SIKANDAR HAYAT Versus ATA,WARYAM,NOORA,HASHMAT,AKBAR,THE STATE

1. MUHAMMAD YAQUB ALI, J. ‑‑The respondents 1 to 5 were convicted by the Additional Sessions Judge, Lyallpur, at Jhang, for the murder of one Umer Hayat, at Chak No. 202, Police Station Bhowana, District Jhang at about Isha prayer time. Ata, respondent No. 1, was ordered to be hanged by neck till dead and the rest sentenced to transportation for life. A Division Bench of the High Court, however, on appeal and reference acquitted them all.

2. Leave to appeal was granted to Sikendar Hayat, son of the deceased, on the 6th April 1966, as the Court found it a fit case in which the evidence should be re‑examined to consider whether the acquittal was based upon correct principles. Non‑bailable warrants were directed to be issued for the arrest of Ata and bailable warrants returnable to District Magistrate, Jhang, were issued against the rest.

3. After preparation of the records that petition for special leave to appeal was registered as Criminal Appeal No. 31 of 1967 and the parties directed to file their Concise Statements. The appellant filed his Concise Statement on 27th May 1967, setting out the facts leading to convictions of the respondents and criticism of the judgment delivered by the High Court with the prayer that "the appeal b: accepted, order of the acquittal of the respondents dated the 9th December 1965, passed by the High Court of West Pakistan in Murder Reference No. 41 of 1964 and Criminal Appeal 1‑Io. 685 of 1964 be set aside and the respondents convicted and punished suitably". The respondents 1 to 5 filed Concise Statement on the 16th June 1967, reiterating their innocence and supporting the judgment of the High Court. The State impleaded as the sixth respondent in the appeal filed separate Concise Statement assailing the order delivered by the High Court as being opposed to the facts appearing on the record and prayed that the respondents 1 to 5 be convicted under section 302 read with section 149, P. P. C. and punished adequately.

4. The Court was thus seized with all the relevant facts and the pleas advanced by the parties when the appellant on the 16th December 1968, moved for withdrawal of the appeal on the ground "that on the intervention of the respectables and on consideration of future peaceful co‑existence appellant wishes to withdraw the appeal." The Additional Advocate‑General appearing for the State opposed the withdrawal and contended that the Court having taken seisin of a criminal appeal it cannot thereafter be withdrawn. Learned counsel for the respondents 1 to 5, however, urged that appeals in this Court do not stand in the same position as criminal appeals in the High Court and urged that as an important question of principle was raised it should be decided after fuller examination.

5. The practice consistently followed by the Court so far did not permit withdrawal of the appeal, e.g. Muhammad Latif v. Muhammad Hussain and others (1968 S C M R 269 (1)) in which the Court refused a similar prayer by the following order:

6. "For appellant, a plea is made for withdrawal on the basis of a compromise between the parties. The Advocate‑General opposes the application, pointing out that the case is one of murder, which is non‑compoundable. The Court being seized of the matter must not proceed to determine whether an offence has been committed. The application is refused."

7. It was, however, argued at great length by Mr. Manzur Qadir, counsel for the appellant, that, in principle, there was no difference between a criminal and civil appeal. Both were brought before a Court in exercise of a right conferred by a statute and that being the case the person bringing the appeal had the right to abandon it at his will. This right, according to him, should be distinguished from a duty towards a Court which may be dispensed with only by the Court and not at the will of the person who has moved the Court. But as there is no duty imposed by law to file an appeal from the judgment, order or sentence passed by a criminal Court the person who has in exercise of a statutory right moved the appellate Court may waive the exercise of that right and withdraw the appeal. The learned counsel relied for this purpo3c on rule 13 of Order XXIII of the Pakistan Supreme Court Rules which applies with necessary modifications and adaptations so far as may be the provisions contained in the preceding Orders in Part 11. Order XV7 contained in this part provides for withdrawal of Appeals, non‑prosecution of Appeals and change of Parties. Rules 1 and 2 of the Older provide as under ;‑

8. "1. Where an appellant, who has not lodged his concise statement as provided in Order XIX, desires to withdraw his appeal shall make an application to that effect to the Court. The costs of the appeal and the security entered into by the appellant, if any, shall then be dealt with in such manner as the Court may think fit to direct.

