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Criminal Reference No. 505 of 1962, decided on 28th January 1963.

Summary dismissal of appeal‑Discretion of Court‑Recording of specific reasons, how far necessary‑Discretion, if exercised in sound and judicial manner, recording of specific reasons may be dispensed with.

Gurubari Behera and others v. Emperor 19 Cr. L J 151 and Khalil and others v. The Crown P L D 1953 F C 133 ref.,

Syed Murtaza Hussain for Appellant.

Jamal‑ud‑Din H. Ahmad for Respondent.

Date of hearing : 28th January 1963.

This reference has been made under section 438, Criminal Procedure Code, by Agha Ali Haider, Sessions Judge, Dadu, wherein he has recommended that the order of the District Magistrate, Dadu, dated the 27th of November 1961, dismissing the appeal of Ramzan, son of Jaffar, summarily, should be set aside and such other order, as this Court might deem proper, should be passed.

2. It appears that on a report of one Muhammad Bachal, lodged against them with the police at Police Station, Tando Muhammad Rahim Khan, Ramzan son of Jaffar, and another person, were prosecuted for an offence punishable under section 451(2) read with section 34, P. P. C, in the Court of the Mukhtiarkar and Second Class Magistrate, Johi. Ramzan, son of Jaffar, was convicted of the offence he was charged with and was sentenced to suffer rigorous imprisonment for five months and to pay a fine of Rs. 50 or in default to suffer rigorous imprison ment for one month more.

3. Against this order of his conviction and sentence passed by the Mukhtiarkar and Second Class Magistrate, Johi, Ramzan, son of Jaffar, went in appeal to the District Magistrate, Dadu, who disposed it of on the 27th of November 1961, in the following words :‑

"Heard Mr. Mirza Advocate and perused the judgment and the memo. of appeal. There is no substance in the appeal which is summarily dismissed."

4. According to the learned Sessions Judge, this order of the District Magistrate, Dadu, was not proper and deserved to be set aside by this Court. While making this recommendation, the learned Sessions Judge has observed as follows :‑

"There is no gain‑saying the fact that section 421, Cr. P. C. gives an absolute discretion to the Court to dismiss an appeal summarily and the appellate Court is not bound to record judgment. All the same the record should show on the face of it that the appellate Court had applied its mind to the consideration of the evidence on the record and all the pleas raised by the accused, both in the Court below and in the memorandum of appeal."

In this connection he has relied on the rulings in Gurubari Behera and others v. Emperor (19 Cr, L J 151) and Khalil and others v. The Crown (P L D 1953 F C 133).

5. As pointed out by the learned Sessions Judge in Gurubari Behera and others v. Emperor it has been held that :‑

"An appellate Court is not required by law to write a judgment when dismissing an appeal summarily, but it is desirable that in dealing with an appeal under section 421 of the Criminal Procedure Code the Court should give some reason for dismissing the appeal summarily. It should record at least so much as would satisfy the High Court, when an application for revision is made, that it had fully considered all the questions in issue and had appreciated the simplicity or gravity of the case."

6. Similarly, as emphasised by the learned Sessions Judge, it has been held in Khalil and others v. The Crown that

"An order of summary dismissal under section 421, Cr. P. C., must indicate in brief the reasons which led the Court to reach the conclusion that there was no sufficient ground for inter ference. It is true that this section gives the appellate Court power to dismiss an appeal summarily, but that power cannot be exercised in an arbitrary manner.

The absolute discretion given to the appellate Courts must be exercised in such a way as to secure due and efficient administra tion of justice and to inspire confidence in the minds of the accused persons that their case has been treated with due care and caution by the appellate Court."

It has, however, been pointed out at the same time that "no hard and fast rules can be laid down which would govern the applic ability of section 421 in all cases. It is, however, a fundamental principle that every accused person shall be given the substance A of a fair hearing in accordance with law in an appellate Court. This enjoins on the appellate Court the duty of exercising its discretion in a sound and judicial manner.

7. In this case, as already pointed out, while summarily dismissing the appeal of Ramzan, son of Jaffer, against his conviction and sentence the learned District Magistrate, Dadu, had stated to the effect that he had perused the judgment of the trial Court and the memo. of his appeal and heard his Advocate Mr. Mirza and thereupon had come to the conclusion that there was no substance in it. This does not apparently go to show that he had not used his discretion in the matter in a sound and judicial manner and that he had arbitrarily dismissed his appeal without hearing his counsel, and perusing the judgment appealed against and the memo. of his appeal. It may be noted here that the learned counsel for the State has expressed a similar view in course of his arguments in this case.

8. Therefore, I do not think it is necessary to interfere with the order of the District Magistrate, Dadu, passed in this case and accordingly reject this reference.

K. B. A./A. H.

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