' Mst, Rizwana Bibi while in police custody in a murder cue registered vide FIR, No,314 on 22=8=1997 in Police Station Saddar Haripur led police party for recoveries. On her pointation a D.B. Shot gun was recovered from the cattle=shed which belonged to her father. A case under section 13, Arms Ordinance was registered vide F,1.R. No,326 on 30=9=1997 in Police Station Sadder Haripur against her. She was tried under section 13, Arms Ordinance in the Court of learned Judicial Magistrate, Haripur and on conclusion of trial she was convicted and sentenced to one year's R.I. Vide order, dated 30-6-1999. She filed appeal against the order, dated 30-6-1999 in the Court of learned Sessions Judge, Haripur which was fixed for 16-8-1999 for hearing. The learned Sessions Judge vide order. Dated 16-8-1999 dismissed the appeal for non-prosecution with the following order:-- "Call time and again. None turned up on behalf of petitioner till 9'O Clock. Dismissed in default. File he consigned."
' Feeling aggrieved of the said order, the petitioner has filed petition under section 561-A, Cr.P.C.
2. This Court on 8-10-1999 issued pre-admission notice to the learned A.A.-G. Arguments heard and record annexed with the petition perused.
3. It is admitted position that the appeal was not dismissed in terms of A section 421, Cr.P.C. But was dismissed for non-prosecution. The appeal had not been admitted when it was dismissed in default. Under section 423, Cr.P.C. On receipt of appeal, it is the duty of the Court to send for the record of the case if such record is not already in Court. After perusing such record, hearing appellant or his pleader the Court may if it considers that there is no sufficient ground for interference dismiss the appeal. Under section 421, Cr.P.C. The Court has powers to dismiss the appeal summarily if it considers that there is no sufficient ground for interference. No appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.
4. The perusal of the abovementioned provision of law shows that appeal once submitted must be decided on merits unless the same is dismissed in terms of section 421, Cr.P.C. In case of Muhammad Ashiq Faqir v. The State PLD 1970 SC page 177 it was observed:-- "Under section 423 if the appeal is not dismissed under section 421, the appellate Court shall after the issue of notice, send for the record of the case, if such record is not already in Court, and after perusing such record and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal. What was then the consequence of the non-appearance of the appellant or his pleader, when the appeal was called for hearing by the learned Judge on the 26th April, 1967. The answer is to be found in section 423(1) viz. ' after perusing such record and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, and may, if it considers that there is no sufficient ground for interfering, dismiss the appeal.' The absence of the appellant or his pleader, therefore, does not relieve the Court from the duty of perusing record and giving reasons in support of the judgment that there is no sufficient ground for -interfering__ with the conviction and sentence of the appellant."
' The same principle was upheld in Muhammad Baldish v. The State 1985 SCM R 89 wherein it was held:-- "In not applying his mind to the merits of the appeal and in dismissing it for non-prosecution the learned Judge in the High Court clearly adopted a procedure contrary to the imperative terms of section 423, Cr.P.C. The order is, therefore, not sustainable."
5. In the result the petition is allowed and the case is remanded to the learned Sessions Judge, Haripur for hearing of appeal and for decision afresh on merits.