2021 PLP 1839 (YLR)

MUHAMMAD TARIQ ABBASI, J.

This revision petition, calls in question, order dated 28.11.2019 of the learned Additional Sessions Judge Sahiwal, whereby an appeal under section 408, Cr.P.C., filed by the petitioner, has been dismissed due to non-prosecution, with a direction for issuance of perpetual non-bailable warrant of arrest, against him.

2. The brief facts are that in case FIR No.158 of 2012, registered under section 489-F, P.P.C., at Police Station Farid Town, District Sahiwal, the petitioner was challaned to the Court, where all the required proceedings were competed: and finally through judgment dated 14.12.2017 of the learned Judicial Magistrate, Sahiwal, he was, convicted uhter section 489-F, P.P.C. and sentenced to Simple Imprisonment for three years, with benefit to section 382-B, Cr.P.C. The petitioner had challenged his conviction and sentence, by way of an appeal, under section 408, Cr.P.C. but dismissed, as stated above.

3. Nothing is available on the record, to suggest that due to absence of the petitioner, his bail bonds were cancelled and to ensure his attendance, any process was issued. Therefore, the order in question, whereby suddenly the appeal had been dismissed due to non-prosecution and perpetual warrant of arrest had been issued, against the petitioner, could not be termed as justified and valid act.

4. Furthermore, there is no provision in the Code of Criminal Procedure, 1898, permitting an appellate Court to dismiss an appeal, against conviction, due to non-prosecution. Even otherwise, if it is presumed that due to the alleged conduct of the petitioner, he has been held disentitled for right of audience, before the Court, even then the court should decide the matter on merit, while perusing the available record. If any case law in this regard is needed, reference may be made to the cases titled "Zahid Hussain v. The State and others" reported as 2011 PCr.LJ 344 [Lahore], "Muhammad Bakhsh v. The State" reported as 1986 SCMR 59, and "Muhammad Ashiq Faqir v. The State" reported as PLD 1970 SC

177. The relevant portion of the case of Zahid Hussain Supra reads as follows:- "Admittedly, it is a settled legal principle that after admission of a criminal appeal, it cannot be dismissed without adverting to the merits thereof and non-appearance of appellant or his counsel is not a ground for dismissal unless all the raised questions are determined and factual and legal aspects are thrashed as contemplated under section 423, Cr.P.C." In case of Muhammad Bakhsh cited above, the Hon'ble Supreme Court, held as under:- "The proposition of law that a criminal appeal once admitted to regular hearing by the High Court must be decided on merits and cannot be dismissed for non-prosecution, is fully supported by the pronouncement of this Court in Muhammad Ashiq Faqir v. The State PLD 1970 SC

177. Whereas in the above referred case of Muhammad Ashiq Faqir, the Hon'ble Supreme Court, while declaring act of dismissal of an appeal, against conviction, due to non-prosecution, a patent illegality, concluded in the following terms:- "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 that even in dismissing an appeal 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 PLD 1953 FC 133. (2) Imran Ullah v. The Crown PLD 1954 FC 123. (3) Abdur Rashid and others v. The State PLD 1967 SC

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."

5. Despite all the above mentioned, as per law laid down by the august Supreme Court of Pakistan in case titled "Ikramullah and others v. The State" reported as 2015 SCMR 1002, the petitioner may surrender himself before the learned appellate Court and seek resurrection of his appeal. The relevant Para of the judgment says as under:- "The law is settled by now that a fugitive from law loses his right of audience before a court. This appeal is, therefore, dismissed on account of the above mentioned conduct of the appellant with a clarification that if the appellant is recaptured by the authorities or he surrenders to custody then he may apply before this Court seeking resurrection of this appeal."

6. Resultantly, the petitioner is directed to surrender himself before the learned Appellate Court and seek resurrection of his appeal, which shall be taken up again and decided on merit. Disposed of. MH/A-20/L Order accordingly.