Haji MUHAMMAD ASHRAF vs THE STATE and 3 others

ORDER

1. ' By this appeal the appellant Haji Muhammad Ashraf has challenged the judgment dated 16-8- 1995, passed by the learned Civil Judge and F.C.M. Golarchi, whereby the learned Magistrate has acquitted the respondent/accused Abdul Salam, Muhammad Saleem and Shoukat alias Guddo in a Case bearing No,86 of 1995.

2. ' The appellant/complainant had lodged F.I.R. No, 19 of 1995 on 28-4-1994 at 6.00 p.m. At Golarchi Police Station, District Badin, under sections 504, 34, 292 and 506 (2), P.P.C. Read with section 12 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979. The respondents/accused named above were tried by the learned Civil Judge and F.C.M. Golarchi and by the impugned judgment all of the respondents/accused have been acquitted.

3. ' The appellant challenged the acquittal in this Court on 7-1-1996 by filing Criminal Revision Application No,3 of 1996 under section 439, Cr. P.0 .

4. ' The above criminal revision application was placed for Katcha Peshi on 2-2-1997 before my learned brother Rana Bhagwandas, J., when it was pointed out to the learned counsel appearing for the appellant that the revision under section 439, Cr.P.C. Was not maintainable in view of bar contained under sub-clause (5) of section 439, Cr.P.C. As the appellant failed to avail of the right of appeal provided by law. On being confronted with this situation Syed Farooqul Hasan Jilani, the learned counsel for the appellant, did not press the said revision application and it was disposed of with the observation that the appellant would be at liberty to file an acquittal appeal, if so, permitted by law.

5. ' The appellant has now filed the present acquittal appeal in this Court on 20-2-1997 against the impugned judgment of acquittal dated 16-8-1995.

6. ' In pursuance of the order of notices to the respondents 2 to 4, Mr. Zainul Abedin Mirza, Advocate, has appeared for the said respondents/accused. '

7. ' The appellant also filed application under section 5 of the Limitation Act (M.A. 105/1997) praying therein for condonation of delay in filing this appeal.

8. ' I have heard Syed Farooqul Hasan Jilani, learned counsel for the appellant and Mr. Zainul Abedin Mirza, learned counsel for the respondents 2 to 4 as well as Mr. Ali Azher Tunio, learned A.A.-G., for the State on the point of limitation in the first instance.

9. ' Syed Farooqul Hasan Jilani, learned Advocate for the appellant contended that the appellant had first filed revision under section 439, Cr.P.C. Against the acquittal of the respondents 2 to 4 in this Court on 7-1-1996, which was not pressed and disposed of with the observation and permission to file appeal, if so permitted by law. Accordingly, the appeal has been preferred as soon as copy of the order of this Court dated 2-2-1997 was received by his client.

10. ' The learned counsel for the appellant further contended that the appellant as well as his counsel were unaware of latest amendments made in 417 of Cr.P.C., as such appellant filed this acquittal appeal within the time prescribed by law. He submitted that the appellant has given sufficient cause for delay in filing the appeal. He, therefore, urged that the appeal may be admitted and decided on merit after condoning the delay in filing thereof.

11. ' The learned counsel for the appellant has placed reliance upon, the cases of Pakistan Post Office v. Settlement Commissioner and others (1987 SCM R 1119), Province of Punjab v. Deputy Settlement Commissioner and others (1991 SCM R 1592) and Muhammad Ibrahim v. S.H.O. 1990 PCr.LJ 1717.

12. ' On the other hand, learned counsel for the respondents/accused and learned A.A.-G. For the State have opposed the application under section 5 to the Limitation Act and they contended that the impugned judgment was passed on 16-8-1995 while the appeal has been filed on 20-2-1997, which is hopelessly time-barred. They further contended that no sufficient cause has been shown by the appellant for such a gross delay in filing this appeal.

13. ' I have heard the learned counsel for the parties and have also perused the impugned judgment.

14. ' Previously a private party had no right of appeal against the acquittal. This right was, however, provided to an aggrieved person after the promulgation of Act XX of 1994, which came in force on 14-11-1994, whereby section 2-A was inserted in section 417, Cr.P.C. Which prescribed a period of thirty days to file appeal against acquittal.

