I intend to decide the instant criminal revis ion petition as well as Crl. Revision Petition No. 188 of 2019 through this single, judgment as the similar question of law and facts are involved therein.
2. The petitioner/convict was booked in two different FIRs i.e. FIR No 695/2008, registered under Sections 324, 34, 337-F(vi) and 337-D PPC at Police Station Minchinabad and FINo. 70/09 dated 9.2.201 1, registered under Sections 324, 109 and 34 PPC at Police Station Minchinabad. On conclusion of trial, he wad convicted and sentenced by the learned Magistrate Section-30, Minchidabad vide judgments dated 9.2.201 1 in various offences like 337-F(vi), 337-D PPC etc. The petitioner/convict preferred two appeals before the learned Additional Sessions Judge,. Minchinabad which were admitted for regular hearing and during the pendency of his appeals the sentence awarded to the petitioner/convict was suspended and he was admitted to bail on 23:07.201 1. When his appeals came up for hearing, the petitioner/convict and his counsel remained absent from the Court. The learned Additional Sessions Judge dealt with the appeals filed by the petitioner/convict vide order dated 3.10.201 1 as under: "Muhammad Siddique Sabri, S.I. P/S Minchinabad has appeared before the Court with un-executed arrest warrant with the report that the convict is a dangerous criminal being involved in multiple crimes who has absconded in order to avoid legal consequences. In this view of the matter the instant appeal is dismissed for non-prosecution.
Record of appeal be consigned to record room and that of learned lower Court be remitted immediately with the direction to execute the conviction order . At the same time surety shall be proceed against under Section 514 Cr.P.C. All the relevant record to this affect be also sent to the learned lower Court for necessary legal action under Section 514, Cr .P.C."
Thereafter , the petitioner/convict opted to file an application for restoration of his appeals and the same were dismissed vide order dated 20.05.2019 by the learned Additional Sessions Judge.
3. The learned counsel for the petitioner contends that impugned orders of learned appellate Court are against the basic settled proposition that a criminal appeal cannot be dismissed for non-prosecution and the learned trial Court while passing the. impugned orders, has committed material irregularity and the appeals filed by the conflict ought to have been decided on merits of the case.
4. The learned counsel, appearing on behalf of Respondent No. 3/complainant as well as learned Deputy Prosecutor General has frankly conceded to the legal proposition and opted not to oppose these revision petitions.
5. After hearing the learned counsel for the parties and having gone through the relevant law, there is no cavil to the proposition that once a criminal appeal is admitted for regular hearing by the appellate Court it must be decided on merits and could not be dism issed for non-prosecution and there is no concept of dismissal of appeal for non-prosecution in the Code of Criminal Procedure, 1898 (hereinafter called as 'the Code'). Section 423 of the Code deals with the procedure of disposing of the criminal appeal which reads as under: "Section 423(1). 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 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 retired or (sent for trial to the Court of Session or the 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 retired by a Court of competent jurisdiction subordinate to such Appellate Court or 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 the 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 ."
This principle of deciding the appeal on merit of the case has been reiterated by the august Supreme Court of Pakistan in cases of Muhammad Ashiq Faqir v. The State (PLD 1970 Supreme Court 177), Muhammad Bakhsh v. The State (1986 SCMR 59) and in the judgment of this Court passed in case of Ghulam Muhammad v. The State (PLD 1960 (W .P.) Lahore 1 1).
6. Section 421 of the Code deals with the summary dismissal of the appeal. In this provision of law the appellate Court is equipped with the power of summary dismissal of the appeal when it considers that no sufficient ground for interfering is available but even in this provision a proviso has been added in its sub-section (1) which bound down the Court that no appeal presented under Section 419 shall be dismissed unless the appellant or his pleader had a reasonable opportunity of being heard in support of the same.
7. Part 'C' of Chapter 25 of Volume III of High Court Rules and Orders deals with the procedure in hearing criminal appeals and Rule 5 of the same reads as under: "5. A criminal appeal must be disposed of on its merits as it cannot be dismissed in default."
8. However , in the case of Ikramullah and others v. The State (2015 SCMR 1002 ) the Hon'ble Supreme Court of Pakistan has deviated from this principle to some extent while observing as under: "A report dated 11.12.2014 has been received from the Superintendent, Central Prison, Bannu informing that Adil Nawab appellant had escaped from the said jail during the night between 14/15-4-2012 and he has become a fugitive from law eversince. The law is settled now that a fugitive from law loses his right of audience before a Court. This appeal is therefore, dismissed on account of the above mentioned conduct of the appellant with a clarification that if the appellant is recaptured by the authorities or he surrenders to custody then he may apply before this Court seeking resurrection of this appeal." (Underline is provided for emphasis).
Meaning thereby , that if the appellant becomes fugitive from law and opted not , to appear before the appellate Court to pursue his/her appeal then the same could be dismissed on account of his conduct but in that eventuality the Court has to clarify in his order/judgment that if the appellant is recaptured or he surrenders to custody then he may apply to the Court seeking resurrection of his/her appeal.
9. In view of the law referred above, I am of the considered view that impugne d orders dated 03.10.201 1 and 20.05.2019 passed by the learned Additional Sessions Judge, Minchinabad are not warranted by law, therefore, by allowing these revision petitions, the impugned orders are set aside and the matters are remanded back to the learned appellate Court for decision of appeals afresh on merits, strictly in accordance with law .