1. Muhammad Azam Khan, J.--The Shariat Court of Azad Jammu & Kashmir through its judgment dated 3.6.2006 accepted Appeal No, 146/2005 filed by Yasir Ayub against the judgment of Additional District Criminal Court resulting in conviction under Sections 324, 459 and 337-D APC, while Appeal No, 9/2006 and 11/2006 filed by Muhammad Younis, one against the acquittal of Muhammad Yousaf and other for enhancement of sentence to Yasir Ayub were dismissed. The appellant, Muhammad Younis, filed acquittal appeal against this consolidated judgment of Shariat Court of Azad Jammu &. Kashmir on 9.6.2006. The Registrar of the Court issued a notice for appearance of Respondents No, 1 and 2. A report was received in the office that Respondent No, 1 has gone to England. Again process server reported on 4.8.2006 that Respondents Nos, 1 and 2 have gone to England whereupon the bailable warrants amounting to Rs,50,000/- were issued on 23.1.2007 against them. It was ordered by the Court that if despite service respondents failed to appear in the Court then non-bailable warrants shall be issued against them. Although these bailable warrants could not be served upon them but non-bailable warrants were issued against them. Javed Rehman, ASI of Police Station Dudyal reported that he himself went to the house of Respondents Nos, 1 and 2: The house was locked and on enquiry it was told to him that whole family is in England.
2. Mr. Khalid Rasheed Choudhry, the learned counsel for the appellant has argued that under Section 422 Cr.P.C. a notice was issued to the respondents. In response to the notice they did not appear in the Court. They shall be treated as absconder and under Section 423 Cr.P.C. an appeal can be heard and disposed of in absence of the accused or his counsel. He relied upon the cases reported as 1997 SCM R 274, 2001 P.Cr.L.J. 706 and PLJ 1982 SC (AJ&K). 184, PLD 1983 SC (AJ&K) 1 and PLJ 1994 C.S. 791.
3. Mr. Muzaffar Ali Zafar, the learned Additional Advocate-General argued that the present appeal is an appeal against the acquittal and under Section 422 Cr.P.C. it is mandatory that a notice shall be issued to the accused and he shall be served upon. If a notice is not served upon the accused and he has proceeded abroad before the service of notice then he shall not be treated as absconder and appeal shall remain pendingtill the accused appears in the Court or is brought before the Court.
4. Chapter XXXI Cr.P.C. deals with the appeals. An acquittal appeal is filed under Section 417 Cr.P.C. but in the present case in Azad Jammu & Kashmir the relevant law is IPL and acquittal appeal is filed under Section 25 IPL. The procedure for summoning of the respondents and disposal of appeal is provided in Sections 422 and 423 Cr.P.C. It will be useful to reproduce these sections, which are as under:-- "422. Notice of appeal.--If the Appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the 5 [Provincial Government] may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the application of such office, furnish him with a copy of the grounds of appeal; and in cases of appeals under 6 [Section 411-A, subsection (2) or Section 417], the Appellate Court shall cause a like notice to be given to the accused. 423. Powers of Appellate Court in disposing of appeal. (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 19[Section 411-A, sub-section (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 20[sent] for trial '[to the Court of Session or High Court] 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 Appellant Court or 20[sent] for trial, or (2) alter 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, sub-section (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." A perusal of Section 422 reveals that notice of appeal is mandatory to the appellant or his counsel.
