1

ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Acq. Appeal No. 242 of 2009

Date Order with signature of Judge

1.For orders on M.A. No. 4264/2009.

2.For orders on M.A. No. 4265/2009.

3.For Katcha Peshi.

27^th January 2010.

Mr. Muhammad Ali Waris, Special Prosecutor, ANF.

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GULZAR AHMED, J.

1. This is an application under Section 5 of Limitation Act, 1908 filed by the appellant seeking condonation in delay in filing of this Criminal Acquittal Appeal.

Learned counsel for the appellant has contended that appellant was not sure as to from whom the sanction of prosecution is to be obtained and whether the authorization of prosecution issued by the Director General ANF will meet the requirement and on this account delay in filing of the appeal has occurred which may be condoned. In support of his such submissions, he has relied upon the cases of MUNAWAR HUSSAIN @ BOBY & 2 OTHERS V/S THE STATE (1993 SCMR 785) and MUHAMMAD SHARIF V/S JAMSHED ALI (PLD 1996 Lahore 471). He has also relied upon the judgment reported as AMAL SHERIN & ANOTHER V/S THE STATE (PLD 2004 SC 371) and FATIMA BIBI & 5 OTHERS V/S SARDAR ALI & 3 OTHERS (2002 P.Cr.L.J.668).

We have considered the submission made by learned counsel and have gone through the record.

It seems that impugned judgment was passed on 16.10.2008 and the appellant applied for its certified copy on 25.10.2008 which was delivered to appellant on 16.12.2008, who filed the appeal in this Court on 25.6.2009. Section 48 of Control of Narcotics Substance Act, 1997 (the Act) provides that an appeal against the order of Special Court comprising of a Sessions Judge or an Additional Sessions Judge shall lie to the High Court and shall be heard by a Bench of not less than two Judges of that Court; and an appeal against the order of Special Court comprising of Judicial Magistrate shall lie to a Special Court comprising of Sessions Judge or Additional Sessions Judge. The Special Court comprising of a Sessions Judge or Additional Sessions Judge has been given power to try all offences while the Special Court comprising of Judicial Magistrate has been given power to try offences punishable with imprisonment of two years or less. Such provision is made in Section 46 of the Act.

In the present case, the appeal arises from the judgment passed by the Special Court which comes within purview of Sessions Judge or Additional Sessions Judge. No period of limitation for filing of the appeal is provided in the Act itself. Section 47 of the Act provides that except as otherwise provided in this Act the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), (the Code) including the provision relating to confirmation of death sentence shall apply to trials and appeals before a Special Court under this Act.

The provisions of Code having been made applicable for appeals under the Act in the Code section 417(1) provides for filing of an appeal by the State to the High Court the limitation period for which in terms of Article 157 of Ist Schedule of Limitation Act 1908 is six months from the date of order appealed from.

The reason given in the application for delay in filing of the appeal is that appellant did not know as from whom the sanction of prosecution is to be obtained and whether the authorization of prosecution issued by the Director General ANF will meet the requirement. In the affidavit filed in support of this application the reason assigned for delay is there was a question as regards the point that what is the time limit for filing of appeal against the acquittal order by the State, which requires some time and hence the delay of few days has occasioned beyond six months. Both the reasons assigned by the appellant in respect of delay in filing of the appeal are apparently not understandable; more-so, for the reasons that this is not the first appeal which the ANF has filed against the acquittal as there are admittedly large number of such appeals filed by the ANF against the acquittal order/judgment and it is not stated that the appellant felt any difficulty in obtaining authorization or ascertaining limitation period in filing of such appeals rather the appellant counsel gave the reason that it was his first experience of filing of an acquittal appeal in the High Court which has led to confusion and delay in filing of the appeal. Such ground is not mentioned in the application nor in the affidavit filed in support of it. The case of Munawar Hussain (supra) was an appeal against the conviction which was time barred by 13 days which delay was condoned by Hon’ble Supreme Court for the reasons that against common judgment of Federal Shariat Court, two of the appellants have filed their appeal in time while the appeal of third appellant was barred by 13 days and as the court was considering the case of two other appellants, it condoned the delay in filing of appeal of third appellant.

The case of Muhammad Sharif (supra) was based upon the fact that the appellant has pursued his remedy by way of revision in good faith and accordingly the court condoned the delay in filing of acquittal appeal under section 5/14 of Limitation Act.

The facts of both the cited cases are altogether different from present one and apparently, the rule laid down in them has no application to the case in hand. The two other judgments relied upon by the counsel for the appellant relates to merits of the appeal itself which was not argued nor there was an occasion for doing so.

The impugned order is dated 16.10.2008. The appellant applied for obtaining its certified copy on 25.10.2008 and the certified copy was delivered to the appellant on 06.12.2008. The appeal was filed on 25.6.2009. The appellant spent eight days in applying for certified copy of the impugned judgment and after receipt of certified copy of impugned judgment the appellant took another nine days for filing of the appeal. Apparently, the appeal is barred by 17 days and the appellant has neither given any plausible or justifiable reasons for delay nor explained the delay of each day.

In the case of THE STATE THROUGH A.G.SINDH V/S AMEER BUX (1981 SCMR 410) the Hon’ble Supreme Court has observed as follows:-

“ It must also be stated that it has been the consistent view of this Court, as expressed in Nazar v. The State (1968 S C M R 71), Jalal Khan v. Lakhmir (1968 S C M R 1345), Muhammad Khan v: Sultan (1969 S C M R 82), Piran Ditta v. The State (1970 S C M R 282), and Nur Muhammad v. The State (1972 S C M R 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 acquitted respondents; or by some, circumstance of a compelling nature; beyond the petitioner's control. The reason for taking the strict view is that in most jurisdictions an acquittal, once record 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 circumstance of a compelling nature beyond the control of the petitioner.”

In the case of GOVERNMENT OF THE PUNJAB V/S MUHAMMAD SALEEM (PLD 1995 SC 396) Hon’ble Supreme Court has observed as follows:

“In the present case, the High Court gave good reasons for declining to condone the delay. It held that the ground taken by the appellants in their application under section 5 of the Limitation Act that they could not file the appeal within time as they had entered into correspondence with litigating departments and the Solicitor was quite vague and reliance was also placed in a judgment of this Court reported in 1990 SCMR 1059 wherein it was held that “It is well-settled principle of law that under section 5 of the Limitation Act, delay of each day is to be explained” and further that, the Government cannot be treated differently than a private litigant on the question of limitation under section 5 of the Limitation Act.”

In the Case of WAPDA V/S M.A.RAHID (2001 SCMR 722) the Hon’ble Supreme Court has observed as follows:

“The contention of the petitioner that the delay in filing the above petition resulted on account of late sanction received from the Head Office for filing of the above petition is hardly a ground for condoning the delay.”

In view of the observations of Hon’ble Supreme Court of Pakistan in the above cited case, we are of the view that appellant has not been able to make out a case for condoning the delay in filing of the appeal and therefore we find no merit in this application which is dismissed and consequently, also dismiss this Criminal Acquittal Appeal as time barred and application for exemption from filing certified copies is also disposed off.

J U D G E

Aamir/PS