P L D 1959 Supreme Court (Pak (PLP)

The Crown‑ v. Ghulam Muhammad I L R (1942) 23 Lah. 241 In re Chunder Nath Deb and others 5 C L R 372; In the matter of Dwarka Manjhee and others 6 C L R 427; King‑Emperor v. Dahu Raut I L R 62 Cal. 983 P C ; Income‑tax Special Commis sioner, ex‑pane Elmhirst I L R 1936, 1 K B 487 and Commissioner of Income‑tax v. Nawab Shah Nawaz I L R 1938 Lah. 359 ref. 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. Their Lordships, however, expressed no opinion about the correctness of the judgment in The Crown v. Ghulam Muhammad [I L R (1942) 23 Lah. 241 (F.B.)] so far as it related to the with drawal of an appeal by Government. Mushtaq Hussain Khan, Advocate, Supreme Court, instructed by Yaqub Hussain, Attorney for Appellant. S. K. Ahmad, Advocate; Supreme Court, instructed by Ijaz Ali, Attorney for Respondent. Date of hearing: 2nd March 1959. MUHAMMAD MUNIR, C. J.‑The question raised in this appeal by special leave is whether an appeal by a person who has been convicted and sentenced by a Special Judge may be withdrawn. The appellant Mirza Muhammad Aslam was accused of having committed criminal breach of trust in respect of an aggregate sum of Rs. 6,309‑11‑

3. This amount had been misappropriated from seven different funds during a period exceeding one year. The trial Judge found him guilty and sentenced him to one year's imprisonment and a fine of Rs. 6,

400. On appeal to the High Court one of the grounds taken by his counsel was that the trial being in contravention of subsection (2) of section 222 and sec tion 234 of the Code of Criminal Procedure the conviction and the sentence were a nullity. When in the course of arguments the learned Judge hearing the appeal indicated to the appellants counsel that if the contention raised by him were given effect to, the result would be a retrial, counsel withdrew the objection. The Judge, however, ruled that despite counsel's withdrawal of the objection he would hear arguments on the legal question. On this, counsel for the appellant put in a written application stating that his client did not wish to prosecute the appeal and that he should be allowed to withdraw it. The learned Judge feeling himself bound by the Full Bench decision in The Crown v. Ghulam Muhammad (I L R (1942) 23 Lah. 241 (F.B.)), refused to allow the appeal to be withdrawn and ordered a retrial. There upon the appellant obtained from the High Court leave to appeal from the judgment of the High Court. After hearing counsel on both sides we are of 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 cannot be supported and must to that extent be overruled. An appeal is the creation of 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 right and that being so we are unable to discover any general principle which stands in the way of his withdrawing the appeal. If he can accept the finding and the sentence by electing not to appeal, we do not follow why the mere fact of his having filed an appeal should, in the absence of some principle akin to estoppel, be considered to be a bar to his subsequently waiving the right. We consider that the principle was rightly stated by Wilson and Tottenham; JJ. in In re Chunder Nath Deb and others (5 C L R 372); where they 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." This case was referred to in the later case In the matter of Dwarka Manjhee and others (6 C L R 427), Tottenham, J. being a party to the decision and though the appellate judgment refusing permission to withdraw was not set aside in that case, In re Chunder Nath Deb and others was referred to as an authority for the view that an appeal can be withdrawn at the option of the appellant before the Appellate Court has decided to hear it. The Privy Council case in King Emperor v. Dahu Raut (I L R 62 Cal. 983 P Q) from which the learned Judges in the Full Bench case derived support has really no relevance to the point inasmuch as all that the Privy Council held in that case was that where an appeal is not summarily dismissed the Court is bound, in order to dispose of the appeal either by a reduction of the sentence or other wise, to comply with the provisions of section 422 as to notices, and of section 423 as to sending for the record. There was no question in that case of the withdrawal of an appeal. It seems that at the time the two Calcutta cases in Volumes 5 and 6 of the C. L. R. were decided the Appellate Court, unlike the present law, had the power to enhance the sentence in an appeal from a conviction (section 280 of Act X of 1872). If the present law had been the same, there might have been an argument against the withdrawal of the appeal because if a person by filing an appeal has incurred a certain liability as, for instance, the liability to enhance ment as in the two Calcutta cases and the two Income‑tax cases, namely, Income‑tax Special Commissioner, ex‑pane Elmhirst (I L R (1936) 1 K B 487) and Commissioner of Income‑tax v. Nawab Shah Nawaz (I L R 1938 Lah. 359) referred to in the Lahore Fall Bench case, then by the mere fact of an appeal hav ing been tiled the appellate Court would acquire a power which but for the appeal it would not possess as an Appellate Court. Under the present law, however, the powers of an Appellate Court have been exhaustively defined by section 423 of the Code of Criminal Proce dure and these do not include, in fact they expressly exclude, the power to enhance the sentence. If the High Court wishes to r enhance a sentence, the only provision under which it can do so is section 439 of the Criminal Procedure Code which invests the High Court with all the powers of an Appellate Court as well as with the power to enhance the sentence whether there be or not an appeal before it. Of course the fact that a prisoner has appealed provides the High Court with information which can be used by it in taking proceedings under section 439, but an appeal merely as such does not empower the High Court to enhance the sentence. If the legal consequence of the fling of an appeal by a convicted person had been that it created in someone else, including the Government, a right which otherwise would not exist, or if it gave to the Appellate Court powers which but for the appeal it would not have, there would have been some reason for the view that an appeal having once been filed cannot be withdrawn. But that is not the case under the existing law. An appeal by the prisoner creates no right in any one else and gives to the High Court no I higher powers than are possessed by it as a Court of revision. There is therefore no injustice to any one or depreciation of any right or power involved in the mere withdrawal of an appeal. No costs are awarded where an appeal by a convicted person is dismissed and even if costs could be awarded the only impediment to the with drawal of the appeal would be the payment of costs. We are accordingly unable to accept the reasoning in the Full Bench case that because the Code of Criminal Procedure prescribes the steps that have to be taken on the filing of an appeal, those steps must be taken irrespective of whether the appellant is or is not anxious to pursue the appeal. These sections are merely procedural provisions and assume that the prisoner is desirous to prosecute the appeal. There is nothing opposed to this view in the Privy Council case in King‑Emperor v. Dahu Raut. On the other hand, the right to withdraw an appeal is recognised not only by the rules of the Supreme Court but also by the English statutory rules and orders, 1908. And the Code expressly recognises the position that an appeal abates on tile death of a prisoner. It is argued by the learned counsel for the Crown that because in the rule of the Supreme Court or in the English Statutory Rules there are express provisions relating to withdrawal and the abate ment of an appeal on a prisoner's death has been specifically provided for, if the prisoner had the right of withdrawing an appeal, the Code would have expressly mentioned it. We are not impressed by this argument, because the real question appears to us to be whether there is any express or implied prohibition against the withdrawal of an appeal, and as we find no such prohibition the P right to withdraw an appeal must be conceded to a convicted person. 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 a, 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. A. H. Appeal accepted.