5. If appeal is filed by the accused and the relevant officer as the Provincial Government may appoint in this -behalf and they shall be heard before disposal of the appeal. The second part of the section deals with appeal under Section 411-A sub-section (2) and Section 417 Cr.P.C. which provides that if the appeals are filed under these sections then the like notice shall be given to the accused. Since the present appeal has been filed under Section 25 IPL the appeal under Section 417 Cr.P.C. shall be read as Section 25 IPL. Section 423 Cr.P.C. deals with the disposal of the appeal. A perusal of the section reveals that when the record of the lower Court is received the Court shall decide the appeal after hearing the appellant or his pleader and Public Prosecutor and in case of appeal under Section 411-A sub-section (2) of Section 417 Cr.P.C. if the accused appears, after hearing him. It may be observed that it is a settled law that criminal appeal cannot be dismissed for non-prosecution, it has to be decided on merits. If an appeal has been filed by a convict/appellant and he deliberately disappears or does not appear in the Court or his counsel is absent, then the Court can decide the appeal after hearing the Public Prosecutor so appointed or if he docs not appear then the Court is competent to decide the appeal on merits. The case law referred to by Mr. Khalid Rasheed Choudhry, the learned counsel for the appellant, pertains to appeal filed by the convict persons. In 2001 P.Cr.L.J. 706 the appeal was filed by a convict person.
6. The counsel for the convict was not present in the Court for arguing the case. The Court decided the case on merits. In 1982 PLD SC (AJ&K) 184, it was held by this Court that appeal under the Code of Criminal Procedure, if not dismissed summarily and is admitted for regular hearing, it is enjoined upon the Court to decide the same on merits. In PLD 1983 SC (AJ&K) 1 the view expressed in 1982 PLD 184 was reiterated and it was held that appeal once admitted for regular hearing must be decided on merits. The authorities are not relevant for the proposition. Section 422 Cr.P.C. clearly provides issuance of notice for service to the accused in an appeal filed against acquittal and under Section 423 Cr.P.C. it is mandatory that the acquittal appeal shall be decided after hearing the accused. In the present case as it appears from the record that Respondents No, 1 and 2 proceeded to England before notice could be served upon them, after acquittal order, from the Shariat Court. They can never be treated as absconder without service.
7. Had they been served upon and after appearance in Court absented themselves then they could be termed as absconder. Hearing is a right of an accused without service of notice upon an accused person an acquittal appeal cannot be heard and disposed of. Our this view finds support from the case reported as Superintendent and Bemembrancer of Legal Affairs, Bangal v. Golok Tikadar and others [A.I.R. 1944 Calcatta 234], wherein, it was held as under:-- "We are unable to accept this contention. It is obvious that the accused persons who have not received notice of the appeal, will not be governed by our decision, but we are unable to understand how they or the appearing respondents will be prejudiced thereby. In our opinion, there have been in effect 58 appeals against 58 different accused persons presented by the Local Government, and there would be no legal bar to the separate hearing of the appeal against each separate accused person. It is convenient to consolidate the appeals against the appearing respondents, but it is not legally necessary so to do. If effect were given to Mr. Basu's contention, it would mean that the appeal could not be heard so long as a single accused person succeeded in evading service of notice, and the remaining accused might be detained in custody for an indefinite period. We are satisfied that it is not merely permissible but desirable to hear the appeal in respect of those accused only upon whom notices of the appeal have been served." (Underlining is ours) In a case titled State Government, Madhya Pradesh v. Vishwanath Nidhanji and other [A.I.R. 1954 Nagpur 231] it was held that: "(11) These decisions of their Lordships leave no doubt whatsoever that before an appeal against an acquittal can be heard against a respondent, he must be served with a notice under 5.422, Criminal P.C. It may be that a respondent may be absconding nevertheless that would be no ground for hearing an appeal in his absence In a case titled The State v. Karamat and others [PLD 1960 (W.P.) Peshawar 126] it was held that: ..... Their Lordships reached the conclusion that the appeal could proceed against the accused- respondents who had been served with notice and that the appeal could be heard and decided against the others after they had been served. A similar view was taken by a Division Bench of the Nagpur High Court in State Government v. Vishwanath Nidhanji and others (2). Respectfully following the above view, we hold that the appeal against Aslam, Fazal Dad, Fateh Khan, Jahan Khan and Dost Muhammad, who have been served, can be heard and decided forthwith." From the above discussion, we are of the opinion that the acquittal appeal cannot be heard without service upon the accused person. Non-bailable warrants issued against the respondents shall remain intact for execution. The appeal shall remain pending till the accused are served upon or they are brought before the Court.