1. ' SALEEM AKHTAR, J.---The petitioner was sent up for trial under Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979 on the allegation that on 14-1-1988 at 6-15 p.m. In the area of Gul Sehger Wali he sold heroin weighing five gram and at the time of raid on the same day police recovered heroin from the house of the petitioner weighing 1,000 grams. The learned trial Court convicted the petitioner by judgment dated 3-10-1991. The petitioner first filed Jail Criminal Appeal No,205(L) of 1991. Thereafter, he also filed an appeal through Advocate on 28-10-1991. The jail appeal came up for hearing before the Federal Shariat Court and was dismissed by judgment dated 10-2-1992.
2. ' Mr. Muhammad Munk Khan, learned A.S.C. Contended that as the appeal filed through an Advocate was pending, the jail appeal should have been heard alongwith the appeal filed through the Advocate. According to the learned counsel, during the pendency of the appeal filed thorugh an Advocate, the jail appeal should not have been dismissed and opportunity should have been given to the Advocate representing the petitioner to argue the case. The learned counsel has referred to Shada v. The State, PLD 1966 (W.P.) Lahore 341. In this case, the petitioner had filed criminal appeal through jail which was rejected on 31st of August, 1965 by the learned Sessions Judge in ignorance of the fact that the appeal by the petitioner through counsel was fixed for hearing. When the appeal through counsel was heard, the same was dismissed on the ground that jail appeal was rejected after considering the evidence and therefore the jurisdiction to hear the appeal was ousted. Relying on AIR 1926 All. 78, the learned Judge in Chamber observed as follows:- - "When the accused had preferred two appeals, one from jail and the other through counsel, to the same Court, the dismissal of the jail appeal is not a bar when the appeal filed through counsel is pending before the Court, for hearing, the previous order of hearing the jail appeal, when the appeal through counsel is fixed for hearing and the jail appeal having been dismissed, is illegal and without jurisdiction. So also the subsequent dismissal of the appeal filed through counsel, on the ground that the Court had no jurisdiction in view of the previous dismissal of the jail appeal, is illegal."
3. ' The learned counsel also referred to Partap Singh v. The State of Vindhya Pradesh AIR 1961 Supreme Court 586 where it was observed that where the appellant who was in jail filed an appeal under section 420, Cr.P.C. Through the Jail Authority which was dismissed by the High Court summarily and the order of dismissal was lawful, a subsequent appeal filed through a pleader was not maintainable. This judgment enunciates the principle that a second appeal filed through the pleader after the dismissal of jail appeal is not maintainable. The questions for consideration are:--
(1) Whether during the pendency of an appeal filed through an Advocate, the order dismissing jail appeal will operate as a bar to hear the pending appeal filed through Advocate; and
(2) Whether the order of dismissal of jail appeal passed during the pendency of an appeal filed through Advocate in the same Court is illegal.
4. ' Leave is granted.