' A written complaint under section 448, P. P. C. Was made by the appellant Fazali Rabi against Khanimullah on 5-5-1975, in the Court of Illaqa Magistrate, Peshawar. In there it was alleged that the accused-respondent, in absence of the complainant and without his consent, had taken forcible possession of his portion of the Miana `Jat in Village Baaid Khel which were lying vacant during that period, thus committing an offence punishable under the aforementioned provision of law. The complaint was sent by the Magistrate under section 150, Cr. P. C. To S. H.
0. Badabher on the same day for necessary investigation and return within a period of 15 days.
2. The complaint, after investigation, was however received back in the, Court sometime in October 1975. The parties were summoned. Accused-respondent was formally charged under section 448, P. P. C. On 8-4-1976 to which he did not plead guilty. Evidence of the complainant and his witness Malik Nasrullah Khan was recorded on 6-5-1976. Another witness of his namely P. W. Muhammad Usman was examined on 23-6-1976 followed by the statement of P. W. Habibul Haq, A. S. I. On 25-11- 1976, on which date, complainant closed his evidence. Respondent in his statement under section 342, Cr. P. C. Admitted that he was in possession of the disputed property but claimed that he was owner of the site underneath which was in the shape of a ditch. He had filled it with earth and constructed a house over it some 30 years ago and ever since had been living in it. He produced, however, no evidence in his defence.
3. The learned Magistrate found the respondent guilty by his order dated 9-2-1977. He was convicted accordingly and sentenced to pay a fine of Rs, 300 or in default three months' rigorous imprisonment. Possession was also ordered to be restored to the complainant under section 522, Cr. P. C.
4. Khanimullah promptly filed an appeal against this order in the Court of Session. It appears that complainant on the other side also filed an application for enhancement of his sentence. Both these were disposed of by the learned Additional Sessions Judge, Peshawar by a common order dated 18-3-1977 by which appeal of the respondent was accepted and he was acquitted of the charge on the ground that in the complaint, it had been categorically stated, that the house in dispute was vacant at the time its possession was allegedly taken by Khanimullah, therefore, offence under section 448, P. P. C. Was not proved, because to constitute such an offence, it was essential, that the house should be in possession of the complainant.
5. It appears that an application was thereafter filed by the complainant under section 417, Cr. P. C.
In the Court of the District Magistrate, Peshawar with the request to recommend the case to the Provincial Government to present an appeal to the High Court against this order. It is not denied that 1 this application was subsequently dismissed on 10-7-1977. Certified copy 1 of this order was produced by the learned counsel for the respondent in the course of arguments and has been placed on record.
6. The order of the learned Additional Sessions Judge dated 18-3-1979 was also impugned by the complainant, in this Court, almost simultaneously, through a revision petition (Cr. No, 38/1977) filed on 5-5-1977, purportedly under section 417, Cr. P. C.
7. Now it is obvious that this revision petition was not competent. Under subsection (2) of section 417 of the Code of Criminal Procedure complainant could have only made an application to the High Court for special leave to appeal from the order of the learned Additional Sessions Judge whereby accused had been acquitted. And such an application was liable to entertainment by the High Court only if it had been made, as envisaged by subsection (3) ibid, within a period of sixty days from the date of the said order. Therefore, when Cr. R. No, 38/1977 came up for hearing in motion before a learned Judge of this Court and it was pointed out by the Court, a request was made by the learned counsel for the petitioner for time to file an application under section 417 (2), Cr. P. C. For special leave to appeal. The matter was accordingly adjourned. And on 30-5-1977 an application Criminal Miscellaneous No, 671/1977 was made for entertaining Criminal Revision No, 38/1977 as an application for leave to appeal against the order of Additional Sessions Judge dated 18-3-1977 or in the alternative considering the said application Criminal Miscellaneous No, 271/1977 as application for special leave to appeal. An application (Criminal Miscellaneous No, 970/1977) under section 5 of the Limitation Act was also submitted along with Criminal Miscellaneous No, 271/1977 for condonation of delay in filing the said application. I think it would be useful for facility of reference as well as proper understanding of the controversy to which reference will be made soon after, to reproduce the relevant paragraphs of this application as also its prayer part. They are :- "2. That the petitioner filed revision petition against the order of Additional Sessions Judge, Peshawar dated 18-3-1977 without the knowledge of amendment in section 417, Cr. P. C.. Therefore, the petitioner did not file an application for leave to appeal.
