Find a Lawyer

Criminal Appeal No. 4‑K of 1985, decided on 22nd April, 1985.

(On appeal from the Order of the High Court of Sind, at Sukkur, dated 21st November, 1984, in Criminal Appeal 81/82).

‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S.423‑‑Leave to appeal granted to consider contention that criminal appeal once admitted could not have been dismissed for non‑prosecution, but it ought to have been decided on merits

‑‑‑S. 423‑‑Criminal appeal‑‑Dismissal for non‑prosecution‑‑Absence o: appellant or his pleader does not relieve Court from duty of perusing record and giving reasons in support of judgment that there is no sufficient ground for interfering with conviction and sentence, of appellant‑‑Case remanded to High Court for hearing of appeal and for decision afresh on merits.

Muhammad Ashiq Faqir v. The State P L D 1970 S C 177 rel.

‑‑‑S. 423‑‑Pakistan Criminal Law Amendment Act (XL of 1958), S.10‑ Provisions of Chapter XXXI of Cr.P.C., whether applicable to judgments delivered by Special Judge under Act (XL of 1958)‑‑Appeal from conviction awarded by Special Judge‑‑Dismissal of appeal by High Court for non prosecution, challenged‑‑Held, S. 423, Cr.P.C. regulated procedure and powers of appellate Court in disposing of appeal‑‑Disposal of appeal without applying mind to merits and dismissing it for non -prosecution being contrary to imperative terms of 5.423, Cr.P.C., Order, held, not sustainable‑‑Case remanded to High Court for decision afresh on merits.

S. M. K. Alvi v. The Crown P L D 1953 F C 189 ref.

Obaidur Rehman, Advocate Supreme Court and Shabbir Ghaury, Advocate‑on‑Record for Appellant.

A. Sattar Shaikh, Asstt. A.‑G. with Muzaffar Husain, Advocate- on‑Record for the State.

Date of hearing: 22nd April, 1985.

Appellant Muhammad Bakhsh was tried and convicted by the Special Judge Anti‑Corruption, Sukkur, under sections 409, 420 and 465 read with 468, P.P.C and section 5(2) of the Prevention of Corruption Act, for committing forgery in the revenue record. He was sentenced to various terms of imprisonment and fines under various counts vide judgment dated 2‑9‑1982. The appellant challenged his convictions and sentences in an appeal before the High Court of Sind. Sukkur Bench, but at the appellant and his counsel were called absent when the appeal was taken up for hearing, a learned Single Judge dismissed the appeal for non‑prosecution on 5‑8‑1984. The appellant moved the High Court subsequently on 4‑10‑1984 section 561‑A, Cr.P.C. praying for the restoration of the appeal and disposal on merits. By order dated 21‑11‑1984 the learned Single Judge dismissed the application on the ground that in spite of sufficient notice, the appellant and his counsel had remained absent without sufficient cause. The contention of the appellant that even in case of non‑appearance by the appellant, the appeal had to be disposed of on merits, was also repelled by the learned Judge.

2. Leave was granted by this Court to consider the contention that the appellant's appeal once admitted could not have been dismissed for non‑prosecution, but it ought to have been decided on merits.

3. The proposition of law that a criminal appeal once admitted to regular hearing by the High Court must be decided on merits and cannot be dismissed for non‑prosecution, is fully supported by the pronouncement of this Court in Muhammad Ashiq Faqir v. The State PLD 1970 S C 177. Referring to the provisions relating to the appeal contained in Chapter 31 of the Criminal Procedure Code, 1898, it was observed:‑‑

"Under section 423 if the appeal is not dismissed under section 421, the appellate Court shall after the issue of notice, send for the record of the case, if such record is not already in Court, and after perusing such record and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal ........

What was then the consequence of the non‑appearance of the appellant or his pleader, when the appeal was called for hearing by the learned Judge on the 26th April, 1967. The answer is to be found in section 423(1) viz. "after perusing such record and flaring the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, and may, if it considers that there is no sufficient ground for interfering, dismiss the appeal." The absence of the appellant or his pleader, therefore, does not relieve the Court from the duty of perusing record and giving reasons in support of the judgment that there is no sufficient ground for interfering with the conviction and sentence of the appellant."

It will be seen that under section 423, Criminal Procedure Code the legislature while laying down the powers of the appellate Court in disposing of appeal, in mandatory terms requires the appellate Court to peruse the record of the case and permits the dismissal of the appeal in case the appellate Court "considers that there is no sufficient ground for interfering." These words clearly and unambiguously spell out the intention of the legislature that an appeal cannot be dismissed for default of appearance. But a duty is cast on the appellate Court to go through the record and may then dismiss the appeal on merits.

4. The question, however, is whether the provisions of section 423, Cr.P.C. were attracted in this case in which the appeal was filed under the provisions of the case in special law, namely, the Pakistan Criminal Law Amendment Act, 1958. The appeal from the conviction and sentence awarded by the Special Judge was filed under section 10 of the Pakistan Criminal Law Amendment Act, 1958, subsection (1) of which reads as follows:‑

"An appeal from the judgment of a Special Judge shall lie to the highest Court having appellate jurisdiction in the territorial limits in which the offence is tried by the Special Judge, and the same Court shall also have powers of revision."

The question whether the Criminal Procedure Code governs an appeal filed under section 9 of the Pakistan Criminal Law Amendment Act, 1948, which is identical to section 10 of Pakistan Criminal Law Amendment Act, 1958, was directly raised in S.M.K. AM v. The Crown P L D 1953 F C 189. Referring to section 5(2), Cr.P.C. the learned Judges held that the provisions of Chapter 31 of the Criminal Procedure Code relating to appeals were fully applicable to the judgments delivered by the Special Judge, under the provisions of the Pakistan Criminal Law Amendment Act. On a parity of reasoning, therefore, the provisions of Chapter 31 of the Criminal Procedure Code are also applicable to appeals under section 10 of the Pakistan Criminal Law Amendment Act, 1958. The effect is that section 423, Criminal Procedure Code would regulate the procedure and powers of the appellate Court in disposing of appeal there under. In not applying his mind to the merits of the appeal and in dismissing it for non‑prosecution, the learned Judge in the High Court clearly adopted a procedure contrary to the imperative terms of section 423, Cr.P.C. The order is, therefore, not sustainable. Learned Additional Advocate‑General, appearing for the State, has also very fairly conceded to the clear legal position applicable to the present case.

5. In the result the appeal is allowed and the case is remanded to the High Court for hearing of the appeal and for decision afresh on merits.

M. I. Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.