P L D 1977 Lahore 449 (PLP)

(2) Before dismissing an appeal under this section, the Court may call for the record of the case, but shall not be bound to do so." The perusal of the above provision shows that if no sufficient ground for interference is found by the appellate Court then the appeal may be dismissed summarily, but the same will not be dismissed without hearing the appellant or his counsel. It has also been provided that before dismissing the appeal relevant record of the case may be called though the Court would not be bound to do so.

7. The question which requires consideration in the given circumstances of the case is: as to whether the impugned order has been passed in a proper manner and in accordance with law, or the appeal otherwise should have been admitted to regular hearing and no order like the impugned one should have been passed. It has been held in Chandra Shaikher v. Raja Ram A I R 1929 Nag. 150? that the provision of section 421, Cr. P. C. is mandatory and before an appeal filed under . section 419, Cr. P. C. is dismissed, section 421 requires that the Appellate Court should give the appellant before it, or his pleader or his counsel a reasonable opportunity of being heard. It has also been held that the judgment dismissing the appeal summarily under the said provision of law need not be elaborate but must be such as to show on the face of it that the Appellate Court has applied its mind to the consideration of the evidence on record and the pleas raised by tae accused, both in the Court below and in the memorandum of appeal. In that case after the petitioner before the High Court was held guilty and convicted by the learned trial Court, appeal was filed before the District Magistrate who dismissed the same by a brief order that since the Magistrate had brought out clearly the evidence for the conviction, therefore, it was fully justified and the penalty impose upon the petitioner was not excessive. It was further found that no reasonable opportunity had been granted to the petitioner by the District Magistrate while rejecting his appeal, which .was disposed of as soon as it was placed before him. It was held that though elaborate judgment was not required under section 421 but, at least, it should have been clear therefrom that the Court had applied its mind to the facts of the case after going through the record. Since, the order passed by the District Magistrate was very brief without giving facts of the case even in a brief manner, therefore, the same was set aside. It was, however admitted in that case that the record of the lower Court had been summoned by the District Magistrate before the dismissal of the appeal. In the present case the petitioner as well as his counsel, both, were present, when the impugned order was passed after going through the relevant record. Further. the said order is not brief in its nature but contains details of the facts of the case and has been passed after appraising the evidence produced by the parties on record.

8. The view that an appeal can be rejected under section 421, Cr. P. C. without any formality and without recording any judgment or reason of any description was taken by the Lahore High Court in Nazar Muhammad Khan v. Hara Singh Bedi A I R 1926 Lah.

196. In that case an appeal was filed in the High Court against the order of the Sessions Judge and the same was summarily dismissed by a learned Single Judge of the High Court at the time when neither the appellant nor his counsel was present. An application was later on put fn for deciding the appeal on merits as it had been dismissed for non-appearance of the appellant. As mentioned above, it was held in that case that an order rejecting the appeal could be passed without any formality and even without recording any reason. It may be respectfully pointed out that the view taken in that case is no more a good law. It is now wall settled that even while passing an order on summary basis the party concerned should be heard and reasons for passing such order should be given indicating that the Court has applied its mind to the facts of the case.

