P L D 1971 Lahore 616 (PLP)

2. The revision petition was filed by Abdul Ghafoor, son of the deceased, questioning the order of the learned Additional Sessions Judge with respect to the acquittal of the respondents, with a prayer that their acquittal be set aside and retrial ordered.

3. The convicted accused 'filed an appeal against their conviction and sentences in this Court (Criminal Appeal No. 693 of 1962). This was allowed and they were acquitted on 22nd March 1963. The learned Judges, after observing, that the prosecution case was mainly based on the word of Ahmad (P. W. 12), Sardar (P. W. 13) and Sadiq (P. W. 14) discussed the statements of these witnesses in detail. With respect to Ahmad (P. W. 12), it was observed that he was rightly not relied upon by the learned trial Judge. Sardar (P. W. 13) and Sadiq (P. W. 14) were not relied upon either. The former for the reason that he belonged to the opposite faction of the deceased and was nowhere near the scene of the occurrence at the time, when it took place and the latter, because he was a chance witness and had failed to give satisfactory explanation for his presence at the spot. However, the net result is that these eye‑witnesses having been disbelieved, the appeal was allowed, as has been pointed out above.

4. Against the order of the acquittal of Noor Muhammad, Hasham and Dilmir accused, Abdul Ghafoor petitioner filed a petition for special leave to appeal in the Supreme Court. Their Lordships of the Supreme Court declined to interfere in the decision of the High Court and dismissed .the petition on 27th May 1963. Subsequent thereto, Abdul Ghafoor petitioner preferred review petition in the Supreme Court against its judgment dated 27th May 1963. This too was dismissed on 10th January 1964.

5. The revision petition preferred by Abdul Ghafoor against the present respondents came up for hearing before my learned brother Muhammad Afzal Khan, J. on 26th November 1968, when Mr. Q. M. Salim, Advocate, appearing for Qazi Ahmad, Advocate,‑ for the petitioner requested for permission to withdraw the revision petition on the ground, that in view of the decision of the Division Bench of this Court in Criminal Appeal No. 693 of 1962, acquitting the co‑accused of the respondents and after the dismissal of the petition for special leave to appeal by the Supreme Court against the decision of the Division Bench of this Court, the revision petition had become infructuous. The request was allowed and consequently, the revision petition was dismissed as having been withdrawn. Dissatisfied with the last mentioned order, the instant applica tion No. 1 of 1969, in the aforesaid criminal revision has been presented under section 561‑A of the Code of Criminal Procedure, wherein it is maintained that neither had the revision petition become infructuous nor it could be allowed to be withdrawn under the law. It has to be decided on merits.

5. The petition was admitted. Notice was issued to the respondents.

6. I have today heard learned counsel for the petitioner and learned counsel for the respondents. The facts narrated above are not disputed by the learned counsel for the petitioner. In spite of it, however, he maintains that once a revision petition has been admitted, it has to be disposed of on merits and cannot be allowed to be withdrawn. In support of his contention, learned counsel drew my attention to the provisions of sections 439 and 561‑A of the Code of Criminal Procedure. I fail to understand, how section 439 is helpful to the petitioner's case. It undoubtedly says in subsection (2), that no order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. It does not say, that the complainant must also be heard before the revision petition is disposed of. At any rate, in the instant case, the petitioner had an opportunity of being heard, when he was represented by a counsel and the counsel himself, made a statement, that he wished to withdraw the petition as the same had become infructuous in view of the deci sions of the High Court and Supreme Court, referred to above. Section 561‑A, Cr. P. C. does not confer any additional powers on this Court, but merely declares that such inherent powers as the Court possesses, shall not be deemed to be limited or affected by anything contained in the Code. As far as I am aware, there b is no inherent power in the High Court to alter or review its own judgment once it has been pronounced and signed except in cases where it has been passed either without jurisdiction or in default of appearance without adjudication on merits. It cannot be said that the order passed by my learned brother dismissing the revision petition was either passed without jurisdiction or in default of appearance When the party, which had preferred the revision petition wished not to proceed with it, there was no alternative for the Court, but to dismiss it.

7. At any rate, a revision petition does not stand on a higher footing than an appeal, filed by a convict. If the later can withdraw his appeal, there is no reason, why a complainant, who has filed a revision petition, cannot do the same, especially when according tho him, it has become infructuous.

8. In the case of Muhammad Aslam v. The State (P L D 1959 S C (Pak.) 119), their Lordships of the Supreme Court observed that a convicted person is as much at liberty to withdraw his appeal, as he is at liberty to file it. What had happened in this case, was that during the course of argument, counsel for the appellant raised a contention, when it was pointed out to him, that if the same was accepted and given effect, the result would be ordering a retrial. The counsel there upon withdrew the objection He was not allowed to do so and he was directed to argue on the legal question raised by him. On this, he put in a written application that his client did not wish to prosecute the appeal and that he should be allowed to withdraw it. In view of the decision Crown v. Ghulam Muhammad (A I R 1923 Lah. 241), permission to withdraw the appeal was refused and thus the appellant approached the Supreme Court. Their Lordships were pleased to observe that the order of the High Court was bad and the appeal should have been dismissed as having been withdrawn. In view of the aforesaid dictum of the Supreme Court I am of the opinion, that if the appellant can withdraw his appeal, there is no reason, why a petitioner in a revision petition, cannot withdraw his revision, especially when the same becomes infructuous, as is the case with the present revision petition.

9. For the reasons stated above, I find no merit in the petition and the same is hereby dismissed. The result would be that the order of my learned brother Muhammad Afzal Khan, J. passed on 26th November 1968, holds the field. S. G. D./S. A. H. Petition dismissed.