The Court has ample power under section 561-A, Cr.P.C. to restore a revision petition which has not been decided on merits but has simply been dismissed in default of the appearance of the party or its counsel".

2011 MLD 961
[Karachi]
Before Shahid Anwar Bajwa, J
ZAFAR AHMED---Appellant
Versus
SHAMSUDDIN and another---Respondents
Criminal Acquittal Appeal No.25 of 2007 and M.A. No.3844 of 2010, decided on 9th February, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 417(2-A) & 423(1)---Appeal against acquittal---Dismissal of appeal for non-prosecution---Appeal filed by the appellant was twice dismissed for non-prosecution-Application for restoration of appeal stated that counsel for appellant was present in the court till 11 a.m. and thereafter he received an urgent call from his house and he had to go to his house; and then in his absence, appeal was dismissed for non-­prosecution---No objection to said application had been filed by other party---Reason stated in the application was a personal emergency of the counsel; and professional etiquettes demanded that such a statement by a counsel be normally taken at its face value---First application also stated the same reasons---Appeal was restored.

Muhammad Bakhsh v. The State 1986 SCMR 59; Ghulam Muhammad v. The State 2008 PCr.LJ 439; Muhammad Ramzan v. Allah Ditta and others 1982 SCMR 215 and Muhammad Ashiq Faqir v. The State PLD 1970 SC 177 ref.

Zulifqar Ali Sangi for Appellant.

Mushtaq Ahmed Shahni for Respondents Nos. 1 and 2.

Syed Sardar Ali Shah, A.P.-G. for the State.

ORDER

SHAHID ANWAR BAJWA, J.---This appeal was admitted to regular hearing vide order dated 10-3-2008. On 26-1-2010 no one was present for the appellant and this appeal was dismissed for non-prosecution. On 1-2-2010 Miscellaneous Application No.346 of 2010 was filed for restoration of the appeal and that application was dismissed for non-prosecution vide order dated 13-10-2010. This application (M.A. No.3844 of 2010) was filed on 20-10-2010 for setting aside of both the orders dated 26-1-2010 as well as 13-10-2010.

Learned counsel for the appellant relied upon Muhammad Bakhsh v. The State (1986 SCMR 59) for his contention that once an appeal has been admitted to regular hearing, it should not be dismissed for non-prosecution even if the appellant is not present because it is duty of the Court under section 423(1), Cr.P.C, to peruse the record and after hearing appellant or his pleader, if he appears and the Public Prosecutor if he appears and to decide the appeal. Learned counsel also relied upon Ghulam Muhammad v. The State (2008 PCr.LJ 439) which judgment has primarily relied upon on Muhammad Bux's case.

Learned counsel for the respondents relied upon Muhammad Ramzan v. Allah Ditta and others (1982 SCMR 215) and contended that if the parties do not appear, the Court is empowered to dismiss the appeal/revision for non-prosecution. On merits learned counsel contended that no valid ground for restoration has been made.

I have considered the submissions made by learned counsel and have also gone through the record.

In Muhammad Bakhsh's case the honourable Supreme Court laid down the law as under:-

"(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 demised for non-prosecution, is fully supported by the pronouncement of this Court in Muhammad Ashiq Faqir v. The State PLD 1970 SC 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 consequences 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 hearing 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."

Learned counsel for the respondents relied upon Muhammad Ramzan's case, this case if at-all even supports the case of the appellant as it has been held in this case that a revision petition can be restored. The relevant observations are as under:--

"Secondly, in appropriate cases where the party or its counsel is able to give sufficient reasons for their absence on the data fixed for hearing of the case or if the justice of the matter so requires, the Court has ample power under section 561-A, Cr.P.C. to restore a revision petition which has not been decided on merits but has simply been dismissed in default of the appearance of the party or its counsel".

In the listed application it is stated that learned counsel for the appellant was present in the Court till 11 a.m. and thereafter he received an urgent call from his house and therefore he had got to go to his house and then in his absence, the appeal was dismissed for non-prosecution, No objections to this application have been filed. In any case the reasons stated is a personal emergency of the counsel and professional etiquettes do demand that such a statement by a counsel be normally taken at its face value. In the first application the reasons given were the same.

Consequently the order, dated 13-10-2010 as well as order dated 26-1-2010 are recalled and the appeal is restored. Appeal restored.