' ABDUL MAJEED MALLICK, ACTG. J.-This appeal, by leave, is directed against the judgment of the High Court, dated 22-2-1978.
2. The case was registered against the respondents under sections 147, 447 and 379, P. C. On the allegation that the accused persons formed an unlawful assembly, trespassed in the land of the complainant, assaulted Mst. Gulzar Begum and thereby inflicted injuries on her and also robbed Muhammad Din, servant of the complainant, of a sum of Rs,
100. The trial Court found the accused guilty and sentenced them to fine in the sum of Rs, 2C0 each, under section 447, and two months R.
I. Under section 147, P. C. Respondents went up in appeal before the Sessions Judge, Poonch. The learned Sessions Judge disagreed with the findings of the trial Magistrate and acquitted the accused for want of proof. An appeal against acquittal was filed in the High Court. The learned Judges of the High Court did not concur with the findings of the Sessions Judge and on finding sufficient reason that respondents were guilty accepted the appeal and sentenced the respondents to imprisonment till rising of the Court under section 447, P. C. And to a fine of Rs, 300 each, under section 323, P. C.
3. The State feeling aggrieved of the findings of the High Court instituted a petition for leave to appeal for enhancement of sentence. The petition was instituted on 20th March, 1978. After hearing the learned Additional Advocate-General, representing the State, and learned counsel for the respondents, leave was granted to consider :-
(i) whether unconditional apology tendered by the respondents to the complainant (son of Gulzar Begum the injured lady) constituted a mitigating circumstance to award a sentence of imprisonment till rising of the Court under section 447, P, C.?
(ii)whether sentence awarded to the respondents could be enhanced?
4. The learned counsel for the parties had almost concluded the arguments when it transpired that the State appeal was incompetent and defective for want of proper Government sanction. The order of sanction placed on the record of this Court being ambiguous, it was felt advised to send for the file. On receipt of the file it was found that sanction was given on 26th of March, 1978, whereas the petition for leave to appeal was registered on 20th of March, 1978. The learned Additional Advocate-General was posed a question as to whether post-facto Government sanction validated the appeal? He, being apprehensive of the merits of his case, made a statement to the effect that he was not interested to persue the appeal and that he may be allowed to withdraw the same, His statement was recorded to that effect. On this Sardar Muhammad Yasin Khan, the learned counsel for the respondents, sought permission to address the Court and contended that as this Court was seized with the appeal, it was appropriate and in the interest of justice to give decision on merits instead of allowing withdrawal of appeal. In support of his contention, Sardar Muhammad Yasin Khan cited Ghulam Nabi Shah v. The Crown (1), Sikandar Hayat v. Ma and 5 others (2), Muhammad Ashiq Faqir v. The State (3), Mir Hassan v. Tariq Saeed. And 2 others (4) and Zulfikar Ali Bhutto v. The State (5).
5. It is evident that sanction of the Government for filing petition for leave to appeal was given on 26th of March, 1978, whereas the limitation expired on 24th March, 1978. If the petition for leave to appeal is given effect from the date of grant of sanction then it is two days beyond time.
6. Under the rules a petition for leave to appeal beyond time is liable to rejection summarily, in absence of sufficient cause. In case the defect of sanction was discovered at the time of disposal of the petition, the Court might have rejected the petition on the ground of limitation. But on grant of leave the position is entirely changed. It shall be deemed that whatever, the defect was, it has been condoned by the Court by implication. The effect of post-facto sanction is that it shall be deemed that petition was registered on 26th March and delay of two days was extended.
7. Under the Code of Criminal Procedure when an appeal is not summarily dismissed and is admitted for hearing, section 423 enjoined upon the Court to dispose of the appeal on merits. The section admits of no exception. c Failure to prosecute or absence of the prosecutor cannot be a cause for dismissal of appeal. Likewise, permission for withdrawal of appeal cannot be allowed. To fortify the view reference may be made to `Zulfigar Ali Bhutto v. The State, wherein Mian Abbas, one of the convict appellants, conveyed the Court through his counsel that he pleaded guilty and requested permission for withdrawal of his appeal. The learned Judges disallowed the prayer and decided the appeal on merits. In Sikandar Hayat v. Ata and 5 others' the complainant, who preferred an appeal against acquittal, later on compromised with accused-respondents and sought permission of the Court to withdraw his appeal. The request was seriously opposed and rejected. The appeal was, consequently, disposed of by the Court on its merits.