3.That the petitioner was informed by this Hon'ble Court where he appeared on 27-5-1977 about the amendment above.
4.That the delay is not wilful or intentional but due to ignorance of amendment, An affidavit is attached herewith.
5. It is, therefore, prayed that this petition be accepted and delay in filing the application for the grant of leave to appeal may be condoned."
' These applications were put up for hearing before the Court on 21-9-1977 on which day the following order was passed by a learned Judge of this Court.
"For the reasons mentioned in the application, I feel inclined to condone the delay, in filing an application for leave to appeal. This application is, therefore, allowed and application for leave to appeal is also granted."
8. Now it seems that the request made in Criminal Miscellaneous Application No, 271/1977 to treat Criminal Revision No, 38/1977 as an application for special leave to appeal was not granted for perhaps it was not pressed at all. And for all intents and purposes, it was considered, as an application for special leave to appeal, else there was no need to condone the delay for Criminal Revision No, 38/1977 was within time, having been filed before the expiry of sixty days from the date of the impugned order. Apparently petitioner also seems to have remained contented with this order because no grievance thereafter seems to have been made by him against the same. And special leave having thus been granted to the complainant he submitted a memorandum of appeal (Criminal Appeal No, 126/1977) on 29-9-1977.
9. This appeal came up before the Court on 29-10-1977 and was admitted to full hearing with notice to the opposite-party. However, when it came up for final hearing on 21-7-1979, in presence of all concerned, a preliminary objection was taken both by the learned counsel for the State as well as Khanimullah that the appeal being under subsection (2) of section 417, Cr. P. C. Was barred by time under subsection (3) and was liable to dismissal on this score alone. It was contended that the order condoning delay was passed in their absence, therefore, they were not deprived of their right to throw challenge to the competency of appeal on this ground. Since this objection was not anticipated by him, an adjournment was sought by the learned counsel for the appellant and the matter was adjourned for hearing both with regard to this objection as well as on merits.
10. When the appeal ultimately came up before me on 19-1-1980, following submissions as regards preliminary objection were made by the learned counsel for the appellant :-
(a) that the delay in filing application for special leave having been condoned by order dated 21- 9-1977 and the appeal having been admitted, it was now not open to the other side to reagitate this question
(b) that if it is held that despite order dated 11-9-1977 this objection can nevertheless be taken by the opposite-party, then this Court has the power, if sufficient cause is shown, to condone the delay and
(c) that the original application Criminal Revision No, 38/1977 was admittedly filed in time, under a mistaken but bona fide belief and in ignorance of the amendment; brought about in section 417, Cr.
P. C. By Law Reforms Ordinance, 1972 and an application (Criminal Miscellaneous No, 271/1977) to this effect was made on 30-5-1977 for treating the said revision as application for Special Leave to Appeal in terms of section 417 (2), Cr. P. C., therefore, this constituted more than "sufficient cause" for condonation of the delay, if any.
12. Let me take up these submissions one by one. It is not denied that the order of acquittal was passed by the learned Additional Sessions Judge on 18-3-1977. Its copy was applied for by the petitioner on 3-5-1977 and issued to him on the same day, thus only one day was spent in obtaining the said copy. It is also admitted that the application for special leave to appeal (Criminal Miscellaneous No, 27/1977) was made by the complainant on 30-5-1977. It was therefore barred by about 12 days. A valuable right had thus accused to the opposite-party. It cannot also be disputed that the delay in making this application was condoned in the preliminary hearing in the absence of the respondent. In the case of Krishnasami Panikondar v. Ramasami Chettiar and others (1) it was held by their Lordships of the Privy Council that where an appeal filed beyond limitation, without notice to the opposite-party, is admitted by the admitting Judge after excusing the delay under section 5, Limitation Act, it must be recorded as a tacit term of the order admitting the appeal that though unqualified in expression, it should be open to reconsideration at the hearing at the instance of the party prejudicially affected and at the hearing the Court has jurisdiction to reconsider the sufficiency of the cause shown, and to dismiss the appeal as time barred. The same view was taken in the case of Abdul Karim v. Sheikh Muhammad and others (2).
