P L D 1952 Azad J (PLP)

ABDUL MAJID, C. J.‑The facts relating to this revision petition may be stated briefly as follows : - The petitioner Muhammad Sharif Khan was convicted under section 363 A. P. C. and was sentenced to one year's rigorous imprisonment and Rs. 40 fine by the Additional District Magistrate, Pallandri. To file an appeal against his conviction and sentence in the Court of the Sessions Judge, the petitioner appointed his father Bahadur Ali as his agent by a duly executed power of attorney attested by the Additional District Magistrate. The petitioner's father filed an appeal in Court of Sessions judge within the time allowed by law. The appeal was admitted by the Sessions judge and fixed for hear ing. The petitioner's father before the date fixed for hearing engaged a Pleader who appeared before the Sessions Judge on behalf of the petitioner for arguing the appeal on several dates. The petitioner who had been bailed out also appeared before the Sessions judge along with his Pleader at two hearings. The appeal came up for hearing in the first instance before Sardar Yar Muhammad Klan, Sessions judge and after he had been transferred, before Sardar Muhammad Ayyub Khan who suc ceeded him. Sardar Muhammad Ayyub Khan as appears from the record had written a judgment after hearing the petitioner's counsel but did not consider proper to announce it in the ab sence of the petitioner for whose presence he had issued warrants of arrest and given notice to the surety. Sardar Muhammad Ayyub Khan dismissed the appeal holding that it had been not properly presented under section 419 Criminal Procedure Code without hearing the petitioner or the counsel engaged by his father. The petitioner seeks to revise the order of Sardar Muhammad Ayyub Khan, Sessions judge, by this Court stating that the order is wrong inasmuch as the learned Sessions Judge did not give the petitioner or the counsel engaged by his father an opportunity of being heard as requir ed by section 421, Code of Criminal Procedure. The question is whether the appeal presented by the father of the petitioner who had been authorised by a duly executed power of attorney to present it on behalf of the petitioner in the Court of Sessions Judge was properly presented. For resolving this question, one has to look to the provisions of section 419 Criminal Procedure Code. It runs as follows :‑ "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 (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against, and, in cases tried by a jury, a copy of the heads of the charge recorded under section 367." It is contended by the learned Government Advocate that as the petitioner's appeal was not presented by the petitioner himself; it could only be presented by his Pleader as defined under section 4, Criminal Procedure Code and the petitioner's father who was appointed Mukhtar by the petitioner without obtaining permission of the Sessions Judge, could not be treated as a Pleader and consequently the appeal was not properly presented. The learned Advocate for the petitioner has urged in reply that the permission of the Court for the appointment of the petitioner's father as a Mukhtar of the petitioner was needed only if the petitioner's father wanted to argue the appeal and not otherwise. The contention of the learned Advocate for the petitioner is well founded. Section 421, Criminal Procedure Code specifically lays down 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. In other words, in support of the appeal before it is dismissed, it is necessary to hear either the appellant or his Pleader. It was, therefore, necessary to include in the definition of "Peader" any other person authorised by the convict who is unable to appear himself in the appellate Court to argue the appeal on his behalf, so that the case may not go un‑represen ted. It was for this reason that according to the definition of "Pleader" given in section 4 clause (r) of Criminal Procedure Code, the Mukhtar of the prisoner who had been permitted by the Court to act for him in the matter of appeal was given the status of a Pleader. The word "Pleader" defined in section 4, therefore, has enlarged meaning, so that the convicts may have an opportunity of presenting their cases fully before the appellate Court, even if they are not in a position to engage a regular counsel. The permission of the appellate Court is not at all needed by a person appointed by the convict as his agent by a power of attorney to present an appeal on his behalf. What the agent appointed by a power of attorney does, is the action of the appellant himself so far as the presen tation of the appeal is concerned. I am, therefore, of opinion that the appeal was presented on behalf of the petitioner properly in the Court of Sessions judge as required by sec tion, 419, Criminal Procedure Code and it could not be dis missed unless the petitioner or the counsel engaged by his Muhktar had been beard, and the order passed by the learned Sessions judge is wrong and liable to be set aside. I, therefore, set aside the order of the Sessions judge, dismissing the appeal, and direct the Sessions judge who has succeeded Sardar Muhammad Ayyub Khan to decide the appeal after giving opportunity to the counsel of the petitioner of being heard in support of the appear. The record of the case to be sent back to the Court of Sessions Judge: Announced. A. H.