Maj (R) QAMAR-UD-DIN vs MUHAMMAD IQBAL
The petitioner filed an appeal against the acquittal of respondent No. 2 under Section 489-F of the Pakistan Penal Code 1860, along with an application under Section 5 of the Limitation Act 1908 for condonation of delay. The judgment of acquittal was rendered by the Judicial Magistrate on 06.06.2009, while the appeal was filed on 05.11.2009, rendering it barred by limitation. The core legal question was whether the delay in filing an appeal against acquittal could be condoned under Section 5 of the Limitation Act 1908 and whether sufficient cause was shown. The Lahore High Court held that Section 5 of the Limitation Act 1908 is not available for filing an appeal against acquittal under Section 417(2-A) of the Code of Criminal Procedure 1898, and that the appellant failed to explain each day's delay or provide sound reasons for condonation. Consequently, the application for condonation of delay was dismissed in limine as hopelessly time-barred.
- Whether Section 5 of the Limitation Act is applicable for condonation of delay in filing an appeal against acquittal under Section 417(2-A) of the Code of Criminal Procedure?
- Does an appellant in an appeal against acquittal have to explain each and every day of delay?
- Can an application for condonation of delay be dismissed in limine if no sound reasons are provided?
- Section 489-F, Pakistan Penal Code 1860
- Section 417(2-A), Code of Criminal Procedure 1898
- Section 5, Limitation Act 1908
- Section 342, Code of Criminal Procedure 1898
ORDER
Respondent No, 2 Muhammad Iqbal son of Wali Muhammad faced trial in case FIR No, 264 dated 28.5.2004, registered with Police Station Mumtazabad, Multan, for an offence under Section 489-F, PPC, and the Judicial Magistrate, Multan, at the conclusion of the trial vide judgment dated 06.06.2006 acquitted him of the charge. The petitioner-complainant filed an appeal on 05.11.2009 under Section 417(2-A), Cr.P.C. against the said acquittal order, which is barred by limitation. He has filed the instant application under Section 5 of the Limitation Act, for condonation of delay, which is going to be decided now through this order.
2. Brief facts of the case are that on the application of the Maj. (Rtd) Qamar-ud-Din/petitioner, recovery officer, Fatima Enterprises Limited, Mumtazabad, case was registered with the allegation that the respondent had been dealing with the Mills for the purchase of ghee and he distributed it to his relative Muhammad Anwar and subsequently he relinquished the business. The accused about two years prior to the registration of the case had given a cheque; the accused could not pay the amount before April, 2004, therefore the cheque was tried to be encashed, which on presentation to the concerned bank was bounced.
3. During investigation the respondent was found guilty and challan was submitted. Charge was framed against him to which he pleaded not guilty and claimed trial.
4. Prosecution in support of its case produced six witness in all. In the statement of the accused under Section 342 Cr.P.C, he pleaded his innocence.
5. In support of the application for condonation of delay, the learned counsel contends that as the circumstances were out of the control of the appellant-petitioner so appeal could not be filed within the prescribed period of 30 days.
6. At the very out-set, learned counsel has to face the question of limitation. The judgment of acquittal was passed on 06.06.2009, whereas the appeal against the said judgment was filed on 05.11.2009, whereas it should have been filed within 30 days of the impugned judgment. It is an appeal against acquittal wherein presumption of double innocence is available to the accused. In the appeal against acquittal the appellant has to explain and give the reasons for each and every day for filing the appeal if it is time barred. In appeal against conviction the delay is condoned favourably. Although application under Section 5 of the Limitation Act has been filed along with the appeal, but no sound reasons have been given for filing the appeal with delay and for condonation of delay. Further, condonation of delay under Section 5 of the Limitation Act is not available for filing appeal against acquittal under Section 417(2A), Cr.P.C. Reference may be made to the case reported as Roshan us. Muhammad Saleh and 2 others (2008 M LD 187 Karachi).
7. The appeal is hopelessly time barred. There is no sound ground to condone the delay in filing the appeal. Therefore, this application is dismissed in limine.