MUSTAFA vs ADDITIONAL SESSIONS JUDGE
The petitioner, convicted in a private complaint under Sections 324 and 337-F(v) of the Pakistan Penal Code 1860, filed an appeal against his conviction and sentence. The Appellate Court suspended his sentence under Section 426 of the Code of Criminal Procedure 1898. However, upon the petitioner's failure to appear on a specific date, the Appellate Court dismissed the appeal for non-prosecution and confiscated his bail bonds. The core legal question was whether an appellate court, having admitted a criminal appeal for regular hearing, possesses the authority to dismiss it for non-prosecution due to the appellant's absence. The Lahore High Court held that once an appeal is admitted for regular hearing, the appellate court is legally obligated to decide the matter on its merits, regardless of the appellant's absence. Relying on the principle established in 'Muhammad Ashiq Faqir v. The State' (PLD 1970 SC 177), the Court ruled that the absence of an appellant does not absolve the court of its duty to peruse the record and issue a reasoned judgment on the merits of the case.
- Can an appellate court dismiss a criminal appeal for non-prosecution after it has been admitted for regular hearing?
- Is an appellate court required to decide a criminal appeal on its merits even if the appellant or their counsel is absent?
- Section 324, Pakistan Penal Code 1860
- Section 337-F(v), Pakistan Penal Code 1860
- Section 426, Code of Criminal Procedure 1898
ORDER
' ABDUL WAHEED KHAN, J.---The complainant/respondent No,2 has not put in appearance despite issuance of notice to him The petitioner, in a private complaint under section 324/337F(v), P.P.C.
Was tried and convicted to suffer 4 years' R.I. As Tazir and also to pay an amount of Rs,20,000 as Daman. He assailed his sentence before the Appellate Court. The appeal was admitted for regular hearing by Additional Sessions Judge, Depalpur and his sentence was suspended. The petitioner failed to appear before the appellate Court on 11-5-2011 and not only the concession of bail granted under section 426, Cr.P.C. Was withdrawn and his bail bonds were confiscated but also his appeal was dismissed for non-prosecution.
2. The contentions of counsel for the petitioner are that since the appeal had been admitted for regular hearing, the appellate Court must have decided the same on merits as the same could not be dismissed for non-prosecution. With these submissions, it is prayed that the impugned order be set aside and the matter be remanded for adjudication in accordance with law.
3. Learned DPG concedes that the appeal should not have been dismissed for non-prosecution as the same was admitted for regular hearing.
4. Arguments heard. Record perused.
5. The appeal filed by the present petitioner was dismissed for non-prosecution. As argued above, the appeal had already been admitted for regular hearing, it should have been decided on merit and the same could not be dismissed for non-prosecution. It was held in the case of "Muhammad Ashiq Faqir v. The State" (PLD 1970 SC 177) as follows:-- "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."
6. Being fortified by the above view of the Apex Court, I am inclined to set aside the impugned order of the Appellate Court dated 11-5-2011, result whereof, would be that the appeal filed by the present petitioner would be deemed to be pending and it shall be decided on merits in accordance with the law before 30-9-2011.