting in Bahawal pur decided to examine this plea and 'ordered that the appeal should be heard at Lahore.

7. The matter has come up before me as transportation appeals are now being heard by Single Benches. Tae practice in this Court appears to be that after notice is ordered to be issued in a jail appeal, the appellant is informed in jail about a tentative date of hearing and it is left to him to engage a counsel or ask for personal appearance. In this case the appellant had engaged a counsel and was legitimately under an impression that his counsel shall be informed when his appeal comes up for hearing. Since the appeal filed by him through counsel was sent to Bahawalpur, the office at Lahore fixed the jail appeal for hearing in ignorance of this fact.

8. It has been urged by the learned State counsel that after the intimation was sent to the appellant regarding the tentative date of his jail appeal, he was no longer entitled to a further notice and it was for him to ask for personal appearance if he so wanted. There are authorities to the effect that if a jail appeal has been summarily dismissed the convict has no right to reagitate the matter by filing an appeal through counsel and the judgment of the High Court becomes conclusive. See Pons Mahton v. King‑Emperor (I L R 14 Pat. 392) and Ram Jas and others v. Emperor (A I R 1936 Oudh 219). The position however, would be different where during the pendency of the jail appeal, the convict chooses to file an appeal through a counsel. The provisions regarding the hearing of appeals are contained in Chapter XXXI of the Criminal Procedure Code. It is open to an appellate Court under, section 420, Cr. P. C. to dismiss an appeal received from jail in limine without issuing notice. This was so held in Muhammad and 2 others v. The State (P L D 1961 Kar. 709). Their Lordships, however, observed that when a notice is issued the appellant may ask for personal hearing but if he has engaged a counsel he is not, entitled to a personal hearing and a notice has to go only to his counsel. In Queen‑Empress v. Pohpi and others (I L R 13 All. 171), the late Justice Mahmood held that an appellant from jail was entitled to a personal hearing on the basis of the wording of section 423, Cr. P. C. and the rule of audi alteram partem. The majority of the Bench was of a different view. The jail appeals in Allahabad High Court were considered as Nemo cases and the majority decided that in view of the provisions of section 420, Cr. P. C. which gave a right to the Court to dismiss summarily an appeal received from jail without granting a hearing to the appellant, the jail appeals could be dealt with in the absence of the appellant even after a notice had been issued under section 422, Cr. P.C., The following observations by Mahmood, J., are worth quoting. His Lordship observed:‑ I think it is necessary for me to say that if It is true that the law of British India makes it possible for me sitting here as a Judge, in the first place, by dint of my writ to order a person to be imprisoned and tied by a chain, then in the next place to require the mockery of giving him notice, the mockery of asking him to attend, when I, by dint of the exercise of my own power have made it Impossible for him to attend, and then have the solemn mockery of having his name called out; if this is the law of British India, I hope the sooner it is abrogated the better. The majority held a different view. However, in a latter Allahabad case Emperor v. Lal Bahadur (I L R 50 All. 543), the view of majority expressed in I L R 13 All. 171 was not approved and it was held that where a convict has appealed from jail and a notice of appeal had been sent .in terms of section 422, Cr. P. C. the appellant if he is not represented by a counsel so desires, can exercise his right to appear in person at the hearing of his appeal. This is in accord with the Karachi view expressed in the case of Muhammad and 2 others v. The State, referred to above.

9. It is clear from the facts of this case that the appeal was decided ex parte against the appellant without any notice to him or to his counsel. The counsel for the appellant had a statutory right to receive notice for the actual hearing of the appeal. No such notice was sent and the appeal was still pending in Bahawalpur when the jail appeal was dismissed in Lahore.

10. It is now established that the powers under section 561‑A of the Criminal Procedure Code can be exercised to reconsider the orders of dismissal of an appeal or application c passed without jurisdiction or without notice to the party to whose prejudice such an order is passed. The Supreme Court held in Gulzar Hasan Shah v. Ghulam Murlaza and 4 others (P L D 1970 S C 335) that the principle of finality of judgment in criminal cases is subject to the condition that the affected party should have a proper notice of the hearing of the case. It was held by the Full Bench of the Lahore High Court in Muhammad Sadiq v. Crown (A I R 1925 Lah. 355), that it had inherent powers to make an order that an appeal, where reasonable opportunity was not given to the appellant to be heard, according to the provisions of law, should be reheard and the appellant or his counsel be given a reasonable opportunity of being heard in respect of the same. In Ranga Row v. Crown (16 I C 518) a Division Bench of the Madras High Court was considering the question whether it bad the powers to review an order passed in a revision petition. During the arguments reference was made to a case reported as Proceedings 7th November 1873(5) where it was held that an appeal which was rejected without hearing the appellant's counsel, could be restored and reheard. Their Lordships observed as under:‑ "We have no doubt that this is correct, for the language of section 421 requires a reasonable opportunity to be given and, if such reasonable opportunity is not given, the Court has no jurisdiction to dismiss the appeal." The same view was taken in Tadi Soma Naidu and another (I L R 47 Mad. 428) where it was observed that an order passed to the prejudice of an accused without affording him an opportunity of being heard, was null and void ab initio and was one passed without jurisdiction. The Division Bench observed that the proper course in such a case was to proceed with the matter afresh after proper notice to the accused. The facts in Bhawani Dehal v. King‑Emperor ((1906) 3 All. W N 693) were similar to the one in this case. The Sessions Court had dismissed the jail appeal filed by a convict summarily under section 420, Cr. P. C. during the pendency of another appeal filed by the same convict through a counsel. When the appeal filed through counsel came up for hearing, it was dismissed by the Sessions Court on the basis of the order passed earlier in respect of the jail appeal. A revision petition was filed in the High Court and the learned Judge hearing the case set aside the order of dismissal of the appeal filed through counsel and directed the Sessions Judge to dispose of the appeal after giving the legal practitioner an opportunity of arguing the case.

