1. ' SAEEDUZZAMAN SIDDIQUI, J.--The above criminal appeal was dismissed for non-prosecution on 27-11-1993 on account of absence of the counsel and Advocate-on-Record of the appellant on the date of hearing. The restoration application of the appellant was also dismissed by this Court by order dated 1-12-1993. The appellant has now filed a review application with the prayer that order dated 1-12-1993 dismissing the restoration application may be recalled and the appeal be restored to its file.
2. ' We allowed Mr.S.S. Pirzada, the learned Senior Advocate Supreme Court, to appear and argue the above review petition as he was engaged in the above case by the appellant and it was on his request that the case was adjourned on 23-11-1993 to 27-11-1993. Mr. Pirzada stated at the Bar that the above appeal was adjourned to 27-11-1993 at his request on 23-11-1993. He, accordingly, booked his seat for 26-11-1993 to Islamabad by PIA Flight No,PK-368 and returned seat was booked for 28-11-1993 by PK-369. He further stated that in the cause list No, 55 of 1993 which was issued by this Court on 23-11-1993, and received by the Branch Registry at Karachi on 24-11-1993 the above appeal was not listed. He, therefore, genuinely believing that the appeal was not fixed for 27-11-1993 and was adjusted to some other date, got his booking for Islamabad for 26-11-1993 cancelled on 25-11-1993 to avoid payment of cancellation charges. At about 3 p.m. In the evening on 25-11-1993, Mr. Pirzada stated, he came to know that the appeal was listed in supplementary list for 27-11-1993.
3. He tried his best to get a seat by PIA but because of coming Assembly Session no seat was available. He, accordingly, through fax on 25-11-1993, sent a request for adjournment of the case which was not granted. In support of the above stated facts, Mr. Pirzada produced before us the copy of the cause list No, 55 of 1993 for the week commencing 27th November 1993, issued on 23- 11-1993, the computer booking of his seat for 26-11-1993 on PIA Flight No, PK-368 with endorsement of cancellation of booking on Thursday the 25th of November 1993 at 19-30 hours. The above facts stated by Mr. Pirzada were not controverted by Mr. Raja Abdul Ghafoor, Advocate Supreme Court appearing for the State.
4. ' From the above stated facts it is clearly borne out that Mr. Syed Sharifuddin Pirzada had made all necessary arrangements to reach Islamabad on 26-11-1993 to attend the hearing of appeal fixed on 27-11-1993. The explanation offered by Mr. Pirzada for cancellation of his seat on Thursday, the 25th of November 1993, appears to be quite plausible as in the cause list issued on 23-11-1993 by this Court for the week commencing 27-11-1993, the above appeal was not listed. The assumption on the part of Mr. Pirzada that the appeal was either not fixed for hearing on 27-11-1993 or that it stood adjourned to some other date, was not unreasonable one. The fact that as soon as he came to know in the evening of 25-11-1993 that the case is fixed before the Court on 27-11-1993 in the supplementary list, he made efforts to get a seat for Islamabad to reach in time to attend the hearing of the appeal but failed due to the coming session of Parliament and, therefore, sent a request through fax on 25-11-1993 for adjournment of the case, would show that he made all possible efforts to be present in Court on the date of hearing and his absence was due to reasons beyond his control. The request for re-admission of appeal was declined by this Court on 27-11- 1993, as follows: "We find no force in these arguments. The request for adjournment of the case to 27-11-1993 was made by a fax message of the Advocate-on-Record for the appellant. It was his duty to find out as to what order was passed on his request for adjournment of the case namely whether the request had been granted and the case adjourned or the request declined and the case dismissed for non-prosecution. It was not the responsibility of the Court or the Office to inform him of the order passed. The Court was indulgent and accepted the unorthodox method for seeking adjournment and granted the request. Since the list for the week commencing 27-11-1993 had already been issued, the case was duly shown in the supplementary list.
4. In these circumstances when the case was adjourned to a date expressly requested for by the counsel and the case was duly heard on that date, we cannot understand how anybody could be misled."
5. ' While dismissing the application for re-admission of the appeal, this Court omitted to take into consideration that the counsel had made all possible arrangements to reach Islamabad to attend the hearing of the appeal on 27-11-1993 and that the cancellation of his seat on 25-11-1993 was also on account of a genuine apprehension on his part that the case was either not fixed for hearing on 27-11-1993 or it was adjourned to some other date as the case was not listed in the weekly list issued on 23-11-1993. This Court was greatly influenced by the fact that the case having been adjourned on 23-11-1993 at the request of the counsel through a fax message, it was the duty of the Advocate-on-Record for the appellant to have ascertained the next date of hearing. In reaching this conclusion it, however, escaped the notice of this Court that the case though adjourned to 27- 11-1993 at the request of the counsel, it was not listed in the cause list issued for the week commencing 27-11-1993 which could reasonably create an impression in the mind of counsel that the case was either adjourned or it stood adjusted to some other date. Apart from it, the learned counsel for the appellant also contended that the above case was a criminal appeal arising out of the order of the High Court in which leave was granted by this Court on 7-12-1992. It is contended by the learned counsel that a criminal appeal in which leave was granted by the Court should not have been dismissed for non-prosecution. In support of his contention, the learned counsel has relied on the case of Muhammad Ashiq Faqir v. State PLD 1970 SC 177 and Muhammad Bakhsh v.
6. State 1986 SCMR 58. In both the above-noted cases, this Court after considering the provisions of section 423, Cr.P.C. Held that the absence of an appellant or his pleader on the date of hearing does not relieve the Court from the duty of perusing record and giving reasons in support of the judgment that there was no sufficient ground for interfering with conviction and sentence of the appellant. The hearing of criminal appeals by this Court under Article 185(2) of the Constitution of Islamic Republic of Pakistan is governed by Order 22, Rules 1 to 13 of the Supreme Court Rules. The hearing of petitions and appeals under Article 185(3) of the Constitution are regulated under the provisions of Order 23, Rules 1 to 12 of the Supreme Court Rules. By virtue of Rule 12 of Order 23, the provisions contained in Order 22 relating to appeals under A Article 185(3) of the Constitution equally apply to appeals under Article 185(3) ibid. There is no provision under Order 22 for dismissing a criminal appeal for non-prosecution on account of absence of a counsel on the date of hearing. We are, therefore, of the view that this Court having granted leave to appeal against the judgment of High Court refusing to enlarge the petitioner on bail, the criminal appeal should not have been dismissed for non-prosecution on the date fixed for hearing of the appeal on account of absence of the counsel. We, accordingly, allow the Criminal Review Petition for the reasons stated above and recall the order dated 27-11-1993. The appeal is re-admitted to its original number and will now be fixed for hearing according to roster. The interim bail granted to the appellant in this case will continue to remain in force until hearing of this appeal.