2. Where an appellant, who has lodged his concise statement as provided in Order XIX desires to withdraw his appeal, he shall present a petition to that effect to the Court. On the hearing of any such petition a respondent may apply to the Court for his costs."

9. Relying on these rules Mr. Manzur Qadir contended that the incidence of filing concise statements was relevant only to the award of costs and did not affect the right to withdraw a civil or criminal appeal at the will of the appellant. He referred also to the practice of the British Courts which recognizes the right of a convict to withdraw his appeal before hearing of the appeal opens before the Court. Rule 23 of the Criminal Appeal Rules, 1960, framed under the Criminal Appeal Act, 1907, provides that an appellant at any time after he has duly served notice of appeal or of an application for leave to appeal may abandon his appeal by giving notice of abandonment thereof in the prescribed form.

10. The question whether a prisoner may withdraw his appeal from conviction arose mainly in those cases in England in which the Court had considered enhancement of sentence. One of the cases on which Mr. Manzur Qadir relied was of Joseph Gibbon (30 Cr. App. Rep. 143). The appellant was convicted of rape and of aiding and abetting another person to commit rape and was sentenced to three years penal servitude. Leave to appeal was granted with the object of considering whether or not the sentence should not be materially increased. Before the appeal was opened Joseph Gibbon gave notice to abandon the appeal. Question arose whether or not leave to appeal having been given it was open to the Court without leave of the Court to abandon his appeal. That depended upon a consideration of statutory rules 22 and 23 which in the opinion of the Court of appeal c011ferred on the appellant a right to abandon his appeal In the case of Kenneth Hugh De Couroy ((1964) 48 Cr. App. Rep. 323) it was held that if an appellant or his counsel does not abandon an appeal orally when it is called on, he cannot as of right abandon it after it has been opened whether the appeal is against conviction or sentence; it can be abandoned in such circumstances only by leave of the Court.

11. A similar question came up for decision before a Full Bench of the High Court of Lahore in The Crown v. Ghulam Muhammad (I L R 23 Lah. 241). Ghulam Muhammad was convicted by the District Magistrate, Attock, on a charge of section 304 and under sections 147 and 149, I. P. C. He was acquitted on appeal by the Sessions Judge, Attock, against which an appeal was filed by the Advocate‑General under the orders of the Punjab Government. Notice was issued to Ghulam Muhammad and warrants for his arrest issued on 14th May 1940. On the 5th June 1940, the Advocate‑General filed an application under section 561‑A of the Code of Criminal Procedure that the Punjab Government having considered the case had come to the conclusion that it was not a fit case for appeal and, therefore, he asked for permission to withdraw the appeal. Permission was refused by a Division Bench as it considered that the appellant could not take away from the Court the jurisdiction of which it had become seized on the appeal being preferred which was admitted to a hearing and an order for the issue of warrants was passed on the admission of the appeal. On the next date of hearing the Advocate‑General was not present, but the respondent was represented and took the preliminary objection that no permission for the withdrawal of an appeal was necessary and as soon as the appellant intimated his desire to withdraw from the appeal the appeal stood dismissed. The point raised being novel and important the Division Bench considered that it should be authoritatively decided by a larger Bench. The matter coming up before the Full Bench, it was contended on behalf of the appellant, that as the Appellate Court only gets jurisdiction to hear the appeal as a result of the appellant's filing the appeal and the appellant is under no obligation to file an appeal it follows therefrom that the appellant had the right to withdraw the appeal whenever he chooses before judgment is pronounced. The contention was repelled by the Full Bench and in view of the provisions of the Code of Criminal Procedure relating to withdrawal of trials and the powers of the appellate Court to dispose of an appeal it was held that once an appeal is lodged it is not in the power of the private complainant or the Crown to withdraw the appeal or In the power of the Court to allow withdrawal of the appeal.

