1. SAJJAD AHMAD, J.--The appellant, Asif Ali was convicted by a Magistrate 1st Class, Lahore, with powers under section 30, for an offence under section 326, P. P. C. and sentenced to seven years' R.
2. I. and a fine of Rs, 100.00, or, in default of payment, further three months' R. I. The prosecution case against him was that he had thrown acid on Arif Mirza, because of his suspicion about his illicit connections with the appellant's wife. The acid, which fell on the face of Arif Mirza, caused extensive damage by burns, including the loss of his left eye, which had to be extracted.
3. The appellant preferred an appeal to the High Court, which, having been duly admitted, was, at first, heard by Mr. Justice Shah Zaman Babar of the Peshawar Bench, who ordered the production of additional evidence for elucidation of certain points, but the appeal could not be concluded by him, as the learned Judge returned to Peshawar on the conclusion of his circuit tour. The appeal was then laid before Mr. Justice Muhammad Afzal Khan, who heard arguments on a couple of occasions, but finally returned it to the office on the 11th of May 1970, for its disposal by the learned Judge, who was dealing with criminal appeals during those days, as he himself had been made to sit on a Division Bench, which was hearing constitutional writs. After this, the appeal finally came to be heard on the 24th of June 1970, by Mr. Justice Abdul Kadir Sheikh of the Karachi Bench, who was on a circuit in Lahore during those days. He dismissed the appeal, but the circumstances under which it was disposed of are described by him in the last paragraph of the judgment, which reads : "Before parting with the case, I would like to record that when this appeal was called, neither the appellant, who is on bail, nor his counsel was present. I proceeded with the hearing after waiting for some time, with the assistance of the learned counsel for the State. The learned counsel for the appellant appeared later nearly at the end of the case, and when I told him to proceed with the case, he stated that the hearing would last at least for three days, and that he was not in a position to attend tomorrow, as he would be busy in a case at Bahawalpur. I refused to adjourn the case, and directed him to proceed. He reluctantly proceeded but in a manner so as to waste time, and when I pointed out this to him, he said that he would not like to argue further. I have, therefore, decided the appeal on the basis of the record before me with the assistance of the learned counsel for the State."
4. It may also be stated that after the learned counsel for the appellant expressed his desire not to argue the appeal further, and withdrew from the case, with the permission of the Court, an application was simultaneously filed by the father of the appellant, praying for time to engage another counsel on account of the withdrawal of the counsel. This application was rejected by the learned Judge with the following remarks :-- "The learned counsel did not wish to argue voluntarily at the far end of the case. Rejected."
5. At the hearing of the petition for special leave to appeal, we considered that the conviction of the appellant was well-founded, and that there was no scope for interference on merits, but leave was granted to examine whether, in view of the circumstances in which the hearing of this appeal had taken place, the learned Single Judge had competently disposed of the appeal in the absence of the appellant, who was on bail, and the failure of his counsel to argue the appeal, and who ultimately withdrew from the case.
6. 'A reference to the relevant provisions of the Code of Criminal Procedure reveals that they contain a fairly elaborate mechanism for the manner of the institution and the disposal of criminal appeals. After an appeal is instituted by an appellant, or his pleader, which is to be presented in the form of a petition, accompanied by a copy of the judgment or order appealed against, as laid down in section 419 of the Code, the Appellate Court has to peruse the same, and, if it considers that there is no sufficient ground for interference, it may dismiss the appeal summarily, A proviso to this section requires that an appeal presented under section 419 shall not be dismissed unless the appellant, or his pleader, has had a reasonable opportunity of being heard in support of the same.
7. A reference to section 420 of the same Code shows that in the case of jail appeals instituted under section 420 of the Code, this obligation of a reasonable opportunity to be afforded to the appellant, is not provided for. A second proviso added to this section is that before dismissing the appeal under this section, whether presented under section 419 as a regular petition, or a jail petition under section 420, the Court may call for the record of the case, but shall not be bound to do so.
