Sajjad A.I Shah, J.-This is aa application under section 561-A Cr.P.C. Ia which the prayer is that Special Criminal Appeal dismissed for non- prosecution on 9-6-1967 be restored for disposal on merits after hearing the counsel Mr. Mehrab Gul, Advocate has submitted that on 9-6-19s/ this Appeal came up for hearing but as the appellant and his counsel namely Mir Nawaz A.I Khan Marwat, were absent, the appeal was dismissed for non-prosecution. It is submitted that initially, this appeal was admitted to regular hearing vide order dated 3-6-1980 and on the same day appellant was admitted to bail and Mr. Mir Nawaz Khan Marwat had appeared as an advocate.
Thereafter the appeal became ripe for hearing and was fixed in the Court for that purpose on 22- 12-1985 When Mr Wa
2. In this context, it is submitted by the counsel that a criminal appeal once admitted for regular hearing cannot be dismissed for non-prosecution. Section 410 Cr.P.C. Provides for filing appeal from sentence of Court of Session and Section 423 Cr.P.C. Specifies powers of the Appellate Court for disposing of that appeal. It is contained therein that Appellate Court shall send for the record and after hearing the appellant or nis pleader, if he appears, and the Public Prosecutor, if he appears may dismiss the appeal if it considers that there is no sufficient ground for interference. In this whole chapter which relates to the hearing of the appeal, no where it is provided that a criminal appeal can be dismissed for nonprosecution. There is a provision for summary dismissal of appeal but there is no provision for dismissal for non-prosecution. This is so for the reason that a criminal appeal is filed always by a person, who is convicted by the trial Court and against the conviction and sentence he files appeal ia connection with which at the initial stage he applies for bail or suspension of sentence, which benefit is given to him and then subsequently the appeal is to be heard on merits alongwith perusal of the record to be disposed of strictly on merits and according to law. According to the Criminal Procedure Code, criminal appeal once admitted for hearing is to be decided on merits and cannot be dismissed for non-prosecution for the reason that phraseology of Section 423 Cr.P.C. (1) is very clear which enjoins upon the Court the doty to dispose of the appeal after perusal of the record if the appellant or hie counsel does not appear which means that it has got to be disposed of on merits and not for non-prosecution. This view is fully supported by the Supreme Court in the case of Muhammad Ashiq Faqir v. The State PLD 1970 S.C.
177. In this context reference can be made to the case of State v. Muhammad Nazir Khan and another PLD 1983 S.C. (AJ & K) page 1.
3. It is also submitted that if on the date of hearing the appellant and hie counsel are not present even after the service of notice then if the (Court is satisfied that the appellant and his counsel are absent without lawful excuse then proceedings can ba taken in hand for cancellation of bail of the appellant and alto against the surety as contemplated under section 514 Cr P.C. Which provides for forfeiture of bond of the Surety and issuance of notice to him for production of the appellant for whom he has stood surety. An opportunity is to be given to the surety to produce the person for whom he has executed the bond and undertaken to produce him in the Court on the dates of hearing. When the Surety fails to do so, the bail can be forfeited and additional penalty can be imposed on him. At the same time non-bailable warrants tan be issued for the arrest of the appellant for his production in the Court.
4. On the question that this appeal is filed against the Judgment of the Special Judge under the Customs Act, it is submitted that under section 8$ of the Customs Act, 1969 the Court of Special Judge for Customs is set up and under section 185-F, provision is made for filing appeal before the Special Appellate Court appointed by the Federal Government, and a Judge of the High Court is specifically so nominated for that purpose by way of not fucation issued by the Federal Government. Section 185-F of the Customs Act further provides that the Special Appellate Court for the purpose of disposing of appeal or revision shall exercise all powers of a High Court as are contemplated under Criminal Procedure Code. This clearly shows that for disposal of appeal, the Special Appellate Court can exercise the same powers which are contained in the Criminal Procedure Code in Chapter 31 which starets from section 404 and ends with section 431. In these sections, Section 423 Cr.P.C. Is very pertinent as stated above that criminal appeal cannot be dismissed for non-prosecution- petition even if the appellant and his counsel are absent. The correct procedure will be that on the dates fixed for hearing, if the appellant and his counsel are absent, notice can be issued to the appellant directly for his appearance in the Court and if he fails to do so and the Court is satisfied that the absence is not due to a valid reason, his bail can be cancelled, bail bond of the Surety can be forfeited and notice can be issued to the Surety for further proceedings as contemplated under section 514 Cr.P.C. And all other steps can be taken as allowed under the law to procure the presence of the appellant. The Court also has the power to dispose of the appeal on merits after perusal of the record and hearing the counsel for the State even if the appellant and his counsel are absent. Dismissal of criminal appeal for non-prosecution would render assistance to the appellant if on bail though not intended, to avoid undergoing sentence of the trial Court without disposal of his appeal on merits.
5. In the circumstances stated above, prayer in the application is granted and in consequence whereof, appeal stands restored to its original number. By consent the hearing is adjourned to 2-7- 1987 for hearing of appeal.