Crl. Misc. No, 761-M of 2015 along with Crl. P.S.L.A. No, 59 of 2015 ' This is an application under Section 5 of the Limitation Act (IX )f 1908) for condonation of delay in filing the afore titled Cr!. P.S.L.A. Against the judgment dated 18.10.2011 passed by the learned Sessions Judge, Mianwali whereby the Respondent Nos. 1 to 7 were acquitted in the complaint filed by the petitioner under Sections 302, 148 and 149, PPC.
2. Learned counsel for the petitioner has argued that he applied for the copy of the judgment on 17.11.2011 and the said copy was delivered to him on 23.12.2011; that the Cr!. P.S.L.A could not be filed due to the winter vacations of this Court and the petition of the petitioner was returned; that then on 7.1.2012 that is the First working day of this Court after winter vacations, the petitioner filed the afore titled Crl.P.S.LA which is within the stipulated period of [imitation; that the delay in filing of the afore titled Crl. P.S.L.A. Was neither intentional nor willful and prayed that the delay if any may be condoned.
3. Section 5 of the Limitation Act (IX of 1908) for condonation of delay is not applicable to Section 417 of The Criminal Procedure Code (Act V of 1898) as clearly laid down under Section 29 of the Limitation Act (IX of 1908) which is reproduced as under:-- ' Section 29 of The Limitation Act (IX of 1908) Saving:-- "(1) Nothing in this Act shall affect Section 25 of the Contract Act,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 provision. Of Section 3 shall apply, as if such period were prescribe therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal of 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 this 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."
4. Hence it is clear that if there is a special provision of limitation provided under the relevant law then Section 5 of The " Limitation Act, 1908 will not be applicable for condoning the delay. Reliance is placed upon the "Muhammad Sharif and others versus The State and others" (2005 M LD 1333).
5. In the case in hand no plausible reason has been given as to why the petitioner failed to file the afore titled Crl. P.S.L.A. Within the limitation prescribed under Section 417, Cr.P.C. The Hon'ble Supreme Court of Pakistan refused to grant leave in "Qamar-uz-Zaman and another versus Haji Allah Bakhsh and another" (2012 SCM R 1281) and held that "Although an application for condonation of the delay was filed by the petitioner but no good ground was urged therein, explaining as to why it was filed beyond the period of limitation before the High Court, as such the learned High Court proceeded to dismiss his application being barred by time, to which no exception can be taken in the present proceedings. Therefore, this petition being devoid of merit is dismissed. Leave declined."
6. Under Section 417 of the Criminal Procedure Code (Act V of 1898), different period of limitation is prescribed, if the appeal against acquittal is filed by the Provincial ( government, the complainant in a complaint case or by. An aggrieved person in a State case. Reliance is placed upon "The State versus Syed Ali &war Naqvi and others" (2014 SCM R 671). For perusal of Section 417, Cr.P.C. It is reproduced as under:--
417. Appeal in case of acquittal.--(1) Subject to the provision of sub-section (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
2. If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court.
[(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may, within thirty days, file an appeal against such order.] (3). No application under sub-section (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.
(4). If, in any case, the application under sub-section (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub- section (1)."
7. In the case in hand, the petitioner is the complainant in the complaint case hence Section 417(2)
(3), Cr.P.C., will be applicable to C the case of the petitioner for which the stipulated period of limitation is sixty days for filing the Crl. P.S.LA.
8. The judgment impugned was passed on 18.10.2011 according to which sixty days lapsed on 16th December, 2011 as envisaged under Section 417(3), Cr.P.C. Record reveals that the afore titled Crl.
P.S.L.A. Was filed on 13.01.2012. According to the Calendar of the Lahore High Court, Lahore of the year 2011, the winter vacations began on Sunday 25th December, 2011 and First regular working day of Lahore High Court, Lahore was 08th January, 2012. The learned counsel for the petitioner has argued that the petitioner applied for a copy of the judgment on 17.11.2011 and the same was delivered to him on 23.12.2011 but there is nothing on record to substantiate this plea raised by the learned counsel. There is no allegation against the acquitted accused/respondents that they created a hurdle or threatened the petitioner not to file the Crl. P.S.L.A. Due to which the said petition could not be filed within the prescribed period of sixty days.
9. In an appeal against acquittal, there is a double presumption of innocence. Hence an appeal against acquittal must be within time to be entertained. It has been held by the Honourable Supreme Court of Pakistan in "Fakhar-ud-Din versus Fazal Karim and others" (1999 SCM R 795) that "Needless to observe that lapse of time is, in a criminal matter, sufficient to provide protection to a person who has been acquitted, against further judicial process by way of a formal petition for leave to appeal."
10. As reiterated above, the application (Crl. Misc. No, 761-M of 2015) for condonation of delay is dismissed. In consequence of which the afore titled Crl. P.S.L.A. Also stands dismissed as being time barred.