1990 PLP 206 (MLD)

Malik Rabnawaz Noon for Respondents Nos.3 to

4. Ch. Muhammad Akram for the State. Date of hearing: 4th October, 1989. This appeal through petition for Special Leave to Appeal, assails the order dated 8‑3‑1986, whereby the learned Magistrate acquitted the accused respondents under section 249‑A, Cr.P.C of the charge under section 500 P.P.C.

2. The facts relevant for the disposal of the present appeal are that the appellant filed a private complaint against respondents Nos. 1 to 4, under section 500/501, P.P.C on 5‑4‑1983, in the Court of S.D.M. Kahuta. The learned Magistrate after entertaining the complaint recorded the evidence of the complainant and then sent the complaint to the Tehsildar Kahuta, for inquiry. Consequently, the learned Magistrates vide his order dated 17‑11‑1984, summoned the respondents for the offence under section 500, P.P.C.

3. From the record, it appears that respondents Nos. 1 and 2 never appeared before the trial Magistrate, but respondents Nos. 3 and 4 moved an application under section 249‑A, Cr.P.C. on 23‑2‑1985, for their acquittal, on the grounds; that there is inordinate delay in lodging the complaint; that no case is made out under section 500, P.P.C. and there is background of enmity and civil litigation between the parties, the petitioners published the resolution passed by the Markaz Council Kahuta and as such the respondents are entitled to acquittal without any further proceedings. It would be pertinent to note here that respondent Nos. 1 and 2 did not move an application under section 249‑A, Cr.P.C., nor they appeared before the trial Court. The learned Magistrate after hearing the learned counsel for the parties, acquitted respondents Nos.3 and 4 vide his order dated 8‑3‑1986.

4. The order dated 8‑3‑1986, was challenged before the learned Sessions Judge in revision and the same was dismissed by the learned Additional Sessions Judge, Rawalpindi, vide his order dated 16‑6‑1986, on the ground that a revision is not competent before the Sessions Court under section 439(5), Cr.P.C., against the order of acquittal passed in a private complaint, that an appeal is competent under section 417(2), Cr.P.C. before this Court. The appellant filed a Petition for Special Leave to Appeal before this Court on 24‑6‑1986, which was converted into appeal and notices were issued to the respondents.

5. The learned counsel for the respondents has taken up a preliminary objection that this appeal is barred by time, the Limitation Act is not applicable and delay cannot be condoned under section 5 of the Act, although there is a petition for condonation of delay.

6. I have heard the learned counsel for the parties, on this point, from the perusal of the record it appears that the petition for special leave to appeal is barred by 11 days, the delay has been properly explained in the application for condonation of delay under section 5 of the Limitation Act. The learned counsel for the appellant has also placed reliance on section 14 of the Limitation Act and submitted that the time bona fide consumed in pursuing a case in the wrong forum must be excluded while computing the time for filing the petition for special leave to appeal under section 417(2) Cr.P.C. The learned counsel submitted that Limitation Act is applicable and has placed reliance on Putchalapalli Venkats Subbareddi v. Duvvuru Papireddi and another (A I R 1957 Andh. Pra. 406), wherein in similar circumstances it was laid down that Limitation Act applies to the Code of Criminal Procedure, because the Code is a general law relating to procedure and not a special law within the meaning of section 29 of the Limitation Act. It was also laid down that as section 5 of the Limitation Act applies to appeals, it equally applies to all applications for leave to appeal, whether provided under Schedule I of the Limitation Act or not. It is only in respect of applications other than applications for leave to appeal or for review of judgment that the terms of section 5 should be specially made applicable. Hence the terms of section 5 are applicable to applications for special leave under the new section 417(4), Cr.P.C. 417(2) of Pakistan Cr.P.C). Similar view was taken In re: Viswanathan Chettar (A I R 1957 Mad. 300). The learned counsel for the appellant has also placed reliance on Sardar Ismail Khan v. Sardar Bagga Khan (P L D 1975 Azad J & K 14) to contend that wrong advice of counsel is sufficient ground for the condonation of delay under section 5 of the Limitation Act. It was further held that the appellant is entitled to deduction of period spent in wrong Court.

7. On the factual side, the learned counsel for the appellant submitted, that learned trial Court has committed gross illegality by acquitting all the respondents on a petition under section 249‑A, Cr. P C, which was only moved by respondents Nos. 3 and

4. The learned trial Court should not have acquitted the respondents, because on the same evidence, the trial Court has issued process against the respondents, thereafter, there was no fresh material with the trial Court, on the basis of which order under section 249‑A, Cr.P.C. could be passed, hence the whole proceedings are coram non judice and the order is nullity in the eye of law. He has placed reliance on 1985 P Cr. L J 929 (1313), in which their Lordships held that after the issuance of process in a case, the Magistrate cannot review his own order under section 249‑A; Cr.P.C. and the whole exercise would be exercise in futility. Similar view was taken in Loung Khan v. Muhammad Jumman 1982 P. Cr. L J 1039 and Mazhar Ali v. Ali Khan 1984 P Cr. L J 354.

8. The learned counsel for the respondents has placed reliance on Irfan Ashiq vs. General Manager (1987 S C M R 751) that delay, should not be condoned in appeal against acquittal.

9. On merits, the learned counsel for, the respondents submitted that no case is made out against the respondents, as they published the resolution passed by the Markaz Council Kahuta, in good faith, in the public interest after verifying the contents of the resolution, without malice or motive.

10. The learned counsel for the respondents could not controvert the assertion of the learned counsel for the appellant, that the application under section 249‑A, Cr.P.C. was moved by respondents Nos.3 and 4 for their acquittal and respondents Nos.l and 2 did not move any such application:

11. I have given my anxious consideration to the various contentions raised at the Bar with regard to delay in filing the appeal, the appellant is entitled to deduction of period spent in wrong Court, because he immediately filed the petition for special leave in this Court after the decision by the learned Additional Sessions Judge and there was no carelessness on his part and if the period spent in the wrong Court is excluded the appeal is within time. There is thus no substance in the contention of the learned counsel for the respondents that the appeal is time‑barred. I also find that the respondents have no case even on merits, because as held in 1985 P Cr. L J 929 (1313), the trial Court could not pass the impugned order without bringing on record the fresh material as review is not permissible under the provisions of the Code of Criminal Procedure. The impugned order also suffers from another patent illegality, as by order under appeal, the trial Court alto acquitted respondents Nos.l and 2 who had not moved any application under section 249‑A, Cr. P C. which shows that the order under appeal has been passed without the application of mind by the trial Magistrate.

12. The upshot of the above discussion is that this appeal is accepted and the impugned order dared 8‑3‑1986, is set aside, being not sustainable in law. The case is remanded to the trial Court with the direction that he should take up the proceedings afresh from the stage at which the order dated 8‑3‑1986, was passed under section 249‑A, Cr.P.C. The parties are directed to appear before the A.C./S.D.M. Kahuta, on 8‑11‑1989, for further proceedings in accordance with law. N.H.Q./M 1611/L Case remanded.