1996 P Cr (PLP)

Mehr Muhammad Saleem Akhtar for the State. Date of hearing: 16th April, 1996. Ghulam Shabbir filed this petition under section 439, Cr.P.C. against the judgment and order, dated 30-11-1995 whereby learned Additional Sessions Judge, Kot Addu, District Muzaffargarh dismissed the criminal appeal in limine on the ground of limitation and confirmed the conviction under section 458, P.P.C. whereby the petitioner was sentenced to undergo 3 years'. R.I. vide judgment and order, dated 29-8-1995 recorded by E.A.C./Magistrate 1st Class, Kot Addu, District Muzaffargarh in a case F.I.R. No.32/88, dated 4-4-1988 of Police Station Sanawan, District Muzaffargarh.

2. The brief facts which gave rise to the present criminal revision petition are that petitioner and his co-accused Altaf Hussain and Muhammad Rafique were booked in a case F.I.R. No.32, dated 4-4-1988 under section 458/380 of Police Station Sanawan, District Muzaffargarh, and were tried by the Ilaqa Magistrate. Muhammad Rafique co-accused of the petitioner confessed his guilt before the Court on 15-3-1989 and was consequently sentenced to 3 years' R.I. for offence under section 458, P.P.C. The petitioner and his co-accused Altaf claimed trial and they were accordingly tried and convicted by the Ilaqa Magistrate and sentenced to undergo three years' R.I. Altaf Hussain co-convict of the petitioner filed a separate appeal and the learned Additional Sessions Judge vide his judgment, dated 16-10-1995 accepted the appeal and acquitted the accused of the charges framed against him. The petitioner Ghulam Shabbir did not file appeal in time and after the acquittal of his co-convict, he filed appeal against the' conviction on 28-11-1995. The petitioner also filed an application for the condonation of delay alongwith appeal. The learned Additional Sessions Judge dismissed the appeal in limine vide the impugned order, dated 30-11-1995, hence this revision petition.

3. It was argued by the learned counsel that the impugned order is illegal, improper and incorrect; that the petitioner is entitled to acquittal on account of principle of consistency; that the prosecution has not been able to prove its case against the petitioner beyond reasonable doubt and that the appeal of the petitioner was not decided on merits and it was disposed of on the technical ground of delay in filing of the appeal which has caused grave miscarriage of justice.

4. Learned counsel for the State argued that appeal was barred by two months and that the petitioner filed his appeal against conviction after the acceptance of appeal of his co-convict Altaf Hussain and prima facie it was established that the delay in filing of the appeal was mala fide. Further argued that there was no justification to file the appeal in a belated manner. He fully supported the impugned order.

5. I have heard the learned counsel for the parties and gone through the record. No doubt the petitioner filed a time-barred appeal before the learned Additional Sessions Judge The petitioner filed an application for the condonation of delay alongwith appeal on the ground that the petitioner could not file appeal within time as he was in the jail and he requested his friends to file appeal on his behalf but they failed to do so. Strictly speaking the ground taken by the appellant for the condonation of delay is not very cogent but in my view, question of limitation should not be taken in a hypertechnical manner. In the case of criminal nature, the law of limitation should not be made applicable in its stricto senso because in such cases, question of liberty of a citizen is involved. Liberty of a citizen is very precious right which should be curtailed in accordance with law and the law of limitation should be interpreted liberally than the case of civil nature where the rights in personal are involved. It is held in PLD 1960 Lah. 85 that:-- "Limitation Act

SectionH5 to be construed liberally

The delay in filing a criminal appeal should ordinarily be excused under section 5 of the Limitation Act, in case of this nature because no valuable right accrues to the other party. The State, I believe, would always welcome that justice should be done in the case." Similarly in PLD 1971 Pesh. 1 (D.B.) it was held that:-- "Where the accused neither applied for condonation of delay nor showed sufficient cause, High Court entertained time-barred appeal as Revision and exercised the powers of appeal."

6. It is thus clear from the above-referred authorities that law of limitation in criminal cases is to be interpreted in a beneficial manner. In this particular case, learned Additional Sessions Judge while disposing of the appeal of the co? accused observed that the prosecution has failed to prove beyond any reasonable doubt that actually Altaf Hussain was one of the culprits and acquitted him by extending benefit of doubt. At page 7 of the judgment, learned Additional Sessions Judge observed that the statements of complainant Faiz Bakhsh P.W., Abdul Hameed P.W.1 and Abdul Aziz P.W. that they had identified the culprits at the spot as accused Altaf Hussain, Ghulam Shabbir and Rafique, therefore, cannot be believed. This observation of learned Additional Sessions Judge clearly shows that there exists grave doubt about the participation of the petitioner in the commission of the offence. This important circumstance is sufficient to deal with the question of limitation, in a liberal manner. Consequently it is held that the rejection of the application for the condonation of delay and the appeal in limine was, not justified and the learned Additional Sessions Judge has not exercised his jurisdiction properly.

7. This Court while exercising its powers under section 439, Cr.P.C. can examine propriety and correctness of the orders passed by the subordinate Courts, which is also supervisory in nature. The law leans in favour of adjudication of appeals against conviction on merits.

8. For what has been stated above and for the safe administration of justice, this revision petition is accepted and the impugned order passed by learned Additional Sessions judge, Kot Addu is set aside and learned Sessions Judge is directed to decide the appeal of the petitioner on merits either himself or to entrust it to some learned Additional Sessions Judge for disposal within 30 days of the receipt of this order. The office shall immediately transmit the copy of this order and record of the Lower Court to the learned Sessions Judge, Kot Addu. N.H.Q./G-13/L ?????????????????????????????????????????????????????????????????????????????????? Case remanded