ABDUL AZIZ Versus STATE

ORDER

1. NASIM HASAN SHAH, J.- -This order will dispose of Criminal Petition No. 380 of 1982 and Criminal Petition No. 387 of 1983 as both matters are inter-connected.

2. The Additional Sessions Judge Sahiwal vide order dated 7-1-1982 convicted Jamshaid son of Mumtaz Ali and Muhammad Akram son of Mumtaz Ali under section 302/34, P.P.C. and sentenced each of them to life imprisonment. The above convicts filed an appeal against this order (Cr.P. No. 39 of 1982). While this appeal was pending in the High Court, the complainant Abdul Aziz filed a revision petition (Criminal Revision No. 70 of 1982) praying for enhancement of the sentence to death. The said revision petition was filed in March, 1982 and came up in motion hearing on 7-3-1982 and again on 31-3-1982 but on each occasion adjournment was sought for non-availability of the counsel. It then came up for hearing on 27-6-1982, on which date the following order was passed:--

3. "This revision may be heard alongwith Criminal Appeal No.39/82 filed by the respondents Nos. 2 and 3."

4. It appears however, that Cr. Appeal No.39/82 had already been heard and disposed of on 12-5-1982 and wherein both the respondents were acquitted. Unfortunately Cr.R.P. No.70/82 not having been attached with the records of Cr. Appeal No.39/82, neither the learned counsel nor the learned Judge was conscious of the fact that the said Cr. Appeal 39/82 stood disposed of already.

5. The petitioner became aware of this fact on 26-9-1982 and applied for the copies of the judgment passed in the criminal appeal on the same day which were supplied to him on 18-10-1982. He then filed a petition for leave to appeal against the order of the High Court dated 12-5-1962 passed in the criminal appeal on 11-11-1982 (Cr.P.No.380/82). This petition is barred by 156 days.

6. In the meantime Cr.R.No.70/82 filed by the petitioner came up for hearing on 22-11-1983 and in view of the fact that the respondents whose enhancement of sentence was sought through the aforesaid revision stood acquitted already, it was found to have become infructuous and disposed of accordingly. The order of the High Court dated 22-11-1983 passed in Cr.R.No.70/82 is questioned by Cr.P.No.387/1983.

7. As far Cr.P.No.380/82 it is, as already pointed out, barred by 156 days. The learned counsel in support of his application for condonation of delay submits that the High Court Registry was at fault in not attaching the criminal revision filed by him alongwith the criminal appeal. The fact that neither the learned Judge nor the counsel were aware of the fate of the criminal appeal when the criminal revision was taken up for hearing on 27-6-1982, shows that the lack of knowledge of the date on which the order in the criminal appeal was passed, was bona fide and excusable.

8. Be that as it may it is an admitted fact that the petitioner had become aware of the order dated 12-5-1982 passed in the criminal appeal whereby the respondents were acquitted on 26-9-1982, and he had obtained the certified copies of the order on 18-10-1982. Since the petition for leave was already out of time, he could not waste any further time in filing the said petition for leave especially as it was a petition questioning the acquittal of the respondents. But no reasonable explanation, for not filing the aforesaid petition after the copies had been obtained on 18-10-1982, until 11-11-1982 has been furnished. The delay, therefore, cannot be excused.

9. Even otherwise the order passed by the High Court Judge acquitting the respondents, is a fair and proper order and does not require any interference.

10. So far Criminal Petition No.387 of 1983 is concerned' learned counsel concedes that it had become infructuous and its dismissal as such is not really questioned before us.

11. The result is that both the petitions fail and are dismissed hereby.

12. S. Q./A-128/5 Petitions dismissed.