12. The first precedent case noticed by the Full Bench on the subject was In re : Chunder Nath Deb ((1879) 5 C L R 372), where a Division Bench of the Calcutta High Court had in the terms of the old Criminal Procedure Code held that if an appellant wishes to withdraw his appeal before it had been admitted by the Court, the appellant had an absolute right to do so and the Court could not insist on admitting the appeal. In Emperor v. Shaikh Rasul ((1904) 1 Cr. 1 J 7510), Stanyon, J. made some obiter dicta in which he endorsed the view of the Calcutta High Court In re : Chunder Nath Deb. Against this view there was another judgment of the Calcutta High Court In re : Dawarka Majhee ((1880) 6 Cal. L R 427), in which it was held that once an appeal has been admitted, then it is a matter for the discretion of the Court whether to allow withdrawal or not and that the appellant could not withdraw the appeal once the Court had perused the evidence or a part of it or taken some other action with respect to an admitted appeal. This view found support from the decision in Rex v. Income‑tax Special Commissioners ex parte Elmhirst (L R (1936) 1 K B 487), which was followed in Commissioner of Income‑tax v. Nawab Shah Nawaz Khan (I L R (1938) Lah. 359). It was held in these cases that as the Assistant Commissioner of Income‑tax had on appeal a right to enhance an assessment, therefore, once an appeal has been lodged before the Assistant Commissioner there being no provision for any right to withdraw the appeal, the appeal cannot be withdrawn by the appellant. Reference was also made to the decision of the Judicial Committee in The King‑Emperor v. Dahu Raut (I L R 62 Cal. 983 (P C)), where their Lordships pointed out that Chapter XXXI of the Criminal Procedure Code completely deals with the right of the appellate Court and that once an appeal has been admitted and has not been summarily dismissed under section 421, then the powers of the appellate Court are limited to section 423 which makes it obligatory upon the appellate Court to peruse the record and come to whatever decision it would come to on the evidence led in the case. It was noticed by the Full Bench that no provision has been made for the withdrawal of the appeal in the Code of Criminal Procedure which might be explained on the ground that the Legislature could never have contemplated that the Executive Government which had six months to make up its mind whether to appeal or not, would, after making up its mind to appeal and without the discovery of any new fact, subsequently come to a contrary conclusion and decide not to appeal. It was further pointed out in this respect that while provision is made for withdrawal of trials under sections 240, 248, 333 and 494 of the Criminal Procedure Code, no provision is made for the withdrawal of appeals. In each of these sections except section 333 the consent of the Court is necessary before a withdrawal is allowed. Under section 333, the Advocate‑General is given the power to enter a nolle prosequi without the leave of the Court, but it does not involve an acquittal, but only discharge of the accused. Referring to sections 421 and 423 l3alip Singh, J. delivering the Full Bench judgment concluded:

13. "It appears clear to me that the Legislature have never contemplated any withdrawal of an appeal once lodged whether by the accused or by the Crown and that once the appeal has been lodged and admitted, it is not in the power of the Court nor in the power of the appellant to allow the appeal to be withdrawn."

14. The Full Bench decision in The Crown v. Ghulam Muhammad (A I R 1942 Lah. 296=I L R 23 Lah. 241), came up for consideration before this Court in Muhammad Aslam v. The State (P L D 1959 S C (Pak.) 119). The appellant was convicted of having committed breach of trust in respect of an aggregate sum of Rs. 6,309‑11‑3 misappropriated from seven different funds during a period exceeding one year. The trial Judge found him guilty and sentenced him to one year's rigorous imprisonment and a fine of Rs. 6,400. On appeal to the High Court one of the grounds taken was that the trial being in contravention of subsection (2) of section 222 and section 234 of the Code of Criminal Procedure the conviction and sentence were bad in law. In the course of the arguments the learned Judges hearing the appeal indicated that if the contention raised was accepted, the result would be retrial, whereupon the counsel withdrew the objection. The Judge, however, decided that despite counsel's withdrawal of objection be could hear the arguments on the legal question. On this, the counsel for the appellant put in an application for withdrawal of the appeal. The learned Judge feeling himself bound by the Full Bench decision in The Crown v. Ghulam Muhammad, refused to allow the appeal to be withdrawn and ordered retrial. Thereupon the appellant obtained leave to appeal from the judgment of the High Court.

