The facts giving rise to this revision petition are as under:-- Ahmad Khan and Abdul Aziz (petitioners herein) and their co-accused Allah Dad and Muhammad Ramzan were tried under sections 148, 452 and 506/149, P.P.C. By Magistrate First Class, Mandi Baha-ud-Din, who, vide his judgment, dated 28-5-1983, convicted them (the sections of the P.P.C.
Under which they were convicted find no mention in the impugned judgment). Ahmad Khan and Abdul Aziz petitioners were sentenced to rigorous imprisonment for one year each and Allah Dad and Muhammad Ramzan were punished with fine of Rs.500 each or in default of its payment to undergo R.I. For one month each. All the four convicts filed a joint appeal in the Sessions Court challenging their conviction and sentence. In the memo. Of appeal their names figure in the following order:-- (1)Ahmad Khan.
(2)Abdul Aziz.
(3)Muhammad Ramzan.
(4)Allah Dad.
2. The appeal came up for hearing before Mr. Saeed Ahmad, Additional Sessions Judge, Gujrat, on 8-1-1985 who passed the following order:- "Counsel of the appellants with appellants 1 and 2, the rest of the two Appellants Ahmad Khan and Abdul Aziz are not present. They do not want to pursue the appeal for they have allegedly already undergone the sentence. To their extent, the appeal is hereby dismissed, as prayed. Copy of this order be sent to the District Magistrate so that if they have not undergone the sentence awarded, he might make them undergo the same. Arguments heard. For order to come up on 1-2-1985."
On 2-2-1985 (1-2-1985 being holiday) Mr. Saeed Ahmad, Additional Sessions Judge, dismissed the appeal of Muhammad Ramzan and Allah Dad. On 30-4-1985 he issued suo motu notices to the State and Ahmad Khan and Abdul Aziz for 6-5-1985. In the meantime, Ahmad Khan and Abdul Aziz moved a review petition on 4-5-1985 contending that on 8-1-1985 the appeal of Muhammad Ramzan and Allah Dad (appellants No.3 and 4) was dismissed due to their non-appearance but in the order-sheet they (Ahmad Khan and Abdul Aziz) were shown absent through mistake, while in fact they were present in Court on the said date and were later on acquitted on 2-2-1985. The review petition was dismissed vide order, dated 6-5-1985 with the observation that the contention that Ahmad Khan and Abdul Aziz were acquitted on 2-2-1985 was absolutely incorrect as the said order did not pertain to them and their appeal had already been dismissed vide order, dated 8-1- 1985. While dealing with the suo motu notice, the Additional Sessions Judge in the same order, dated 6-5-1985, observed that in the order, dated 8-1-1985 "the names of Muhammad Ramzan and Allah Dad should be considered to exist instead of Ahmad Khan and Abdul Aziz" whose names had figured in the said order due to a clerical mistake. He further observed that in fact the appeal of Abdul Aziz and Ahmad Khan was before him for disposal on 2-2-1985 but due to clerical omission in the order, dated 8-1-1985, it was not at all considered and his order, dated 2-2-1985 was coram non judice and the appeal of Ahmad Khan and Abdul Aziz was "still sub judice". After passing the above order, Mr. Saeed Ahmad, Additional Sessions Judge, sent the file to the learned Sessions Judge with the request that the same may be transferred to some other Court. Thereafter, this case became a shuttle cock between the Courts of Sessions Judge and Additional Sessions Judges. Three Additional Sessions Judges, one after the other, declined to hear it. Ultimately, it was entrusted to Mr. Zulfiqar A.I Khan, Additional Sessions Judge, who, vide his judgment, dated 22-9- 1986, dismissed it with the observation that it had already been dismissed on 2-2-1985 and he was not competent to review the said order.
Feeling aggrieved by the aforesaid order, Ahmad Khan and Abdul Aziz petitioners have come up in revision to question its correctness and propriety.
3. Learned counsel for the petitioners contends that Mr. Zulfiqar A.I Khan, Additional Sessions Judge, has dismissed the appeal on the mistaken view that it had already been dismissed on 2-2-1985 and he had no jurisdiction to review the said order. It is submitted that in the order, dated 6-5-1985 Mr. Saeed Ahmad. Additional Sessions Judge, had held that the appeal of the present petitioners was still pending and that is the correct view because their appeal was not disposed of on merits, therefore, it should be sent back to the Sessions Court, Gujrat, for disposal in accordance with law.
The learned A.A.G. Does not controvert the submissions made by the learned counsel for the petitioners.
4. The submissions made by the learned counsel for the petitioners find support from the material available on the record. It appears that a clerical mistake occurred in the order, dated 8-1-1985 which has been reproduced in para. 2 of this order. In the memo. Of appeal Ahmad Khan and Abdul Aziz figure as appellants Nos.1 and 2 and they have been marked present with the counsel for the appellants. If they were present and there is no reason to believe that they were not, then the remaining two appellants were Muhammad Ramzan and Allah Dad, and not Ahmad Khan and Abdul Aziz, as mentioned in the said order. Ahmad Khan and Abdul Aziz had been sentenced to rigorous imprisonment for one year each and there could be no occasion for their counsel to say on their behalf that they were not interested in pursuing the appeal. Such a request could rather be made by Muhammad Ramzan and Allah Dad who were punished with fine only. In taking this view I am further fortified by the fact that order of the Additional Sessions Judge dismissing their appeal was not challenged in this Court. The mistake occurring in the order, dated 8-1-1985 was repeated in the order, dated 2-2-1985 and the appeal of the remaining appellants, who in fact were Ahmad Khan and Abdul Aziz, was dismissed without considering their case -taking the appeal as of Muhammad Ramzan and Allah Dad. It is clear that the order, dated 8-1-1985, whereby the appeal of Ahmad Khan and Abdul Aziz was dismissed under the erroneous assumption that they did not want to pursue the appeal having already undergone the sentence, was not passed on merits and in the order/judgment, dated 2-2-1985 the case of the present petitioners was not at all considered. By this judgment the appeal of Muhammad Ramzan arid Allah Dad was disposed of under the erroneous impression that they were "appellants Nos. 1 and .2" as shown in the order, dated 8-1-1985. It is interesting to note that in the order, dated 22-9-198E Mr. Zulfiqar A.I Khan, Additional Sessions Judge, observed that he could not "sit as a Court of review or appeal upon the said judgment pronounced by Sh. Saeed Ahmad, the learned Additional Sessions Judge on 2-2- 1985" and at the same time he did review his order, dated 6-5-1985 whereby it was held that the appeal of Ahmad Khan and Abdul Aziz was "still sub judice". Since the appeal of the present petitioners was actually not disposed of, the order of Mr. Zulfiqar A.I Khan, Additional Sessions Judge, dated 22-9-1986, is set aside. The file be sent back to the learned Sessions Judge, Gujrat, who may himself hear their appeal or make it over to any Additional Sessions Judge for disposal in accordance with law.
S.A./A-691/L