P L D 1959 (W (PLP)

SHABIR AHMAD, J.--‑Ghulam Shah, Zahur Hussain Shah and Manzur Hussain Shah were tried by Sardar Ghulam Muhammad Khan Dahir, Additional Sessions Judge, Bahawalpur, Camp Bahawalnagar, who by his order dated 18th of May 1956, The , while acquitting the other two, sentenced Ghulam Shah to five years' rigorous imprisonment under section 304, Part II of the Pakistan Penal Code and two months' rigorous imprisonment under section 323 of that Code ; the sentences being ordered to run concurrently. Ghulam Shah did not question his con viction by an appeal, but on the 3rd of December 1956, the Provincial Government presented an appeal under section 417 of the Code of Criminal Procedure with a view to having the three accused convicted and sentenced under section 302 of the Pakistan Penal Code, and Zahur Hussain Shah and Manzur Hussain Shah also under section 323/34 P. P. C. This appeal was admitted to a hearing on the 19th of December 1956 and notice was issued to the respondents.

2. The judgment against which this appeal is directed was, as already mentioned, passed on the 18th of May 1956. A certified copy of the judgment attached to the memorandum of appeal took one day to obtain and it is not denied by the learned counsel for the appellant that the appeal is beyond Limitation by fourteen days. The learned counsel for the res pondents raised a preliminary objection at the hearing that being barred by time by about two weeks 'the appeal should be dismissed on the short ground that it has been presented beyond the period of limitation.

3. The Limitation Act by its Article 157 fixes a period of six months within which the Provincial Government may, under section 417 of the Code of Criminal Procedure, present an appeal against an order of acquittal and as this appeal is barred by about two weeks the question for consideration is whether or not sufficient ground exists for extending the period of limitation which can be done under section 5 of the Limitation Act if the appellant shows that there was sufficient reason for not presenting the appeal within the period prescribed by law. I is hardly open to question that whether or not there was sufficient cause for not coming to Court within the period prescribed by the Limitation Act is a question of fact which is to be determined keeping in view all the attendant circumstances.

4. When the appeal was presented on the 3rd of December 1956, under the grounds of appeal, there was a note which read as follows :‑ "That there is a delay of about 14 days in filing the appeal. The file was misplaced in this office by some new office hand resulting in the delay. Affidavit of the official concerned will be submitted later." On the 5th of December 1956, an affidavit of the Head Clerk of the Office of the Advocate‑General was put in. This affidavit is to the effect that the file of the case was received from the Law Office of the West Pakistan Government in the Office of the Advocate‑General on the 19th of November 1956, but was thereafter misplaced by some new hand in the office and it was only on the 3rd of December 1956 that it came to the notice of the Law Officer. It will be noticed that Mr. Abid Hussain, the Head Clerk of the Office of the Advocate‑General, does not take any responsibility with regard to the file having been misplaced nor has an affidavit of the Official who was res ponsible for misplacing the file been placed on the record, though the note appended to ‑the grounds of appeal said that such an affidavit will be put in.

5. The learned counsel for the appellant contended that the delay in filing appeals in criminal cases should not be viewed with that degree of disfavour as in civil cases and in this con nection referred to the decision of a Division Bench in Surta Singh v. The Crown (I L R 1 Lah. 508). That was a case of an appeal of a person convicted of a criminal offence and one of the reasons given for condonation of delay in filing the appeal was that the Government should not object to a man convicted of an offence seeking justice merely on the ground that he did not come to Court in appeal within the period prescribed by law. The learned counsel for the appellant urged that there should be no difference between an appeal against an order of acquittal and one against an order of conviction as far as extension of period of limitation under section 5 of the Limitation Act was concerned, but with this contention I cannot bring myself to agree. It is well‑known that the law looks with more disfavour, at the conviction of an innocent person than the acquittal of the guilty one, and the reason for this attitude is not far to seek. If the period of limitation in filing an appeal against an order of conviction is not extended the result can be that an innocent person may suffer punishment which he does not deserve, but if the same course is followed in the case of an order, of acquittal all that can possibly result is that a guilty person B may escape punishment which he deserves. It cannot be over looked that a period of six months is allowed to the Provincial Government to present an appeal under section 417 of the Code of Criminal Procedure against an order of acquittal and I am of the view that this long period should be extended only where exceptional circumstances exist.

6. In the present case all that is said is that some new clerk in the Office of the Advocate‑General had misplaced the file. It is not disclosed who that clerk was nor is it said where the file disappeared for so many days. In these circumstances, I find no sufficient ground for condoning the delay and would consequently dismiss the appeal as being barred by limitation. The result would be that while Ghulam Shah will suffer the imprisonment imposed by the trial Court, Zahur Hussain and Manzur Hussain, if they were arrested in pursuance of the non bailable warrants issued by this Court at the time of the admission of the Government appeal, will be set at liberty. ILAHI BAKHSH KHAMISANI, J.--‑I agree. K. B. A. Appeal dismissed.