' MUHAMMAD SIDDIQ, J.-The Additional Sessions Judge, Toba Tek Singh vide impugned judgment dated 25-10-1983 acquitted all the six accused persons under section 265-K of the Criminal Procedure Code. The Site has challenged this acquittal of .He accused persons by filing the present criminal appeal on 17-4-1984. This appeal was admitted for regular hearing on 18.11-1984.
2. At the time of final hearing of this appeal, the counsel for the accused respondents raised a preliminary issue that the appeal was barred by limitation and should be dismissed as such because the State has not filed any application for condonation of delay. The case has been argued only on this technical point of limitation.
3. According to Mr. Altaf Muhammad Khan, the learned counsel for the State, the appeal is not barred by limitation. According to him, this being an appeal against order of acquittal, it is governed by section 417, Cr. P. C. And the period of limitation prescribed for such appeals under Article 157 of the First Schedule of the Limitation Act is six months from the date of the order appealed from. This period of six months taken into consideration, the appeal has been filed within limitation. On the other hand, the argument of Mr. Hassan Ahmad Khan Kanwar, the learned counsel for the accused respondents, is that period of limitation for filing appeals before the Federal Shariat Court is prescribed by the rules framed by this Court. Reliance in this behalf is placed upon rule 18(1)(A) of Chapter-III of the Federal Shariat Court (Procedure) Rules, 1981 where period of limitation prescribed for filing appeals is sixty days from the date of order or decision appealed from. According to him, if this period of limitation of sixty days is applied to the present appeal, it is clearly barred by time.
4. The question which, therefore, arises for consideration is whether the period of limitation for presenting an appeal before the Federal Shariat Court under section 417, Cr. P. C. Against the original or appellate order of acquittal passed by any Court other than a high Court is controlled by the Limitation Act, 1908 or by the rules framed by this Court. To determine this issue, let us examine the relevant provisions of the Constitution and the law.
5. The Federal Shariat Court was created by President's Order No, 1 of 1980 known as the Constitution (Amendment) Order, 1980 by which Chapter 3-A was added in Part VII of the Constitution and after the original Article 203, new Articles 203-A to 203-J were added. Thus, this Court was created under the Constitution of the Islamic Republic of Pakistan. Article 203-J is relevant and is reproduced below :-- "203-J.-(l) The Court may, by notification in the official Gazette, make rules for carrying out the purposes of this Chapter,
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may make provision in respect of all or any of the following matters, namely :
(a) the scale of payment of honoraria to be made to jurisconsults, experts and witnesses summoned by the Court to defray the expenses, if any, incurred by them in attending for the purposes of the proceedings before the Court ;
(b) the form of oath to be made by a jurisconsult, expert or witness appearing before the Court ;
(c) the powers and functions of the Court being exercised or performed by Beaches consisting of one or more members constituted by the Chairman ;
(d) the decision of the Court being expressed in terms of the opinion of the majority of its members or, as the case may be, of the members constituting a Bench ; and
(e) the decision of cases in which the members constituting a BenCh are equally divided in their opinion.
(3) Until rules are made under clause (1), the Shariat Benches of superior Courts Rules, 1979, shall, with the necessary notifications and so far as they are not inconsistent with the provisions of this Chapter, continue in force."
6. In exercise of the powers conferred by Article 203-J of the Constitution, the Federal Shariat Court framed its rules known as "The Federal Shariat Court (Procedure) Rules, 1981". Thus these rules are framed under the Constitution and, therefore, are statutory rules. These rules repealed the earlier rules of 1980. In the original rules of 1980, there was no provision of limitation for filing appeals before this Court. The Federal Shariat Court in Azmat Khan's case (1), expressed the desire that a period of limitation for filing appeals before this Court should be prescribed either by way of insertion of statutory provisions in the Hudood laws or by w ay of framing statutory rules on the subject. The following observation of this Court is relevant on this subject :- "Section 20 of the Ordinance replaces the above-mentioned two sections of the Code in that a trial is held by Sessions Judge or an Additional Sessions Judge in any offence under the Ordinance and the appeal is to be preferred to this Court against any sentence passed or order made oy the said Judges under the Ordinance. Thus it would be clear that appeals of the nature of the present one are not preferred to this Court under the Code of Criminal Procedure but these are competent under special statutes, namely the Hudood Order and Ordinances. As Articles 154 and 155 of the Limitation Act govern only those appeals which are preferred under the Code of Criminal Procedure these cannot place a bar of limitation against the appeal under the Ordinance. The Ordinance does not contain a residuary article of the nature of the Articles 120 and 181, on appeals.
The Federal Shariat Court (Procedure) Rules, 1981 also do not lay down any period of limitation for filing of an appeal to the Court. As such there does-not exist at present any statutory period of limitation for an appeal under section 20 of the Ordinance or for the matter of that for an appeal to this Court under any of the Hudood Laws. The Supreme Court of Pakistan for the exercise of its Constitu'tional Appellate Jurisdiction has provided a period of limitation of 30.Days for filing appeals in that Court by rule 1 of Order XVII of the Supreme Court of Pakistan Rules, 1980. As the position emerging from the above discussion can only lead to chaos, it would be highly desirable that a period of limitation for filing of such appeals as these should, be prescribed either by way of insertion of statutory provisions in the Hudood Laws or by way of framing of Statutory Rules on the subject. TiL then we would prefer to take guidance from Article 155 of Limitation Act as these appeals are from the decisions and orders of the Sessions Judges against which ordinarily a period of 60 days is provided for appeals under the Code from such orders. This appeal is, therefore, held not barred by limitation."
