Nasar Hayat vs Waseem Iqbal And Other

ORDER

Nasar Hayat, petitioner, has filed this petition under Section 5 of the Limitation Act, 1908 for condonation of delay in filing of appeal under Section 417(2A), Cr.P.C, against the judgment dated 4.9.2009 passed by the learned Sessions Judge, Khushab in case F.I.R. No. 8, dated 10.11.2008 registered under Sections 302/34, PPC at Police Station, Mitha Tiwana, District Khushab.

2. Learned counsel for the petitioner has contended that the precious rights of the appellant are at stake as respondent No. 1 Waseem Iqbal, is an accused of the murder of his Behnoi Wali Muhammad and if the appeal is not decided on merits it would go scot-free from prosecution. The delay in filing of appeal is neither intentional nor deliberate, It could not be filed due to the negligence of the clerk of Mr. Muhammad Asghar Khan Rokhari, learned Advocate, who drafted the appeal, signed the same and directed his clerk to file it, who did not file the same within time.

Therefore, the delay in filing appeal is liable to be condoned under Section 5 of the Limitation Act, 1908. Learned counsel for the petitioner has relied on Taiq . Mahmood v. Mehfooz Hussain and 3 others (2005 P.Cr.L.J. 1747), Muhammad Sharif v. Jamshed Ali and others (PLD 1996 Lahore 471), Mst.

Zeenat Sultan v. Mumtaz Khan and 9 others (PLD 1994 SC 667) and Hussain Bakhsh v. Allah Bakhsh, etc. (PLJ 1981 SC 619), 2009 P.Cr.L.J. 199 (FSC).

3. We have heard the learned counsel for the petitioner and perused the available record.

4. The case was decided on 4.9.2009 whereas the appeal has been preferred on 5.7.2011 after the delay of more than one and a half year.

5. It is settled law that the delay in filing the appeal against the acquittal is condoned only in those cases where the petitioner is prevented by an at of the accused person to file the petition for special leave to appeal in time. The delay can be condoned only when it is shown that the petitioner was actually kept of of knowledge or was prevented by some at of the respondents themselves to come before the Court in time. The right to life is the basic right that human beings possess. Once a charge for a capital offence, duly tried, results in acquittal, the accused person acquires a very precious right and he should not therefore be put in jeopardy of his life by an appeal filed of of time and the law which enables interference with the acquittal must be strictly applied in favour of the accused person. The reasons stated by the petitioner in support of application for condonation of delay are totally vague and the petitioner has failed to make of any case for condonation of delay in filing the appeal.

6. Furthermore, sub-section (2-A) of Section 417, Cr.P.C, has been inserted vide Act XX of 1994, dated 14.11.1994 at the time when provisions of Section 5 of Limitation Act, 1908 were in existence. A bare reading of sub-section (2-A) of Section 417, Cr.P.C, expressly provides time limit for filing appeal against acquittal as thirty days. Section 29(2) of Limitation Act, 1908 reads as under:-

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:-

(a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only insofar as, and to the extent of which they are not expressly excluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply.

7. We are of the considered view that in the presence of bar mentioned-above, the provisions-Of Section 5 of the Limitation Act are not applicable to the appeals against acquittal, it has been held in the cases of Fakhar-ud- Din v. Fazal Karim and others (1999 SGMR 795) and Aziz- ur-Rehman Hamid v. Crescent Commercial Bank (2008 SCMR 54) that application under Section 5 of the Limitation Act, 1908 is not maintainable in appeal against acquittal and the same principle has been followed by the Courts, therefore, we respectfully refer the cases of Messrs Pehlwan Marble Factory through Muhammad Asif v. The State and another (2011 P.Cr.L.J. 200), Abdul Ghaffar v.

Muhammad Asif and another (2011 P.Cr.L.J. 441), Muhammad Sharif and others v. The State and others (2005 MLD 1333), Toshan v. Muhammad Saleh and others (2008 MLD 187), Sikandar v. Abdul Wahab and others (1998 P.Cr.L.J. 1950). In view of well-settled legal position discussed above, the instant petition being devoid of any legal justification is hereby dismissed in limine.