JUDGMENT MUHAMMAD ANWAARUL HAQ, J.---Through this petition, Zahid Hussain petitioner assails the orders dated, 30-9-2010 and 16-10-2010 whereby learned Additional Sessions Judge dismissed his criminal appeal against his conviction for non-prosecution and later on dismissed his application for restoration of the same.
2. Learned counsel for the petitioner contends that impugned orders of learned trial Court are against the basic settled legal proposition that a criminal appeal cannot be dismissed for non- prosecution and the learned trial court while passing impugned orders has committed a material irregularity; that arguments in criminal appeal against conviction of the petitioner had already been advanced by his learned counsel and the case was fixed only for pronouncement of judgment. Learned counsel for the petitioner contends that a criminal appeal ought to have been decided on merits under section 423 of the Cr.P.C.
3. Learned Deputy Prosecutor-General very frankly concedes to the legal proposition and does not oppose this petition.
4. Heard.
5. Admittedly, it is a settled legal principle that after admission of a criminal appeal, it cannot be dismissed without adverting to the merits thereof and non- appearance of appellant or his counsel is not a ground for dismissal unless all the raised questions are determined and factual and legal aspects are thrashed as contemplated under section 423, Cr.P.C. I respectfully refer the esteemed judgment of the Hon'ble Supreme Court of Pakistan in case of Muhammad Bakhsh v. The State (1986 SCM R 59) wherein Apex Court has observed as under:- "The proposition of law that a criminal appeal once admitted to regular hearing by the High Court must be decided on merits and cannot be dismissed for non- prosecution, is fully supported by the pronouncement of this Court in Muhammad Ashiq Faqir v. The State PLD 1970 SC 177......... "
6. In view of the case law referred above I, am of the considered view that impugned orders dated 30-9-2010 and 16-10-2010 passed by learned Additional Sessions Judge, Lahore are not warranted by law and are against the well settled principle of criminal jurisprudence. Therefore, I, allow this revision petition, set aside both the impugned orders and remand back the matter to the learned appellate Court for decision of appeal afresh on merits, after hearing both the parties strictly in accordance with law.