' MUHAMMAD AZAM KHAN, J.--- A case under sections 324, 34, 337(F)(i)(ii), A.P.C. Was registered against the appellant and others. The challan was submitted in the Tehsil Criminal Court, Mirpur on 27-5-2002. During the trial Abdul Majeed, one of the accused, moved an application for exemption from personal appearance in the Court on 7-8-2002. This application was accepted and he was exempted from personal appearance till further orders. As the trial was near completion, on 28-3- 2006 it was ordered by the Court that dispensation of Abdul Majeed, accused from personal appearance is recalled and he was ordered to appear in the Court on 9-5-2006. Arguments in the case were heard and the counsel for Abdul Majeed was directed to produce the accused on the next date. Next date of hearing was fixed as 15-5-2006. On this date the Court announced the judgment. Other accused were acquitted of the charges, while Abdul Majeed, appellant, herein, was convicted to 8 years rigorous imprisonment along with Rs,50,000 fine under section 324, A.P.C.
In case of non-payment of the fine he was to further undergo six months' imprisonment. He was also convicted to one year rigorous imprisonment and Rs,10,000 as Daman under section 337(F)(i), A.P.C. And one year's rigorous imprisonment and Rs,10,000 as Daman under section 337(F)(ii), A.P.C., but the accused' was not present in the Court. The Court issued warrant against him. His bail bond was confiscated and it was ordered that his surety shall be summoned.
2. ' The appellant, herein, filed an appeal in the District Criminal Court, Mirpur on 29-6-2006 through counsel without appearing in the Court on the basis of power of attorney sent from England. The District Criminal Court, Mirpur dismissed the appeal on 31-8-2006 declaring the appeal being incompetent on the ground that the appellant has not surrendered after being convicted by the trial Court. He was declared as absconder/fugitive from law. The appellant again filed an appeal in the Shariat Court of Azad Jammu and Kashmir without surrendering before the Court or before the- authorities through counsel on 2-10-2006. A learned Single Judge in the Shariat Court dismissed the appeal for want of prosecution on 20-11-2007.
The present appeal has also been filed through counsel. The appellant has not surrendered before the Court or the authorities. Arguments were partly heard on 3-2-2009, on that date the counsel for the complainant raised an objection that the appellant has absconded after being convicted, he is not present before the Court, his appeal is not competent and liable to be dismissed. On this, Ch. Muhammad Mahfooz, the learned counsel for the appellant sought adjournment on the ground that he has not prepared the case on this point. The case was adjourned and arguments were heard on 13-2-2009.
4. Ch. Muhammad Mahfooz, the learned counsel for the appellant, has argued that under section 321, Cr.P.C. When.The appeal is admitted for regular hearing and a notice is issued to the State for defending his case then the appeal cannot be dismissed for non-prosecution. Under section 323, Cr.P.C. It is incumbent upon the Appellate Court to decide the appeal on merits. He argued that appeal was admitted by the Shariat Court and a notice was issued to the Additional Advocate- General and the complainant under section 422, Cr.P.C. The appeal could not be dismissed for non-prosecution, the order of the Shariat Court is against law. While replying the question that how the appeal before this Court is competent when the accused is not before the Court, he argued that after filing of appeal in this Court the Registrar has issued a notice to the respondents and fixed the appeal for hearing of arguments in the Court, it shall be deemed to be admitted under section 321, Cr.P.C. He placed reliance upon the cases titled Muhammad Ashiq Faqir v. The State PL ,D 1970 SC 177, Asif Ali v. The State PLD 1971 SC 223, State v. Muhammad Nazir Khan and another PLD 1983 SC (AJ&J) 1, Barak Ullah v. The State 1997 SCMR 274 and Muhammad Shabbir v. Muhammad Hussain and 5 others 2002 PCr.LJ 1109.
3. In the case titled Muhammad Ashiq Faqir v. The State PLD 1970 SC 177, the appeal was filed by the accused against conviction in the High Court. Accused was released on bail. On the date fixed for arguments, neither the accused nor his counsel appeared in the Court, the High Court dismissed the appeal for non-prosecution. The Supreme Court accepted the appeal and remanded the case for decision on merits. In the case reported as Asif Ali v. The State PLD 1971 SC 223, the accused filed an appeal against conviction in the High Court. At the time of hearing appeal neither the accused nor his counsel appeared in the Court, the case was adjourned, again the case was called, then counsel for the accused appeared in the Court he refused to argue the case. The High Court decided the appeal on merits after hearing the Advocate-General. The Supreme Court upheld the judgment of the High Court and declared that appeal can be decided on merit without presence of the accused. In the case titled State v: Muhammad Nazir Khan and another PLD 1983 SC (AJ&J) 1, leave to appeal was filed by the Advocate-General in the Supreme Court of Azad Jammu and Kashmir against the acquittal, which was granted. Later one, it transpired that the leave petition was filed without the Government sanction. At that time the Advocate-General moved an application for withdrawal of the appeal but the Court decided the appeal on merits because important law point was involved in it. In Barak Ullah v. The State 1997 SCMR 274 an accused after conviction filed an appeal in the High Court. The accused and his counsel were not present in the Court. The High Court decided the appeal on merits. The Supreme Court upheld the judgment of the High Court declaring, therein, that appeal can be decided without hearing the accused on merits. In Muhammad Shabbir v. Muhammad Hussain and 5 others 2002 PCr.LJ 1109, after conviction the accused filed an appeal in the Shariat Court of Azad Jammu and Kashmir which was dismissed for non-prosecution. The Supreme Court of Azad Jammu and Kashmir declared that criminal appeal cannot be dismissed for non-prosecution. We respectfully agree with the rule of law laid down in the above cited authorities but the proposition in the instant case is quite different. None of the above cases is applicable to the facts of the present case nor rule of law laid down in the above cited authorities is helpful to the case of the appellant.
