MUHAMMAD ASIF Versus SANOBIR KHAN
ORDER
1. ABDUL RASOOL MEMON, J.--- This appeal filed by the appellant is against the order dated 17.12.2012 passed by IXth Civil Judge and Judicial Magistrate, Karachi East (in J.M. Cr. Case No.884/2010) whereby accused, namely, Sanobir Khan, Khadim Hussain and Iqbal Billo were acquitted under section 249-A, Cr.P.C. On 24.10.2013 appellant filed this appeal along with an application under section 5 of the Limitation Act, 1908, cited above, for condonation of delay of 10 months (7) days. Learned counsel for the appellant was called upon to satisfy the court on the point of maintainability of appeal filed after prescribed period of limitation.
2. The learned counsel for the appellant has argued that after hearing parties on application under section 249-A, Cr.P.C., the order thereon was reserved and appellant was not informed about acquittal of the respondents, and even he was kept unaware by his counsel; and that when he came to know on 26.02.2013 obtained copies of impugned order and relevant dates and on 14.3.2013 filed a Cr. Misc. Application under section 561-A, Cr.P.C. wherein on 10.9.2013 sought time and later on filed instant appeal under section 417, Cr.P.C. with the application for condonation of delay. He further contended that delay can be condoned in acquittal appeal occurred if it is shown that appellant was kept out of knowledge of acquittal order. In support of his contention, he placed reliance on the case law reported in 2006 SCMR 12, 2002 SCMR 416, 2013 PCr.LJ 1264 and PLD 2009 SC 814.
2. Learned A.P.G. appearing for the State in rebuttal has submitted that this appeal is time-barred by more than (10) months and appellant has failed to explain the delay of a single day and even otherwise section 5 of the Limitation Act, 1908 is not applicable in acquittal appeal filed by a private person as contemplated under section 29(2)(a)(b) of Limitation Act, 1908. He has placed reliance on the case of Roshan v. Mohammad Saleh and 2 others (2008 MLD 187).
3. I have given my anxious consideration to the arguments and perused the material available on the record.
4. It is pertinent to note that in the first instance the appellant challenged the acquittal order through Cr. Misc. Application under section 561-A, Cr.P.C. after a delay of three months and thereafter on 24.10.2013 filed present acquittal appeal. From the perusal of impugned order, it reveals that after recording contention of parties' counsel the same was passed in presence of Mr. Saleem Abbas Soomro, ADPP for the State, Mr. Wazir Hussain Khoso, advocate for the complainant, Mr. Faqir Ghazi Darban Hisbani, advocate for the accused Khadim Hussain and Iqbal Billo and Ms.Ambir Nisar, advocates for accused Sanobir Khan. It indicates that after hearing the prosecution and defence counsel the order dated 17.12.2012 was passed which is the only essential requirement for passing order under section 249-A, Cr.P.C. as such, the explanation offered by the appellant for condonation of delay is not plausible for the reasons that a party has to be so conscious and fully vigilant in respect of his relief and in case of failure no one can be said to be responsible for his act and negligence. Unawareness is not a ground of condonation of delay as even delay of one day has not been condoned in an acquittal appeal, if any law is needed on this point, reliance may be placed on the case of Noor Hassan v. Muhammad Salim (1985 SCMR 893). Furthermore, it may be pointed out here that subsection (2-A) of section 417, Cr.P.C. was inserted by way of Act No.XIX of 1994 which for the first time provided right of appeal against the acquittal to an aggrieved person and so also the limitation of 30 days was prescribed in the said subsection to section 417, Cr.P.C. In this manner, the special limitation prescribed by Statute itself was not subject to the application of section 5 of the Limitation Act due to bar contained in section 29(2)(a) and (b) of the Limitation Act. None of the cases cited by the learned counsel for the appellant is in respect of application of section 5 of the Limitation Act to an appeal under section 417, Cr.P.C. and the bar contained in section 29(2)(a) and (b) of the Limitation Act, therefore the same are not applicable to this case.
5. In view of the above circumstances, when the legislature has not provided the benefit of section 5 of the Limitation Act due to bar contained in section 29(2)(a) and (b) of the Limitation Act, I do not find any merit in this application filed under section 5 of the Limitation Act which is accordingly dismissed and consequent upon dismissal of this application, the Criminal Acquittal Appeal as well as application under section 561-A, Cr.P.C. bearing Criminal Misc. Application No.80/2013 stand dismissed.
6. HBT/M-51/Sindh Appeal dismisse