11. The above discussion shows that the order of the Division Bench was passed without jurisdiction as it was passed without notice to the counsel for the appellant. The appeal filed by the appellant through his counsel is, therefore, to be heard afresh.

12. Now coming to the merits of the case I find that the story regarding motive is rather thin. The initial story in this aspect of the case was not adhered to at the trial. It is also hard to believe that the deceased could have cut an indecent joke in a street with a child of seven or eight years. Ahmad Hussain P. W. stated at the trial that after the incident he went to his father and after hearing about the motive went to police station to lodge the report. The distance of police station is about one and a half furlongs from the place of occurrence and this statement was made at the trial perhaps to avoid the difficult question as to why he did not go straight to the police station. In any case, if there was such a motive and there had been a protest about it, Ahmad Husain was expected to know of it.

13. The learned Sessions Judge did not rely on the state ments of Allah Bakhsh and Mulazim Husain. I have gone through their statements. Allah Bakhsh lives at a long distance from the place of occurrence and claimed to have come to Leiah for selling ghee. He stated that he had paid octroi in respect of the ghee which he had brought to Leiah bat was not able to produce the receipt before the police. His cross‑examination clearly shows that this witness had perhaps never dealt with any trade and had been imported from outside. Mulazim Husain is employed as a greaser in WAPDA in Chak No. 339 which is at a distance of about five miles from the place of occurrence. He said that he had been deputed to Leiah two days earlier to carry certain spare parts. He, however, admitted that there was no documentary evidence to the effect that he had reported for duty to the ' Assistant Engineer, Leiah. Ho, on the other hand, admitted that he was marked present on duty in Chak No. 339, on the day of occurrence. The learned Sessions Judge found their statements unsatisfactory but relied upon the statement of Ahmad Husain (P. W. 2) coupled with the recoveries. I must say that the evidence of recoveries is also unsatisfactory. Ghulam Husain (P. W. 6) is the brother of Khadim Husain Patwari who is married to the sister of the deceased. The other witness of recovery Muhammad Ramzan is also a canal Patwari and lives on the other side of the Town. He said that he was going to ask after the health of his distant cousin Ibrahim when he was joined in the investigation. He was notable to give the name of the wife of his distant cousin or the names of his family members. There were admittedly other persons present at the time of the recoveries who were not cited as witnesses. I find force in the contention of the learned counsel that Ghulam Husain being related to the deceased and Muhammad Ramzan being a colleague of Khadim Husain Patwari, have come forward to depose to the factum of recoveries. The recoveries in this case are not above board.

14. So far as Ahmad Husain (P. W. 2) is concerned, he has been found to have introduced Allah Bakhsh and Mulazim Husain who according to the learned Sessions Judge were not present at the spat. He claimed that he left the dead body to the care of these two persons. If they were not there where is the guarantee that Ahmad Hussain himself was there. It is also the claim of Ahmad Husain that he did not know Allah Bakhsh P. W. and had not put any questions to him as to his identity before leaving for the police station. Same is the position of Allah Bakhsh P. W. The name of Allah Bakhsh along with his caste, however, finds mention in the F. I. R. which suggests that the F. I. R. was not lodged in the police station and the Sub‑Inspector after making certain enquiries at the spot introduced the names of Allah Bakhsh and Mulazim Husain who have been found to be unreliable by the trial Court.

15. After having found that Ahmad Husain made mis statements with regard to the material facts of the case, it is not possible to rely on his statement for sustaining the conviction of the appellant without any corroboration. The learned trial Court sought corroboration from the recoveries but as observed above, I do not find the evidence of recoveries satisfactory. In view of this state of evidence, it is not possible for me to sustain the order of the trial Court. The appeal is allowed and con viction and sentence passed on the appellant are set aside. He shall be released forthwith unless he is lawfully required to be detained in some other case. S. Q. Appeal allowed.