RAJA AFRASIAB KHAN, J.---On 10th of February 1992, a case under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 was registered on the statement of Muhammad Amin, against the petitioner, Barak Ullah with Police Station Anti-Corruption Establishment, Kasur, on the allegation that he received bribery from the complainant. The F.I.R.
Discloses that the petitioner was Incharge of Veterinary Hospital Bhela Hathar. He had been vaccinating the animals by receiving Rs.20 to Rs.33 per head from the owners which receipt was beyond the prescribed rate. After having received the complaint, a raiding party consisting of Muhammad Amin P.W.1, Mumtaz Ahmad Khan, Magistrate P.W.2 and Sultan Mahmood, Circle Inspector P.W.3 was constituted. Tainted money of Rs.200 was entrusted to the complainant for its onward payment to the petitioner. On 11th of February, 1992, the petitioner was caught red-handed and recovery of the tainted money was made from him. He was tried under the aforesaid charge.
Special Judge Anti-Corruption, Lahore vide his judgment dated 13th of February, 1993 relying upon the prosecution evidence, convicted the petitioner under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 10 months' R.I. And fine of Rs.5,000 or in default thereof, to further undergo R.I. For 5 months. No separate sentence under section 5(2) of the Prevention of Corruption Act, 1947 was awarded to him. Benefit of section 382-B, Cr.P.C. Was given to him. On 12th of June, 1996, a learned Judge of the Lahore High Court maintained the conviction and sentence of the petitioner by dismissing his appeal. This petition has been filed for leave to appeal to challenge the conviction and sentence of the petitioner.
2. The petition has been found to be barred by limitation by 32 days. An application has, however, been filed under Order V, Rule 2 read with Order XXXIII, Rule 6 of the Supreme Court Rules, 1980 for condonation of the delay. To meet the ends of justice, the delay is condoned for hearing the petitioner on its merits.
3. Learned counsel submits that the - appeal was dismissed without affording an opportunity of hearing to the petitioner. He argues that it was incumbent upon the High Court to have decided the appeal after consulting the record which had not been done.
4. We have heard the learned counsel for the petitioner at some length and have perused the record with his assistance. We do not agree with him and as such, repel his arguments because the record was read in depth by the learned Judge before deciding the appeal on merits. Learned Judge observed:-- "I have also gone through the impugned judgment. The statements of the complainant, raiding Magistrate Circle Inspector are quite relevant who fully supported the prosecution case. Even the statement of the appellant recorded under section 342, Cr.P.C. Which gives some add to the prosecution version. The place of posting, passing of tainted money and recovery of the tainted money by the raiding party are the facts which cannot be ignored lightly. There is no enmity of the appellant with the learned Magistrate. The statements of P. Ws. Cannot be discarded. The appellant's plea that the complainant gave him Rs.200 for the purchase of medicine, is itself doubtful. This is an attempt by the appellant to save his skin but the nature of plea is not believable. The complainant could make himself the purchase of medicines. The appellant was neither required legally to purchase the medicine nor there was any other reason to receive the amount. The only conclusion which can be drawn is that the convict received illegal gratification.
(Underlining is ours).
The above would demonstrate that the High Court applied its mind and considered every aspect of the case of doing full justice by reading the entire available record. The High Court came to the conclusion that the charge against the petitioner was proved to the hilt. The tainted money was admittedly recovered from the petitioner in the presence of reliable witnesses. It was for the petitioner to rebut the charge by giving plausible explanation for recovery of the tainted money from him. No evidence whatsoever was led by the petitioner to explain the aforesaid recovery to show that it was not the bribe money. Apart from the above, it may be seer that the learned counsel for the petitioner did not appear to defend his client before High Court. Paragraph 7 of the impugned judgment shows that the learned counsel did not appear on behalf of the petitioner on 28-3-1993. He also failed to appear before the Court on 24-7-1995 when the appeal was fixed for its hearing. On 25-3-1996, he appeared before the Court only to make a request for adjournment of the appeal. In such a situation, there was ample justification for the High Court to decide the appeal on merits after hearing the State Counsel and reading the relevant record. This at on the part of the High Court to decide the appeal was wholly in accordance with law. There is nothing to show that due to absence of the learned counsel, some injustice had been done to the petitioner or there was some sufficient cause for the learned counsel not to appear before the Court on the date fixed. In order to better appreciate the point, section 423 Cr.P.C. Is reproduced below:-- "423. Powers of Appellate Court in disposing of appeal.--(1) The Appellate Court shall send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 411-A, subsection (2) or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may --
(a) in appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retired or sent for trial to the Court of Session or High Court as the case may be, or find him guilty and pass senence on him according to law;
(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding alter the nature of the sentence, but subject to the provisions of section 106, subsection (3), not so as to enhance the same;
(c) in an appeal from any other order, alter or reverse such order;
(d) make any amendment or any consequential or incidental order that may be just or proper." it shows that it is mandatory to summon the record for its perusal. Hearing of the appellant or his counsel may be necessary provided they are present before the Court. If the appellant or his, counsel intentionally avoids to come to address arguments, the Court may proceed with the matter for its decision on merits in accordance with the law. In case of Sikandar Hayat v. Ata and others (PLD 1970 SC 224), following observations were made, which, to our mind, would fully cover the controversy:-- "It will be noticed that the presence of the appellant or his pleader or the public prosecutor is not essential for the disposal of a criminal appeal. The words used are: 'the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears'. It follows that even if the appellant or his pleader is absent the Court is under a duty to peruse the record and hear the Public Prosecutor if he appears and then decide whether or not to dismiss the appeal from conviction and pass any one of the orders set out in clause (a) above. "
The judgment continues to state:-- "If full effect is given to the provisions of section 423 a duty will clearly be spelt out for the Court to decide the appeal on merits notwithstanding the absence of the appellant or his pleader or his prayer to withdraw from the appeal. "
5. This being the position of law, argument that the learned counsel for the petitioner was not heard could not be sustained. We have ourselves read the whole record beside hearing the learned counsel for the petitioner for safe administration of criminal justice. We hold the view that prosecution has succeeded to establish its case against the petitioner beyond any reasonable doubt. There is no merit in this petition which is dismissed. Leave to appeal is refused.