Muhammad Ishaque was convicted by Sh. Hamid Elahi Magistrate 1st Class, Lyallpur under section 19 of the Arms Act, and was sentenced to undergo rigorous imprisonment for a period of six months for the possession of a country-made pistol and a spent-up bullet, which was found in its chamber. He filed appeal against his conviction, which was dismissed by the learned Sessions Judge, Lyallpur on the 17th of October 1962. He there--after filed a revision petition in this Court (Criminal Revision No. 1063 of 1962), which was dismissed for non-prosecution by A. R. Khan, J. (as he then was) on the 22nd of October 1963, because learned counsel for the petitioner stated before him that "he would not like to proceed further with this petition, as it has, in the meanwhile, become infructuous." The petitioner has now come up to this Court under sections 439 and 561-A of the Criminal Procedure Code and seeks rehearing on merit.
2. Briefly stated the facts, which have' given rise to the present application are, that the petitioner was tried on two charges, in two separate trials. One was a charge under section 307, P. P. C., in which case he was' sentenced to undergo two years' rigorous imprisonment and pay a fine of Rs.
50 or in default of payment thereof to suffer rigorous imprisonment for a further period of three months. The other case was under section 19 of the Arms Act, in which as has been indicated above, he has been sentenced to suffer rigorous imprisonment for a period of six months. There was no direction in the subsequent judgment, that is the judgment, which is now being assailed before me, that its sentence would be concurrent with the sentence awarded to the petitioner under section 307, P. P. C. The appeal of the petitioner in the case under section 307, P. P. C. Was dismissed by the learned Sessions Judge, Lyallpur and thereafter he came up in revision (Criminal Revision No. 675 of 1962), which was allowed by Bashiruddin Ahmad, J. On the 22nd of November 1962, and the petitioner was acquitted.
3. The petitioner, during the pendency of Criminal Revision No. 1063 of 1962 was on bail. After the dismissal of the said petition, warrants for his re-arrest to undergo the un-expired term of imprisonment were issued and as a consequence thereof the present petition has been filed by him.
4. Before dealing with the facts of the case, I would like to consider the question; whether the instant application is tenable in law. It is a unique case, because in spite of my best efforts, I have not come across a precedent in which such a situation ever arose. However, there is no denying the fact, that A. R. Khan, J. (as he then was) disposed of the revision application, which came up before him on the ground of non-prosecution. He did not give a decision on merits. The petition was dismissed because of a statement made by the learned counsel appearing for the petitioner to the effect that the petition had become infructuous. This was factually a wrong statement. The learned counsel seems to have been mislead into making the aforesaid statement because in the main case the prosecution, version was that the petitioner had used a pistol. Since that conviction was set aside, the learned counsel took it -for granted that the conviction under the Arms Act would automatically stated quashed. This was a wrong assumption on his part. However; I am of the view that the petitioner should not suffer because of the negligence of his counsel. The present case would be in these circumstances at .Par with the cases where a criminal revision is dismissed in default. There are several authorities to the effect that if criminal revision petition is dismissed in default without any decision on merits, the petition can be re-heard. One of these judgments is by Abdul Qadir, J. (as he then was) in the case of Kishen Singh v. Girdhari Lal and another (AIR 1924 Lah. 310). An objection was taken before his Lordship that it was doubtful whether a criminal revision petition once dismissed could be got restored. It was held "as the petition was never decided on the merits. I do not see any force in this objection". Relying on a case reported as Bibhuty Mohun Roy v. Dosinmoni Dassi ((1909) 10 Cr. L J 287) it was held that "a petition dismissed in default without any decision on merits cast be re-heard."
5. In the case of Ramautar Thakur and others v. State of Bihar (AIR 1957 Pat. 33) a Division Bench of Patna High Court observed that "there is no statutory provision for restoration of a criminal revision application dismissed for default. The power to restore such a case must, therefore, be an inherent power, which is saved by the provisions of section 561-A. Section 369 does not apply to an order passed by the High Court in the exercise of: its revisional jurisdiction. Section 430 also does not apply to decisions, or orders made in revision by the High Court under Chapter XXXIL. Therefore those sections cannot at all bar, or effect the inherent power of the High Court, contained in section 561-A to restore a criminal application in revision dismissed for default, in appropriate cases.
An order of dismissal for default of a criminal revision application is not a `judgment', but a mere order, and, therefore, on this ground also section 369 will not bar the inherent jurisdiction of the High Court to pass an order of restoration, for the ends of justice, in appropriate cases.
The Criminal Procedure Code, unlike the Civil Procedure Code, does not define "judgment". A "judgment" means the e expression of the opinion of the Court arrived at after a duel consideration of the evidence and all the arguments."
6 Since the first criminal petition filed by the petitioner has not been decided on merits nor on the facts of the case, following C the aforementioned decision I.. Hold that the matter can be, re-heard.
7. Unfortunately for the petitioner, he has no case on merits. The police was after him, as he was wanted in the case of murderous assault mentioned above. He was arrested on 12th July 1960 from the dera of one Muhammad Rafiq. His person was searched and a country-made pistol Exh. P. I and a spent-up bullet Exh. P.
2. Which were in its chamber, were recovered from him. The prosecution examined Muhammad Rafiq lambardar (P. W. 1), Hakim Ali (P. W. 2) and A. S. I. Ghulam Muhammad (P. W. 3). All of whom have deposed that the pistol and the bullet were recovered from the petitioner in their presence.
8. The petitioner denied his guilt and examined four witnesses in defence, who deposed that the petitioner himself appeared before the police and nothing was recovered from him. They have been disbelieved by both the Courts below and for very good reasons. It is not difficult to procure such evidence.
9. Learned counsel for the petitioner contended that his client, on the transfer of Magistrate, who was originally trying him, stated before the incoming Magistrate that he would like to have- the proceedings de novo. However, instead of recording the evidence de novo, the learned trial Magistrate permitted the accused to cross-examine only one witness. That the accused-- petitioner asked for a de novo trial is correct. However, when Muhammad Rafiq (P. W. 1), appeared on 2nd June 1962, the accused made a statement that he would merely cross---examine him. He was permitted to do so. On the 12th of July 1962, the accused made another statement to the effect that he would not like to further cross-examine any other witness. In view of the aforesaid circumstances, there has been no illegality in the trial of the accused and the conviction recorded against him is perfectly correct.
10. It was pointed out that the petitioner has already under--gone a sentence of about five months.
He is on bail. Since he has served out a major portion of the sentence, I would not like to send him back to jail. Thus for the aforementioned reasons, the petitioner's application is partly allowed.