' SALEEM AKHTAR, J.-The petitioner seeks leave to appeal against the order of the learned Judge in Chambers, dated 30-6-1992 whereby his application seeking restoration of the dismissal of his petition for special leave to appeal was dismissed.
2. The petitioner had filed two separate criminal complaints against the respondents and others including public servants under sections 420, 467, 468 and 471/34, P.P.C. The main allegation against the accused was that they have committed forgery and preparation of forged documents by deceiving petitioner's wife and tampering with Government records in the L.DA. And Excise and Taxation Department, Lahore, in respect of House No, 16-E-I, Gulberg-III, Lahore, belonging to and in possession of the petitioner's wife. These complaints were filed on 27-9-1978 and 4-10-1978. The learned Magistrate sent for inquiry to the police under section 202, Cr.P.C. After which he took cognizance of the matter. The case was then transferred to another Magistrate before whom respondent No,1 moved an application under section 249-A, Cr.P.C. Alleging that the offences under sections 420, 467, 468 and 471, P.P.C. Were scheduled offences under Pakistan Criminal Law Amendment Act, 1958, and therefore under section 5 of that Act were exclusively triable by the Special Judge and not by a Magistrate. He prayed for acquittal under section 249-A, Cr.P.C. The learned Magistrate by his order, dated 29-7-1980 holding that the offences were exclusively triable by the Special Judge and he did not have jurisdiction to adjudicate in the matter, ordered acquittal of the accused persons under section 249-A, Cr.P.C. As the complaint was not maintainable. The petitioner filed revision application against the order before the Sessions Judge, Lahore, in which a preliminary objection was taken that an order of acquittal having been passed in private complaint cases, revision petition was not competent as under section 439(5), Cr.P.C. Where an appeal lies under the Code of Criminal Procedure, and no appeal is brought, revision application will not be maintainable at the instance of the party who could have appealed. The learned Sessions Judge held that although the Magistrate had no jurisdiction he passed order of acquittal which was appealable under section 417, Cr.P.C. And therefore the revision petition was not competent. The petitioner filed a Constitution Petition against this order which was treated as an appeal by the High Court. This appeal was dismissed for non-prosecution by order, dated 29-9- 1984. The petitioner filed application for restoration of the appeal pleading that in the year 1983 he went abroad and came back to Pakistan in the year 1987 and waited for fixation of the aforesaid appeal, but as no notice was received by the petitioner till 21-3-1989, he engaged Mr. Chaudhry Muhammad Bakhsh, Advocate, who on inspection informed that the appeal had been dismissed in default on 29-9-1984. This application was dismissed by the impugned order, dated 30-6-1992.
3. The learned counsel for the petitioner has contended that no notice for hearing on 30-6-1992 was served on the petitoiner who was appearing in person. The learned counsel with reference to the cause list contended that the names were not correctly printed and therefore in these circumstances sufficient ground had been made for restoration of the appeal. The learned counsel further contended that a criminal appeal cannot be dismissed for default and even in the absence of the appellant it should be decided on merits. The learned counsel has relied on Muhammad Ashiq Faqir v. State PLD 1970 SC 177 and Muhammad Bakhsh v. State 1986 SCM R 59. We grant leave to consider this question.