15. On examining the contentions raised on either side the Court formed the opinion that so far as the right of a prisoner to withdraw the appeal is concerned, the judgment of the High Court of Lahore in The Crown v. Ghulam Muhammad could not be supported and must to that extent be overruled. It was observed that an appeal is the creation of a statute and is essentially in the nature of a right. A convicted person is not bound to appeal even where the law gives him such a right and that being so the Court was unable to discover any general principle which stands in the way of his withdrawing the appeal. This principle was found to be rightly stated by Wilson and Tottenham, JJ. in Chander Nath Deb and others, where the observed: "It seems to us that every privilege given to a party by the law may be waived at the option of that party. A right to appeal is a privilege given by the law and the party concerned is at liberty to insist upon or abstain from the exercise of that right". The precedent cases relied upon by the Full Bench in The Crown v. Ghulam Muhammad, were distinguished in that there was no question of withdrawal of au appeal in King Emperor v. Dahu Rauf, while in Income‑tax Special Commissioner, Ex parte Elmhirst, and Commissioner of Income‑tax v. Nawab Shah Nawaz, by the mere fact of an appeal having been filed, the appellate Court had acquired a power to enhance the assessment which but for the appeal it would not possess as an appellate Court. It was observed that under the Criminal Procedure Code the powers of an appellate Court were exhaustively defined by section 423 of the Code of Criminal Procedure and these did not, rather expressly excluded, the power to enhance the sentence. On this ground an appeal against acquittal preferred by the Government was distinguished and it was said in the concluding part of the judgment that it may be that because the High Court acquires on such appeal the power to convict an acquitted person the case stands on a different footing. However, as that was not the case before the Court, no opinion was expressed about the correctness of the Full Bench decision in so far as it related to the withdrawal of an appeal by the Government.

16. The point raised in this appeal was thus left undecided, but the observations that an appeal is the creation of a statute and is essentially in the nature of a right and that being so no general principle stands in the way of a convicted person to withdraw his appeal, to some extent supports the argument of Mr. Manzur Qadir that the right to withdraw an appeal inheres in the right to bring an appeal.

17. The question which arises, therefore, is up to what stage the right to withdraw an appeal lasts and whether or not the power acquired by the Court thereby to determine the correctness of the order of acquittal impinges on that right. Since it is urged that, in principle, there is no distinction between the right to withdraw a civil appeal and to abandon a criminal appeal the incidents of civil and criminal proceedings may be noticed first. A civil appeal may be withdrawn at the will of the person who brought the appeal for a civil proceeding has for its object the recovery of money and other' property or the enforcement of a right for the advantage )f the person suing. The duty of the Court to adjudicate upon correctness of the judgment, decree or order passed by the subordinate Court is, therefore, put to an end as soon as the person suing abandons his claim. However, a criminal proceeding has for its object the punishment of a public offence. The following statement appears in the Halsbury's Laws of England, Third Edition, Vol. X, p. 271, in the Monograph "The Nature of Crime in General"

18. "A crime is an unlawful act or default which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment (a). While an agreement is often also an injury to a private person who has a remedy in a civil action, it is an act or default contrary to the order, peace and well‑being of society that a crime is punishable by the State (b).

19. Legal punishment is punishment awarded in a process which is instituted at the suit of the Crown `standing forward as prosecutor on behalf of the subject on public grounds' ; the process when instituted can be stayed only at the instance of the Attorney‑General acing on behalf of the Crown and the punishment when awarded can be remitted only by the Crown or Parliament."

20. The difference in the nature of civil and criminal proceedings thus becomes evident. One is for personal advantage of the person suing. He may, therefore, retract at any stage an abandon its claim without the consent of the Court. Such a course is not opposed to public policy. The other proceeding is not for personal advantage of the complainant. He does not come to Court to receive something in a criminal proceeding which he may decline to receive at his own will. Like the State he acts "standing forward as prosecutor on behalf of the subject on public grounds". To say that a complainant in criminal proceedings has a right to prosecute a person accused of a public offence is, therefore, not a correct statement in law.

