Mushtaq Ahmad, the applicant in this case has filed the present revision application to challenge the Judgment of the Assistant Commissioner and IInd Class Magistrate, Hyderabad which was upheld by the I1nd Additional Sessions Judge; Hyderabad I have heard Mr. Abdul Hafeez Lakho for the applicant and Mr. Syed Saeed Hasan for the State The learned State Counsel has proposed that in the interest of justice the appeal of the applicant may be remanded to the Court of Sessions for re-hearing.
2. The brief facts of the case are that applicant Mushtaq Ahmad and Mst. Mussarat were apprehended by the police at Kali Road, Hyderabad for an offence under section 294, P. P. C. The applicant and Mst. Mussarat pleaded guilty to the charge. While applicant Mushtaq Ahmad was sentenced to imprisonment for one month and to pay a fine of Rs. 500 (in default R. I. For 1 days) the co-accused Mst. Mussarat was sentenced to pay a fine of Rs. 150 and also imprisonment till rising of the Court. It was provided in her case that if the fine was not paid she shall suffer simple imprisonment for one week. An appeal was ailed before the Sessions Judge, Hyderabad invoking the provision under section 412, Cr. P. C. By applicant Mushtaq Ahmad. This appeal came up for hearing before the IInd Additional Sessions Judge, Hyderabad, ad was fixed on 18-12-1976. On this date an application was made by one Ghulam Muhammad seeking adjournment on behalf of applicant. i.e ground for adjournment was sickness of the applicant. The Additional Sessions Judge passed an order on the application in following terms:-- "Mr. Ashraf A. P. P. Present. The applicant Ghulam Muhammad has no locus standi in the matter.
This application is not supported by any medical certificate. Previous certificate was in respect of the period upto 18-11-1976. The accompanying affidavit has not been duly sworn. Hence this application stands rejected." while no judgment was written on record the case diary dated 18-12-1976. Show that the application for adjournment had been rejected and the appeal stands dismissed for non- prosecution. Non-bailable warrants for arrest of the applicant were ordered to issue, so that on apprehension he could be remanded to custody to serve the sentence.
3. Under section 423 of the Code of Criminal Procedure, after an appeal is admitted to regular hearing the record has to be summoned and the appeal disposed of on merits after hearing the appellant or his pleader, if he appears. An exception is available only when the appellant being in Jail makes no request for personal hearing. In either case the only mode for disposal of an appeal is to peruse the record and dispose of the appeal on merits. Reference may in such regard be made to an old case, viz. Zahur Ahmad v. Emperor (AIR 1948 Sind 23) and string of other decisions from various High Courts adopting unanimity of view. Dismissal of an appeal without adverting to merits is foreign to the scheme of the Code of Criminal Procedure. In the present case there is faring misapplication of law.
4. In these circumstances this revision application is allowed to the tent that the order of dismissal of appeal passed by reason of non prosecution by the IInd Additional Sessions Judge, Hyderabad is set aside and he is directed to re-hear the appeal which would necessarily an hearing either the appellant or his Advocate. The record shall by to the Court of the IInd Additional Sessions Judge, Hyderabad.