1990 SCMR 164 (PLP)

(2) Every appeal shall be accompanied by a certificate that a similar appeal was not instituted at the principal seat of the Court or at a branch registry. (3) Where an appeal is not drawn up in the manner hereinbefore prescribed, it may be returned to the appellant or the counsel, if any, to bring it in conformity with the provisions of rule 17: Provided that an appeal received, by transfer from High Court or Court of Sessions or from an accused who is confined in jail and is not represented by a counsel, not being in conformity with rule 17 shall not be returned: ; : . Provided further that the Court may ask the appellant to supply additional copies of appeal, documents and such other information as it may deem necessary to bring it in conformity with the provisions of that rule. (4) The Registrar or the Officer authorised under sub‑rule (1) shall, on being satisfied that the appeal fulfil the requirements of these rules, cause it to be registered and, under the directions of the Chairman, inform the appellants and his counsel, if any, of the date on which the appeal shall be taken up by a Bench for preliminary hearing: Provided that the Bench may, without fixing an appeal for preliminary hearing, admit it for regular hearing."

6. The Federal Shariat Court expressed the difficulty with regard to period of limitation in the case of Azmat Khan (PLD 1982 FSC 4) in the following words:‑‑ "Section 20 of the Ordinance replaces the abovementioned two sections of the Code in that a trial is held by Sessions Judge or an Additional Sessions Judge in any offence under the Ordinance and tire appeal is to be preferred to this Court against any sentence passed or order made by the said Judges under the Ordinance. Thus it would be clear that appeals of the nature of the present one are not preferred to this Court under the Code of Criminal Procedure but these are competent under special statutes, namely the Hudood Order and Ordinances. As Articles 154 and 155 of the Limitation Act govern only those appeals which are preferred under the Code of Criminal Procedure these cannot place a bar of limitation against the appeal under the Ordinance. The Ordinance does not contain a residuary Article of the nature of the Articles 120 and 181, on appeals. The Federal Shariat Court (Procedure) Rules, 1981 also do not lay down any period of limitation for filing of an appeal to the Court. As such there does not exist at present any statutory period of limitation for an appeal under section 20 of the Ordinance or for the matter of that for an appeal to this Court under any of the Hudoood Laws. The Supreme Court of Pakistan for the exercise of its Constitutional Appellate jurisdiction has provided a period of limitation of 30 days for filing appeals in that Court by Rule 1 of Order XVII of the Supreme Court of Pakistan Rules, 1980. As the position emerging from the above discussion can only lead to chaos, it would be highly desirable that a period of limitation for filing of such appeals as these should be prescribed either by way of insertion of statutory provisions in the Hudood Laws or by way of framing Statutory Rules on the subject. Till then we would prefer to take guidance from Article 155 of Limitation Act as these appeals are from the decisions and orders of the Sessions Judges against which ordinarily a period of :0 days is provided for Code from such orders. This appeal is therefore, held not barred by limitation."

7. On 28‑12‑1981 the Federal Shariat Court (Procedure) Rules, 1981 were amended an clause (A) in sub‑rule (1) of R 1es 18 was added m the following words:‑‑ "An appeal shall be presented to the Court within sixty days from the date of the order or decision appealed from."

8. Article 157 of the Limitation Act indeed provides a period of limitation of six months for filing an appeal against acquittal, but that was so where no period of limitation, different from that prescribed by the Limitation Act, has been provided by any Special Law Local Law. Subsection (2) of section 29 of the Limitation Act provides that: "Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefore in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply." Section 3 of the Limitation Act referred to in the above-quoted subsection (2) provides as hereunder:‑‑ "3 Dismissal of suit etc. instituted etc. after period of limitation. Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefore by the First Schedule shall be dismissed although limitation has not been set up as a defence."

9. These provisions of the Limitation Act make it clear that where a Special Law or a local law provides a period of limitation different from that of the Limitation Act then the period so prescribed prevails over that of the Limitation Act. In case of conflict on the express words, the Limitation Act yields. If there is any inconsistency, as there appears to be, then the Rules framed by the Federal Shariat Court will prevail provided they are found to be intra vires.

10. The rules under examination have been framed in exercise of the powers possessed under Article 203‑J of the Constitution. The relevant portion of the Constitutional provisions reads as hereunder:‑‑ "The Court may, by notification in the official Gazette, make rules for ‑carrying out the purposes of this Chapter." Clause (2) of Article 203‑E empowers the Court in the following words:‑‑ "The Court shall have power to conduct its proceedings and regulate its procedure in all respects as it deems fit."

11. The word "proceeding" has been given a very wide meaning as would appear from the definition provided in Black's Law Dictionary in the following words:‑‑ "In a general sense, the form and manner of conducting juridical business before a Court or judicial officer. regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunals, bureaus, or the like Term "proceeding" may refer not only to a complete remedy but also to a mere procedural step that is part of a larger action or special proceeding." The word `procedure' has also been defined in the same Dictionary in the following words:‑‑ "The mode of proceeding by which a legal right is enforced, as distinguished from the substantive law which gives or defines the right, and which, by means of the proceeding, the Court is to administer; the machinery as distinguished from its product. That which regulates the formal steps in an action or other judicial proceeding a form manner and order of conducting suits or prosecutions. The judicial process for enforcing rights and duties recognized by substantive law and for justly administering redress for infraction of them."

12. Giving the formal extensive meaning to the words `proceeding' and `procedure' in Article 203‑E coupled with the expression "in all respects" would clearly give the impression of authorising the Court to determine the period of limitation as well. This would not have been the situation if the field had not been left vacant as noticed by the Federal Shariat Court itself in the Azmat Khan's case and a superior legal instrument prescribing a period of limitation existed. The argument of the learned Assistant Advocate‑General that the Criminal Procedure Code governed the matter, is not a complete answer to the question raised in this appeal because the Code of Criminal Procedure does not itself provide any period of limitation even where the other relevant provisions are applicable. Limitation does not come into existence and in the face of the rules framed by the Federal Shariat Court, the general law of limitation stands: displaced and ' excluded. On this view of the matter we find that the Federal Shariat Court has taken a correct view of the legal position with regard to appeals against acquittal in the impugned judgment and in State v. Muhammad Akram (P L D 1985 F S C 416).

13. The appeal has, therefore no merit and is dismissed. The bail bonds shall stand discharged against the respondent. N.H.Q./S‑475/S Appeal dismissed.