2014 PLP 671 (SCMR)

ANWAR ZAHEER JAMALI, J.

Through Criminal Acquittal Appeal No.111 of 2012, filed on behalf of the State against the judgment dated 7-10-2011, in Sessions Case No.207 of 2004, passed by the Court of IIIrd Additional Sessions Judge, Karachi South thereby recording acquittal of all the respondents in exercise of its powers under section 265-H(i), Cr.P.C., said judgment was challenged before the High Court of Sindh at Karachi. This appeal was dismissed by the learned Single Judge in Chambers of the High Court of Sindh, Karachi, vide his order dated 15-10-2012, on the sole ground that the said criminal appeal filed by the State/appellant on 20-3-2012 was filed beyond the prescribed period of limitation, therefore, it was time barred. The reasons recorded by learned Single Judge to justify such conclusion read as under:-- "Subsection (2-A) of section 417 provides that a person aggrieved by the order of acquittal passed by any Court other than a High Court may prefer an appeal against the acquittal within 30 days that too after applying for special leave. Subsection (3) of section 417 speaks that an application under subsection (2) of section 417 for the grant of special leave to appeal to be instituted within 60 days and it does not take into account any appeal. Once a charge for an offence duly tried, results in acquittal then the. accused persons acquire precious right and they should not, therefore, be put in jeopardy of their life by petition. The law that enables to interference with the acquittal must, therefore, be strictly applied in favour of the accused persons. Condonation of delay under section 5 of Limitation Act is not available for filing of appeal against the acquittal under section 417(2-A), Cr.P.C. as special limitation of 30 days is provided under the statute itself".

2. We have heard the arguments of Mr. Zafar Ahmed Khan, learned Additional Prosecutor-General Sindh, for the appellant and Mr. Ibadul Hassan, learned Advocate Supreme Court for respondent No.2, who is one of the beneficiary of the impugned order along with respondents Nos. 1, 3 to

5. The whole submission of Mr. Zafar Ahmed Khan revolves around the language of section 417, Cr.P.C. read with Article 157 of the Limitation Act 1908 (the Act of 1908). According to him, the applicability of prescribed period of six months limitation under Article 157 of the Act of 1908, for availing the remedy of filing acquittal appeal by the Provincial Government per section 417(1), Cr.P.C., despite several amendments from time to time in subsections (2) and (3) of section 417, Cr.P.C. and addition of subsection (2A) has remained the same, but the honourable High Court has misinterpreted and misunderstood this legal position, which has resulted in the impugned order against the appellant and makes it liable to be set aside.

3. Conversely, learned Advocate Supreme Court for the respondent No.2 relying upon various cases, noted in the impugned order of the High Court, attempted to canvass a different interpretation of section 417, Cr.P.C., as regards the period of limitation for filing of an acquittal appeal by the Provincial Government. According to him, where the period of limitation is prescribed under a special statute, it will preclude the applicability of the provisions of the Act of 1908, thus, conclusion recorded in the impugned order as regards the period of limitation for filing an acquittal appeal by the Provincial Government in terms of subsection (1) of section 417, Cr.P.C., calls for no interference, being based on proper interpretation of law. He further contended that it is somewhat anomalous to see that right to appeal against an order of acquittal conferred under section 417, Cr.P.C., can categories the appellants differently for the purpose of period of limitation for availing such remedy as it will be, against the principles of equality of all citizens before the Court of law. He lastly argued that as regards amendments made in the Statute, providing specific period of limitation for filing an acquittal appeal under section 417, Cr.P.C. the Courts have to apply the principle of harmonious construction, therefore, no special treatment can be given to the Provincial Government for filing a criminal acquittal appeal within 6 months, as prescribed by Article 157 of the Act, 1908 and claimed by the appellants.

4. In order to understand properly the import of section 417, Cr.P.C. qua the period of limitation to avail such remedy, it will be useful to reproduce hereunder section 417, Cr.P.C. and section 157 of the Limitation Act, which respectively read thus:--

417. Appeal in case of acquittal.

(1) Subject to the provisions of subsection (4), the Provincial Government may in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. (2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court. (2A) A person aggrieved by the order of acquittal passed by any court, other than a High Court, may, within thirty days, file an appeal against such order. (3) No application under subsection (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order. (4) If, in any case, application under subsection (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection (1)". Schedule I Article 157 of the Act of 1908 Description of Appeals Period of limitation Time from which period begins to run

157. Under the Code of Criminal Procedure, 1898, from an order of acquittal. Six months The date of the order appealed from A plain reading of above provisions of law relating to availing the remedy of appeal against an order of acquittal go to show that for the purpose of limitation, right to such appeal has been conferred and categorized into three classes. Under subsection (1), it is exclusively the Provincial Government, who may direct the Public Prosecutor to avail such legal remedy before the High Court from an original or appellate order of acquittal, for which no period of limitation is prescribed under section 417, Cr.P.C. Under subsection (2), when an order of acquittal is passed in a case instituted upon a complaint then the remedy of filing an appeal against such order in the form of special leave to appeal has been conferred only to the complainant which remedy, in terms of subsection (3) can be availed by him within sixty days from the date of order of acquittal. Lastly, in the subsequently added subsection (2A) to section 417, Cr.P.C., the right to appeal against an order of acquittal, whether original or appellate, has been conferred to a person aggrieved against such order, who may avail the remedy of filing acquittal appeal within thirty days.

5. From the above discussion, it is evident that the prescribed period of limitation of sixty days and thirty days respectively is available only for those criminal acquittal appeals, which are filed by "the complainant" or "person aggrieved" respectively, while no specific period of limitation under the amended dispensation as regards the acquittal appeals under subsection (1) to section 417, Cr.P.C. is prescribed, which will thus continued to be regulated by Article 157 of the Limitation Act, as reproduced above. In such circumstances, when well accepted principle of interpretation of a statute that where the plain and simple meaning of a provision of law is clearly understandable without any ambiguity then nothing is to be presumed or imported from outside, is applied to understand the issue of limitation raised in the present proceedings, the irresistible conclusion will be that all those acquittal appeals, which are covered by subsection (1) to section 417, Cr.P.C., for the purpose of limitation will still be governed by Article 157 of the Act of 1908, as this legal position as to the period of limitation has remained unchanged even after addition of subsection (2A) to section 417, Cr.P.C., providing right to such effect to aggrieved person within thirty days. Similarly, subsection (2) read with subsection (3) to section 417, Cr.P.C., which deals with the acquittal appeals in a complaint case has conferred such right of appeal only to the complainant within sixty days, with the condition of grant of special leave for this purpose.

6. The upshot of above discussion is that in the present case the learned Single Judge in the High Court of Sindh at Karachi, while passing the impugned order, fell in error of law in arriving at a conclusion that acquittal appeal on behalf of the State/Provincial Government is to be filed within sixty days. The correct legal position is that for filing an appeal under section 417(1) by the State/Provincial Government the period of limitation is six months as prescribed by Article 157 of the Act of 1908.

7. There is no denial of the fact that in the present proceeding criminal acquittal appeal on behalf of the State was filed within six months from the date of judgment of acquittal passed by the trial Court on 7-10-2011. Thus, the impugned order is set aside with the observation that Criminal Acquittal Appeal No.111 of 2012, filed by the appellant before the High Court of Sindh, at Karachi, on 20-3-2012, shall be deemed to be pending before the High Court, which shall be heard and disposed of on merits and in accordance with law. MWA/S-32/SC Appeal allowed.