P L D 2016 Supreme Court 13 (PLP)

ASIF SAEED KHAN KHOSA, J.--Respondents Nos.1 to 6 were accused persons in case FIR No. 175 registered at Police Station Chehlyak, District Multan on 10.07.2003 in respect of offences under sections 420/468/471, PPC and the said case was pending trial before the learned Magistrate Section 30, Multan when respondent No.4 submitted an application under section 249-A, Cr.P.C. seeking his premature acquittal. A notice of that application was issued by the learned trial court to the learned Public Prosecutor but without hearing the learned Public Prosecutor not only respondent No.4 but also the remaining private respondents were acquitted by the learned Magistrate Section 30, Multan on 01.03.2011 upon, acceptance of the said application filed under section 249-A, Cr.P.C. The appellant, being the complainant of the said criminal case, filed Criminal Appeal No. 222 of 2011 before the Lahore High Court, Multan Bench, Multan challenging the acquittal of respondents Nos. 1 to 6 which appeal was fixed for hearing before a learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan on 12.03.2013 but on that date the legal fraternity in the country was observing a nationwide strike protesting over an unfortunate incident involving burning of a locality housing the Christian community at Badami Bagh, Lahore and, thus, on the said date, without any knowledge of the appellant and his learned counsel, the appeal filed by the appellant was ordered to be fixed for hearing on the following day, i.e. 13.03.2013 through a supplementary cause list. On 13.03.2013 .the appellant's appeal was again fixed for hearing before the same learned Judge-in-Chamber of the said Court and the said appeal was dismissed in iimine in the absence of the appellant and his learned counsel not on the ground of their absence but on the merits of the case. Hence, the present appeal by leave of this Court granted on 27.02.2014.

2. We have heard the learned counsel for the appellant, the learned Additional Prosecutor-General Punjab appearing for the State and some of the private respondents who are in attendance in person and have gone through the record of the case with their assistance.

3. The record of this case shows that the appellant's appeal filed before the Lahore High Court, Multan Bench, Multan was fixed for hearing on 12.03. 2013 through a regular cause list issued in that respect and then the said appeal was re-fixed for hearing on 13.03.2013 through a supplementary cause list issued for that date. We have been informed that on 12.03.2013 the appellant's appeal and more than one hundred other appeals fixed for hearing on that date had been adjourned to 13.03.2013 in the absence of the appellants therein and their learned counsel and when the said appeals were re-fixed for hearing on 13.03.2013 through a supplementary cause list all such appeals were dismissed by a learned Judge-in-Clamber in limine on that date on the merits in the absence of the appellants and their learned counsel through one and the same order which was omnibus and common to all the appeals decided. Such wholesale disposition of criminal appeals on merits through an omnibus and common order, and that too in the absence of the appellants and their learned counsel, has appeared to us to be an approach which cannot be approved by us. Such disposition of criminal appeals on the merits amounted to nothing short of smothering of justice and that too in utter violation and disregard of the law declared by this Court in the case of Gouranga Mohan Sikdar v. The Collector of Import and Export and 2 others (PLD 1970 SC 158).

4. The above mentioned manner of disposition of the appellant's appeal by the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan was even otherwise unfair and improper, particularly when the legal questions involved in the appellant's appeal had never been attended to by the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan at the time of passage of the impugned order dismissing the appellant's appeal in limine in the absence of the appellant and his learned counsel. One of the legal questions involved was that respondents Nos.1 to 6 had been acquitted by the learned Magistrate on the basis of an application filed under section 249-A, Cr.P.C. by respondent No. 4 alone and the other legal question raised by the appellant was that the impugned order passed by the learned Magistrate had been passed without hearing the learned Public Prosecutor which was a mandatory requirement for exercise of jurisdiction under section 249-A, Cr.P.C. Unfortunately while passing an omnibus and identical order dismissing more than one hundred appeals in limine on the merits the learned Judge-in-Chamber had failed to advert to the above mentioned individual and critical legal questions agitated and highlighted by the appellant through his appeal.

5. In the circumstances of this case mentioned above the learned Additional Prosecutor-General, Punjab appearing for the State has not opposed a remand of the present case to the Lahore High Court, Multan Bench, Multan for a lawful and proper disposition of the appellant's appeal by the said Court. We have found the learned Additional Prosecutor-General, Punjab to be entirely justified in taking the said stand.

6. For what has been discussed above this appeal is allowed, the impugned order passed by a learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan on 13.03.2013 in Criminal Appeal No.222 of 2011 is set aside and the matter is remanded to the Lahore High Court, Multan Bench, Multan for a fresh hearing and disposition of the appellant's above mentioned appeal. MWA/M-46/S Case remanded.