6. The learned counsel for the appellant further argued that appellant has gone to England for earning his livelihood. It is in the interest of justice that his appeal may be heard and disposed of in his absence under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and Order XLIII, Rule 4 of the Azad Jammu and Kashmir Supreme Court Rules, 1978 to meet the ends of justice.
7. While controverting the arguments Messrs Muzaffar Ali Zafar, the learned Additional Advocate- General for the State, and Ch. Muhammad Yunus Arvi, the learned Advocate for respondent No,1 (complainant), argued that the accused absconded when the trial Court announced the judgment and he was convicted. He absented himself as such he is fugitive from law and without surrendering of the accused the appeal was not competent before the District Criminal Court. The District Criminal Court correctly dismissed the appeal on this ground. While agreeing with the proposition that criminal appeal filed by the accused against the conviction cannot be dismissed for non-prosecution, they argued that appeal before this Court is not competent without presence of the accused. Had the accused surrendered himself before the authorities or presented himself in the Court then his appeal has to be admitted for hearing. In that case the question whether the appeal can be dismissed for want of prosecution or not shall arise. They placed reliance upon the case titled Muhammad Akram v. The State 1993 SCR 300.
8. We have heard the learned counsel for the parties, and gone through the record. There is no cavil with the rule of law laid down in the case cited by the learned counsel for the appellant, but the proposition in the present case is quite different. After being convicted the appellant became fugitive from law and has not surrendered before the authorities or in any Court The basic principle of administration of justice is that the person convicted should submit himself to the process of justice, when any person challenges the judgment that it is against the law "or he is convicted against the law then he must submit himself before the authorities, without submitting or surrendering himself before the authorities or Court the appeal is not competent and cannot be entertained. This proposition has been settled by the Supreme Court of Pakistan since long in a case titled Gul Hassan and another v. The State PLD 1969 SC '89. In the circumstances when an accused person became absconder after being convicted by the trial Court, the appeal was filed before the High Court which was dismissed. The proposition in the Supreme Court was whether appeal before the Supreme Court is competent when the accused is not present in the Court was resolved in the following manner:--- "The legal questions arising in the appeal by Gul Hassan is conclude by the decision in Chan Shah v. The Crown PLD 1956 FC 43. Dealing with a similar situation it was observed as follows : "The present is an "individual case" and, in our opinion, it is an essential condition of the administration of justice, in a case affecting an individual or individuals, that the persons concerned should submit to the due process of justice. We cannot conceive of a more flagrant violation of this condition that a case, -- like the present -- where the individual seeks the interference of the sovereign to obtain revision of a, judicial order, when he is himself engaged in setting that judicial order at naught. We accordingly dismiss this petition, by reason of its being, in the existing circumstances wholly unsuitable for the exercise of this Court's special jurisdiction in criminal cases.
' ... Attorney and advocates, who appear to present petitions, on the criminal side --- other than those which lie as of right --- are under a duty to see that they are acting in furtherance of justice.
It seems to us that this duty is clearly violated when aid, for securing interference by this Court' with a judicial order, is given by these officers of the Court to persons who, to their knowledge, are in contempt, i,e, as fugitives from justice, . Without at the same time ensuring that such persons conform to the judicial orders applicable to them."
We fully subscribe to this view and reiterate that the attorneys and members of the Bar will bear in mind the serious consequence of committing contempt of this Court in moving on B behalf of a prisoner who is a fugitive from law. The appeal filed by the counsel on the basis of the power of attorney executed by Gul Hassan in favour of Khawaja Muhammad Khan before his absconsion was thus, not properly constituted and should have been dismissed by the High Court on that ground alone.
' In this view Gul Hassan being a fugitive from law and a contemner was not entitled to hearing and leave granted to him on limited question of law was liable to be rescinded. As to the proceedings under section 374, Cr.P.C., we endorse the view adopted by the learned Judges in the High Court that if a prisoner decamps and thereby forfeits the right of audience the sentence of death may be confirmed in his absence."
9. This Court in a case titled Muhammad Akram v. The State 1993 SCR 300 refused to entertain an application for bail when the accused whose bail was cancelled by the Shariat Court and he had not surrendered before the authorities it was held:--- "Sitting in Chamber, I would like to follow the dictum of this Court in Tariq Mehmood's case, reproduced above, and I hold that the application of the petitioner can be heard only if he surrenders to the police. The case is therefore, adjourned to enable the petitioner, who is present in the Court, to surrender. To come up for arguments tomorrow."
Accordingly we hold that appeal of convict is not competent who is absconder after the judgment resulting in conviction is announced and has not surrendered before the authorities. In the present case the appeal before the District Criminal Court as well as in the Shariat Court and this Court was not properly constituted hence not maintainable.
10. As regards the argument of the learned counsel for the appellant that for doing complete justice inherent powers of the Court under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and Order XLIII, Rule 4 of the Azad Jammu and Kashmir Supreme Court Rules, 1978 may be exercised in favour of the appellant for hearing his appeal, has no substance. The convict/appellant is an absconder, his appeal cannot be heard without surrendering before the authorities. Inherent powers can be exercised for doing complete justice, no injustice appears to have been done. Since appeal is not competent the question of exercising the inherent powers doest' arise.
' The result of above is that finding no force in this appeal, it is hereby dismissed.
6d.