21. The contention raised by Mr. Manzur Qadir and supported by Mr. Mahmu3 Ali Qasuri appearing for the respondents that, in principle, there is no difference between the right to withdraw a civil appeal or abandon a criminal appeal, therefore, does not hold good. As pointed out by Dalip Singh, J. in The Crown v. Ghulam Muhammad that is why except in the case of section 333 which empowers the Advocate‑General to file a nolle prosequi in all other cases the right to withdraw a criminal proceeding under sections 240, 248 and 494 is subject to the consent of the Court.

22. Reference may now be made to sections 421, 422 and 423 of the Code of Criminal Procedure which embody procedure ands powers of appellate Court in disposing of criminal appeals.1 Section 421 provides:

23. "421.‑(1) On receiving the petition and copy under section 419 or section 420, the appellate Court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:

24. Provided that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.

(2) Before dismissing an appeal under this section, the Court may call for the record of the case, but shall not be bound to do so."

25. If the appeal is not dismissed at this preliminary stage, then the Court shall under section 422 issue notice to the appellant or his pleader and such officer as the Provincial Government may appoint. The appeal is then to be disposed of in the following manner laid down in section 423

26. "(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 if he appears, and the public Prosecutor, if he appears, and it case of an appeal under section 411‑A, subsection (2) on section 417, the accused, if he appears, the Court nay, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may -----

(a) in any appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law ;

(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by Court of competent jurisdiction subordinate to such appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, subsection (3), not so as to enhance the same ;

(c) * * * * * * * * * * * *

(d) * * * * * * * * * * * *

27. It will be noticed that the presence of the appellant or his pleader or the public prosecutor is not essential for the disposal of a criminal appeal. The words used are : "the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears". It follows that even if the appellant or his pleader is absent the Court is under a duty to peruse the record and hear the public' prosecutor if he appears and then decide whether or not to dismiss the appeal from conviction and pass any one of the orders set out in clause (a) above. Dalip Singh, J. had this provision of section 423 present in his mind when in The Crown v. Ghulam Muhammad he observed:

28. " ..that once the appeal has been lodged and admitted, it is not in the power of any Court nor in the power of the appellant to allow the appeal to be withdrawn. The Court is bound once the appeal is admitted to proceed under section 421, or under sections 422 and 423 to decide the appeal on the merits."

29. These provisions of section 423, were not noticed in Muhammad Aslam v. The State. Section 423, was referred to but for the purpose of showing that the Court did not acquire the right by the filing of an appeal by a prisoner to enhance the sentence. How the appeal is to re disposed of was, however, left out of consideration, because it was considered to be a right of the prisoner to abandon the appeal at any stage brought by him against his conviction and sentence.

30. If full effect is given to the provisions of section 423 a duty will clearly be spelt out for the Court to decide the appeal on merits notwithstanding the absence of the appellant or his pleader' or his prayer to withdraw from the appeal. These provisions may with advantage be compared with corresponding provision contained in Order XLI of the Code of Civil Procedure for dispo sal of appeals from original decrees. If an appeal survives dismissal in limine under rule 11, Order XLI, C. P. C., the Court shall fix a day for hearing the appeal and send notice of the appeal allow ing the respondent sufficient time and answer the appeal on the day fixed. Notice of the appeal is also sent to the Court from whose decree appeal is preferred who will send all material paper in the suit or such papers as may be specifically called for by the appellate Court. On the day fixed or on any other day to which the hearing may be adjourned "the appellant shall be heard in support of the appeal". The Court shall then if it does not dismiss the appeal at once "hear the respondent against the appeal" and in such cases "the appellant shall be entitled t reply" (rule 16), The appellate Court after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court either at once or on some future day of which notice shall be given to the parties or their pleaders. The judgment of the appellate Court shall be in writing and shall state:‑

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

31. (Rule 31) Under rule 17 where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called for hearing, the Court may make an order that the appeal shall be dismissed. The above comparison clearly brings out the nature of the right involved in a civil appeal and a criminal appeal. The object of a civil appear is the enforcement of a right for the advantage of the person suing that is why clause (d) of rule 31 speaks of "the relief to` which the appellant is entitled". There is no provision fort withdrawal of a criminal appeal plainly because the object of criminal proceedings is the punishment of a public offence. That is why, under section 423, the presence of the appellant or his pleader is not necessary and notwithstanding their absence the Court is required to decide the appeal on merits while the Absence of the appellant or his pleader when the appeal is called for hearing may result in the dismissal of the appeal.

