IMAM BUX BALOCH, J.---The Chairman NAB has filed this Criminal Accountability Appeal challenging the order dated 1st March, 2010, passed by the Accountability Court-I, Karachi in Reference No, 25 of 2007, by which the application for recalling of order passed under section 265- K, Cr.P.C. dated 27-9-2008 has been dismissed.
2. That facts in nutshell are that the Reference No, 25 of 2007 was tiled against Aftab Ahmed, Fareed Ahmed Soomro, Shadab Mussarrat and Sikandar Ali Jatoi. During pendency of this reference, the President of Islamic Republic of Pakistan promulgated an Ordnance No, LX of 2007 on 5th October, 2007 ("National Reconciliation Ordinance"). Thereafter the accused were charged. The accused Aftab Ahmed, Fareed Ahmed Soomro and Shadab Mussarrat filed a joint application under section 7 of the NRO, 2007 while the accused Sikandar Ali Jatoi moved an application under section 265-K, Cr.P.C. seeking his acquittal on the grounds inter-alias that since proceedings against the holder of public office are liable to be terminated under section 7 of NRO, there would be no possibility of his conviction in the subject Reference. Accordingly, the proceedings against accused Aftab Ahmed,Fareed Ahmed Soomro and Shadab Mussarrat were terminated under section 7 of NRO, 2007 while accused Sikandar was acquitted under section 265-K, Cr.P.C. After the NRO, 2007 was declared void and ab intio by the Hon'ble Supreme Court of Pakistan in its Judgment dated 16th December, 2009 in the case of Dr. Mobashir Hassan and others, the proceedings against accused.
Aftab Ahmed, Fareed Ahmed Soomro and Shadad Mussarrat stood reawaken, while application for recalling of order dated 27th September, 2008 under section 265-K, Cr.P.C. was dismissed vide Order dated 1st March, 2010,
3. Through M. A. No,257k of 2010, learned counsel for the appellant has sought condonation of delay for filing appeal.
4. Learned Senior Prosecutor NAB argued that as the huge money of public exchequer is involved, hence in the interest of public, the delay may be condoned. If the delay is not condoned the public exchequer will suffer and the acquittal of respondent will be against the natural justice and facts of the case. He has relied upon section 32 of National Accountability Ordinance, 1999.
5. Mr. Akhtar Hussain, learned Counsel for the respondent contended that the Acquittal appeal is time-barred by one year and six months and the appellant has not explained such inordinate delay in filing of acquittal appeal. He further contended that after acquittal of the respondent he gained double presumption of innocence. He has relied upon section 32 of the National Accountability Ordinance, 1999 and contended that after 10 days of such order/conviction/sentence an appeal/revision be filed. Learned Counsel for the respondent has relied upon the. cases reported as Chairman/Secretary, Pakistan Railways, Ministry of Railway, Government of Pakistan Islamabad and others v. Muhammad Sharif Javaid Warsi (PLD 2003 SC 6), Allah Dino and another v. Muhammad Shah and others (2001 SCM R 286), Muhammad Sharif and others v. The State (2005 M LD 1333), Dr. Muhammad Anwar Kurd and another v. The State through Regional Accountability Bureau and others (2003 YLR 2016).
6. We have heard Senior Prosecutor-General NAB on behalf of the appellant, Mr. Akhtar Hussain for respondent and perused the record.
7. It appears that the appellant has not filed any acquittal appeal against the acquittal of respondent but after the announcement of judgment in the case of Dr. Mubashir Hussain v.
Federation of Pakistan (PLD 2010 SC 1) filed an application before the trial Court for recalling of acquittal order passed in the month of September, 2008. After hearing the appellant; the learned trial Court declined to recall its earlier acquittal order passed in favour of respondent. Thereafter the appellant after delay of one year and six months has filed the present acquittal appeal. We have asked learned counsel for the appellant to satisfy this Court about the maintainability of the present acquittal appeal on the point of limitation as the learned Counsel for the appellant has tiled M.A. No,2576 of 2010 for condoning the delay without mentioning any section of Limitation Act.
The learned Senior Prosecutor-General NAB Was unable to explain the delay. On the contrary, he has relied upon unreported judgment passed by a Division Bench in Criminal Accountability Appeal No,15 of 2008 authored by one of us (Gulzar Ahmed J.) and contended that as this Court has set aside the impugned order passed by Accountability Court No,1 Sindh Karachi. We have perused the said unreported judgment and.found that the acquittal appeal in the above judgment was filed within time, however the issue involved in the above judgment is same as is in the present appeal.