Repelling the argument of Malik Shaukat Ali it was observed by his Lordship Mr. Justice Anwarul Haq as he then was that :- "Even otherwise, it has been held that where an appeal or application filed beyond time is admitted ex parte atter excusing delay, without notice to the opposite-party, the latter is entitled, at the hearing, to object to the admission and the Court can re-open the question and decide whether there is sufficient cause for admitting the appeal or application beyond time."
' Reference may also be made to the case of Aon Muhammad v. Rehabilitation Commissioner and another (3) wherein it was held by Mr. Justice Karam Elahi Chauhan that :- "In the matter of limitation there could not be ex parte condonation or extension of time and even in cases where ex parte condonation are made, the affected parties can always, on coming to know of such orders, take exception thereto and claim that the matter is barred by time, the extension of time. If any, is illegal and that effect to plea of limitation should he given. Ex parte condonation of delay would be illegal as being opposed to violation of the principles of natural justice as well as against law. Mere admission of appeal, therefore, is no bar to the Court subsequently hearing the matter to dismiss the same as barred by time."
13. In this view of the law, therefore, neither the ex parte order condoning delay can be considered as final nor the respondents are precluded from questioning its propriety. Allowing such argument to prevail would in (1) AIR 1917 P C 179 (2) PLD 1966 B J 14 (3) PLD 1966 Lah. 319 fact tantamount to depriving the other side of its valuable right and denying justice to it. The contention is, therefore, unacceptable.
14. I now proceed to examine the next submission whether there is "sufficient cause" in this case for extending the period of limitation. In his application filed under section 5 of the Limitation Act only one ground has been urged by the appellant in support of this plea, that he had no knowledge of the amendment in section 417, Cr. P. C. And the delay was thus neither wilful nor intentional but "due to ignorance of amendment". Can this be considered to be a "sufficient cause"? Sufficient cause would be a cause which is beyond the control of a party. A cause which could have been avoided by a party by due care and attention cannot be said to be a sufficient cause. The words 'wilful' or 'intentional', in the circumstances, cannot be construed in any other way, for nothing can, be said to be not wilful o intentional unless it could be shown to have been done with due care and attention. Ignorance of law or for that matter amendment in law, made as early as 3 years before the filing of the petition in this Court, can hardly be considered to be a sufficient cause or reason for excusing delay and extending the period of limitation. It cannot be disputed that the provision of section 417, Cr. P. C. As it exists today was substituted on April 14, 1972 by Ordinance XII of 1972, commonly know as Law Reforms Ordinance, 1972. The Criminal Revision No, 38/1977 was filed by the appellant on 5-5-1977, i,e, more than 3 years after the amended provision of law had come into existence and on the said date it should have been known to the appellant that in such cases as his, he had to make an application to this Court for special leave to appeal, within a period of 80 days from the date of order of acquittal, excluding, of course, the time spent in obtaining its copy.
Ignorance of law otherwise has never been considered to be a valid excuse much less "sufficient" cause for exercise of discretionary jurisdiction under section 5 of the Limitation Act unless the mistake is bona fide. And nothing can be deemed to be bona fide which is not done with due care and attention.
15. Learned counsel for the appellant has invited my attention to the judgment of the Supreme Court in the case of Nazar Muhammad and another v. Mst. Shahzada Begum and another (1) wherein it was held that mistaken advice by a counsel may be considered to be a sufficient ground within section 5 of the Limitation Act for condoning the delay. The facts of the said case are, however, distinguishable. In there the appeal was admitted for hearing by the admitting Bench in the High Court subject to all just exceptions on the question of limitation. At the time of the final hearing, however, no objection was raised by the respondent in this behalf. It was held, in these circumstances, that no complaint could be made that the question of limitation was not considered by the High Court. Their Lordships nevertheless considered the objection on the question of limitation and this is how it was dealt with: "The District Judge dismissed he appeal on the 2nd February 1963. On the 6th February 1963, the respondents applied for copies which were delivered to the respondent's agent on the 19th February 1963. On the 17th April 1963, the respondents moved an application under Order XXXIII, rule I and Order XLI, C. P.. C., alongwith an application under section 5 of the Limitation Act for condoning the delay in filing the appeal. The explanation of the respondents was that she had ascertained from Qazi Muhammad Yaqub, a local lawyer, who after consulting a book on limitation informed her that period of limitation for filing an appeal is 90 days. Respondent No, 1 further stated (1) PLD 1974 SC 22 that she is a pardanashin lady and she came alongwith her father to Lahore and met Raja Muhammad Anwar Advocate who, after seeing a book on law of limitation known as Tagore Law Lecture by Mitra, informed the respondent that under Article 162 of Act IX of 1870, period of limitation for leave to appeal is 90 days from the date of decree appealed against. According to respondent No, 1, the delay in filing the appeal beyond limitation was not intentional and was based on the mistaken legal advice 156 of the Limitation Act, the period of limitation is 90 days from the date of the decree or order appealed from under the Code of Civil Procedure, to a High Court. Under Article 170, the period of limitation for leave to appeal as a pauper is 30 days from the date of decree or order appealed from. The explanation of the respondent is that she was given mistaken advice by a legal practitioner and, therefore, it was a sufficient ground for condoning the delay."
