P L D 1970 Supreme Court 177 (PLP)

M. B. Zaman, Advocate‑General West Pakistan (Mian Nusrat Ullah, Advocate Supreme Court with him) instructed by M. Siddiq, Advocate‑on‑Record for Ijaz Ali for the State. Date of hearing : 3rd February 1970. MUHAMMAD YAQUB ALI, J.‑Muhammad Ashiq Faqir appellant was convicted on the 23rd November 1963, by the Special Judge, Anti‑Corruption Establishment, West Pakistan, Lahore, under sections 420 and 468, P. P. C., and sentenced to undergo rigorous imprisonment for one month and to pay a fine of Rs. 60 or in default of payment of fine to undergo further rigorous imprisonment for one month. He called in question his conviction and sentence before the High Court being Criminal Appeal No. 691 of 1963. The appeal was admitted for hearing and the appellant was allowed interim bail. Thereafter the appeal was fixed for hearing on the 26th April 1967, before a learned Single Judge, but as neither the appellant nor his counsel put in appearance it was dismissed for non‑prosecution. An application was thereupon made under section 561‑A of the Criminal Procedure Code for re‑hearing of the appeal on the ground th4t tile counsel for the appellant had omitted to note the case in the daily list issued by the High Court. The prayer was, however, rejected by another learned Judge on the 23rc May 1967, in the view that there was no provision for the restoration of the appeal in the Criminal Procedure Code and the inherent powers under section 561‑A could not be invoked for this purpose. Leave to appeal was granted to consider the question that once a Criminal Appeal is admitted, it must be decided on the merits and cannot be dismissed for non‑prosecution. The provisions relating to appeal are contained in Chapter 31 of the Code. Section 419 provides that every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall be accompanied by a copy of the judgment or order appealed against. Under section 421 the appellate Court on receiving the petition and copy under section 419, shall peruse the same and if it considers that there‑ is no sufficient ground for interfering, it may dismiss the appeal on merit. Provided that no appeal shall be dismissed unless the appellant or his pleader has bad a reasonable opportunity of being heard in support of the appeal." The succeeding section 422 provides for notice to be given to the appellant or his pleader and to such officer as the Provincial Government may appoint in this behalf. Under section 423 if the appeal is not dismissed under section 421, the appellate Court shall after the issue of notice, send for the record of the case, if such record is not already in Court, and after perusing such record and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal. The remaining provisions deal with the acceptance of the appeals which are not relevant herein. As seen an appeal preferred by the appellant in the High Court against his conviction and sentence had survived summary dismissal under section 421, Cr. P. C. We presume further that the record of the case had been received before the appeal was fixed for hearing on the 26th April 1967. Similarly, notices had been issued to the pleader of the appellant and the officer appointed by the Provincial Government in this behalf. The impugned order mentions that Mr. Aitzaz Hussain appeared for the State. What was then the consequence of the non‑appearance of the appellant or his pleader, when the appeal was called for hearing by the learned Judge ‑on the 26th April 1967. The answer is to be found in section 423 (1) vie. "after perusing such record, and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal". The absence of the appellant or his pleader, therefore, does not relieve the Court from the duty of perusing record and giving reasons in support of the judgment that there is no sufficient ground for interfering with the conviction and sentence of the appellant. The learned Advocate‑General, appearing for the State, conceded this obvious position in law and added even in dismissing an anneal summarily under section 421, it is the duty of the Court to find that there is no sufficient ground for interference. He cited: (1) Khalil and others v. The Crown P L D 1953 F C 133. (2) Imran Ullah v. The Crown P L D 1954 F C 123. (3) Abdur Rashid and others v. The State P L D 1967 S C

498. The dismissal of the appeal preferred by the appellant against his conviction and sentence by the High Court for non‑prosecution is thus patently not sustainable in law. In the result this appeal is allowed and the case remanded to the High Court for disposal of the Criminal Appeal No. 961 of 1963 in accordance with law. K. B. A. Appeal accepted.