Crl. Misc. No. 1333-M of 2022.
This is an application filed under section 5 of the Limitation Act, 1908, filed by the applicant seeking condonation of delay in filing the Crl. Misc. No. 1332-M of 2022 , the application for restoration of Criminal Appeal No.18 of 2015, dismissed by this Court vide order dated 04.11.2015 due to the absence of the appellant and the learned counsel for the appellant.
2. Brief facts leading to the filing of the instant application under section 5 of the Limitation Act, 1908 are that the applicant had assailed the acquittal of the Bagh Ali and Abdul Shakoor , the accused acquitted by the learned trial court vide judgment dated 15.12.2014 in case F.I.R No.182 of 2013 registered at Police Station Dunga Bunga District Bahawalnagar , through Criminal Appeal No.18 of 2015, however , the said Criminal Appeal No.18 of 2015 was dismissed by this Court vide order dated 04.11.2015 due to the absence of the appellant and the learned counsel for the appellant. After the dismissal of the Criminal Appeal No.18 of 2015 on 04.11.2015, the applicant, who was the appellant who had filed the Criminal Appeal No.18 of 2015, did not react at all and has only now filed the application bearing Crl. Misc. No. 1332-M of 2022 , for restoration of Criminal Appeal No.18 of 2015. As the Crl.
Misc. No. 1332-M of 2022 has been filed after as many as six years after the dismissal of the Criminal Appe al No.18 of 2015, therefore, the instant application filed under section 5 of the Limitation Act, 1908 seeking condonation of delay in filing the Crl. Misc. No. 1332-M of 2022 has also been filed.
3. The learned counsel for the applicant has argued that he had no knowledge that the Criminal Appeal No.18 of 2015 was dismissed by this Court vide order dated 04.11.2015 due to the absence of the appellant and the learned counsel for the appellant and had only recently come to know about the said fact, hence the delay in filing the application bearing Crl. Misc. No. 1332-M of 2022, for restoration of Criminal Appeal No.18 of 2015. The learned counsel for the applicant has also argued that the delay in filing the application bearing Crl. Misc. No. 1332-M of 2022, for restoration of Criminal Appeal No.18 of 2015, be condoned as the applicant did not have the knowledge that the Criminal Appeal No.18 of 2015 was dismissed by this Court vide order dated 04.11.2015.
4. We have heard the learned counsel for the applicant and perused the available record.
5. A perusal of the record reveals that the applicant had assailed the acquittal of the Bagh Ali and Abdul Shakoor , the accused acquitted by the learned trial court vide judgment dated 15.12.2014 in case F.I.R No.182 of 2013 registered at Police Station Dunga Bunga District Bahawalnagar , through Criminal Appeal No.18 of 2015, however , the said Criminal Appeal No.18 of 2015 was dismissed by this Court vide order dated 04.11.2015 due to the absence of the appellant and the learned counsel for the appellant on the said date. After the dismissal of the Criminal Appeal No.18 of 2015 on 04.11.2015, the applicant, who was the appellant who had filed the Criminal Appeal No.18 of 2015, remained inactive and has only now filed the application bearing Crl. Misc. No. 1332-M of 2022 , seeking restoration of Criminal Appeal No.18 of 2015. As the Crl. Misc. No. 1332-M of 2022 , has been filed after as many as six years after the dismissal of the Criminal Appeal No.18 of 2015, therefore, the instant application filed under section 5 of the Limitation Act, 1908 seeking condonation of delay in filing the Crl. Misc. No. 1332-M of 2022 has also been filed. The perusal of the order sheet maintained by this Court during the proceedings of the Criminal Appeal No.1 8 of 2015 reveals that not even for once, neither the learned counsel for the appellant nor the appellant himself ever appeared before the Court on the dates when the Criminal Appeal No.18 of 2015 was fixed for hearing. The Criminal Appeal No.18 of 2015 was fixed for hearing initially on 23.09.2015, however , no one entered appearance on behalf of the appellant on the said date and thereafter the Criminal Appeal No.18 of 2015 was fixed on 30.09.2015 and still no one appeared on behalf of the appellant and subsequently the Criminal Appeal No.18 of 2015 came up for hearing on 04.11.2015 when the same was dismissed due to the absence of the appe llant and the learned counsel for the appe llant on the said date. It is, thus, apparent that the conduct of the learned counsel for the appellant and that of the appellant had left no choice with the Court but to dismiss the appeal for non-prosecution.
6. The Criminal Appeal No.18 of 2015 was dismissed for non-prosecution on 04.11.2015, but the application bearing Crl. Misc. No. 1332-M of 2022 , for restoration of Criminal Appeal No.18 of 2015, was filed on 01.03.2022 and as the Crl. Misc. No. 1332-M of 2022 had been filed after as many as six years and four months after the dismissal of the Criminal Appeal No.18 of 2015, therefore, the instant application under section 5 of the Limitation Act, 1908 bearing Crl. Misc. No. 1332-M of 2022 was also filed seeking condonation of delay in filing the Crl. Misc.
No. 1332-M of 2022 . According to Article 168 of the First Schedule to the Limitation Act, 1908, the period allowed for an application for readmission of an appeal dismissed for want of prosecution is thirty days from the date of the dismissal. This period cannot be extended under section 5 of the Limitation Act as the said section is not applicable to an application made for readmission of an appeal dismissed for want of prosecution. Nor can section 561-A Code of Criminal Procedure, 1898 be properly used to allow the applicant an extension in the period of limitation.