' Apart from section 423 we find no scope of allowing withdrawal of criminal appeal, under Supreme Court Rules. Rule 4 of Order XLIII of the Supreme Court Rules empowers the Court to pass any decree and make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Rule 5, provides that nothing in the rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary in the ends of justice or to prevent abuse of the process of the Court.
The aforesaid rules coupled with section 42-A of the Interim Constitution Act, 1974, enjoined upon the Court to issue such directions, orders or decree as may be necessary for doing complete justice in any case or matter pending before it.
8. Section 42-A of the Interim Constitution Act, 1974, and rules 4 and 5 of Order XLIII of the Supreme Court Rules empower the Court to grant {FOONOTE}}
(1) 1969 SCM R 629 (2) PLD 1970 SC 224
(3) PLD 1970 SC 177 (4) PLD 1977 SC 451
(5) PLD.1979 SC 53 ' leave to appeal when the order sought to be impeached involves a substantial question of law or its scrutiny in necessitated for doing complete justice. In view of this principle it is duty of this Court not to entertain any prayer for withdrawal of criminal appeals but to decide the same on merits.
9. After dealing with the point of permission for withdrawal of criminal appeal, next we take up the points raised in the appeal. The first point relates to the effect of apology tendered by the respondents to the complainant. The learned Judges of the High Court in consideration of the apology convicted and sentenced the respondents to imprisonment till rising of the Court, under section 447 of Penal Code. One of the charges against the respondents is that they trespassed in the land of the complainant and were liable for criminal trespass. Offence of criminal trespass, under section 447, is compoundable. The complainant, who is alleged to be the owner in possession of the land, scene of incident, is competent to compound the offence. When an unconditional apology is tendered it reflects the impression that it was done on the assurance and satisfaction that offence was pardoned by the complainant. In or view, tendering of apology by itself was sufficient to acquit the respondent instead of awarding sentence of imprisonment till rising of the Court.
' The other aspect of the case is that the offence was not pardoned by the complainant on tendering of apology by the respondents. In that case, it is suggested, that tendering of apology by itself amounts to confession. We do not agree with this suggestion as the learned Judges of the High Court, before whom apology was tendered, did not gather such intention. Therefore, from the facts, appearing in the judgment, we safely conclude that apology was tendered to redress grievance of the complainant.
10. The next point requiring or decision relates to enhancement of sentence, awarded to the respondents under section 323, Penal Code. While dealing with this point it is considered expedient to dispose of the objection of Mr. Yasin Khan in the same course of discussion. Mr. Yasin Khan contended that conviction of the respondents, under section 323, P. C., was bad in law as the respondents were not charged for an offence under section 323, P. C. Our reply to this objection is in negative. It is evident from, the F. I. R. And police report, under section 173, Cr.. P. C., that allegation of causing hurt, to Mst. Gulzar Begum, was made expressly. The respondents were examined twice in the trial Court, once under section 242 and secondly under section 342, Cr. P. C. On both the occasions accusation of causing hurt to Mst. Gulzar Begum was levelled against them. Apart from charging the respondents for the accusation of causing hurt, we find that the allegation was proved to the extent of Muhammad Nazir Khan. Mst. Gulzar Begum testified that she received injury from Muhammad Nazir Khan. Her testimony was corroborated by Muhammad Din, an eye-witness, and medical evidence.
We do not feel persuaded to order enhancement of sentence of fine in view of the nature of the hurt and time spent in conclusion of proceedings up to this Court. In addition to that the fact of tendering apology to the complainant can also be not ignored. In or view the sentence of fine awarded to the extent of Muhammad Nazir Khan is adequate to meet the ends of justice.
11. On perusal of the record we have discovered that conviction of Muhammad Amir Khan cannot be maintained. Mst. Gulzar Begum assigned no injury to Muhammad Amir Khan. At the best Muhammad Amir Khan was shown to be present alongwith other accused persons at the scene of occurrence. In absence of evidence in support of accusation of causing hurt conviction is not sustainable. The learned Judges of the High Court lost sight on this aspect of the case and on the assumption that appeal against acquittal was lodged against both the respondents awarded conviction to Muhammad Amir Khan alongwith Muhammad Nazir Khan. Therefore, the conviction of Muhammad Amir Khan is set aside. The amount of fine deposited by him shall be remitted under law.
' In view of the aforesaid observations it is held that the finding of the High Court is maintained to the extent of Muhammad Nazir Khan. The conviction of Muhammad Amir Khan is set aside.
Nevertheless, conviction of the respondents under section 447 is changed into acquittal. The appeal is disposed of accordingly.