P L D 1965 (W (PLP)

Criminal Procedure Code (V of 1898), S. 419‑--Provision to be construed liberally--‑Memorandum of appeal accompanied by power -of‑attorney duly, signed by counsel‑Can be presented by another Advocate or even by clerk of counsel‑Personal appearance of, counsel engaged not necessary. Queen‑Empress v. Karuppaudayan and others I L R 20 Mad. 87 and Abdul Jabbar v. Emperor A I R 1944 Oudh 87 ref. Gulzar Hassan for the State. Kashmira Singh was convicted under section 167 (8‑9) of the Land Customs Act and sentenced to two years' rigorous imprisonment by Mr. Mahmood Khan Section 30 Magistrate, Lahore. The appeal filed on his behalf has been dismissed by Sardar Muhammad Amir Akbar Khan, Additional Sessions Judge, Lahore, as incompetent. This is a revision petition against the order of the learned Additional Sessions Judge.

2. The learned Additional Sessions Judge declared the appeal as incompetent on the ground that Mangal Singh who held a power -of‑attorney from Kashmira Singh had engaged Sh. Shaukat Ali Advocate for filing the appeal but the appeal was presented by Mr. Agha Ali, Pleader, for Sh. Shaukat Ali, Advocate, as such, the appeal was not presented by a duly authorised person.

3. This order of the learned Additional Sessions Judge cannot be maintained. I have seen the power‑of‑attorney. It is signed by Kashmira Singh himself and his thumb‑impression had been attested by the Jail Superintendent. In any case Sh. Shaukat Ali, Advocate, was duly appointed to conduct the case on behalf of Kashmira Singh. The appeal was signed by, him. The presentation of the appeal in the Sessions Court is to be done before the Clerk of the Court. It is not necessary for the Advocate to personally appear for presenting an appeal. He can ask another Advocate or his junior to go and present it. Even on oral instruction a counsel can appear for another counsel. When the appeal came up for a hearing Mr. Shaukat Ali appeared and stated that the appeal was presented by Mr. Agha Ali Pleader, under his instructions and that he was prepared to argue the appeal but the learned Additional Sessions Judge did not hear him and dismissed the appeal as incompetent. Section 419 of the Cr. P. C. requires that the appeal shall be presented by the appellant or his pleader. The instructions in the High Court Rules and Orders are almost to the same effect. The presentation of an appeal with a power‑of‑attorney duly signed by a counsel even by a clerk of an Advocate has been held to be valid presentation in Queen‑Empress v. Karuppaudayan and others (I L R 20 Mad. 87) an Abdul Jabbar v. Emperor (A I R 1944 Oudh 87) is another authority where an appeal was presented but the power‑of‑attorney was not signed by the counsel. The Court held the defect to be of a technical nature which could be rectified subsequently. The directions in section 419, Cr. P. C. cannot be interpreted to mean that in case the appeal is not personally presented by an Advocate but by any other Advocate upon oral instructions of the Advocate it should be regarded as presented by an unauthorised person. The Advocate presenting the appeal has the authority from the Advocate who has been duly engaged. I have seen the power‑of -attorney which gives very vast powers to Sh. Shaukat Ali Advocate and in exercise of those powers he was competent to ask another Advocate to present the appeal on his behalf. Every day on oral instructions counsel appear for other counsel and even in this Court it is never insisted that the counsel appearing for another counsel must obtain a power‑of‑attorney from the party. The liberty of a person having been taken away the lower Courts should have heard and decided his appeal on merits instead of dismissing the same on technical objections of this nature. Under section 340, Cr. Procedure Code an accused has a right to be defended by a pleader. This would show that the intention of the Legislature is that an accused in a criminal case should be provided all the facilities for engaging a counsel. Section 419, Cr. P. C. should, therefore, be construed liberally. The order of the Additional Sessions Judge, in these circumstances, was unjustified and it is hereby set aside. The appeal will be sent back to him for deciding it on merits. K. B. A. Petition accepted. Case remanded.