1998 P Cr (PLP)

"(1) That due to bloody enmity the appeal left the area and shifted to remote area of District, Naseerabad (Shahpur) and sent his son to hear the judgment and receive the copies. (2) That, the appellant fallen sick, and when after he recovered he came and engaged the counsel for filing this appeal. (3) That such affidavit is submitted herewith. (4) That, the prayer is in the interest of justice." Mr. Akbar Ali Baloch, learned counsel, conceded that above application under the provisions of section 5 of the Limitation Act is not competent, therefore, he filed a statement to withdraw the said application. However, he argued that there is sufficient incriminating evidence, available on record against the accused‑respondent, as such, in the interest of justice, delay of ten days in filing the appeal, be condoned. To support his contention, he relied on 1979 SCMR 214 and PLD 1994 SC

667. On the other hand, Mr. Abdul Karim Yousafzai, learned State Counsel, argued that as appellant has withdrawn the application filed under section 5 of the Limitation Act, by making a statement in writing, thus, there is no request for condoning the delay. Even otherwise, if this application is still treated to be available on record, then too, it does not disclose cogent/solid grounds, for condoning the delay. He stressed that question of limitation in filing of appeal, has achieved importance in this case, because respondent has been absolved from the capital charge, therefore, it would not be fair, if on whimsical grounds so set out in the application, interference is made in impugned order, as this would not serve the ends of justice. We have heard the parties counsel at length and also perused the record of case carefully. At the very outset, it is to be seen that certified copy of the impugned order was made available to complainant party on the date of its pronouncement i.e. 15th December, 1997. As per the stand of appellant although his son had heard the judgment and received the copy, but he had fallen sick and after his recovery, he came and engaged a counsel for filing this appeal. To substantiate this factual ground, no medical certificate has been attached alongwith the application, purported to be filed under section 5 of the Limitation Act. Inasmuch as no affidavit of appellant was annexed with the application, although in ground No.2, it was stated so. Actually this application has been signed by the learned counsel for appellant. Therefore, on the grounds mentioned in the application, delay in filing the appeal, cannot be condoned. It is important to note that according to the well‑known principle of criminal administration of justice namely; that once an acquittal is recorded in favour of an accused, facing criminal charge, he enjoys double presumption of innocence, therefore, Courts competent to interfere in the acquittal order, should be slow, in converting it into conviction. In this behalf, the Honourable Supreme Court in Abdul Qayyum v. Ghulam Yasin PLD 1963 SC 151, refused to condone the delay of only 15 days. In that case, accused was punished for transportation for life in murder case and in appeal enhancement of sentence to death was sought. In this context, it was observed that 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 n sot too much to ask that he who seeks to place his fellow‑citizen's life in peril, by legal process, should satisfy all the technical requirements of that process. Delay would scarcely ever be condoned, and certainly not on the grounds here advanced, namely, that the petitioner was misinformed about the period of limitation, and that he was delayed in his village through the serious illness of his wife. The Honourable Supreme Court in another case of Nabi Bakhsh v. Ghulam Sarwar 1968 SCMR 780 declared that delay in an application for special leave to appeal from an order of acquittal filed by a private complainant, is not to be condoned, unless it can be shown that the person seeking leave, was actually kept out of knowledge of the acquittal and/or prevented by some act of the respondents themselves from coming in time. Likewise in the case of Piran Ditta v. The State and 2 others 1970 SCMR 282, it was held that the delay is condoned in those cases, where the petitioner is prevented by an act of accused persons to file petition for special leave to appeal, in time. Later on in the case of Saldera v. Muhammad Yar and another PLD 1981 SC 241, the Honourable Supreme Court, on making reference to the above judgments and also taking into consideration the case of Rabia Bibi v. Rasool Bakhsh and another PLD 1966 SC 531 wherein petition for leave to appeal was allowed, although it was barred by time and the question of limitation was also noticed, but still on the consideration of merits of case, the delay was condoned, observed that 'right to life is the basic right that human beings possess. 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. Similarly the Honourable Supreme Court in the case of Mst. Zeenat Sultana v. Mumtaz Khan and 9 others PLD 1994 SC 667 surveyed the available case‑law on the point, reference of which has been made, hereinabove, and refused to condone the delay in filing the appeal. In another case of Muhammad Ramzan v. Muhammad Mumtaz and another 1994 SCMR 1204 the Honourable Supreme Court refused to condone the delay of 4 days, because no ground was out forth for condoning the delay. It is also important to note that section 417(2‑A), Cr.P.C. has been added by the Act XX of 1994 whereby right to file an appeal was given to a person, aggrieved by the order of acquittal, passed by any Court, other than a High Court, with condition to file appeal within 30 days. This provision of law, prescribes the limitation of filing of an acquittal appeal by an aggrieved person himself, therefore, such, provision is to be construed strictly. It may be noted that prior to enacting of this provision, only the State was competent to file an appeal. Therefore, the person, who feels aggrieved from the acquittal of an accused and prays for conversion of acquittal into conviction, he has to remain vigilant and must file the appeal within the stipulated period, because any delay beyond the said period, would necessarily create a right in favour of accused, who has started enjoying a certified presumption of innocence in his favour on the strength of acquittal order passed by the competent Court, therefore, his this right, cannot be taken away lightly. If the case in hand is tested on the above principle, it does not warrant condonation of delay, therefore, the request so made, in this behalf, is turned down. For the foregoing reasons, the appeal is dismissed, being barred by limitation. Hereinabove are the reasons of our short order of even date. N.H.Q./714/Q Appeal dismissed.