8. Once an appeal survives a summary dismissal, the Appellate Court has then to give a notice, under section 420 of the Code, to the appellant or his pleader, and to such officer as the Provincial Government may appoint in this behalf, of the time and place at which such appeal is to be heard, and also to furnish a copy of the grounds of appeal to the aforesaid officer, if he applies for the same. After this is done, the further course of the appeal is governed by section 423, which ordains that a Court then shall send for the records of the case (if such record is not already in the Court).
9. 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 are not sufficient grounds for interference, dismiss the appeal, but in case of interference, the Appellate Court may exercise its powers, which are comprehensively described in clauses (a) to (d) of the same section.
10. In view of the course that this appeal has taken during the arguments in the High Court before the learned Single Judge, the sole question, which arises for consideration, is whether the requirements of section 423 were adequately satisfied or not, and in this context, the words used in section 423 which call for interpretation are "after perusing such record and hearing the appellant or his pleader, if he appears." As already stated above, the appellant himself was not present before the learned Single Judge, as he was on bail. It is not shown why he was not present, because ordinarily, under the terms of the bail bond, he should attend the Court on every hearing of the appeal. If he had chosen to be absent and not asked for an adjournment on account of any reason for his absence, he could not have held up the proceedings of the appeal, merely by absenting himself from the Court. His absence was further rendered unnecessary, as the counsel, who had been engaged for him, did attend the Court to argue the appeal, although he came very late, long after the learned Single Judge had started the hearing of the appeal and examining the record, with the help of the counsel for the State. There has been some conflict of judicial opinion on the point whether the pronoun 'he' in the words, which are quoted in inverted commas above, refers to the appellant or to his counsel or to either of them. In a Full Bench case of Allahabad High Court, which was a case of an appeal received from the appellant through Jail, reported as I L R 13 All. 171, the majority of the Judges, Mr. Justice Mahmood dissenting, held the view that where an appeal preferred under section 420 of the Code of Criminal Procedure has been admitted by the Appellate Court and notice has been properly given under section 422, and the record has been sent for and perused under section 423, the Appellate Court is competent under the last-mentioned section to dispose of the appeal, though the appellant is not present or is not represented by a pleader. The only limitation placed by the section on the powers of the Appellate Court is that before disposing of the appeal, it must peruse the record, and if the appellant is present, or is represented by a pleader, either he or his counsel must be heard. Mahmood J., in his dissenting opinion, on the contrary, held that section 422, in conformity with the principle of audi alteram partem, implies that where an appeal is not summarily rejected under section 421, the appellant must have a real and adequate opportunity of being heard. His Lordship also held that the pronoun 'he' refers to the pleader, and must not be read as either of them, and that, in any case, the words "if he appears" make it a condition precedent to the disposal of an appeal that the appellant is heard or, at least, has a choice of appearing and that this word 'appears' refers to the personal appearance of the appellant for his appeal which has been admitted, and which cannot be disposed of unless the appellant is before the Appellate Court or can be heard within the meaning of section 423. It may be observed here that even dissenting view of Mr. Justice Mahmood, for whose opinion I have the profoundest respect, is not of any avail to the appellant in this case, as he had chosen to be absent from the proceedings in spite of notice, and his learned counsel was there to represent him.
