1985 P Cr (PLP)

Khan Sanaullah for the State. Date of hearing: 16th September, 1984. Appellant Ali Nawaz was convicted under section 409, P.P.C. read with 5(2) of the Prevention of Corruption Act, 1947, by Special Judge (Central) Karachi vide judgment-dated 30‑8‑1978. He was sentenced to R.I. for 2 years and to pay a fine of Rs.40,000 or in default to suffer further R.J. for 2 years more. Being aggrieved he filed Criminal Appeal under section 410, Cr. P.C. on 2‑10‑1978. His appeal was admitted but the sentences were not suspended, therefore, he remained in custody. Briefly stated the case of the prosecution is that appellant was Sub‑Postmaster, Baldia Colony, Post Office, Karachi and he mis appropriated an amount of Rs.63,448.95. Such case was filed on 1‑12‑1975 under section 409, P.P.C. read with section 5(2) of Prevention of Corruption Act. During the investigation it was revealed that he had been misappropriating, further, Government money also for which a separate challan was filed. The case proceeded and he was convicted. Appellant Ali Nawaz has appeared in person today and requested that he may be permitted to withdraw the appeal as he has served out the sentence. Mr. Khan Sanaullah, learned counsel for the State has argued that prosecution has proved the case against the appellant beyond reasonable doubt. He submits that appeal be dismissed. The point for the consideration before me is whether appellant can be permitted to withdraw the appeal which has been admitted. There is no specific provision in the Criminal Procedure Code for withdrawal of the Criminal Appeals. On these points I refer to a case of Muhammad Aslam v. The State P L D 1959 S C 119 where their Lordships have held that convicted person may withdraw his appeal and the observations of their Lordships are reproduced as under:‑ "It may be that an appeal against acquittal by the Government stands on a different footing because the High Court acquires on such appeal the power to convict an acquitted person. That is not the case before us and we do not express any opinion about the correctness of the Full Bench decision in so far as it related to the withdrawal of an appeal by Government. But we have no doubt that so far as an appeal by a convicted person is concerned he is as much at liberty to withdraw it as he was at liberty to file it, and in such cases the obvious duty of the High Court is to dismiss the appeal. If however, the High Court considers that an order or finding recorded in appeal should be set aside, or a retrial ordered or the sentence enhanced, the proper course for it is to act on the revision side. For these reasons, we think the order to retrial was bad in this case and the appeal should have been dismissed as having been withdrawn. We accept this appeal and dismiss the appeal which the appellant had preferred to the High Court." The appellant is no more interested in pursuing this appeal and wants to withdraw. Accordingly he is permitted to withdraw the appeal as such same is dismissed as withdrawn. S.G.D Appeal dismissed as withdrawn.