9. Contrary view has been taken in Abdul Latif Munshi and other v Ahmad A I R 1933 Cal. 515 that notwithstanding the provisions of the statute it is desirable that a final Court of facts should record concisely some reasons in rejecting an appeal summarilly in order to enable the High Court in revision to appreciate the final findings of the lower appellate Court on facts and to see if any question of law arises on those findings. It has also been observed that the practice by which all appeals, except the Jail appeals, are admitted without any hearing, except on the question of bail, is a practice which cannot be defended. In that case it was contended that it was not necessary for the Appellate Court, while rejecting an appeal summarily, to record any reason. This contention was repelled with the observations mentioned above. The dispute in the said case was with regard to title of the parties in certain immovable properties and the defence version was that the accused persons were in possession of the property in dispute and that they themselves got away ripe paddy, grown by them, while a false case had been made against them otherwise. it was found that in such a case it was obligatory for the Appellate Court to pass such an order which may indicate that mind had been applied to the facts of the case at the time of its disposal. 9-A. It has been held in Khalil and others v. The Crown P L D 1953 F C 133 that an order of summary dismissal under section 421, Cr. P. C. must indicate in brief the reasons which led the Court to reach the conclusion that there was no sufficient ground for interference. It has been observed that it is true that this section gives the Appellate Court power to dismiss an appeal summarily, but the power cannot be exercised in an arbitrary manner. It has been further held that the absolute discretion given to the Appellate Court must be exercised in such a way so as to secure due and efficient administration of justice and to inspire confidence in the minds of the accused persons that their case has been treated with due care and caution by the appellate Court. It has also been observed by their Lordships that no hard and fast rule can be laid down which may govern the applicability of section 421 in all cases, in cases which are not tried jury the appellate Court should be most reluctant to exercise the jurisdiction vested in it under section 421 unless the case is of such a simple nature that mere perusal of the judgment shows unmistakably that no substantial argument can be addressed to the Court on behalf of the convicts. In that case the appellants before the Federal Court were tried by an Assistant Sessions Judge of Mymen Singh for offences under sections 304/34, 147, 325 and 326, P. P. C. The trial was held with the aid of assessors. All the appellants were convicted under section 147 and sentenced to 4 months R. I. each, except one Khalil, who was convicted under section 304, Part II and was awarded a sentence of 4?? years' R. I. In their appeal filed before the High Court all the findings of fact given by the Sessions Judge were challenged. It was pointed out that all the witnesses for prosecution were interested and the prosecution evidence did not give any reasonable explanation of the injuries on the person of the three appellants. They prayed for acquittal in the given circumstances of the case. The High Court dismissed their appeal with an order running into five words only: "The appeal is summarily dismissed". This order was upset by the Federal Court with the observations referred to above. The case was remitted to the Dacca High Court with a direction that the appeal of the appellants before the Federal Court should be re-heard after sending for the record of the case.

10. In Gul Muhammad v. The Crown P L D 1956 F C 111 it was hold that where a case under section 409 involved intricate questions of fact on which two Courts of first instance, first a Magistrate and, in a retrial, the Special Judge, had taken different views, summary dismissal of the appeal by the Chief Court of Sind in the absence of record under section 421, Cr. P. C. was inadvisable. The learned Judges of the Federal Court while relying upon P L D 1953 F C 133, as referred to above, have observed, that the plea of the appellant before the Federal Court was such that for its satisfactory resolution it was necessary for the Court to appraise the evidence which was not done. The order, therefore, passed in this behalf by the Chief Court of Sind was set aside but the case was not remitted for fresh decision. Since points of fact and law were argued before the Federal Court, therefore, the case was otherwise decided on merits by the Federal Court.

11. In Ghulam Muhammad v. The State P L D 1960 Lah. 11 it was hold that the provision as contained in section 421 does not invest the Court with the powers of summary dismissal of an appeal to the extent of dismissing it without carefully ascertaining whether the case does not call for interference. It has been observed that this step in itself involves a careful perusal of the judgment, grounds of appeal and the record of the case, if the Court has chosen to send for it. If this study leads the Court to the conclusion that the appeal merits a summary rejection the Court may do so, but this power should be exercised sparingly and with very great caution and not until an opportunity has been afforded to the appellant or his counsel for being heard in support of the appeal. It has also been held that it is necessary under the law to write out a detailed order but however concise it may be it should at least, indicate that the Court has understood the case and for that purpose it is necessary that the Court should briefly give reasons for summary dismissal of the case. In that case the appellant before the High Court was convicted under section 406, P. P. C. and sentenced to one year's it. I. by a Section 30, Magistrate of Gujrat. His appeal before the learned Sessions Judge was dismissed summarily in his as well as his counsel's absence and even without perusing the record. The order passed in this behalf was set aside and the case was remanded for re-hearing of the appeal.

12. So far as the provision contained in section 421, Cr. P. C. Is concerned, where complicated questions of fact or law are not involved in a judgment appealed against summary dismissal of appeal may be justified. In a case where the judgment appealed against contains the entire evidence produced on file in detail as having been substantially reproduced there, record of the case may be sent for before any order is passed under section

421. It is true that the Appellate Court should normally be reluctant to dismiss an appeal summarily unless the case is of such a simple nature that mere perusal of the judgment shows unmistakably that no substantial argument can be addressed to the Court in regard to the facts. But in other cases, as mentioned above. where complicated questions of fact and law are involved, they should be dealt with in a manner which should show that the appellate Court has applied its judicial mind to all the grounds urged before it reliance in this respect can be placed upon Ali Khan and another v. The Crown 1969 P Cr. L J 981 and Milan Pramanik and 10 others v. The State? 1969 P Cr. L J 1375. This view gains strength from Mushtaq Hussain v. The State AIR 1953 S C