11. The question that squarely falls for determination in the present appeal is whether by not starting the hearing of the appeal afresh, beginning with the reading of the F. I. R. once again, as desired by the learned counsel for the appellant, and whether the refusal by the learned Single Judge to adjourn the appeal on the plea of the learned counsel that its arguments will take three days and that he was not free the next day as he was booked to go to Bahawalpur to appear in another case before the Circuit Bench there, amounted to a denial of the opportunity to the appellant or his counsel of being heard. The further point is whether after the refusal by the learned Single Judge to adjourn the case on the prayer of the learned counsel, and the direction to him to proceed with the case, which the latter accepted reluctantly, as he proceeded to argue in a manner, which the learned Judge considered was a waste of time, and which led the learned counsel to withdraw from the case, the dismissal of the appeal thereafter, in the absence of the counsel as well as of the appellant, was competently done, particularly as after the withdrawal of the learned counsel, an application was instantly made by the father of the appellant for adjournment of the hearing, to enable him to engage another counsel. After giving my anxious consideration to all the relevant events, in which this appeal was concluded by the learned Single Judge in the High Court. I have come to the conclusion that the step taken by him cannot be considered to be illegal or even unjustifiable, to warrant an interference with his judgment. While the learned members of the Bar appearing in cases as officers of the Courts are entitled to all genuine considerations and accommodation in conducting proceedings before the Courts consistently with the onerous responsibilities of the Court itself to discharge its duties diligently and conscientiously, it is impossible to concede that the learned counsel should be allowed to regulate the work or the proceedings in the Court, according to their own choice to suit their own convenience. It would certainly be a disservice to the cause of justice if the counsel were not accorded complete independence in the mode of presentation of their arguments or the exposition of their cases and in all the relevant respects in that behalf, but, at the same time, it would be an equal disservice if, in the dispensation of justice. Courts, in the fulfilment of their duties to do justice, were to be denied the powers to control and regulate the Court proceedings and to confine them to their legitimate and relevant limits, in consonance with the requirements of justice in each case. The proceedings in the present appeal in the High Court before the previous two learned Single Judges had, of course, taken a lengthy course without yielding any result, but that did not mean that another Single Judge must also have dragged the appeal to the same length in the same fashion. To my mind, the question involved in the appeal was a simple one, namely, whether the appellant was correctly recognised by the victim, Arif Mirza, and his brother-in-law, P. W. Muhammad Abid, as the culprit who had thrown acid on the former. In addition, there was the evidence of two witnesses who had allegedly seen the appellant running away from the spot after the crime, as also the evidence of one, Ghulam Dastgir, who deposed that the appellant had purchased the acid from him a few days earlier. In principle, the conclusion in the case depended on the appraisement of evidence of these witnesses for the appellant before the learned Single Judge in the High and I fail to see any point in the prayer of the learned counsel Court that he would need three days to conclude his arguments in the case. It seems to me that the learned counsel was not keen to finish his arguments on that day, which he could easily have, if he had so desired, having already prepared and argued his case on two previous occasions. His halting arguments, after the refusal of his prayer, which constrained the learned Single Judge to say that the time of the Court was being wasted, should have led the learned counsel to concentrate his arguments on the main points and not to make a request for his withdrawal in an irritant and frustrated mood. The feeling induced in my mind by the events, that have occurred, is that as the learned counsel was keen to seek an adjournment, he failed to co-operate with the Court to finish the case, and finally made a bid for withdrawal from the case. The application of the father of the appellant thereafter for an adjournment to engage another counsel was an effort in the same direction, that is to say, not to have the appeal decided by the learned Single Judge on that day, and to get it postponed.
12. In the circumstances stated above, I am unable to find any fault with the learned Single Judge in deciding the appeal on his own perusal of the record, with the assistance of the State counsel, and without the aid of the learned counsel of the appellant, which, in fact, was deliberately withheld.
13. The learned counsel for the appellant has been unable to tell us how his case has been prejudiced by this ex parte hearing of the appeal, even if we were to agree with him that it was so. He has failed to tell us which particular aspect of the case has been missed by the learned Single Judge, and which, on a full-fledged argument by him, would have yielded a different result.
14. For the reasons stated above, I do not think that the matter calls for our interference. The appeal is dismissed.
15. HAMOODUR RAHMAN, C. J.--I agree.
16. M. R. KHAN, J.--I agree.
17. WAHIDUDDIN AHMAD, J.--I agree. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.