1. This is a petition for revision filed on behalf of Muhammad Mushtaq who was tried and convicted for an offence under section 7(2) of the Muslim Family Laws Ordinance, 1961 for failing to intimate pronouncement of divorce to the Chairman of the Union Council and sentenced to a term of one year simple imprisonment and a fine of Rs.5,000, in default to a further simple imprisonment of three months, by the trial Magistrate on 6-1-1991. His conviction and sentence were confirmed by learned Sessions Judge, Attock, not on merits but by dismissing his appeal for want of prosecution on 28-2-1991. In course of appeal, on being released on bail by the learned Sessions Court, Muhammad Musthaq proceeded abroad to Saudi Arabia and did not return to appear in Court. In this view, learned Sessions Judge took the view that `It is not denied that the appeal cannot be heard on merits in absentia' and, therefore, dismissed the same for want of prosecution. He is still at large and has chosen to file the revision through his real brother as a Mukhtar-e-Aam who gave the power to Muhammad Munir Peracha, learned counsel to file the revision in Court for pursuing it further. Obviously, the petitioner is a fugitive from law. Therefore, he has no right of audience in Court through his counsel. In Haku Mia and others v. The State of Tripura AIR 1952 Tripura 5, it was held that:-- "When a convict comes to Court on the revision side under section 439, Criminal Procedure Code after the rejection of his appeal by the Sessions Judge, for setting aside his conviction without surrendering to his bail granted till the disposal of appeal, he has no right to be heard through his counsel. Under the circumstances this Court will not be justified in exercising its discretionary powers in favour of the petitioners."
2. Nonetheless, the Court proceeded to examine the case on merits to prevent miscarriage of justice and finding none declined to interfere. In Chan Shah v. The Crown PLD 1956 FC 43, Gul Hassan and another v. The State PLD 1909 SC 89, Hayat Bakhsh and others v. The State PLD 1981 SC 265 and Ali Ahmad Sabri v. The State 1982 SCMR 818, it was ruled that a fugitive from law had no right of audience in Court through his counsel. Equally important and well-settled rule of law is that the Code of Criminal Procedure does not envisage or permit the dismissal of a criminal appeal for default in appearance if it had not been dismissed summarily under section 421. Cases of Muhammad Yar v. Crown PLD 1950 BJ 54, Ghulam Muhammad v. The State PLD 1960 (W.P.) Lah. 11, Muhammad Ashiq Faqir v. The State PLD 1970 SC 177 and Muhammad Bakhsh v. The State 1986 SCMR "" are in point. Therefore, despite absence of the convict-appellant and even his counsel could not have led the Court to dismiss the appeal for default in appearance for it was its own duty to examine its merits and decide it; default of the appellant notwithstanding, which could have given rise to consequences in other directions. In presence of a clear rule that the fugitive from law had no right of audience in Court without first surrendering to it, learned Assistant Advocate-General was called upon to render assistance to the Court. It was his view that the aforenoticed circumstances did not preclude the Court to suo motu examine the merits of the impugned order and pass an order which the circumstances of the case and justice of the cause demanded. As it is clear law that criminal appeal could not be dismissed on a mere default in appearance and required its decision on merits after it had crossed the hurdle of summary dismissal' under section 421, Criminal Procedure Code. I would, in suo motu exercise of powers under section 439, Criminal Procedure Code read with section 561-A of the Code set aside the order of learned Sessions Judge to the extent of dismissing the appeal for want of prosecution and direct its decision on merits by him. As to that part of his order which dealt with a notice to the surety and consequent proceedings against him presently, there shall be no interference and it shall remain intact and undisturbed,