HUSSAIN BAKHSH vs ALLAH BAKHSH ETC

ORDER

1. ANWARUL HAQ, C. J.-This petition seeks leave to appeal against the judgment of a learned Judge of the Lahore High Court dated the 23rd of April, 1980, whereby convictions recorded against the six respondents by the Sessions Judge, Dera Ghazi Khan, for the murder of one Hussain, were set aside.

2. Respondents Allu, Musa and Rahim were acquitted altogether; whereas respondents Pira, Bakhsh and Karam were instead convicted under section 304-I of the Pakistan Penal Code, and each of them was sentenced to undergo rigorous imprisonment for five years, and also to pay a fire in the sum of Rs. 3,000, out of which compensation was to be paid to the heirs of the deceased. The learned Judge held that the accused persons had acted in the exercise of their right of self- defence, but the three respon--dents just named had exceeded this right. The petitioner seeks leave to appeal against this order.

3. The petition is barred by three days, and the explanation furnished for this delay is that although the petition was ready to be filed in this Court on the 2nd of June, 1980, which was the last day of limitation, but on day it was discovered that the certified copy of the grounds of the criminal appeal, which was necessary to be filed along with this petition, was not on the record; and an application was, therefore, made on the same day the 2nd of June, 1980, and the present petition was filed three days later on the 5th of June, 1980, after obtaining the same. It is asserted on behalf of the petitioner that there was no lack of diligence or bona fides on his part; and that at best it was a bona fide mistake on the part of his Advocate---on-Record or his counsel.

4. We are afraid that the reasons given by the learned counsel for condo nation of delay cannot be accepted. The rules of this Court clearly provide that a petition for special leave to appeal should contain a certified copy of the grounds of appeal in the High Court. The learned Advocate---on- Record as well as the counsel for the petitioner should have known this rule, or could have ascertained the same if they had taken the trouble of perusing the rules of this Court. It is clear, therefore, that it is not a case where it can be said that there was any bona fide mistake on their part; on the contrary they appeared to have acted without due diligence.

5. It must also be stated that it has been the consistent view of this Court, as expressed in Nazar v. The State (1968 SCMR 71), Jalal Khan v. Lakhmir (1968 SCMR 1345), Muhammad Khan v: Sultan (1969 SCMR 82), Piran Ditta v. The State (1970 SCMR 282), and Nur Muhammad v. The State (1972 SCMR 331), that in petitions against acquittal delay cannot be condoned unless it is shown that the petitioner was precluded from filing his petition in time due to some act of the acquitted respondents; or by some, circumstance of a compelling nature; beyond the petitioner's control. The reason for taking the strict view is that in most jurisdictions an acquittal, once record by a competent Court is final, and the matter cannot be reopened at the instance of any party including the State. However under our law, a acquittal can be challenged in certain circumstances, but if it is not challenged within the period allowed by law, it becomes final. In these circumstances is only just and proper that a petition against acquittal must not be entertained if it is filed' beyond time, unless it be shown that the petitioner was prevented from moving the wine by an act of the acquitted accused; or by some circumstance of a compelling nature beyond the control of the petitioner.

6. Now, in the present case, these requirements are not fulfilled; on the contrary we have found that the delay could easily have been avoided in the petitioner and his lawyer, had acted with due diligence in accordance with the rules of this Court.

7. As a result, the petition-fails and is hereby dismissed as being barred by time.