MUHAMMAD SHABBIR vs MUHAMMAD HUSSAIN and 5 others

' KHAWAJA MUHAMMAD SAEED, J.--- This appeal is directed against the order passed by the Shariat Court, dated 19-12-2000, whereby the appeal filed by the present appellant, was dismissed for want of prosecution.

2. As we tend to accept this appeal not on merits but on technical grounds, therefore, we would not mention in detail the facts of the case except those which are relevant for the decision of this appeal.

3. On the report lodged by the appellant with Police Station Garhi Dupatta a case under sections 10, 16 and 19 of Zina Act, read with section 14-EHA was registered against the accused-respondents.

After necessary investigation all the respondents were made answerable for the charges under the abovementioned provisions of law before the Tehsil Court of Criminal Jurisdiction, Muzaffarabad on 21-2-1998. The accused-respondents denied their guilt on 28-3-1998, as such the prosecution was directed to lead its evidence. The evidence was produced by the prosecution. At the end of the trial vide judgment, dated 22-7-1999 the trial Court recorded order of acquittal in favour of the accused-respondents. This order was assailed in appeal before the Shariat Court by the complainant on 18-8-1999. The appeal was properly admitted and notices were issued to the accused-respondents. On 19-12-2000, the criminal appeal was dismissed for want of prosecution by the Shariat Court as nobody, despite repeated calls, turned up on behalf of the complainant.

This order has been assailed in the present appeal before us.

4. Mr. Muhammad Farid Khan, the learned counsel for the appellant, argued that his client is serving in Pakistan Army. He, on account of unavoidable circumstances, could not appear before the Shariat Court on the date when the case was called for hearing. According to him he on the relevant date was busy before the High Court in arguing a case titled Shahida Gillani v. Azad Government and others, therefore, failed to appear before the Shariat Court when the criminal appeal was dismissed for non-prosecution. He further argued that as appeal was admitted for regular hearing, the Shariat Court, therefore, should have decided this criminal appeal on merits particularly when it was pointed out by the appellant that the judgment of the trial Court was not inconsonance with the provisions laid down in section 367 of the Code of Criminal Procedure. He further contended that the practice of dismissing the criminal appeals in default has never been encouraged by the superior Courts of subcontinent. He has referred various authorities in support of his contention. These authorities stood referred in a judgment of this Court reported as State v.

Nazir Khan and others PLD 1983 SC (AJ&K) 1, wherein para.7 at page 3 the following principle is laid down:-- "Under the Code of Criminal Procedure when an appeal is not summarily dismissed and is admitted for hearing. Section 423 enjoined upon the Court to dispose of the appeal on merits. The section admits of no exception. Failure to prosecute or absence of the prosecutor cannot be a cause for dismissal of appeal." (underlining is ours).

5. On the other hand, Syed Nazir Hussain Shah Kazmi, the learned counsel for the respondents, half- heartedly supported the order under challenge..

6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. Appeal filed by the complainant against acquittal order passed by the trial Court. In favour of the accused-respondents was admitted for regular hearing by the Shariat Court, as presence of accused-respondents were secured by it. A criminal appeal once admitted for hearing cannot be dismissed for non-prosecution. If appellant or his Advocate were not present before the Shariat Court on the date when the case was called for hearing, this did not relieve the Shariat Court of its duty of perusing the record of the case and disposing of the appeal on merits by recording the reasons in support of the judgment proposed to be delivered. It was not done in the present case, therefore, the dismissal of appeal in default is not the judgment within the meaning of section 367 of Cr.P.C. The order under challenge passed by the Shariat Court on 19- 12-2000 is, therefore, set aside and the case is remanded to the Shariat Court for fresh decision on merits.