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Criminal Appeal No. K‑23 of 1966, decided on 10th January 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated February 10, 1965 in Criminal Appeal No. 486 of 1962).

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----- Ss. 422 8c 423‑Notice under S. 422 sent by registered post to counsel ordinarily practising at place outside seat of Court‑Notice sent 9 days ahead of date fixed‑Presumption, in absence of evidence to contrary, that notice reached its destination in due time‑Disposal of appeal in absence of counsel for appellant, held, proper in circumstances‑Evidence Act (I of 1872), S. 114, illus. (f ).

Nalmuddin, Advocate Supreme Court for Appellant.

Jamaluddin H. Ahmed, Advocate Supreme Court for the State.

Date of hearing : 10th January 1969.

Leave to appeal was granted in this case mainly for considering that "the notice of the appeal (which was heard by a Single Judge of the High Court and dismissed in the absence of the appellant and his Advocate), was not served either on the petitioner or his counsel before the appeal was heard in the High Court, and, therefore the provisions of sections 422 and 423 of the Code of Criminal Procedure were not complied with".

2. An appeal was preferred to the High Court from the judgment of Mr. Azizallah M. Memon, Special Judge, Hyderabad by which he had convicted the appellant Juma Khan who was a Clerk in the Office of the Mukhtiarkar, Johi, District Dadu under section 161, P. P. C. and sentence) him to undergo six months' R. I. and a fine of Rs. 500 in default of the payment of which he was to undergo further R. I. of six months. The appeal was admitted to regular hearing on the 17th of December 1962, and the appellant was granted bail. It was fixed for hearing before the High Court on the 10th of February 1965, but the Advocate of the appellant, Mr. Ghulam Hussain Tahirani, generally practised at Hyderabad ; therefore, in accordance with administrative instructions, notice of the date of hearing was sent to him by the Court in a registered cover. Mr. Naimuddin has admitted that the case was shown on the list published by the High Court as well as in the list circulated by the High Court Bar Association, yet on the date of hearing neither the Advocate of the appellant nor the appellant himself appeared, with the result that the learned Single Judge examined the record with the help of Mr. Mir Muhammad Shaikh, Advocate for the State, and dismissed the appeal on merits.

3. Mr. Naimuddin contended that the provisions of sections 422 and 423, Cr. P. Code were not complied with inas much as the notice which was sent to the Advocate of the appellant at Hyderabad, though dated the 1st of February 1965, was received by him on the 10th of February 1965, at 12 noon, thus making it impossible for him to appear in the High Court at Karachi on that date. There is no explanation as to why the notice took about 9 days to reach Hyderabad from Karachi. We therefore wanted to see the envelope, but counsel informed us that it was not available. We should note here that this appeal against the order of the High Court was tiled on the 20th of March 1965 and an affidavit of the Advocate to the effect that the envelope reached him at 12 noon on the 10th of February 1965, was submitted on the 5th of May 1965.

4. We conclude from the above facts that notice was duly given by publishing a list of cases in compliance with the terms of section 422, Cr. P. Code, and it is not possible to say that the notice which was sent by post did not reach Hyderabad in a day or two in the ordinary course of postal service. Mr. Naimuddin said that the Advocate of the appellant might have been out of Hyderabad. If this is so then, in the absence of necessary evidence, we cannot assume that there was any fault with the postal service. In these circumstances, the absence of the appellant and his pleader were sufficient justification for the learned Single Judge to hear and decide the appeal ex parte on merits.

5. We have heard Mr. Naimuddin on merits also. He did not criticise the evidence of the witnesses, nor did he find fault with the manner in which a trap was laid to watch that Rs. 70 were paid to and received by the appellant, but criticised the conclusion which has been drawn from the evidence by saying that no money was recovered from the appellant, but was found with one Muhammad Siddiq, who was a servant at a tea‑stall and happened to bring tea to the Office of the Mukhtiarkar for his clerks. Muhammad Siddiq who is P. W. 2, has stated that the appellant had requested him to count the money and to keep it, but in the meantime the Magistrate and the police came and secured it from him. The money was paid, according to the prosecution, as bribe for acceptance of an application to transfer 99 acres of land. There is unimpeachable evidence that the relevant papers were before the appellant when the raid was made and the money was recovered from Muhammad Siddiq. A suggestion was made that Muhammad Siddiq was present in accordance with a plot at the instance of his Master, because the appellant bad sent a notice to the Master as well as the complainant Nawab, P. W. 1, calling upon them to quit certain premises. These facts are not adequate to establish that a plot was laid for getting the appellant involved in the case. As pointed out by the learned Single Judge, the fact that the appellant had before him the file of the complainant, cannot be said to be a co‑incidence and removes all doubts about the reason for which the money was paid and received. We may further note that the money was not paid directly to Muhammad Siddiq, but to the appellant first who passed it on to Muhammad Siddiq.

6. The appeal is dismissed; the bail bond is cancelled, and the appellant is ordered to surrender to his bail.

Appeal dismissed.

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