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Criminal Revision No. 777 of 1965, decided on 17th January 1966.

Ss. 419, 420 & 421, proviso‑Accused preferring two appeals one from jail and another through mukhtar‑Dismissal of jail appeal pending appeal filed through mukhtar‑No bar to disposal of appeal filed through mukhtar, on merits‑Dismissal of appeal filed through mukhtar without affording accused or his mukhtar opportunity of being heard‑Illegal.

Emperor v. Mewa Ram A I R 1926 All. 178 ref.

R. A. Jeremy for Petitioner.

Miss Ghulshan Ara for the State.

Date of hearing: 17th January 1966.

The petitioner was tried for an offence under sections 379/411, P. P. C. and by his order of the 13th of July 1965, the learned trial Judge convicted and sentenced him to two years' R. I. The mukhtar of the petitioner filed a criminal appeal through counsel in the Court of the Sessions Judge, Mianwali, against the conviction and sentence of the petitioner which was fixed for hearing on the 23rd of September 1965. In the meanwhile, on the 6th of August 1965, the petitioner filed Criminal Appeal No. 193 of 1965 through Jail which was heard and rejected on the 31st of August 1965 by the learned Sessions Judge in ignorance of the fact that the appeal filed by the petitioner through counsel was fixed for hearing. When the appeal through counsel was heard by the learned Sessions Judge, he observed that the jail appeal against the same judgment was heard by him on the 31st of August 1965, and it was rejected by him after considering the evidence, therefore, his jurisdiction to hear the appeal was ousted. In a similar case it was held in A I R 1926 All. 178:

"Where a Sessions Judge in ignorance of the fact that a convict had already preferred an appeal through a mukhtar, rejected his appeal subsequently preferred through Jail, the High Court in revision set aside the order of rejection and directed the Judge to re‑hear the appeal preferred through mukhtar."

When the accused had preferred two appeals, one from jail and the other through counsel, to the same Court, the dismissal of the jail appeal is not a bar when the appeal filed through counsel is pending before the Court for hearing, the previous order of hearing the jail appeal, when the appeal through counsel is fixed for hearing and the jail appeal having been dismissed, is illegal A and without jurisdiction. So also the subsequent dismissal of the appeal filed through counsel, on the ground that the Court had no jurisdiction in view of the previous dismissal of the jail appeal, is illegal.

2. Under section 421 (1) of the Code of Criminal Procedure, the appeal presented through mukhtar cannot be disposed of without properly having been heard. I, hereby, set aside the order rejecting the appeal of the petitioner and direct the learned Sessions Judge, or his successor, if he is transferred, to re‑hear the appeal after giving an opportunity of appearing, to the counsel of the petitioner.

K. B. A.

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