P L D 1960 (W (PLP)

This is a reference made by the Sessions Judge of Sukkur, under section 438, Criminal P. C., recommending that the order passed by Mr. Yusufani, District Magistrate Sukkur, rejecting the appeal of the opponent without hearing his advocate, be set aside. Khojomal son of Lalchand was proceeded against under section 110, Cr. P. C. and the learned S. D. M. Rohri, passed an order under sections 118‑123, Cr. P. C. directing him to enter into a bond in the sum of Rs. 2,000 with two sureties, solvent in the like amount, to be of good behaviour for a period of 12 months and in default thereof to suffer R. 1. for the said period. Against this order, the opponent filed an appeal in the Court of the District Magistrate, Sukkur through his counsel Mr. Rashid Akhtar. The learned District Magistrate, without hearing the counsel for the opponent, dismissed the appeal summarily. Against this order of dismissal, the opponent went in revision before the Sessions Judge, Sukkur, who has made the present reference. The learned A. A. G. for the State frankly concedes that the order of dismissal passed by the D. M. without hearing the advocate for the opponent, was to contravention of the proviso to section 421, Cr. P. C. That proviso says "that no appeal presented under section 419, Cr. P. C., shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same." The order of the D. M. does not show that he heard the advocate who had filed the appeal. In the margin of the memo. of appeal, the order passed by the District Magistrate consists of two words "summarily rejected". Then it appears that the District Magistrate has passed another order which reads "This is an appeal against the order of learned Sub‑Divisional Magistrate, Rohri, ordering the appellant to enter into a bond in the sum of Rs. 2,000 with two sureties solvent in the like amount to be of good behaviour for a period of 12 months arid in default thereof confining him to jail to undergo rigorous imprisonment for the said period. I have perused the petition of appeal and order under section 118, Cr. P. C. "The appeal is summarily rejected." Then there is a note below the signature of the District Magistrate "copy forwarded with compliments to the Sub‑Divisional Magis trate, Rohri. Copy forwarded to the appellant". Neither of the two orders shows that the counsel for the appellant was heard before this order was passed. The learned counsel for the opponent states from the Bar that he was not even called by the District Magistrate. This appears to be correct, for the note below the second order shows that the copy should be forwarded to the,` appellant. There is no mention of his counsel. That being so, the order passed by the District Magistrate is obviously in contra vention of the provisions of the proviso to section 421, Cr. P. C. I therefore accept the reference and set aside the order of the District Magistrate and remand the case to the present District Magistrate to dispose of the matter in accordance with law. K.M.A. Case remanded.