' ABDUL RASHEED KALWAR, J.---The appellant had presented the memo. Of appeal against acquittal under section 417-A(2), Cr.P.C. On 5-4-2006 against the judgment, dated 6-2-2007 passed by the Assistant Sessions Judge Naushahro Feroze in Sessions Case No.245/2006 State v. Muhammad Saleh and others under sections 324, 452, 337F(iii)34, P.P.C. Based on Crime. No.76/06 Police Station Bhria. The office having calculated delay in filing of appeal found that appeal was filed after the delay of 20 days, as such the office raised objection "appeal is time-barred" compliance within a week.
' Learned counsel for the appellant had moved condonation application under section 5 of the Limitation Act in order to overcome the objection as to the limitation. The application for condonation of delay under section 5 of the Limitation Act had not been supported with an affidavit. The ground mentioned in the application was that ailment of the appellant, prevented him to present the appeal in time. On 14-4-2007 along with a statement, the Medical Certificate was filed, which was issued on 4-4-2007 by Dr. Javiad Aslam of Naushahro Feroze. The contents of Medical Certificate show, that the appellant was under the treatment of above Doctor since 14-3- 2007 to 4-4-2007 as an out-door patient, being patient of typhoid and acute diarhorrea. Besides it the appellant had also filed an affidavit on 14-4-2007 but in the said affidavit he did not say anything about his ailment and the treatment or cause of delay. However the appellant had asserted in his affidavit that the contents of application be treated as 'part of the affidavit. Learned counsel for the appellant was confronted with such legal position as to limitation for filing the appeal. Whereupon he argued his application under section 5 of the Limitation Act (C.M.A. 621/07) and he has raised following contentions:
(i) The appellant was sick and admitted in hospital.
(ii) Delay of 20 days has been explained.
(iii) Appellant has explained his inability to file his appeal in time in his affidavit.
(iv) The provisions of section 5 of the Limitation Act are applicable for condoning the delay in appeal against acquittal under section 417-A(2)(a), Cr.P.C.
(v) Private respondent/accused are dangerous persons and have committed heinous offence by causing fire-arm injuries to the wife of the appellant. The appellant's counsel has relied upon the following cases: Rasab and another v. The State and another 1983 SCM R 1018, Muhammad Shareef v. The State 1978 PCr.LJ 546 and Muhammad Sharif v. Jamshed Ali and others PLD 1978 Lah.
471. And unreported order, dated 15-5-2006 passed by his lordship Amir Hani Muslim-J in Criminal Acquittal Appeal No.18 of 2005 (Din Muhammad v. Fateh Ali and others).
' I have heard the arguments and perused the record.
' Though the appellant has taken ground of his sickness in an application, dated 5-4-2007 but neither an affidavit in support of his plea had been filed nor any documentary proof was filed along with the application, but at subsequent stage on 14-4-2007 he along with statement filed one Medical Certificate showing, dated 4-4-2007 and affidavit of the appellant for the first time. From the perusal of the Medical Certificate it appears that appellant was suffering from typhoid and acute diarhorrea from 4-3-2007 to 4-4-2007. He was treated by the doctor as an out-door patient; which shows that_he was not admitted in the hospital or confined to bed. The affidavit, dated 14- 4-2007 filed by the appellant does not mention about his sickness or the circumstances which prevented him to present appeal before the Court, however he has stated that the contents of application under section 5 of the Limitation Act may be treated as part and parcel of the affidavit for the brevity sake. In these circumstances I do not find that delay in filing the appeal' has been properly explained by the appellant.
2. Mere heinousness of the offence is no ground for condonation of delay and it was for the appellant to be vigilant in filing of the appeal by B keeping in mind the gravity of offence committed by the respondents.
Furthermore, for the purpose of filing of Acquittal Appeal the presence of appellant before the Court was not necessary and an Advocate could have filed this appeal after getting signed memo of appeal, Vakalatnama or both from the appellant, which he could do even during his sickness.
3. Applicability of section 5 of the Limitation Act is subject to provisions of section 29(2)(a)(b) which read as under:
29. Savings (1) Nothing in this Act shall effect section 25 of the Contract Act, 1872 (IX of 1872).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor 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---
(a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only insofar 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."
It is pertinent to mention here that subsection (2)-A of section 417, Cr.P.C. Was inserted by way of Act No. XIX of 1994 which for the first time provided the right of appeal against acquittal to aggrieved person and so also the limitation of 30 days was prescribed in said subsection of section 417,Cr.P.C. In this manner the special limitation prescribed by Statute itself was not subject to the application of section 5 of the Limitation Act due to bar contained in section 29(2)(a) and (b) of the Limitation Act. While referring to the case-law cited by the appellant's counsel, my humble submission is that the case-law reported in 1983 SCM R 1018 (Rasab and another v. The State and another), 1978 PCr.LJ 546 (Muhammad Shareef v. The State) were prior to the incorporation of subsection 2(a) in section 417, Cr.P.C. And question of application of section 5 of. Limitation Act in case of appeal under section 417(2) was not before Honourable Courts. Therefore, in my humble view the dictum laid down in aforesaid authorities are not applicable to the circumstances of the present case. In the case of Muhammad Shareef v. Jamshed Ali PLD 1986 Lahore 471. I have gone through the whole judgment but I do not find any dictum of the Honourable High Court of Lahore in respect of any question as to section 5 of Limitation Act having been decided in the light of section 29 of the Limitation Act. Therefore in my humble view this case-law have no applicability under the circumstances. Regarding the unreported order, dated 15-5-2006 passed by his lordship Amir Hani Muslim, J. In Criminal Acquittal Appeal No.18 of 2005, I with profound respect submit that Advocates appearing before his lordship did not raise any objection as to applicability of section 5 of the Limitation Act in the light of section 29 of the Limitation Act therefore this order does not contain any finding on this point.
In the light of my above humble submissions and observations on legal and factual aspect of the matter of condonation of delay in filing appeal, I am of the considered view that condonation under section 5 of the Limitation Act is not available for filing appeal against acquittal under section 417-A(2), Cr.P.C. Besides it the conduct of the appellant also shows his negligence and carelessness and laxicity. His explanations, neither find support from his own documents nor appear to me as reasonable. In the circumstances I dismiss the application under section 5 of the Limitation Act. Resultantly the appeal is time-barred and as such the same is dismissed in limine along with listed-applications.