2016 P Cr (PLP)

ASLAM JAVED MINHAS, J.

Through this miscellaneous application filed under section 5 of Limitation Act, 1908 condonation of delay in filing appeal against acquittal under section 417(2-A), Cr.P.C. has been sought.

2. It is contended that petitioner is a poor person. During making arrangements for filing the instant appeal, appellant/petitioner consumed 51-days whereas limitation of filing of instant appeal was 30-days. It is argued that on compassionate ground, delay may be condoned.

3. Arguments heard, record perused.

4. Initially, challan of the case FIR No.330/09 dated 15.07.2009 offence under sections 337A(iii)/34 was submitted to the Court of learned Magistrate Section-30, Lodhran where Mukhtar Ahmed, Muhammad Iqbal and Khadim Hussain accused were tried and trial was culminated into the conviction of the accused Muhammad Iqbal and Mukhtar Ahmed vide judgment dated 31.10.2013 while Khadim Hussain accused was acquitted. The convict Muhammad Iqbal filed appeal before learned ASJ, Lodhran while Mukhtar Ahmed who was sentenced to pay Rs.5000/- as Daman to the complainant accept the dictum of conviction and did not file any appeal. Appeal of Muhammad Iqbal was accepted on 03.04.2014, consequently he was also acquitted of the charge. Now the complainant has filed the instant appeal against Muhammad Iqbal, which is hopelessly time-barred of twenty days. In case titled "Mashkoor Ahmed v. Abdul Majeed" (2013 YLR 1284), the Hon'ble High Court (Sindh) wherein it has been held that:- "

Appellant to maintain appeal, had to explain each day's delay, but he failed to do that; and explanation offered was without any substance

Appellant could not blame anyone else for said delay and unawareness was not a ground of condonation of delay

Under provisions of S. 417(2-A), Cr.P.C., right of appeal had been provided against acquittal to an aggrieved person, and the limitation of 30-days was prescribed in said section

Special limitation prescribed by statute itself was not subject to the application of S. 5 of the Limitation Act, 1908 due to bar contained in S. 29(2), (b) of Limitation Act, 1908

Case of the appellant was not that he was prevented by some act of the respondents coming in Court in time

Conduct of the appellant and his explanation for such inordinate delay appearing to be unreasonable

Appeal was dismissed being barred by time."

5. Similarly, in case reported as "Shahid Manzoor v. The State" (2015 YLR 853) this Court was pleased to observe that "

Applicability of section 5, Limitation Act, 1908

Appeal against acquittal was filed with a delay of three days

Delay in filing of appeal against the acquittal, would be condoned in those cases where appellant was prevented by an act of accused to file appeal in time or was actually kept out of knowledge of the appeal

Reasons stated by appellant/petitioner in support of application for condonation of delay, were vague; and appellant had failed to make out case for condonation of delay in filing appeal

Provisions of section 5 of Limitation of Act, 1908 were not applicable to appeal against acquittal."

6. The provision of limitation for filing appeal provided under section 417(2-A), Cr.P.C. as well as section 5 of Limitation Act, 1908 is 30-days whereas this appeal has been preferred beyond the period of limitation. No explanation whatsoever, for inordinate delay, has been given in memo of appeal. The appellant on 23.05.2014 filed application for condonation of delay against judgment dated 03.04.2014 passed by learned Sessions Judge Lodhran, with unexplained delay of 50-days except that petitioner, being poor person, was making arrangements for filing of instant appeal.

7. I have noticed that the complainant earlier acceptance acquittal of Khadim Hussain against whom he has not filed any appeal against acquittal. Even instant appeal has been filed after a delay of twenty days and in filing appeal against acquittal, each and every day has to be explained, which is mandatory provision for condonation of delay. Not a single word has been uttered by the learned counsel for the petitioner as to how the complainant consumed the delayed time. Although, it has been argued that the complainant established this case before the learned trial court and resultantly the accused was convicted under section 337-N, P.P.C. and sentenced to Arsh of Rs.2,17,457.7.

8. In view of the above principles of law, delay of each day is to be explained. The limitation creates valuable rights in favour of the party whatsoever sleeps over his right cannot claim the relief beyond the period of limitation . The appeal is not maintainable under the law, therefore, same is dismissed along with application for condonation of delay. HBT/M-30/L Appeal dismissed.