288. In that case the appellant before the Supreme Court of India was found guilty of abduction of a minor girl by the learned Sessions Judge and his appeal had been dismissed summarily in the absence of the relevant record having been called for. It was held that it was not right for the High Court to dismiss the appeal summarily where some arguable points had been raised and it required consideration. It was further observed that in such cases where no arguable points are raised such course may be justified. Even in the case of summary rejection of appeal, it was observed, some indication of the High Court on the points raised should be given in the judgment.

13. The learned counsel for the petitioner has argued while relying upon the provisions as contained in Order XII, rule 11, C. P. C and rule 1(i), Chapter 3-8, Vol, V of High Court (Lahore) Rules and Orders, that first appeal being in relation to points of fact and law should be admitted to regular hearing as it is the consistent practice of the High Court not to dismiss Regular First Appeal in limine. According to the learned counsel since the appeal preferred against the order of the Chairman of the National Industrial Relations Commission was first appeal, therefore, it should not have been dismissed summarily. even after sending for record, rather it should have been admitted to regular hearing. He in this respect has referred to Begum Humayun Zulfiqar Ismail v. Begum Hamida Saadat Ali 1968 S C R M 828 and Abid Hussain v. Mst. Afsar Jahan Begum and others P L D 1973 S C 1.

14. I am afraid, the provisions as well as the authorities referred to by the learned counsel are not relevant for the decision of the present case. The appeal before respondent No. I having been filed under section 419, Cr. P. C. was liable to be disposed of under the provisions as contained in sections 421, 422 and 423, Cr. P. C. There is no doubt that so far as rule 11 of Order XVI, Cr. P. C. is concerned it empowers the appellate Court to dismiss an appeal without sending notice to the other party and even in the absence of the record, but general parctice of the Lahore High Court as well as of the Sind High Court has been not to dismiss a Regular First Appeal in limine and to dispose it of on merits after hearing the other party. The relevant provisions of the High Court Rules and Orders of the respective High Courts lay down that R. F. A. is generally not to be dismissed in limine. This is only in case the facts are not simple or undisputed as held in 1968 S C M R 828, referred to above. So far as the present case is concerned, in addition to the provision a9 contained in section

421. Cr. P. C. procedure for hearing criminal appeals is given in para. 2, Part C. Chapte 25-C, Vol. III of the High Court Rules and Orders. According to that, on a perusal of appeal or the copy of the judgment or order appealed against and after bearing the appellant or his counsel if the appellate Court considers, that there is no sufficient ground- for questioning the correctness of the decision or interfering with the sentence or order appealed against it may reject the appeal summarily. It has further been provided that while acting under section 421 of the Code of Criminal Procedure the Court may call for and examine the proceedings of the lower Court but is not bound to do so.

15. The discussion as made above would show that what the law requires under section 421, Cr. P. C. is that an Appellate Court may dismiss an appeal summarily if there is no disputed question of fact and law involved; otherwise it should send for record of the case, examine it and after hearing the appellant or his counsel may reject the appeal even without issuing notice as contemplated in section 422, Cr. P. C. What is required by law is that the appellate Court while acting under section

421. Cr. P. C. should apply its mind to the facts of the case even if it rejects an appeal summarily or after sending for the record. In the present case, there is no doubt that perusal of evidence was necessary for respondent No. 1 before appeal could be disposed of under section 421, Cr. P. C. I have examined the order dated 14-7-1975, passed by the Chairman of the Commission which contains full discussion of the evidence produced by the parties. Further the impugned order passed by a Full Bench of the Commission contains reference to the relevant portions of the evidence and the contentions raised by the petitioner in support of his case have been repelled with reference to such portions of the evidence. J have already referred to certain portions of impugned order which contain such references. Moreover, it is not disputed, as held above, that the impugned order has been passed after the perusal of the relevant record in the circumstances, the requirement of law has been fully complied with while passing the impugned order.

16. The result is that writ petition having no force is hereby dismissed without any order as to costs. S. Q. ???????????????????????????????????????????????????????????????????????? Petition dismissed.