1. WAHEEDUDDIN AHMAD, J.---This judgment will dispose of Criminal Appeals Nos. 1-Dr of 1970, 14-D of 1970 and 15-D of 1970 in which a common question of law is involved.
2. Criminal Appeal No. 1-D of 1970 arises out of the judgment of the High Court of East Pakistan, Dacca, in Criminal Appeal No. 519 of 1966 dated the 17th April 1969. In this matter, the appellant was convicted under sections 420 and 468, P. P. C: and was sentenced to four years' R. I. Under each section and to pay a fine of Rs. 1,000, by the Additional Sessions Judge and Ex-officio Special Judge, 4th Court, Dacca, in Special Case No. 50 of 1963 by judgment dated the 10th September 1966. In default of payment of fine, he was to undergo R.
1. For another one year. The sentences were to run concurrently. An appeal was filed in the High Court against the conviction and sentences which was admitted for regular hearing. At the hearing of the appeal, the learned counsel for the appellant did not press the appeal on merits and only requested the Court to consider the question of sentence. The learned Judges of the High Court, therefore, without entering into the merits of the appeal, dismissed it but reduced the sentence of imprisonment to one year and the fine to Rs. 500 under each section.
3. Criminal Appeal No. 14-D of 1970, arises out of the judg--ment of the High Court of East Pakistan, Dacca, in Criminal Appeal No. 328 of 1966 dated the 26th May 1969. In this matter, the appellant N- o. 1 was convicted under section 467, -P. P. C. On two counts and sentenced to R. I. For five years on each count. He was further convicted under section 467/34. P. P. C. And sentenced to R. I. For three years by Mr. A. R. Khan, Assistant Sessions Judge, Pabna, in Sessions Case No. 13 of 1965, dated the 17th July 1965. Appellant No. 2 was also convicted by him under section 467/34, P. P. C. And sentenced to R.
1. For three years. The appellants challenged this judgment in the High Court of East Pakistan, Dacca. At the hearing of the appeal, their counsel pressed the appeal on the ground of sentence and not on merits. Thereupon, the learned Judges of the High Court, without going into the merits of the case reduced the sentence of appellant No. 1 Md. Azhar Ali Mia to three years on each count, maintaining the sentence of R.
1. For three years under section 467/34, P. P. C. The sentence of appellant No. 2 Md. Fazlul Huq was reduced to R. I. For two years.
4. Criminal Appeal No. 15-D of 1970, arises out of the judg--ment of the High Court of East Pakistan, Dacca, dated the 2nd May 1969, in Criminal Appeal No. 259 of 1966. In this matter the appellant was convicted by the Sessions Judge and Ex-officio Senior Special Judge, Faridpur, in Trial Case No. 3 of 1966/ Special Case No. 7 of 1966 dated the 30th April 1966, under section 409, P. P. C. And section 5(2) of the Prevention of Corrup--tion Act and was sentenced to three years' R.
1. Under section 409, P. P. C. And to pay a fine of Rs. 1,000 and in default to further R. I. For one year. The appellant challenged this judgment in appeal. At the hearing of the appeal, the learned counsel for the appellant did not press the appeal on merits. He prayed for reduction of sentence only. Thereupon, the learned Judges of the High Court reduced the sentence of the appellant from three years to two years R.1. And that of fine from Rs. 1,000 to Rs. 500. In default of payment of fine to undergo a further sentence of R. I. For three months. The, appeal was otherwise dismissed.
5. Special leave was granted in these cases to consider the question whether the High Court was relieved of. Its duty to decide the Criminal Appeals on merits, although the appeals were pressed only on the ground of sentences.
6. The short question, therefore, for consideration is whether the High Court was relieved of its duty to decide the Criminal Appeals on merits, although the appeals were pressed only on the ground of sentences. The answer to this question depends on the provisions relating to appeal contained in Chapter XXXI of the Code of Criminal Procedure. Section 419 provides that every appeal shall be made in the form of petition in writing presented by the appellant, or his pleader and it will be accompanied by a copy of the judgment or order appealed against it. Under section 421 the appellate Court, after perusing the petition and copy of the judgment under section 419 will dismiss the appeal on merits if there is no sufficient ground for interfering. Section 422 lays down that notice shall be given to the appellant, or, his pleader and to such other officer as the Provincial Govern--ment may appoint in this behalf for the hearing of the appeal. If the appeal is not dismissed under section 421 the appellate Court under section 423 shall issue notice to the parties and send for the record of the case if the record is not already in Court and after perusing such record and hearing the appellant orb his pleader and the Public Prosecutor, if he appears, it may dismiss the appeal, if there is no sufficient ground for interfering.
7. In order to appreciate the point involved in these cases, it will be proper to reproduce here section 423 of the Criminal Procedure Code. It reads as under :- "S. 423(1).-The appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 411-A, subsection (2) or section 417 the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order, of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law ;
(b) in an appeal from a conviction (1) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial, or (2) after the finding, maintaining the sentence or, with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the `provisions of section 106, subsection (3), not so as to enhance the same ;
(c) in an appeal from any other order, alter or reverse such order
(d) make any amendment or any consequential or incidental order that may be just or proper.
