P L D 1988 Peshawar 130 (PLP)

Sardar Muhammad Akbar Khan through the instant criminal petition seeks special leave to appeal under section 417(2) of the Code of Criminal Procedure against the order dated 12‑1‑1988 of E.A.C, and M.J.C. Sheranies vide which he acquitted the accused respondents Nos. 1 and 2 of the charge under section 430/34, P.P.C. under section 249‑A, Cr.P.C.

2. Since alongwith the petition for special leave to appeal, the appeal had not been filed, the file in question was returned to the learned counsel by the Additional Registrar of this Court with the remarks to file the main appeal alongwith petition for special leave to appeal on or before 21‑4‑1988. Learned counsel for the petitioner, however, submitted the file with the following remarks:‑‑ "Respectfully sheweth:‑‑ No rules for filing separate appeal against acquittal after grant of leave to appeal have been framed by High Court. Nor does the section 417(2) of Cr‑P .C. provide word separate' appeal, In absence of any rules, in my humble opinion, we can seek guidance from Leave Petition‑Rules of supreme Court. Petitions for leave to appeal before Supreme court do not embrace a 'Separate' Appeal with the leave petition, rather the leave petition contains the grounds, which after have been granted is converted into appeal. Similarly a petition to sue in forma pauperis is not accompanied by a separate suit. But when leave to sue in forma pauperis is granted, the very petition, which also contains the plaint, is registered as suit. In my humble view there is no need to submit a separate appeal. If ordered, compliance will be made." The matter was accordingly fixed before Court and it came up for hearing today.

3. Learned counsel for the petitioner almost submitted his arguments in the light of his remarks reproduced above. The learned counsel has made reference to the Rules of the august Supreme Court very concerning conveniently ignored that firstly the Rules of the Supreme Court, have not been made applicable to the practice of the High Court. Moreover, the precedents referred to above, pertain to leave to appeal and hot special leave to appeal. Under Rule 10 of order XIII of the Supreme Court Rules, 1980 it has been specifically provided that 'after the grant of leave to appeal by this Court, the case shall be registered as an appeal." On the other hand no such provision has been made in the High Court Rules and Orders. But in the case in hand there' can be no question of any Rules because section 417(2) itself is very much clear on the point which reads:‑ 417(2). If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal the complainant may present such an appeal to High Court." The bare reading‑of the section clearly suggests that there should be an application seeking permission of the High Court for special leave to appeal and if after considering the points agitated in the application, the High Court finds certain material and grants special leave to appeal then the complainant may file such an appeal. Learned counsel for the petitioner also appears not to appreciate the difference between an application and an appeal. According to Balck's Law Dictionary, Fifth Edition, appeal is resort to a superior (i.e. appellate) Court to review the decision of an inferior Court or administrative agency. Encyclopaedia Britannica, 15th Edition also gives almost the same meaning to appeal i.e. the resort to a higher Court to review the decision of a lower Court, or to any Court to review the order of an administrative agency. It has further been provided that every legal system provides at least in form, for some type of appeal. The Chambers Twentieth Century Dictionary defines the word 'appeal' to demand another judgment by a higher Court, to move to another Court, or to move to a higher Court. On the other hand the word 'application' is a generic term and Corpus Juris Secundum defines it as meaning the act of applying, act of making a request for something, a request, or a document containing a request. The use of the word 'application' in section 417(2) independent of the word 'appeal' would clearly suggest that the legislation intended that in complaint cases if the complainant intends to challenge the order of the trial Court he can do so by seeking special leave to appeal and that special leave is to be granted on the application made to the High Court and after the special leave is accorded then the complainant may file the appeal.

4. In these circumstances I am of the firm view that under section 417(2), Cr.P.C. there should be first application seeking special leave to appeal and after the application is granted then the complainant may file the appeal against the order of acquittal. The argument of the learned counsel, that the words "complainant may present such an appeal to the High Court" imply that it is not obligatory to file separate appeal because of the word 'may' having been used .by the legislation, carries no weight because after the grant of special leave to appeal on the application of the complainant, the complainant has still‑the option either to file the appeal or not and special leave to file appeal by itself does not make obligatory on the complainant to file the appeal and that is why the legislation has used the word 'may' and this further strengthens my view that the application for special leave to appeal by itself cannot be converted into appeal and after the grant of such an application it is open to the complainant to file an appeal or not.

5. The order of acquittal was passed on 12‑1‑1988. Copies of the relevant documents were supplied to the complainant on the very day on which application was made. Petition for special leave to appeal was filed in the High Court on 14‑4‑1988. Under section 417(3), Cr.P.C. no application under subsection (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order. Thus, the application in hand is hopelessly barred by limitation. No application for the condonation of delay has been made. On the other hand a tactful reference has been made to the non‑filing of the leave petition within the prescribed time on account of illness of the petitioner and other unavoidable reasons, which delay according to the petitioner can be condoned by this Court. No doubt this Court can condone the delay in filing the special leave petition beyond limitation but once a verdict of acquittal has been recorded in favour of the accused‑respondent by the competent Court of jurisdiction, the complainant has to convince this Court by explaining the reasons and grounds satisfying the mind of a prudent man that the leave petition could not be filed within the prescribed time limit for certain reasons which incapacitated and were beyond the control of the complainant that the petition could not be filed within prescribed time. In the instant matter, however, nothing has been brought on the record nor have the reasons been explained as to why the special leave petition could not be filed within time.

6. In view of the above observations I see no substance in this petition for special leave to appeal 'which is hereby dismissed in limine. M.Y.H./633/P Petition dismissed.