32. Another aspect of the case is that once the jurisdiction of a Court is invoked and the Court is seized with the question of the innocence or guilt of a person accused of a public offence, its is opposed to public policy that the complainant or the person appealing from the order of acquittal should be permitted to put an end to those proceedings at his will. As mentioned in the beginning of this order when leave to appeal was granted, non‑bailable warrants for the arrest of Ata, respondent No. 1, were directed to be issued. He thereafter applied twice for grant of bail, but the prayer was refused. However, if the appellant is given the right to abandon the appeal at his own will he will set at naught the process issued by the Court and deny to the Court the power acquired by it to set aside the acquittal of the respondents and convict them of a capital charge. The undesir able consequences which may flow from such a course are too evident. It may well lead to bribing of the private complainant, by the accused persons and occasion grave miscarriage of justice. To safeguard against such an eventuality, the Code provides that a criminal trial except in the case of section 333 of the Code of Criminal Procedure can be withdrawn only with the consent of the Court. In principle the same condition shall apply to the withdrawal of an appeal against acquittal.

33. We may now take notice of the distinction sought to be brought out by Mr. Manzur Qadir and Mr. Mahmud Ali Qasuri between the powers of the High Court under the Criminal Procedure Code and the powers of the Supreme Court under Article 58 of the 1962‑Constitution in the disposal of criminal' appeals. Under the Constitution an appeal lies to the Supreme! Court as of right only if (a) the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution ; (b) the High Court has sentenced a person to death or to transportation for life ; and (c) the High Court has imposed punishment on a person in pursuance of the powers conferred on the Court by Article 123 which deals with contempt of Court. In all other cases an appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court "shall lie only if the Supreme Court grants leave to appeal". The right conferred by Article 58 to move against an order of acquittal is thus limited to a petition for leave to appeal. : O fn such a petition being made the Court examines the judgment passed by the High Court and where necessary also refers to the evidence on the record and the circumstances attending upon the crime. The acquitted person is given notice and has the right to defend against the grant of leave. He is usually represented at the leave stage and heard in opposition to the prayer for leave to appeal. After taking into consideration the entire material and hearing the parties' counsel leave may be refused or if the Court forms a tentative opinion that acquittal is not based on correct principles and has resulted in miscarriage of justice, leave to appeal may be granted. On grant of leave it is usual to direct arrest of the respondent on a non‑bailable warrant in a case entailing sentence of death or transportation. The Court thus applies its mind to the facts of the case and gives directions about the custody of the respondent while granting leave to appeal. In principle, the person who has, invoked the jurisdiction of the Court should not thereafter be allowed to retract and tell the Court that notwithstanding the opinion formed by it as to the correctness of the order of acquittal he will abandon the appeal and allow a public offence to go unpunished In Muhammad Aslam v. The State this Court was dealing with the case of an appeal by the convict. Under section 423 of the Code of Criminal Procedure the Court of Appeal cannot enhance the sentence imposed on the appellant. Nor can the Court convict him of an offence of which he was acquitted by the trial Court except on an appeal by the Province Government. Under section 439 the Court it satisfied that the acquittal is incorrect may order retrial, but cannot itself record a conviction. None of these limitations, how ever, apply to the Supreme Court. On the contrary Article 61 provides that:

34. "(1) The Supreme Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any cause or matter pending before it, including an order for the purpose of securing the attendance of airy person or the discovery or production of any document.

(2) Any such direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, be executed as if it had been issued by the High Court of that Province.

(3) If a question arises as to which High Court shall give effect to a direction, order or decree of the Supreme Court, the decision of the Supreme Court on the question shall be final."

