Through present Criminal Miscellaneous made under section 5 of The Limitation Act, 1908 (IX of 1908) (hereinafter called "Act IX of 1908"), applicant seeks condonation of delay in preferring the Criminal Appeal which as per stance of the applicant is barred by time.
2. Learned Additional Deputy Prosecutor General representing National Accountability Bureau while making prayer for condonation of delay submitted that the offices of Prosecutor General as well as Chairman, National Accountability Bureau were lying vacant and as such appeal could not be preferred within time.
Contended that valuable rights of the applicant are involved and as such delay be condoned.
Argued that law favours adjudication on merits and technicalities are not required to be taken into consideration.
3. According to section 32 of The National Accountability Ordinance, 1999 (XVIII of 1999) (hereinafter called "Ordinance XVIII of 1999"), appeal can be preferred against the judgment or order within ten days of the final judgment or order of the Court.
4. Question for consideration before us is whether provisions of section 5 of The Act IX of 1908 can be applied to the facts of the case or not.
5. According to section 29(2)(a) of The Act IX of 1908, 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 of The said Act, provisions of section 3 shall apply as if such period were prescribed therefor in that Schedule.
Clause (a) of the same subsection suggests that in case special or local law provides period of limitation for preferring appeal, provisions tantained in sections 4, 9 to 18 and 22 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law.
Clause (b) of the said Section specifically rules out the application of remaining provisions of The Act IX of 1908 including section 5.
6. Since specific period of limitation has been provided under section 32 of The Ordinance XVIII of 1999, therefore, keeping in view the provisions of section 29(2) of The Act IX of 1908, provisions of Section 5 of The Act IX of 1908 will not be applicable.
7. Similar proposition was moot point before the Apex Court in "Ali Muhammad and another v.
Fazal Hussain and others" (1983 SCMR 1239) and Hon'ble Supreme Court of Pakistan, while dealing with the provisions of sections 5 and 29(2) of The Act IX of 1908, held that if the time allowed for filing of appeal by special law is different from that given in The Act IX of 1908, provisions of section 5 stand excluded by virtue of section 29(2).
8. In "Allah Dino and another v. Muhammad Shah and others" (2001 SCMR 286), provisions of sections 5 and 29 of The Act IX of 1908 were examined with reference to provisions of section 115 of The Code of Civil Procedure, 1908 and while scanning the case law on the proposition, the rule of law expounded in the case of "Ali Muhammad and another v. Fazal Hussain and others" (1983 SCMR 1239) was endorsed.
Matter was again examined by the Hon'ble Supreme Court of Pakistan in "City District Government Lahore through District Coordination Officer, Lahore v. Mian Muhammad Saeed Amin" (2006 SCMR 676) and "Province of Punjab through Collector and others v. Muhammad Farooq and others" (PLD 2010 Supreme Court 582) wherein same view was adopted.
9. Question of application of sections 5 read with section 29(2) of The Act IX of 1908 with reference to special provision of time for preferring an appeal provided either in the special or local law was examined by different learned High Courts in "Collector of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi" (PLD 1999 Karachi 76), "Haji Muhammad Ashraf v. The State and 3 others" (1999 MLD 330), "Shera v. Agricultural Development Bank of Pakistan" (2004 CLD 924), "Islamic Republic of Pakistan through Secretary. Ministry of Defence v. Messrs Masood Enterprises through Managing Director" (2001 YLR 327), "Abdul Aziz v. Mst. Inayat Bibi through Legal Heirs and others" (2002 YLR 1069), "Chairman, Federal Board of Intermediate and Secondary Education, Islamabad through Deputy Secretary Legal v. Umar Saeed Sadal" (2003 CLC 1447), "Messrs Mushtaq & Co. Through Managing Partner and 3 others v. Messrs National Bank of Pakistan" (2004 CLD 1573), "Sikandar Hayat V. Agricultural Development Bank of Pakistan through Manager" (2005 CLD 870), "Shahzad Hassan Bhatti and 6 others v. Platinum Commercial Bank Limited through Branch Manager and 2 others" (2005 CLD 912), "Chaudhry Muhammad Aslam v. SME Bank Limited through Chairman/President and 2 others" (2006 CLD 1301), "Mst. Shamim Tahira and others v. Zarai Taraqiyati Bank of Pakistan Ltd. Through Manager and another" (2007 CLD 778), "Dilbad Shah v. S. Rehmat Shah and others" (PLD 2007 Peshawar 103), "Pakistan Telecommunication Mobile Ltd. v. Fur qaan Hayat Khan and others" (2008 CLC 628), "Allah Bakhsh v. Allah Bakhsh" (2010 CLC 951), "Messrs Pehlwan Marble Factory through Muhammad Asti v. The State and another" (2011 PCr.LJ 200), "Allied Bank Limited through Tariq Mehmood Sheikh SAM and Mujtaba Gillani AVP-SAM Branch authorized Attorney v. Messrs Shahabad Textiles (Pvt.) Ltd. Through Chief Executive and Director" (2012 CLC 1326), "Din Muhammad v. Khan Bad Shah and another" (2012 MLD 1006), "General Manager v. Mst. Sakina Bibi and others" (2012 CLD 1112), "Messrs Khan Tractors, Alipur Road, Khan Garh District Muzaffargarh through Proprietor and 2 others v. Habib Bank Limited, Railway Road Branch, Muzaffargarh through Manager" (2013 CLD 177), "WAPDA through Chairman WAPDA and 3 others v. Bhajan Das Tejwani" (2014 MLD 1765) and "Messrs Pervaiz & Co. Through Proprietor and others v. National Bank of Pakistan through Attorney" (2015 CLD 972) and it was concluded that provisions of section 5 of The Act IX of 1908 cannot be invoked for condonation of delay in preferring the appeal under the special or local law in view of bar contained in section 29 of The Act IX of 1908 unless and until through enabling and permissive provision of law in the said special or local law same has been made applicable.
10. Perusal of section 32 of The Ordinance XVIII of 1999 which provides right of appeal and time period for preferring an appeal clearly reveals that provisions of section 5 of The Act IX of 1908 were not made applicable to the appeal to be preferred under The Ordinance XVIII of 1999.
11. In view of the matter, by no stretch of imagination, provisions of law under which application has been made by the applicant seeking condonation of delay would apply.
12. Since provisions of section 5 of The Act IX of 1908 cannot be applied to the appeal preferred under the under section 32 of The Ordinance XVIII of 1999, therefore, in the circumstances, it is not legal compulsion to deal with the reasons assigned in the Criminal Miscellaneous seeking condonation of delay.
13. Contention raised by learned counsel for the applicant that law favours adjudication on merits and technicalities should not hamper the way of justice would not substantiate his plea as question of limitation cannot be considered as a technicality simplicitor. Reliance is placed upon "Muhammad Islam v. Inspector-General of Police, Islamabad and others" (2011 SCMR 8).
MAIN APPEAL
14. Since appeal is barred by time and is liable to be dismissed on this score alone under section 3 of The Act IX of 1908, therefore, there is no compulsion to deal with the merits of the appeal recording acquittal of respondents Nos. 1 to 4.
15. Appeal being barred by time is dismissed in limine.