2013 PLP 449 (YLR)

MRS. IRSHAD QAISER, J.

This judgment shall dispose of the Criminal Acquittal Appeal No. 297 of 2011 filed by State through D.A.G. against the judgment and order dated 27-5-2010 passed by Special Judge (Central) Anti-Corruption and Emigration Peshawar in case vide F.I.R. No. 36 dated 8-6-2009, Police Station Crimes. Peshawar under sections 408/409/ 468/471/34, P.P.C. r/w section 5(2) PC Act, 1947 vide which the respondents namely Ejaz Ahmad, Namatullah and Lt. Col. (Retd.) Kanwal P. Isaacs were acquitted from the charge under section 265-K Cr.P.C. Along with the appeal an application under section 5 of Limitation Act (Criminal Miscellaneous No. 310 of 2011) has also been filed seeking condonation of delay and the grounds shown for delay are due to late instruction issued from Department concerned. This application was also contested by the learned counsel for the respondent/accused.

2. Arguments heard. Record perused.

3. Now the question for determination is that whether State has been able to show sufficient ground for condonation of delay spread over a period of more than 11 months. Record shows that no copy of any correspondence or the instruction issued from the concerned department has been shown to indicate that who was responsible and what were the grounds for not granting instruction/sanction earlier within long span of period of limitation of six months. Record shows that the impugned judgment and order was passed by Special Judge (Central). Anti-Corruption on 27-5-2010 while the application for obtaining the certified copy of the judgment was submitted on 28-3-2010, after the lapse of more than 10 month, the copy was prepared on 29-3-2011 and delivered on 1-4-2011.

4. There is no cavil to the proposition of law that High Court is competent to condone the delay in filing special petition beyond limitation, but it is the duty of the party to show that there was sufficient cause and causes beyond his control to file the appeal within prescribed period of six months. The period of six months is more than sufficient time and in case of delay the appellant is required to explain the delay of each and every day satisfactorily. In this respect the rules laid down by a Full Bench of the august Supreme Court in the case titled "Hussain Bakhsh v. Allah Bakhsh and others 1981 SCMR 410 which described that how an appeal against acquittal is to be treated which is filed beyond period of limitation. Following is the relevant observation of the Hon'ble Supreme Court:-- "

4. It must also be stated that it has been the consistent view of this Court, as expressed in Nazar v. The State 1968 SCMR 715, Jalal Khan v. Lakhmir 1968 SCMR 1345, Muhammad Khan v. Sultan 1989 SCMR 82, Piran Ditta v. The State 1970 SCMR 282 and Noor Muhammad v. The State 1972 SCMR 331, that in petitions against, acquittal delay cannot be condoned unless it is shown that the petitioner was precluded from filing his petition in time due to some act of the respondents; or by some circumstances of a compelling nature, beyond the petitioner's control. The reasons for taking the strict view is that in most jurisdiction an acquittal, once recorded by a competent Court is final, and the matter cannot be reopened at the instance of any party including the State. However, under our law, an acquittal can be challenged in certain circumstances but if it is not challenged within the period allowed by law, it becomes final. In these circumstances it is only just and proper that a petition against acquittal must not be entertained if it is filed beyond time, unless it be shown that the petitioner was prevented from moving the same by an act of the acquitted accused or by some circumstances of compelling nature beyond the Control of the petitioner......" Reference is also made to PLD 1954 Balochistan 331.

5. From the facts and circumstances of the present case it reveals that no interest was shown by the appellant to file appeal within stipulated period of six months as it is apparent from filing of application for obtaining certified copy of the judgment on 28-3-2011, after the laps of more than 10-months. What to say of other correspondence with the concerned department which is not the part and parcel of the present petition. The only reason shown for seeking condonation of delay is that lot of time was consumed in obtaining departmental instruction. This ground is not sufficient. This cannot be termed to a "circumstances of a compelling nature beyond the control of appellant". Nothing has been alleged against the acquitted accused which may have resulted in causing delay. The ground shown for causing delay in filing an appeal is neither reasonable nor cogent. This appeal merit dismissal. In these circumstances I am not inclined to condone the delay in filing the instant criminal acquittal appeal.

6. Before parting with this order, I deem it proper to add that on merit also the present appeal is not entertainble. The learned trial Court while acquitting the accused/respondents under section 265-K, Cr.P.C. had discussed the case of the respondent at length and have appreciated the evidence including the confessional statement of co-accused Haroon Shahid, whose case is on different footing than present respondents, and rightly observed that the evidence produced by the prosecution against present respondents is extremely weak to support the charge. There is nothing on record that the reason given by trial Court is perverse, wholly illogical, artificial and not supported by facts on record. The common intention of the present respondents with main accused has not been proved. It is consistent view of the august Supreme Court of Pakistan that courts while dealing with an acquittal appeal are bound to examine whether courts below had not ignored any evidence on record or has discarded any evidence for the reason not recognized by law. Reference is made to 2004 SCMR 249 and 2004 SCMR 215.

7. As a result of above discussion, I dismiss the criminal acquittal appeal being time-barred as well as on merit. It is also important to add that since the present appeal has been filed against the judgment and order dated 27-5-2010 and the facts and circumstances of the present case are entirely different from the ground of Appeal No.311 of 2011 against conviction of co-accused Haroon Shahid vide judgment and order dated 7-5-2011, therefore, there is no need to decide the present appeal along with above noted appeal and is hereby decided separately through the instant judgment. MWA/345/P Appeal dismissed.