Law: Criminal Procedure Code, 1898

Section: S.423

Criminal Procedure Code (V of 1898)----   ---- S. 423-Appeal dismissed in default (after admission to hearing) without going into merits --Order illegal-Remanded for hearing on merits. JUDGMENT   This is an application in revision for setting aside the con viction of the accused petitioners under sections 379 and 323 of the Pakistan Penal Code passed by Mr. M. N. Ullah, Magistrate, Netrokona, on 26-8-57, who sentenced each of them to pay a fine of Rs. 10 in default of payment of fine to rigorous imprisonment for three days under section 379 of the Code and to pay a fine of Rs. 30 each, in default, to rigorous imprisonment for 10 days each under section 323 of the Pakistan Penal Code.   The petitioners preferred an appeal against their conviction and sentences but thatappeal was summarily dismissed and they came up in revision before this Court and this Court directed that the appeal should be re-heard. Consequently the appeal was posted for hearing, on different dates and ultimately it was trans ferred to M. M. Huq, Assistant Sessions Judge, 1st Court, Mymensingh. On that date he took up the appeal for hearing but as the lawyer, who filed the appeal on behalf of the accused petitioners, made an endorsement on the order sheet that his clients had taken back all papers and that he had no instruction to argue the appeal, the learned Assistant Sessions Judge dismissed the appeal for default. Hence the accused-petitioners have again come up in revision before this Court for setting aside the order passed by the learned Assistant Sessions Judge dismissing the appeal for default and the Rule was issued by this Court calling upon the District Magistrate of Mymensingh to show cause why the order complained of should not be set aside or such other or further order or orders passed as to this Court may seem fit and proper.   Mr. T. H. Khan, learned Advocate, has appeared on behalf of the accused-petitionerswhile none has appeared either on behalf of the State or on behalf of the complainant opposite party.   Mr. Khan has urged…