IRFAN ASHIQ vs GENERAL MANAGER, KUNDIAN NUCLEAR COMPLEX

MIANBURHANUDDIN KHAN, J.-- Petitioner Irfan Ashiq was posted in the Kundian Nuclear Complex.

On 3-3-1980 he applied for 24 days leave from 4-3-1980 to 27-3-1980 and proceeded on leave without sanction of the competent authority. He was telegraphically informed on 1-4-1980 to resume duty immediately and a registered letter was also addressed to him on 9-4-1980 in this connection and he was finally directed on 23-4-1980 to report for duty by 30-4-1980 and it was indicated that if he failed to do so, action under Pakistan Essential Services (Maintenance) Act, 1952 would be taken. In spite of this the petitioner failed to resume duty by 30-4-1980.

Since the petitioner failed to comply with the lawful order given in the course of his employment, and thus committed an offence under the aforesaid Act, complaint was filed against him by the General Manager, Nuclear Complex, Kundian, District Mianwali with Magistrate, First Class, Mianwali under section 7(3) read with section 5 (i)(a) and section 5 (1) (b) of the Act. The M.I. C. , vide his order, dated 10-8-1981 acquitted the accused petitioner. The respondent filed petition for special leave to appeal in the Lahore High Court under section 417(2), Cr.P.C. To which objection was taken that the petitioner was time-barred.

2. The learned High Court Judge converted the petition for special leave to appeal into appeal and held that after excluding the time requisite for obtaining the copy of the order of the learned Magistrate, in accordance with the provisions of section 12 of the Limitation Act, the petition for special leave to appeal was within time. The learned Judge further observed that the order of the M.I. C was without any legal sanction behind it as the learned Magistrate was on leave on 22-7-1981 and as such there was no justification for requiring the prosecution to produce its evidence on 10- 8-1981. The learned Judge, therefore, accepted the appeal; set aside the order of acquittal dated 10-8-1981, and remanded the case for retrial in accordance with law, vide his order, dated 18-2- 1986 which was impugned before this Court in C.P.L.A. No. 110 of 1986 on the grounds that the Petition for Special Leave to Appeal before the High Court was not within time and, therefore, the petition should have been dismissed because under subsection (3) of section 417, Cr.P.C. The High Court is not to entertain any application for special leave to appeal if it is filed after the expiry of 60 days; that the Magistrate at Mianwali acquitted the petitioner vide his order dated 10-8-1981 and an application for obtaining certified copy of the order was made on the same date. The copy was ready on 20-9-1981, but was obtained on 26-9-1981, and, therefore, the Petition for Special Leave to Appeal before the High Court was obviously time---barred and since no application had been filed for condonation of delay, the same deserved to be dismissed; that the learned High Court Judge only mentioned that the application for special leave to appeal was within time but did not refer to or consider the different crucial dates to find out whether the application was, in fact, within time.

Leave was granted per order dated 22-6-1986 to consider the question of limitation

3. Hearing the learned counsel for the parties, we find that in fact the petition for special leave to appeal before the High Court was barred by one day as per calculation made by us. The impugned order is set aside. Appeal allowed.