SHAHID MANZOOR vs The STATE and others

ORDER

' JAMES JOSEPH, J.---Through this Criminal Miscellaneous learned counsel for the petitioner has sought the condonation of delay in filing of the appeal under section 417(2), Cr.P.C. Against the judgment dated 12-3-2014 passed by learned Magistrate Ist Class, Karor Lal Isan District Layyah in case FIR No, 287/2011 dated 8-6-2011 registered under section 489-F, P.P.C. Registered at Police Station Fatehpur District Layyah.

2. It is contended that precious rights of the appellant are at stake as respondents wilfully cheated the appellant and deprived him of a huge amount.

3. I have heard the learned counsel for the petitioner and have gone through the record.

4. The case was decided by the learned trial court on 12-3-2014 whereas the petitioner preferred the appeal on 15-4-2014 with a delay of three days. It is settled law that the delay in filing of the appeal against the acquittal is condoned only in those cases where the petitioner is prevented by an act of the accused person to file appeal in time. The delay can be condoned only when it is shown that the petitioner was actually kept out of knowledge or was prevented by some act of the respondents themselves to come before the court in time. After acquittal from the charge, the accused person acquires a very precious right, therefore, the law which interference with the acquittal must be strictly applied in favour of the accused. The reasons stated by the petitioner in support of application for condonation of delay are totally vague and the petitioner has failed to make out any case for condonation of delay in filing the appeal.

5. Furthermore subsection (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 subsection (2-A) of section 417, Cr.P.C. Provides time limit for filing appeal against acquittal as thirty (30) 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 therefore 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 in so far 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.

6. In view of the above I am 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 also been held in the cases titled as "Fakhar-ud-Din v. Fazal Karim and others" (1998 SCMR 795) and case titled "Aziz-urRehman Hamid v. Crescent Commercial Bank" (2008 SCM R 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. Reference can also be made on the case of "Messrs Pehlwan Marble Factory through Muhammad Asif v. The State and another"

(2011 PCr.LJ 200), "Abdul Ghaffar v. Muhammad Asif and another" (2011 PCr.LJ 441), "Muhammad Sharif and others v. The State and others" (2005 M LD 1333), "Toshan v. Muhammad Saleh and 2 others" (2008 M LD 187), "Sikandar v. Abdul Wahab and another" (1998 PCr.LJ 1950). In view of the above discussion the instant petition being devoid of any legal justification is hereby dismissed in limine.