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Criminal Acquittal Appeal No. 96 of 1981, decided on 28th November, 1983.

-- Ss. 349-A, 417 & 561-A-Penal Code (XLV of 1860), Ss. 406 & 427-Withdrawal of appeal-Leave granted by High Court to file acquittal appeal which was admitted to regular hearing in a direct complaint case-Withdrawal of appeal sought by parties on account of their compromise in civil and criminal litigation-One of offences allegedly non-compoundable but trial Court recorded acquittal-- Besides compromise in civil suit parties patching up their differences in criminal case also-Appeal allowed to be withdrawn in view of special circumstances of case.-[Appeal against acquittal].

-- S. 417(2)-Special leave to appeal against acquittal-High Court, held, has ample power either to grant leave or to refuse.

Badrudduja for Appellant/Complainant.

Muhammad Ashraf Kazi for Respondent No. 1.

Abbas Farooqi for the State.

There is an application for withdrawl of case which is signed by the appellant and respondent No. 1 and these counsel. It is stated in this application that the parties have compromiser] in the civil suit as such the differences have been patched up and in the result attempt is made to withdraw this appeal result attempt is made to withdraw this appeal.

Briefly stated the relevant facts are that appellant Mst. Rashida Bivi is the landlady and respondent Abdul Karim is her tenant and there were differences between them over several matters arising from tenancy agreement and in that series apart from civil suit the landlady filed a direct complaint before magisterial Court for offences under sections 405, and 427, P. P. C. Preliminary inquiry was held in the direct complaint after which process was issued in the shape of bailable warrants. Respondent Abdul Karim appeared before the trial Court and filed appli cation under section 249-A, Cr. P. C. After hearing the parties the learned trial Magistrate allowed the said application in the result whereof respon dent Abdul Karim was acquitted.

Complainant Rashida Bibi then filed application under section 417(2), Cr. P. C. before the High Court seeking special leave to appeal from the order of the acquittal. Such leave was granted vide order dated 24th May, 1981 and in the result the appeal stands admitted and the High Court is seized of the matter.

The question that arises for consideration is that whether withdrawal can be allowed at this stage when acquittal appeal is pending. Several provisions have been quoted by the learned Advocates before us but they do not touch the point. Under section 417, Cr. P. C. also there is no provision for withdrawal once the leave is granted and acquittal appeal is admitted to regular hearing. Other provisions relate to trial proceedings where withdrawal from prosecution is allowed as is contemplated under section 494, Cr. P. C. This also will not apply to the facts of this case for the reason that it is not State case but there is a direct complaint. The second impediment is that out of the two offences alleged 406, P. P. C. is non-compoundable but other offence under section 427, P. P. C. is compoundable. In the circumstances, the question would arise whether withdrawal can be allowed on the basis of compromise in a case in which offence is non-compoundable.

Both Messrs Badrudduja and Muhammad Ashraf Kazi Advocates have explained the background that the parties have come to compromise and have sunk their differences. They have filed compromise in civil suit and they have patched up differences in the criminal case also, hence it will be in the interest of the parties that withdrawal be allowed. We see no other way out except invoking jurisdiction under section 561-A, Cr. P. C. In the special circumstances as stated above we allow the appellant complainant to withdraw this appeal. We are also impressed by the fact that this was direct complaint and respondent Abdul Karim was acquitted by the trial Magistrate and for filing acquittal appeal the law has con templated important prerequisite of filing petition for grant of special leave to appeal as envisaged under section 417(2), Cr. P. C. The High Court has ample power there either to grant special leave to appeal or to refuse it. In the circumstances, prayer for withdrawal of appeal is granted.

M.Y.H. Appeal withdrawn.

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