16. In the instant case, however, no such explanation is forthcoming in the application for condonation of delay. Ignorance of law has been urged to be the only ground. It is not a case of bona Fide mistaken advice by a legal practitioner. There is no such affidavit that any book on the subject had been consulted by the learned counsel. As a matter of fact it appears that in this case no effort was made to ascertain relevant law, prior to the filing of revision petition. It was all done on assumption, without due care and attention. Therefore the judgment relied upon by the learned counsel can be of no help to the appellant.
17. It is true that Criminal Revision No, 38/1977 was filed within a period of sixty days and same could have been treated as application under section 417(2), Cr. P. C. For special leave to appeal. The appellant, however, did not make any such request at the time when the mistake was first pointed out by the Court on 27-5-77. Instead request was made for grant of time to file an application for special leave to appeal under the aforesaid provision of law. And this application was made on 30- 5-77 with a request, for the first time to treat the revision petition as application for leave to appeal or in the alternative, to consider the application dated 30-5-77 as such. However when it came up for hearing on 21-9-1977 it does not seek to have been urged that Criminal Revision may be treated as application for special leave to appeal. This was available to the appellant. Having not raised it will be deemed to have been abandoned. Instead the only request made was to condone the delay in making application for leave to appeal on 30-5-1977. In fact the appellant remained contented with this order until objection was taken by the respondents. In this situation, I am afraid, it would not be possible for me to treat criminal revision as application for leave to appeal. Besides it was not acceded to by the learned admitting Judge as it was not present before him. Thus no proper case has been made out by the appellant in this respect also. In the circumstances I have no choice but to dismiss the appeal as barred by time.
18. Learned counsel were then asked to address, me on the merits of the case. It was urged by the learned counsel for the appellant that the learned Additional Sessions Judge was wrong in accepting the appeal and acquitting the respondent on the ground that the house was vacant when the respondent allegedly took possession of the same. He added that the learned Judge had misconceived the law on the point in saying that to prove an offence under section 448, P. P. C. It was essential for the complainant to be in possession of the house. Learned counsel says that the Court seems to be labouring under the impression as if .Possession must be actual physical possession. He contends that the word 'possession' as contemplated by section 441, P. P. C. Does not necessarily mean physical possession. It may as well be constructive possession of the complainant. In this the learned counsel seems to be right. Learned counsel wanted me, however, to remand the case to the Appellate Court for decision afresh in the light of the evidence on record.
This would have been a futile exercise however. I have examined the evidence on record myself.
The Miana Jat in question, according to the appellant, were lying vacant. Admittedly he was not present at the time when respondent allegedly took forcible possession of the same. The appellant admitted in cross-examination that he did not take any step against the respondent at the time when he had allegedly take possession of his house. Instead he had entered into negotiations with him as a consequence of which respondent had promised to "vacate the house later on". His own witness Malik Nasrullah Khan seems to have further confused the matter. In his cross-examination he admitted that his statement had been recorded by the Police during investigation on 5-5-1975 but it was incorrectly recorded therein that an area of 11 marlas was lying vacant in the shape of Dhand and Khanimullah had constructed abadi over the same, and it was also incorrectly recorded therein that Khanimullah, Saeed-ur-Rehman, Wali Muhammad and Fazal Muhammad etc. Are "hamasayas" in the disputed house. Evidence of his other witnesses is also not very inspiring. Thus on merits, too, he does not seem to have a good case. The proper remedy for the appellant perhaps would be to approach a Civil Court for redress, if any.
19. This appeal is consequently dismissed both on the question of limitation as well as on merits.
Criminal Revision No, 38/77 being incompetent is also dismissed as such.