1968 P Cr (PLP)

This criminal revision petition assails the validity of an order of Mr. Ghulam Kadir N. Kadri, Additional Sessions Judge, Nawabshah, dated 18‑2‑66 passed on an appeal preferred before him on behalf of the present applicant under section 476‑B, Cr. P. C. whereby he dismissed that appeal on the sole ground of a default of appearance on the part of the present applicant and her Advocate and without hearing the said appeal on merits.

2. The brief facts giving rise to this matter are that the husband of the applicant Mst. Sami wife of Talib Jamerjo died after purchasing some land in his own name in Deh Tetri Taluka Naushero Feroze from the Barrage Mukhtiarkar Nawabshah. After his death the present respondents who are his sons from his first wife and their mother desired that the applicant should give up her share in this land and towards this end they filed suit No. 69/62 on 10‑7‑62 in the Court of the Civil Judge, Naushero Feroze for a declaration that they owned all the shares in this land leaving nothing for the applicant. On 1‑8‑62 they obtained a summons from this Court against the applicant for a hearing on 7‑8‑62 and through bailiff Nek Muhammad of that Court they succeeded in getting this summons served fraudulently upon a wrong woman passing her off as the applicant Mst. Sami. On the date of hearing 7‑8‑62 opponent No. 4 produced a forged Mukhtarnama purported to have been signed by the present applicant. On 29‑8‑62 the next date of hearing the opponents produced a compromise application containing a forged thumb impression of the present applicant on the strength of which they secured a consent decree in their favour, depriving the applicant of her legitimate share in her husband's property. Thereafter the applicant filed Suit No. 7/63 against the opponents for setting aside the above‑mentioned consent decree which suit was decreed by the Joint Civil Judge and F. C. M. Naushero Feroze and an appeal there from carried to the District Judge Nawabshah also dismissed. The learned Joint Sub‑Judge arrived at the 'conclusion that the applicant was neither served in Suit No. 69/62 and that the endorsement of the bailiff on the summons and the applicant's thumb‑mark on the compromise application were not genuine. As a result thereof the applicant moved an application under section 476, Cr. P. C. which was rejected by the Joint Civil Judge and F. C. M. Naushero Feroze on 29‑6‑

65. The applicant then filed an appeal under section 476‑B, Cr. P. C. in the Court of Sessions Nawabshah which was admitted to a regular hearing by Mr. Agha Ali Hyder the then Sessions Judge Nawabshah on 23‑7‑65 who was also pleased to order issue of notices and preparation of paper book. This appeal came up for hearing on 18‑2‑66 before the Additional Sessions Judge Mr. G. N. Kadri who dismissed it through an order of one line stating:‑ "Advocate and applicant called absent. Application dismissed. Sd/‑Ghulam Kadir N.. Kadri, Additional Sessions Judge, Nawabshah. 18‑2‑66."

3. The present revision petition is directed against this order and it is pointed out by Mr. Hayat Junejo the learned Advocate appearing on behalf of the applicant that a criminal appeal once admitted to a regular hearing thereby entering the stage of sections 422 and 423, Cr. P. C. cannot be disposed of except on merits and under no circumstances can it be dismissed in default of appearance of the applicant or her counsel. In support of this proposition the learned Advocate has placed reliance on a number of rulings of which only two may be mentioned, namely, Ghulam Muhammad v. The State (P L D 1960 Lab. 11) and Hafiz and another v. The State (P L D 196[ Dacca 78) Mr. Hayat has also invited my attention to the case of Jowala Prasad v. Ram Prasad (A I R 1940 Lab. 526) where Blacker, J. pointed out that:‑ "An application under section 476 is entirely different from a complaint, it is merely the means of drawing the Court's attention to the fact that an offence appears to have been committed in proceedings before that Court, a fact, which it, can in the majority of cases verify even without the help of the applicant. It is manifestly most improper for the Court to shirk its obvious duty of applying its mind to the question whether it should make a complaint or not, merely because the applicant does not appear in support of his application." Two more cases of Manzur Hussain v. The State (P L D 1963 Lah. 20) and in Kewalram Manghan oral and another v. Emperor (A I R 1947 Sind 12) were also relied upon in support of the ..proposition that the offence of perjury is of a serious nature and it is the duty of the Court to consider why the person concerned should not be prosecuted, so that an impression is not created that anyone can divert or abuse the process of law by falsehood or fabrication and still run no risk of coming to harm. Even a delay in moving the Court to file a complaint under section 476 is not at all a good or sufficient reason for withdrawing such a complaint.

4. Mr. Kaikobad appearing on behalf of the State supported the arguments of the learned Advocate appearing on behalf of the applicant and submitted that this criminal revision petition should be allowed and the appeal under section 476‑B remanded for hearing 6n merits. He pointed out that on 18‑2‑66 when Mr. G. N. Kadri dismissed for default th6 appeal under section 476‑B preferred before him by the applicant the case diary shows that notice had issued for that day to the State and that an A. P. P. was present on behalf of the State. He urged that matters under section 476, Cr. P. C. are matters concerning the State and that therefore the learned. A. S. 1. was wrong in rejecting this appeal without calling upon or hearing the State counsel who was then present in Court.

5. I find myself in agreement with the arguments of the learned counsel appearing before me in this matter. To me it is t plain that matters concerning section 476, Cr. P. C. are not only of a serious nature but involve the interests of the State as such being offences as against public justice. Moreover an appeal once admitted to a regular hearing having survived the stage of summary dismissal' enters the stage of sections 422 and

423. Cr. P. C. which calls for and demands an examination of the record by the appellate Court for deciding the points of fact and law raised therein. Such an appeal can under no circumstances be dismissed merely on the ground that the ap2ellant and his counsel are absent.

6. I would, therefore, accept this revision petition, set aside the impugned order and direct that the appeal under section 476‑B of Mst. Sami be heard and disposed of on merits by a Sessions Judge other than Mr. Ghulam Kadir N. Kadri. Petition accepted.