BASHARAT AHMAD SHAIKH, J.- This revision/appeal has been filed as of right under section 25 of the Islami Tazeerati Qawaneen Nafaz Act, 1974 to the challenge order passed by the Shariat Court on 7th April, 1999 whereby a Cr. Rev. No. 38 of 1995 was dismissed for non- prosecution.
2. A murder case was registered on the information lodged by appellant Malik Muhammad Yasin.
Raja Muhammad Yousaf and three others are the accused persons in the case. During the trial accused persons moved an application in which it was stated that they were brutally tortured by the Police and also by the first informant, the present appellant. The learned members of the District Criminal Court Miizaffarabad found injuries and other marks of violence on the bodies of some of the accused persons and passed an order whereby a Sub-Judge-cum-Magistrate was appointed to hold inquiry into the allegations of torture. The order was passed on 7th March, 1995.
The aforesaid order was challenged by the present appellant by filing a revision petition in the Shariat Court. The revision petition was filed on 20th April, 1995 and it remained pending in the Shariat Court for nearly four years. On 7th April, the following order was passed by a learned Judge of the Shariat Court:- "PRESENT: Nemo for the petitioner, Respondent No. 1 in person.
Syed Ejaz Ali Gilani, Asstt. Advocate-General for the State.
ORDER: Despite repeated calls since morning, neither the petitioner nor his counsel has turned up, therefore the above titled revision petition is hereby dismissed for non-prosecution.
Muzaffarabad.
7.4.1999. JUDGE"
3. Through this revision/appeal, the first informant seeks annulment of the order of dismissal. The short ground advanced by his learned counsel Raja Muhammad Hanif Khan is that a criminal matter has to be decided on merits and there is no concept of dismissal for non- prosecution in the Code of Criminal Procedure. The learned counsel relies on the case reported as Muhammad Ashiq Faqir v. The State (PLD 1970 SC 177) and Ramautar Thakur and others v. State of Bihar, (AIR 1957 patna 33).
4. The learned Advocate General also supported this argument.
5. The judgment of the Supreme Court of Pakistan in Muhammad Ashiq Fariq case relates to interpretation of section 423(1) of the Code of Criminal Procedure which reads as follows:- "423. Powers of Appellate Court in disposing of Appeal.- (1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. 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, sub-section (2) or section 417), the accused, if he appears, the Court may, if it considers that there is not sufficient ground for interfering, dismiss the appeal, or any."
6. On the phraseology it was held that once a criminal appeal is admitted it must be decided on merits and cannot be dismissed for non- prosecution. It was also held that if the appellant or his pleader does not appear when the case is called for hearing the Court has to peruse the record and decide the case. There are several other cases of Federal Court as well as the Supreme Court which are to the same effect.
7. However the above dictum has no application to the present case. The above dictum only relates to appeals and not to revisions and is based on the plain requirement of section 423 which is clearly to the effect that even if a person who has filed appeal is not present or his counsel is not present the Court has to peruse the record. However in the present case there was no appeal before the Shariat Court but was a revision petition which did not relate to the guilt or innocence of any person. It had been filed to challenge an order by which an inquiry had been ordered. The inquiry was of a preliminary nature as a result of which no conviction or acquittal had to be recorded. It was ordered only to find out whether the accused persons had been tortured or not.
The principles applicable to disposal of an appeal are clearly riot applicable to the revision petition which did not relate to guilt or innocence of any person as is in the case of an appeal.
8. We may also mention that the other Judgment relied upon by the learned counsel for the appellant fortified our view. A Division Bench of the Patna High Court in Ramautar's case held that if a criminal revision petition is dismissed for non-prosecution it can be restored under inherent powers of the Court. It indirectly lays down that a criminal revision can be dismissed for non- prosecution. No case has been cited by the learned counsel for the appellant in support of the contention that criminal revisions cannot be dismissed for non-prosecution.
9. We therefore find no force in this revision/appeal and order its dismissal.