8. Admittedly, the appellant after acquittal of the respondent has not filed any acquittal appeal.
After the announcement of judgment in the case of Dr.' Mubashir Hussain by the Hon'ble apex Court, tiled an application for recalling of order dated 27th September, 2008, passed under section 265-K, Cr.P.C. in favour of respondent, after the delay of one year and six months,. which in our view is not permissible under the law.
9. In the case of Chairman/Secretary, Pakistan Railways (supra), the Hon'ble Supreme Court has held as under:-- "We called upon learned counsel for petitioner to justify as to whether on. the basis of the ground taken in the application for condonation of delay, ever this Court has shown indulgence because it is well-settled that no preferential treatment will be offered, to Government Department qua the civil litigant, therefore, in view of the judgments passed by this Court in the cases of Pakistan through Secretary, Ministry of Defence v._ Messrs Azhar Brothers Ltd. 1990 SCM R 1059, Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396, Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v.
Jamaluddin and others 1Q96 SCMR 727; Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others (1998 SCM R 307), Lahore High Court, Lahore through Registrar v. Nazar Muhammad Fatima and others 1998 SCM R 2376 and Chairman, District Evacuee Trust, Jhelum v. Abdul Khaliq PLD 2002 SC 436 we are of the opinion that the ground cited for condonation of delay is not sufficient to condone the delay, as such petition ' S.I. dismissed being barred by time."
10.In the case of Muhammad Sharif (supra) Chairman/Secretary, Pakistan Railways, the Hon'ble Division Bench of this Court has observed as under:-- "The time prescribed under sections 447 and (2-A), Cr.P.C. is different from the time prescribed under Article 157 of the Limitation Act. In such a situation the Article 29 of Limitation Act will become operative under which the Article 5 of Limitation Act has been excluded from application, unless the statute specifically provides for such application. Under section 417, Cr.P.C., Article 5 of Limitation Act has not been made applicable as such the said section. could not be applicable for condoning the delay."
11.in the case of Dr Muhammad Anwar Kurd (supra), a Division Bench of Baluchistan High Court has observed as under:-- "condonation of delay in filing the appeal beyond the prescribed period of limitation, cannot be mechanically granted notwithstanding the fact that reply was not tiled on behalf of the State to the applications for condonation of delay. Also, condonation of the delay has been sought for on the ground that as the impugned orders, were passed by the learned Accountability Court in the excess of authority vesting in it, therefore, the same being void and nullity in the eye of law did not attract the normal consequences for these appeals having not been filed within the prescribed period of limitation; in our considered view, is devoid of any substance for the reason that the learned Accountability Court, as above held on approval of plea-bargaining within the specified statutory parameters rightly observed that since they availed the benefit of section 25 of the Ordinance, shall also be deemed to have been convicted for the offence under the Ordinance entailing the consequences as laid down in the proviso to section 15 of the Ordinance, moreover; as above noted as the impugned orders were passed in presence of these appellants, therefore, the plea that the same were passed in excess of the authority vesting in tile court by itself does not result into the extending of the prescribed period of limitation for filing of appeal allowing premium to them for filing of appeal as and when so needed or desired. Consequently; for the added reason, Criminal Ehtesab Appeals Nos.42 of 2001 and 49/2001 being barred by time, are dismissed."
12.Section 32 of National Accountability Ordinance, 1999, reads as under:--
32. Appeal [and revision]: (a)Any [person convicted or the Prosecutor-General Accountability, if so directed by [the Chairman] NAB,] aggrieved by the final judgment and order of the Court under this Ordinance may, within ten days of the final judgment and order of the Court prefer an Appeal to the High Court of Province where the court, is situated.
(b)
(c)
13.Section 32 of the National Accountability Ordinance, 1999 provides 10 days for filing appeal against the Order/Judgment of the Accountability Court, which the appellant has failed to file within the prescribed period. Learned counsel is incapable to explain the delay in filing the appeal.
On the other hand, the case laws cited by the learned counsel for the respondent supports his case.
14.For the foregoing reasons, M. A. No,2576 of 2010 merits no consideration. Accordingly the same is dismissed. The Criminal Accountability Acquittal Appeal is also dismissed being time-barred.
' Above are the reasons of our short order dated 3-11-2010.