Facts necessary for decision of this petition are that Nasrullah, Saifullah sons of Ghulam Muhammad, Tahir Unis son of Ahmad Khan .Petitioners, along with Muhammad Arif and Muhammad Akbar were sentenced to suffer two years' R. I. Each under section 365, P. P. C.; six months' R.
1. Each under section 148, P.P.C.; six months' R. I. Each on two counts under sections 342 and 323, P. P. C. And one year's R.
1. Each under section 506 P. P. C. By Ch. Muhammad Sattar Resident Magistrate Phalia vide judgment dated 25-8-1986 in a case arising out of F. I. R. No. 43 dated 9-6-1982 Police Station Phalia District Gujrat. Muhammad Akbar and Muhammad Arif filed appeal before learned Additional Sessions Judge, Gujrat to challenge their conviction and sentences. Their appeal was admitted. They were allowed bail by suspension of their sentences during pendency of appeal, which I am told is now fixed for hearing on 16-10-1986. Nasrullah, Saifullah and Tahir Unis accused filed separate appeal to challenge their conviction and sentences before the same learned Additional Sessions Judge. These three accused did not initially append certified copy of the impugned judgment ostensibly under the impression that the certified copy is attached with the connected appeal of their co-accused and was, therefore, not necessary to be filed with their appeal. However, on 2-9-1986 a certified copy was placed on file of appeal of these three A accused, but Malik Zulfiqar Ali Khan, learned Additional Sessions Judge, Gujrat, declined to receive the said certified copy by observing that the "learned counsel has failed to point out any provision of law under which the copy can be received and made the part of the appeal/petition when the Court bad not dispensed with the copy of judgment, nor had given any direction to produce the same at some later "stage". The learned Additional Sessions Judge proceeded to dismiss the appeal on .The ground that the requirements of section 421, Cr. P. C. Have not been fulfilled.
2. Nasrullah, Saifullah and Tahir Unis then filed fresh appeal along with certified copy of the impugned judgment dated 25-8-1986 to challenge their conviction and sentences. This appeal was placed before the same learned Additional Sessions Judge who vide the order dated B 10-9- 1986 dismissed the same. It was held in this order that "it is clear that a revision is competent against the order passed under section 421, Cr. P. C. Before the Hon'ble High Court and the second appeal cannot be preferred before this Court after dismissal of the previous appeal". The three petitioners through this revision have challenged the above said two orders.
3. It is contended on behalf of the petitioners firstly, that the certified copy of the impugned judgment could have been dispensed with by the learned Additional Sessions Judge at any subsequent stage of the institution of the appeal but the lower Court failed to exercise its discretion according to law. Secondly, the appeal of two co-accused of the petitioners was pending at that time and as such even if certified copy had not been attached by the petitioners with their appeal it did not have material effect justifying dismissal of their appeal in limine. Thirdly, that the learned Additional Sessions Judge should have directed the petitioners to file certified copy of the judgment instead of dismissing the appeal on technical ground. Fourthly, that the order dated 2-9- 1986 was no bar against filing of another appeal along with certified copy of the impugned judgment and as such filing of second appeal would not amount to seeking review or alteration of the earlier order because the order dated 2-9-1986 could not be considered a "judgment" within the meaning of section 369, Cr. P. C. No one has appeared on behalf of the State.
I have considered the above contentions on behalf of the petitioners. On a perusal of the record of this case I am of the impression that Malik Zulfiqar Ali Khan, Additional Sessions Judge, Gujrat acted in undue haste in disposing of the appeal of present petitioners. It is correct that the appeal should have been accompanied by a certified copy of the impugned judgment as provided in section 419, Cr. P. C. But omission to file did not mean that the appeal should have been dismissed in the manner done by the learned Additional Sessions Judge on 2-9-1986. The appellants seem to have omitted to append a certified copy of the impugned judgment with their appeal under a bona fide belief that it was not necessary because the appeal of their co-accused had already been admitted for regular hearing and certified copy had been placed on the file of that C appeal. The learned Additional Sessions Judge should, therefore, have either dispensed with the judgment or directed the petitioners to place on. Record of their appeal a certified copy of the impugned judgment. There appears no reasons as to why the learned Additional Sessions Judge did not dispense with the judgment or passed order directing the petitioners to file certified copy of the impugned judgment. The fact of the matter is that the petitioners on 2-9-1986 actually placed on record a certified copy of the impugned judgment. The learned Additional Sessions Judge should have accepted the certified copy and proceeded to decide the appeal on merits instead of disposing of the same in limine without considering merits of the case. The accused-petitioners after dismissal of their appeal filed another appeal which was dismissed on 10-9-1986 on the ground that they should have gone in revision before the High Court and that second appeal was not competent. This order of the learnedAdditional Sessions Judge was erroneous. The earlier order dated 2-9-1986 was not a "judgment" within the meaning of section 369,Cr. P. C. And there was, therefore, no bar for entertaining second appeal dated 7-9-1986. The word "judgment" has not been defined in the Code of Criminal Procedure. In section 369, word "judgment" alone has been used and the expressions like order or decision have not been mentioned. The word "judgment" means a judgment which is recorded after hearing the parties and which tend to dispose of the cause finally on merits. In Sher Khan alias Mammi v. The State(1) 1975 P Cr, L J 665, it was held that an order rejecting the appeal without going into merits of the case was not a judgment within the meaning of section 367, Cr. P. C. And, therefore, not a bar against re-hearing of the same under section 369, Cr. P. C. In the case cited as Noor Alam v. Sardar Khan (1), the accused Noor A lam etc. Filed a revision against an order of a learned Magistrate whereby they had been summoned as accused persons in a complaint filed by Sardar Khan. The learned Additional Sessions Judge purported to dismiss the revision by a short Urdu order stating therein that the detailed order has been written in English. However, before he could write the judgment containing points for determination and reasons in support of his decision, the learned Judge died in an accident. It was held by his Lordship that the revision in the circumstances of that case could not be treated to have been disposed of in law and as such, direction was given for its re-hearing. In the case of Mohsan Raza v. Dr. Bashir Ahmad (2), it was held that the word "judgment" for purposes of section 369 means a decision after full inquiry and hearing of the parties. The learned Judges of the Supreme Court in the case cited as Muhammad Ramzan v. Allah Ditta (3), held that order of dismissing petition in default of appearance of party or its counsel without touching upon its merits was not covered by bar created by section 369, Cr. P. C. With respect to judgments delivered and signed by Courts. These judgments make it clear that the order dated 2-9-1986 was not a judgment creating a bar within the meaning of section 369, Cr. P. C. For hearing of appeal of the petitioners on merits. The intention of law is to dispose of a cause on merits and not on such like technicalities as was done in this case. The appeal of the co-accused was pending before the learned Additional Sessions Judge. He should, therefore, have entertained the appeal of the present petitioners and disposes of the same along with the connected appeal. 1, therefore, accept this revision, set aside the two orders dated 2-9-1986 and 10-9-1986. The appeal of the present petitioners will be deemed to be pending before the Additional Sessions Judge, Gujrat and it will be disposed of on merits along with the connected appeal.
4. In the facts and circumstances of the case it is directed that the appeals of the three petitioners and their co-accused Muhammad Akbar and Muhammad Arif shall be transferred to the Court of learned Sessions Judge, Gujrat who will himself decide them on merits according to law.
(1) 1977 P Cr. L J 705 (2) 1980 P Cr. L J 180 (3)1982SCMR215