15. ' The sole question for consideration in this case is whether aplication under section 5 of Limitation Act is maintainable and whether this Court is competent to condone delay in filing this acquittal appeal and to entertain such appeal beyond the prescribed period of thirty days, as envisaged under section 2-A of section 417, Cr.P.C. The answer will be in the negative for the reason that the period of thirty days for filing such appeal against acquittal has not been prescribed under the Limitation Act but by section 417, of Cr.P.C. Itself and section 5 of Limitation Act cannot be made applicable to such appeals which are filed under the provisions of section 2-A of section 417, Cr.P.C.

16. In this respect the provisions of section 29 of Limitation Act are fully attracted. For the sake of ready reference the relevant part of section 29 of the said Act is reproduced hereinbelow:-- "29. (1) ............................................

(2) Where any special or local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed therefor 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 in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

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

17. In the case of The State v. Zahid Hussain (1990 SCM R 164) it was held by Hob'ble Supreme Court that where period of limitation is prescribed by a special law or of local law and it is different from the one in the Limitation Act, the period prescribed in special or local law will prevail over that of the Limitation Act.

18. ' In the case of Abdul Ghaffar and others v. Mst. Mumtaz (PLD 1982 SC 88), the Hon'ble Supreme Court in an appeal under section 21 of Sindh Rented Premises Ordinance, 1979, held, that clauses

(a) and (b) of section 29 (2) of Limitation Act excluded section 5 of Limitation Act in so far as appeals under Sindh Rented Premises Ordinance, 1979 were concerned.

19. ' In the case of Messrs Muqtada Khan Iqtida Khan v. Allah Rakhi Begum (1981 CLC 568) a Division Bench of this Court held as under :- "28. On a consideration of the case-law on the subject and in appreciation of the plain terms of section 15(4) of the Ordinance as well as section 29(2) of the Limitation Act, we are in no doubt whatsoever that section 5 of the Limitation Act which provides for a power to condone the delay in filing second appeals before the High Court is not applicable. In the result, the second appeal before this Court was clearly barred by time."

20. ' In the case of Mukhtiar Ahmad v. Member (Relief and Settlement) Board of Revenue, Hyderabad and 4 others (1984 CLC 1724) a Division Bench of this Court held that Land Revenue Act is a special law providing its own period of limitation for appeal, therefore, delay could not be condoned under section 5 of Limitation Act, 1908.

21. For all the above reasons and upon consideration of above precedent case law, I am of the view that section 5 of the Limitation Act is not applicable to acquittal appeals filed under section 2-A of section 417, Cr.P.C., in view of bar contained under section 29(2)(a) and (b) of Limitation Act. This Court is, thus, not competent to condone delay in filing this appeal against acquittal of respondents/accused.

22. Even needless to say that on merit, the appellant has no case for condonation of delay. He has not assigned any sufficient cause for condoning the dely. The ground that the appellant and his counsel were not aware of the amended provisions of section 2-A of section 417, Cr.P.C. Is no ground worth considering. It is well-settled that ignorance of law is no excuse. In this context I am also fortified by the decision in case of Muhammad Ibrahim v. S.H.O. (1990 P Cr.LJ 1717) quoted by the learned counsel.

23. Admittedly, the respondents 2 to 4 were acquitted by the trial Court on 16-8-1995 and present appeal has been presented on 20-2-1997. Appeal under section 2-A of section 417, Cr.P.C. Is to be filed within thirty days. The present appeal is, thus, delayed by more than one year and six months Even, revision application under section 439, Cr.P.C., which was filed on 7-1-1996, could not have been converted into appeal as it was also filed beyond the period prescribed under section 2-A of section 417, Cr.P.C.

24. It is well-settled that for the purpose of condonation of delay appellant has to explain delay of each day. Reference can be made to the case of I E Government of the Punjab and another v.

25. Muhammad Saleem (PLD 1995 SC 396) and the case of N.-W.F.P. Through Chief Secretary and another v. Mst. Hussan Pari and others (PLD 1988 SC 144). In the circumstances, filing of revision application under section 439, Cr.P.C. And its withdrawal on 2-2-1997 also will not advance the case of the appellant.

26. ' The case law cited by the learned counsel for the appellant is with regard to laches in filing the Constitutional petition. It is not of any help to him.

27. The upshot of the above discussion is that application under section 5 of the Limitation Act is not maintainable and this Court cannot condone the delay in filing this appeal. The appeal, as stated above, is hopelessly time barred.

28. For the reasons stated above, the application under section 5 of the Limitation Act is dismissed and, consequently, Acquittal Appeal No,12 of 1997 is also dismissed.