This section cannot be used to defeat the provisions of Article 168 of the First Schedule to the Limitation Act, 1908, read with sections 3 and 5 of the said Act. Where due notice of the date fixed for the hearing had been given according to the High Court Rules and the appellant was absent on the date fixed, the orders of dismissal of the appeal cannot be said to be void ab initio and the provisions of section 561-A Code of Criminal Procedure, 1898 cannot, in such circumstances be commandeered into service. Chapter III of the Rules and Orders of this Court, Vol. V, deals with "Rules regulating the practice of the High Court in the hearing of causes and other matters," . Rule 5 deals with the "weekly and daily lists of cases and their adjustment" and Rule 8 in this Chapter lays down that "parties and their Advocates, Vakils, Muls htars or Agents are required to attend the Court on the day or days for which their cases are set down, and on subsequent days until their cases are dispo sed of or are postponed, . . . . ."
The only exception to this general requirement of the rule is whether a certain party is unrepresented by a counsel.
In the instant case, the appellant was represented by a counsel. The case had been duly listed for the 23rd of September , 2015 then for the 30th of October , 2015 and thereafter for the 4th of November , 2015,the lists were also issued reflecting the fixation of the case on the dates mentioned above and the order of dismissal passed on that day on account of the non-appearance of the appellant and his counsel cannot be said to be void ab initio. The negligence of the appellant and the appellant' s counsel to notice the case in the lists cannot be considered sufficient to extend the period of limitation or be treated as sufficient cause for the readmission of the appeal. We are not persuaded by the contentions of the learned counsel for the applicant regarding the explanation for the delay in filing the application bearing Crl. Misc. No. 1332-M of 2022 , for restoration of Criminal Appeal No.18 of 2015. It may further be added that the provisions of Section 561-A Code of Criminal Procedure, 1898, cannot be invoked to condone the gross negligen ce of a party in a matter . However , the Court does not hesitate in entertaining an application under section 561-A Code of Criminal Procedure, 1898 and exercising its inherent powers in respect of an order for which the fault lies with the Court itself although the period prescribed under the limitation law for challenging such an order may have expired, but this rule is not applicable here, as in the case in hand the fault lies with the appellant, not with the Court, for passing the order of dismissal of the appeal for non- prosecution. Under Article 168 of the First Schedule of the Limitation Act, 1908, the application for readmission of appeal could be filed within 30 days of the date of dismissal, but the instant application was filed after a lapse of more than six years and four months . In the absence of any plausible explanation, the delay cannot be condoned for valuable rights are created after the passing of such order . So far, the conte ntion of learned counsel for the applicant that the law favours adjudicatio n of the matter between the parties on merits is concerned, it may be observed that it is an equally settled principle of law that law favours the vigilant and not the indolent or negligent and that for seeking condonation of delay beyond the limitation period, delay of each day is to be explained with cogent and substantial reasons and in the present case, the applicant has miserably failed to assign sufficient cause for the condonation of delay . There is no explanation for taking so long a period in filing the restoration application and the application for condoning the delay . Needless to observe that the applicant was obliged to explain each day's delay , but no such attempt has been made by him. All this smacks of indolence and indifferent attitude and conduct of the applicant in pursuing and prosecuting the appeal. The provisions of Article 168 of the First Schedule of the Limitation Act, 1908, under which the petition for readmission of appeal dismissed for want of prosecution has to be filed within 30 days from the dismissal of the appeal, cannot be allowed to be circumvented.
As the petition has not been filed within the prescribed period of limitation, i.e. 30 days of the dismissal of the appeal, it is liable to be rejected as being hopelessly barred by time. Reliance is placed on the case of "Commissioner Of Inland Revenue, Legal Division, Lahore and others Versus Messrs Rafeh Limited" (2020 PTD 1657 ) wherein the august Supreme Court of Pakistan has held as under:- "As held in Squibb Pakistan (Pvt.) Ltd., taking Application under section 133(1) of the Ordinance to be an appeal, Article 168 of the First Schedule of the Act is fully applicable to the case and provides 30 days as the period of limitation for readmission or restoration of an appeal dismissed for want of prosecution. In the presence of a specific provision under Article 168, Article 181 stands excluded and does not apply . Both the Articles are reproduced hereunder for convenience:-- Description of application Period of limitation Time for which period begins to run
168. For the readmission of an appeal dismissed for want of prosecution.Thirty days The date of the dismissal.
Reliance is placed on the case of "MUNIR HUSSAIN Versus CHANGAZ KHAN and others" (2011 SCMR 1424 ) wherein the august Supreme Court of Pakistan has held as under:- "The petitioner also failed to particularize his application to seek condonation of delay . He neither raised any plausible ground nor did he disclose the date and day of his knowledge of the dismissal of the R.S.A. Such an indolence cultivates a right in the opposite party which, as repeatedly held by this Court, should not be lightly dislocated to maintain judicial balance.
4. In view thereof, this petition has no merit and is dismissed."
7. For the fore-going facts and reasons, the application bearing Crl. Misc. No. 1333-M of 2022 filed under section 5 of the Limitation Act, 1908 seeking condonation of delay in filing the Crl. Misc. No. 1332-M of 2022 is rejected and in consequence thereof, the application for the restoration of the appeal, i.e. Crl. Misc. No. 1332-M of 2022 also stands dismissed, being hopelessly barred by time.