' The above judgment was announced on 18-10-1981. It seems that in view of the above observation, this Court added the following sub-rule after rule 18(1) of Chapter-HI of the Federal Shariat Court (Procedure) Rules, 1981 on 28-12-1981 :- "18(1)(A) : An appeal shall be presented to the Court within sixty days from the date of the order or decision appealed from."
' According to the above sub-rule 18(1)(A) the period of limitation for presenting an appeal to the Federal Shariat Court was fixed as sixty (60) days from the date of order or decision appealed from.. The word (1)PLD 1982 FSC 4 'appeal' has been defined under rule 2(a) of Chapter-I Of the rules in the following words :- "2(a) "appeal" means an appeal from the order of any Court which the Court has jurisdiction to hear and decide,"
A perusal of the above shows that the word 'appeal' has been used in the rules in a wider sense and no limitation is placed upon it. Hence, A the word 'appeal' would include an appeal against acquittal as well as appeal against conviction.
7. Now, the position boils down to this that for an appeal against an order of acquittal, there are two limitations-one prescribed by the Limitation Act under Article 157 of the Schedule and the other by the rules of the Federal Shariat Court, 1981. We have to see as to which provision would be applicable to the State appeals against acquittal under section 417, Cr. P. C. According to the learned State counsel, since the provisions of Criminal Procedure Code, 1898 apply mutatis nutandis to this Court, the period of Limitation for State appeal against acquittal under section 417, Cr. P. C. Would be six months under Article 157 of the Schedule of Limitation Act. On the other hand, the argu- ment of the learned counsel for the accused respondents is that the limitation applicable to all appeals including appeals against acquittal under section 417, Cr. P. C. By the State would be as prescribed by the Federal Shariat Court (Procedure) Rules, 1981. According to him, these rules are 'special law' as contemplated by section 29 of the Limitation Act. Clause (2) of section 29 provides that, where any special law 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 the Limitation Act will not apply. It is not disputed that section 29 embodies the general principle enunciated in the well, known maxim "generalta specialibus non derogant". Now we have to see whether the rules framed by this Court are 'special law' under section 29 of the Limitation Act. By way of analogy we can rely upon the decision of a Full Bench of the Lahore High Court consisting o f five Judges in Punjab Co-operative Bank Limited, Lahore's case (1), where it was held that statutory rules framed by the High Court under clause 27, Letters Patent, under the authority delegated to it by His Majesty, who in turn, was acting under the powers conferred on him by Act of Parliament are a 'special law' under the provisions of section 29 of Limitation Act. This view of Lahore High Court has been duly approved by the Supreme Court of India in Messrs Chhotabhai's case (2). Our own Supreme Court also in Syed Faiz Ali Shah's case (3), has upheld this view. As mentioned above, the Federal Shariat Court (Procedure) Rules, 1981, were framed by this Court under Article 2034 of the Constitution and, therefore, undoubtedly they are statutory rules. On the above analogy, it can safely be held that the statutory rules framed by the Federal Shariat Court under Article 203-J of the Constitu- B tion of the Islamic Republic of Pakistan are a 'special law' under section 29 of the Limitation. Act and consequently the limitation prescribed under rule 18(1)(A) of these rules would apply to all, appeals including appeals under section 417, Cr. P. C.
Against orders of acquittal passed by any subordinate Court. It is not disputed that under
(1) AIR 1941 Lah. 206 (2) AIR 1962 SC 1006
(3) 1974 SCMR 33 said section 29, special law has preference over general law. Further it is not denied that Limitation Act, 1908 is a general law. The result is that in the instant case the period of limitation for filing appeal against acquittal would be sixty days as prescribed by rule 18(1)(A) of the Federal Shariat Court (Procedure) Rules, 1981, and not six months prescribed by Article 157 of Schedule 1 of the Limitation Act. If the contention of the learned counsel for the State is accepted then th said rule 18(1)(A) to an extent would become redundant, which cannot b the intention of law.
8. We can also refer to clause (1) and its proviso of Article 203-F of the Constitution (reproduced below) to show the intention of the Legislature for filing appeals in Shariat Petitions before the Supreme Caurt :- "203-F.-(1) Any party to any proceedings before the Court under Article 203-D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court: Provided that an appeal on behalf of the Federation or of a Province may be preferred within six months of such decision."
' The above clause (1) and its proviso shows that where the Legislature wanted to fix a longer period for the State appeals, they specifically made a provision in that behalf in the relevant law. If the period of limitation for the State appeals against order of acquittal under the Hudood Laws was to be different, the Legislature could easily make a provision in that behalf in the relevant law. We can also seek guidance from the rules framed by our own Supreme Court, where period of limitation for filing of appeals is different from the period prescribed by the Limitation Act.
9. The learned State counsel during his arguments verbally requested that the delay, if any, may be condoned. We are not inclined to accept his request in this manner for the simple reason that the delay of each day is to be explained and the Court has to see whether there was sufficient cause or justification for such condonation or not. Morever, the opposite party has the right to oppose such condonation. The proper course for the State counsel was to file regular separate application for condonation of delay supported by reasons and affidavit.
10. For the foregoing reasons, this appeal is dismissed as barred by limitation.
Appeal dimissed.