(2) Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge or to misunderstanding on the part of the jury of the law as laid down by him."
8. A reference to the above provisions of law will show that it is the duty of the Court to peruse the record and to hear the appellant or his pleader, if he appears, and it has power to dismiss the appeal if there is no sufficient ground for interfering.
9. Mr. Abu Backkar and other learned counsel appearing for the appellants, have contended that a counsel cannot make a concession and it is the duty of the Court to consider the question on merits after applying its own mind to the facts of the case.
10. The learned counsel appearing on behalf of the appellants have contended that under section 423 of the Criminal Procedure Code, it is the duty of the High Court to consider the merits of the case even if the counsel appearing for the appellant is not pressing the appeal on merits but is only asking for the reduction of the sentence. In support of this contention, they have relied on the cases of The Queen v. Hoop Gowalla (15 W R 42), Parmeshur Lal v. Mst. Rukmin and another (AIR 1925 Oudh 305), Emperor v. Sursing Mathuradas (1 Cr. L J 939), King-- Emperor v. Dahu Raut (AIR 1935 P C 89), Khalil and others v: The Crown (PLD1953FC133) and Muhammad Ashiq Faqir v. The State (PLD1970SC177). In some of these cases, it was held that it is the duty of the Court to strictly follow the pro--visions of sections 419 to 423 of the Criminal Procedure Code. In the case of Khalil and others, it was held that the power of summary dismissal under section 421, Cr. P. C. Must be exercised judicially, i.e., in such a way as to secure due and efficient administration of justice and it is therefore incumbent upon the Court, before dismissing an appeal under this section to find that there is no sufficient ground for interference" ; indicating at the same time that the questions arising in the case have been duly appreciated. Similarly, in the case of Muhammad Ashiq Faqir, it was held that if the appellant, or his pleader, absents himself at the time of the hearing, the Court is not relieved of its duty of perusing the record and disposing of the appeal on merits giving reason in support of the judgment proposed to be given.
11. The learned counsel for the appellants also referred to two other judgments in Ramzan All v. The State (PLD 1967 SC 545) and Rabari Ghela Jadav v. State of Bombay (AIR 1960 SC 748). In the first mentioned case, it was observed as under :- "Before parting with this case, however, we cannot help observing that we have been compelled to enter upon an examination of the evidence in this case, as neither the trial Court nor the High Court had followed any consistent principle or examined the evidence with the care that was expected in a case of this magnitude. In some cases the accused were held to have participated in a dacoity when they were clearly under arrest and could not have so participated. In some cases the evidence has been misread and in several cases the Courts below have clearly become confused between different accused bearing similar names. The High Court, which was the final Court of facts, again unfortunately did not examine the evidence at all in respect of a large number of the appellants before it purely on the ground that their appeals had been pressed only on the ground of sentence. In a criminal appeal, whether the appeal is pressed or not, it is the duty of the High Court to examine the evidence on the record."
12. In the second case, Rahari Ghela Jadav v. State of Bombay, the Supreme Court of the Indian Jurisdiction, held as under :- "While an appellate Court has power to dismiss an appeal summarily, if it considers that there is no sufficient ground for interfering, it has no power to direct that the appeal shall be heard only on the point of sentence. Such an order is not an order of summary dismissal under section 421 and neither is it an order in terms of section 422 of the Code. The appellate Court, after hearing the appeal, certainly has the power under section 423, in finally disposing of the appeal, to reduce the sentence but that does not entitle it to direct that an appeal is admitted only on the question of sentence. Such an order if passed is invalid and the appellant is entitled to insist that the appeal should be heard on merits."
13. In the light of the above discussion, it appears to me that even in a case where the appeal is not pressed on merits and it is pressed only on the question of sentence, it is the duty of the Court itself to examine the evidence on the record in order to find out whether the conviction of the appellant is proper or not. Merely because the counsel for the appellant has not pressed the appeal on merits, the High Court is not relieved of its duty to peruse the record in order to find out whether there is ample evidence against the appellant to convict him for the offence for which lie has been charged. This is necessary to secure due and efficient administration of justice and also to show that the Court has applied its mind to the facts of the case and has reached on its own conclusion on the dispute between the parties.
14. In the appeals under consideration, it is quite clear that the learned Judges of the High Court have not examined the evidence on the merits of the case. In fact, they have not considered the merits of the case at ail but have only considered the case from the point of view of reduction of sentences. In my opinion, in doing so, they have failed to observe the provisions of section 423 of the Criminal Procedure Code and, therefore, their judg--ments are liable to be set aside. I would, therefore, set aside the judgments in the above-mentioned appeals and remit the cases to the High Court of East Pakistan, Dacca with the direction that the appeals of the convicts preferred in that Court shall be reheard and the evidence of the case will be examined for con--sidering the question whether the appellants are guilty of the offences for which they have been charged.
15. In the result, the appeals are accepted. The appellants who are on bail will continue to remain on bail till the disposal of their appeals in the High Court.
16. HAMOODUR RAHMAN, C. J.----I agree.
17. M. R. KHAN, J, -----I agree