P L D 2016 Lahore 560 (PLP)

This Criminal Appeal under section 48(1) of the Control of Narcotic Substances Act, 1997 is lodged against the judgment dated 23-4-210 passed by the learned Additional Sessions Judge, Lahore whereby the respondents Nos.1 to 3 namely Said Raheem, Nazir Ahmed and Muhammad Javaid have been acquitted of the charges under sections 6/9 of Control of Narcotic Substances Act, 1997, in case FIR No.249/2001 dated 5-7-2001, Police Station Badami Bagh, Lahore.

2. Along with the appeal, an application under section 5 of the Limitation Act, 1908 for condonation of delay in filing the appeal has also been filed as the appeal is barred by limitation for one month and eighteen days. In the attending circumstances, we feel it appropriate to decide the application under section 5 of the Limitation Act, 1908 at the earliest.

3. Learned counsel for the petitioner contends that the delay in filing the appeal is neither intentional nor deliberate but due to some unavoidable circumstances beyond the control of the petitioner/appellant; that circumstances of each case have to be independently kept in view and are relevant for deciding the question of condonation of delay with regard to appeal against acquittal.

4. Heard. Record perused.

5. The Control of Narcotic Substances Act, 1997 explicitly provides the time limit for filing an appeal against acquittal as 30 days, therefore, due to the bar contained in Section 29(2)(a)(b) of the Limitation Act, 1908 and there being the special limitation of thirty days prescribed by the above mentioned statute, the provisions of Section 5 and Article 157 of the Limitation Act, 1908 have lost their applicability or relevancy over the matters in hand. In this case, the impugned judgment was announced on 23.4.2010 whereas appeal was lodged on 19.6.2010. The appeal is admittedly out of time by one month and eighteen days. The delay in lodging of appeal is sought to be condoned on the ground stated in paragraph No.3 of the application for condonation of delay moved under Section 5 of the Limitation Act, 1908. It reads as under:- "

3. That after receiving the certified copy of the impugned judgment dated 23.4.2010 on 30.4.2010, the Secretary to Government of the Punjab, Public Prosecution Department considered and consulted the matter/case and came to the conclusion that an appeal against acquittal is necessary, therefore, a sanction for filing of appeal was approved by the Secretary to Government of the Punjab, Public Prosecution Department vide letter No.SA/DIR/APL/PPD/1-294/210 dated 12th Judge 2010." We are afraid that the plea raised by the petitioner/appellant does not constitute a valid ground for condonation of delay. Needless to observe that lapse of time is, in a criminal matter, sufficient to provide protection to a person who has been acquitted, against further judicial process. In this regard we relied upon a dictum laid down by the Hon'ble Supreme Court of Pakistan in the cases of Piran Ditta v. The State and others (1970 SCMR 282), and Mst. Zeenat Sultan v. Mumtaz Khan and others (PLD 1994 SC 667) wherein it was inter alia held:- "The convict might be placed once again in peril of his life by a petition of this kind, and it is for this reason that the technical requirement of limitation assumes importance. It is not too much to ask that he who seeks to place his fellow- citizens' life in peril, by legal process, should satisfy all the technical requirements of that process. The right to life is the basic right that human beings process. Once a charge for a capital offence, duly tried, results in acquittal, the accused person acquires a very precious right and he should not, therefore, be put in jeopardy of his life by a petition for leave to appeal filed out of time. The law that enables interference with the acquittal must, therefore, be strictly applied in favour of the accused person."

6. We are further guided by the dictum laid down by the Hon'ble Supreme Court of Pakistan on the same subject in the case of Aziz-ur-Rehman Hamid v. Crescent Commercial Bank (2008 SCMR 54) wherein it was held:- "

3. This appeal is barred by 35 days. An application under Section 5 of the Limitation Act, 1908 for condonation of delay has been moved. Firstly it is to be seen that this application is not maintainable. However, if the same is treated maintainable, even then the ground urged therein seeking, condonation of delay is not recognized under the law namely that appellant is a layman, therefore, we are of the opinion that no plausible ground for condonation of the delay of 35 days has been made out. As such the same is dismissed on the ground of limitation."

7. In The State/Anti Narcotics Force through Deputy Director (Law) Karachi v. Muhammad Adeel Hussain and another (2010 YLR 1322), it has been held that:- "The appellant spent eight days in applying for certified copy of the impugned judgment and after receipt of certified copy of impugned judgment the appellant took another nine days for filing of the appeal. Apparently, the appeal is barred by 17 days and the appellant has neither given any plausible or justifiable reasons for delay nor explained the delay of each day."

8. In The State through Advocate-General N.W.F.P., Peshawar v. Gulla (2011 PCr.LJ 696), it has been held that:- "Besides, this appeal merits outright dismissal on the ground of limitation alone. The impugned judgment is dated 6.12.2004 while the State has filed the present appeal on 16.3.2005. Under subsection (2-A) of section 417, Cr.P.C. 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. Thus the appeal in hand having been filed beyond thirty days, i.e. after more than three months, is hopelessly barred by time and there is also no application for condonation of this long and unexplained delay."

9. In the instant case, the reasons stated by the petitioner/appellant in his application for condonation of delay are ex facie unsustainable. The petitioner/appellant had failed to make out a case for condonation of delay in filing this appeal. When faced with this, learned counsel for the petitioner/appellant submits that this Court is competent to condone the delay in suitable cases. That is true, but as pointed out above lapse of time in a criminal petition against the order of acquittal is sufficient to provide protection to a person acquitted against further judicial process.

10. Crux of above discussion is that the petitioner/appellant's plea is wholly devoid of merit. Filing of a time barred criminal appeal against acquittal along with an application seeking condonation of delay is not maintainable in view of the above quoted dictums.

11. In view of all above, we are of the considered view that the condonation of delay under Section 5 of the Limitation Act, 1908 is not available for filing of an appeal against acquittal. Accordingly, this appeal as well as petition under Section 5 of the Limitation Act, 1908 being devoid of any legal justification are dismissed. SL/S-140-L Appeal dismissed.