' This petition under section 561-A of the Cr. P.C. By the petitioners, Maulvi Asad Ahamd alias Asad, and 17 others, is directed against the order of the learned Additional Sessions Judge, Faisalabad dated 12-3-1989, dismissing their revision petition for default of appearance.
2. The petitioners were summoned on a private complaint of Hafiz Muhammad Rafique by the learned trial Magistrate to stand their trial under sections 427 etc. Of the P.P.C. The petitioners moved the Sessions Court under sections 435 and 439-A of the Cr. P.C. For setting aside the order of the Magistrate summoning them as accused persons on the ground that no offence was made out "against the petitioners from the evidence available on the file, as such the learned Magistrate has wrongly issued the process against the petitioners and that the complaint has been filed after a considerable delay". The revision petition was admitted to hearing by the learned Additional Sessions Judge's order dated 24-9-1988. After the receipt of record, the revision petition was adjourned twice, on the first occasion on the request of the complainant's counsel and on the second occasion viz. 24-1-1989 on the request of the petitioners' counsel. The revision petition was, in the presence of the petitioners' counsel and in the presence of the complainant, adjourned to 12- 3-1989. On that date, when the case was called, only the clerk of the petitioners' counsel was present; the petitioners were absent and so was their counsel. It is noteworthy that by the learned Additional Sessions Judge's order dated 24-9-1988, the petitioners had been directed to submit bail bonds in the sum of R.5,000 each with one surety each in the like amount to the satisfaction of the trial Court and presumably in compliance with that order, the bail bonds had been filed.
3. The petitioners then applied for the restoration of the revision petition on the ground that their counsel "was at Lahore and the petitioners were not present". This, in the view of the learned Additional Sessions Judge, did not afford a ground for the restoration of the revision petition.
4. Learned counsel for the petitioners maintains that as the revision petition had been admitted to hearing, there was no power in the Additional Sessions Judge to dismiss it for default of appearance; in his view, as in the case of a criminal appeal, so in the case of a revision petition, once it has been admitted to hearing, it must be decided on its merits. For his contention, learned counsel referred to section 439 of the Cr. P.C., which provides that in the case of any proceedings the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 427 and 428 or on a Court by section 338 and may enhance the sentence. He then referred to section 423 of the Cr. P.C., which sets out the powers of the appellate Court in disposing of appeal; it provides that the appellate Court shall send for the record of the case, and after perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 411-A, subsection (2) or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or make an order in terms of clause (a), (b), (c) or (d) of that section. For his contention, learned counsel also cited Muhammad Ashiq Faqir v. The State (PLD 1970 SC 177) and Muhammad Bakhsh v. The State (1986 SCMR 59). The precedent cases were decided with reference to the provisions of section 423 of the Cr. P.C. And it was held, that the absence of the appellant or his pleader does not relieve the Court from the duty of perusing the 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 and that the dismissal of an appeal "preferred by the appellant against his conviction and sentence by the High Court for non- prosecution is, thus, patently not sustainable in law". He also cited The Crown v. Sultan Mahmood and 9 others (PLD 1955 Federal Court 20).
5. While the complainant's counsel has not appeared to assist me in the resolution of the question raised by the petitioner's counsel, the learned Assistant Advocate-General referred to Abdullah v.
Din Muhammad Shah and 4 others (PLD 1976 Kar. 1184), where it was held that though there is no express provision in the Code of Criminal Procedure for the dismissal of the revision petition for non-prosecution, yet there is nothing to suggest that such an order cannot be passed when the party who filed the petition fails to prosecute his remedy and the party and the counsel remain absent on the date of hearing of the petition and that just as the Court can, under these circumstances, dismiss a revision petition without considering the same on merits, so' also for sufficient reasons shown, the Court can restore the revision petition. He also referred to Ramautar Thakur and others v. State of Bihar (AIR 1957 Pat. 33) and Ibrahim and another v. Emperor (AIR 1928 Rang. 288) in support of his view point.
6. If I may say so, the only merit the contention based on the provisions of section 439, subsection
(1) read with section 423 of the Cr. P.C. Has is the merit of ingenuity. All that section 439, subsection (1), empowers the revisional Court to do is to exercise the same "powers" as are conferred on a Court of appeal by sections 423, 426 etc. Of the Cr. P.C. The power, which the Court of appeal under section 423 of the Cr. P.C. Exercises, is the power to dismiss the appeal or make any other order in terms of clause (a), (h), (c) or (d) thereof. The perUsal of the record and giving reasons in support of the judgment that there is no sufficient ground for interfering with the conviction and sentence under section 423 of the Cr. P.C. Is not a power; it is a "duty and it was so described in Muhammad Ashiq Faqir v. The State (PLD 1970 SC 177).
7. In none of the cases cited at the bar was the power of the Court to dismiss the revision petition in default of appearance disputed. Rather the parties and the Courts in all those cases had proceeded on the basis that such a power existed and also there was power in the Court to restore a revision in default. In The Crown v. Sultan Mahmood and 9 others referred to above, the contention was that when an appeal was filed under section 417 of the Cr. P.C. In accordance with law, the High Court was obliged in all circumstances to hear it on the merits. This contention was not upheld. And if an appeal under section 417 of the Cr. P.C. Can be dismissed otherwise than on the merits, I am unable to see why there is no power in the Court to dismiss a revision petition in default of appearance. I would, there ok, respectfully adopt the view taken in Abdullah v. Din Muhammad Shah and 4 others (PLD 1976 Kar. 1184) and hold that the learned Additional Sessions Judge was competent to dismiss the revision petition in default of appearance. There, is, therefore, no ground for interference under section 561-A of the Cr. P.C. The revision petition is dismissed.