Appellant Sher Khan alias Mammi was convicted under section 302, P. P. C. And sentenced to transportation for life by the Additional Sessions Judge, Lyallpur at Jhang. He filed an appeal against his conviction and sentence through Jail. Subsequently Mr. Khuda Dad Khan Barki, Advocate, was engaged by the appellant as his counsel. Mr. Barki, however, on the 18th of August 1972 stated before the Court that the brief of the case was taken away from him by the representative of the appellant on 20-4-1973 and that he was no more representing the appellant.
Under the orders of S. Anwarul Haq, J., the appellant was asked to state whether he had engaged any other counsel. It was reported by the Jail authorities that the appellant had escaped from Prisoner Camp, Okara, on 20-11-1971. To a reminder sent by this Court, the Superintendent, New Central Jail, Multan, informed that since 20-11-1971 when the prisoner had escaped no intimation regarding his re-arrest had been received. The question which arises is whether in the circumstances, this appeal can be heard. In a case where a man is sentenced to death it is the responsibility of the State to engage a counsel if he has not engaged one for himself. There is no such requirement of law in other cases. The petitioner has been sentenced to transportation for life and if he had not absconded the case would have been heard in his absence and the responsibility would have been of the Advocate-General to present the case before the Court.
3. Mr. Kamal Mustafa Bukhari, learned Assistant Advocate-General, has contended that, in the circumstances, the appeal should not be heard on merits. He argues that the appellant has violated the law and to hear his appeal in his absence would be acting in aid of injustice. In Chan Shah v. Crown (PLD 1956 FC 43) it was held by their Lordships of the Supreme Court that "it is an essential condition of the administration of justice, in a case affecting an individual or individuals, that the persons concerned should submit to the due process of justice. We cannot conceive of a more flagrant violation of this condition than a case--like the present-where the individual seeks the interference of the Sovereign to obtain revision of a judicial order, when he is himself engaged in setting that judicial order at naught". The petitioner in that case was on bail when the conviction and sentence of death was pronounced by the High Court. He did not surrender and consequently on power of attorney executed by him in favour of the attorney of the Supreme Court the petition was filed. The same was dismissed with the remarks that it was "wholly unsuitable for the exercise of this Court's special jurisdiction". The same view was affirmed by the Supreme Court in Gul Hassan v. State (PLD 1969 SC 89).
4. The course open for me, in the circumstances, is either to consign the case to the Record Room to be revived if and when application in that behalf is made or that I should dismiss the appeal or reject it.
If I were to consign the case it shall remain pending in the absence of any information whether the appellant had surrendered or had died. It is not the proper course because if no information is given, the case would remain pending.
An appeal should not be dismissed unless on merits. It is possible only if the entire evidence is gone through and properly appreciated. If it is done, it may, in certain cases, warrant the acceptance of appeal and acquittal of the appellant. To do so, will be to invoke the process of the Court in favour of a person who himself has abused it by being a fugitive from justice. Moreover, if the appeal is dismissed on merits, the Court, in view of section 369, Cr. P. C. Will not be competent to review the order even if the appellant were able to justify his absence. It is, therefore, not just or proper to dispose of the appeal on merits.
5. However, the appeal can be rejected without going into the merits of the case. There will, in that case, be no judgment within the meaning of section 367, Cr. P. C. And, therefore, section 369, Cr. P.
C. Will be no bar to its rehearing. It can in the fitness of circumstances be restored and heard. It will not be rehearing of the case, nor will it amount to reviewing a previous judgment. The same view was taken in Babulal Agarwala v. State (PLD 1961 Dacca 523).
6. The appellant is not represented by a lawyer. He has absconded from jail. The appeal cannot be heard as a Jail Appeal. It is rejected.