35. No distinction is made between an appeal referred by a private complainant, an appeal by the convict or an appeal by the Provin cial Government. Leave to appeal is, therefore, given in suitable cases to private complainants, even though they are not stricto senso persons aggrieved by the order of acquittal, and in case the Court is satisfied that the acquittal is riot based on correct principles or is against the weight of evidence the respondent is convicted of the offence which he is proved to have committed. See Sultan Khan v. Taj Din and others (P L D 1963 S C 97) where the Court on considering the evidence on record reached the conclusion that the acquittal of the respondents was manifestly against the weight of evidence and that it involved a miscarriage of justice. The appeal was, accordingly, allowed and setting aside the acquittal of the respondents they were convicted under section 302 read with section 149, P. P. C. and each was sentenced to transporta tion for life. Thus far from supporting the contention raised by Messrs Manzur Qadir and Mahmud Ali Qasuri the provisions of Articles 58 and 61 indicate that the Court having acquired the power to punish a public offence the appellant does not have the right to abandon the appeal brought by him with the leave of the Court.

36. In exercise of the power given to it under Article 61 this Court has held in the case of The State v. Muhammad Nawaz (P L D 1966 S C 481) that in an appeal against the conviction of some this Court has the power suo motu to issue notices to those who had in the same case been inadvertently acquitted by the High Court even after the petition filed by the State for leave to appeal from the order of acquittal had been dismissed as being out of time. Notices were actually issued in this case on the acquitted persons and the acquittals of as many as four of them were set aside. This not only does not support the contention advanced by Mr. Manzur Qadir, but rather indicates that even without an appellant this Court is not powerless if once it is seised of the case.

37. A word may be said about the Supreme Court Rules on which Mr. Manzur Qadir placed reliance. Rules 1 and 2, Order XVI, which regulate withdrawal of civil appeals non‑prosecution of appeals and change of parties have been reproduced above. Along with these Rules Mr. Manzur Qadir relied on rule 13 of Order XXIII which regulates institutions and disposal of criminal appeals lodged as of right under Article 58(2) of the Constitution. The Rule provides

38. "13. Save as aforesaid the provisions contained in the preceding Orders in this Part of the Rules shall, with necessary modifications and adaptations, apply, so far as may be, to criminal appeals under this Order."

39. Since an appeal against order of acquittal does not fall under sub‑Article (2), rule 13 does not in terms apply. Apart from this distinction the conditions regulating the withdrawal of a civil appeal are not applicable to a criminal appeal. Under rule 1 the Court shall, on application for with drawal being made, deal with the question of cots "as the Court may think fit". Under rule 2 where concise statements'' have been lodged the respondent may apply for costs', if the appellant desires to withdraw his appeal. Neither condition is applicable to a criminal appeal as no question of costs is involved in the matter. It will be noticed that neither rule 1 nor rule 2 makes provision for grant of permission to withdraw a civil appeal. The object of both the rules is to deal with the question of costs evidently on the assumption that the appellant has the right to withdraw his appeal at any time. The same cannot however, be said about the withdrawal of a criminal appeal unless of course, a specific provision was made by the Court similar to rule 23 of Criminal Appeal Rules framed under the Criminal Act, 1907, (7 Edn.

7. Ch. 23) to which reference has already been made. In the absence of a similar rule the right to withdraw a civil appeal implied in rules 1 and 2 of Order XVI cannot be extended to the withdrawal of a criminal appeal.

40. In conclusion we hold that the person who brings an appeal with the leave of the Court from an order of acquittal of the respondent does not have the right to abandon the appeal at his will as such a course is opposed to public policy and is un warranted both by the rule and practice of the Court. The application for withdrawal of the appeal is, therefore, dismissed.

41. Mr. Manzur Qadir lastly urged that as he has instructions from his client to withdraw the appeal he will be placed in an embarrassing position if the Court desires him to argue in favour of the appeal. The Court could ask him to act as amicus curiae, but it is unnecessary in the present case as counsel for the State has expressed willingness to address arguments in support of the appeal. Mr. Manzur Qadir, is, therefore, permitted to withdraw from the appeal The appeal will now be fixed for hearing on a date in Office.

42. S. Q. Application dismissed.