' RAJA FAYYAZ AHMAD, J.--- This criminal appeal has been preferred against the judgment of learned Special Court constituted under the Suppression of Terrorist Activities Act, Baluchistan at Quetta, dated 24-11-1994 whereby the appellant has been convicted under section 318/319, P.P.C.
(as amended) and sentenced to five years' R.I. In addition to the payment of Diyat to the legal heirs of the deceased within a period of six months as notified by the Federal Government. The benefit of section 382-B, Cr.P.C. Has been extended to the appellant by the learned trial Court.
2. The brief facts of the case are that the complainant Babul lodged a report with the Assistant Commissioner, Panjgoor on 21-9-1992 to the effect that his brother Jummal succumbed to the injuries who has been murdered by the appellant on account of enmity and his nephew son of Jummal had also been murdered. The Assistant Commissioner conveyed this information/report to the Naib-Tehsildar, Gachak who registered the case under section 302, Qisas and Diyat Ordinance (Criminal Amendment) Ordinance against the appellant on the same day. Consequent upon the completion of the investigation,, the appellant was put up for trial by means of challan before the learned Sessions Judge, Mekran Division at Turbat.
' The appellant was indicted for the commission of the alleged offence under, section 302, P.P.C. (as amended) to which he did not plead guilty whereupon the complainant namely Babul was examined as P.W.1 before the learned Court on 6-3-1993. Since the weapon of offence was attributed to be a klashnikov recovered during investigation, therefore, the offence being exclusively triable by the Court of Special Court (S.T.A.) the record and papers of the case were sent to the Special Court Balochistan, Quetta for trial of the offence. The de novo trial commenced before the learned (S.T.A.) Court at Quetta and the prosecution examined nine witnesses in support of its case and thereupon the appellant was examined by the learned trial Court under section 342, Cr.P.C. Who also gave his statement on oath in disproof of the charge, and did not produce any defence evidence.
3. The backdrop of the incident as per prosecution case is that the deceased and the complainant had gone on a motor-cycle to attend a feast at the house of one Mulla Faiz Muhammad situated at Gachak and on their way the appellant tried to fire one rabbit with his klashnikov which by mistake hit the deceased who was shifted to the hospital, Panjgoor but succumbed to injuries so sustained by him.
' The complainant Babul P.W.1 proved his report and admitted the fact posed to him that he was not present at the time of incident. P.W.2 Abdul Sattar proved the fact that the appellant and the deceased attended the feast at the house of Mulla Faiz Muhammad and thereafter, were going back on the motor-cycle being driven by the deceased while the appellant was seated behind him (the deceased) armed with a Kalashnikov and the witness was following them on a motor-cycle and on the way a rabbit was spotted. The appellant fired at the rabbit and in the meanwhile Murad Bakhsh also reached on the spot and they found the deceased Jummal lying injured. On their inquiry the appellant told them that he missed the target which hit the deceased who was shifted to the hospital. P.W.3 Murad Bakhsh supported the version of P.W.2 and deposed that the deceased was accidently hit with the bullet fired by the appellant. P.W.4 Dil Murad and P.W.5 Maula Bakhsh affirmed that upon receipt of information of the incident they reached at the site of the incident to whom the deceased told that he was hit by mistake with the bullet fired at the rabbit by the appellant. P.W.7 Naib-Tehsildar and the Investigating Officer proved the site plan, the recovery memos. Prepared by him and deposed about the registration of the F.I.R. By him. P.W.8 testified the recovery of the klashnikov from the appellant vide recovery memo. P.W.9 Abdul Rehman deposed that he too reached at the place of incident and the deceased told him that he was hit by the bullet fired on rabbit by the appellant.
' The appellant in his statement under section 342, Cr.P.C. Denied the prosecution case and stated that he has been falsely implicated while in his statement on oath the appellant narrated the story as that of the prosecution case except to the extent that he was not armed with klashnikov; which according to him was with the deceased who stopped the motor-cycle while spotting a rabbit in the jungle on their way back after having dinner and rushed after the rabbit who was fired at by the deceased which by mistake hit on the toe of his foot which resulted into bleeding; in the meanwhile two persons reached there out of whom one was compounder who provided first aid and they all took the deceased to the hospital where he expired. The appellant further added that the klashnikov belonged to the deceased who gave it to one Abdul Rehman.
' The learned trial Court finally by its impugned judgment convicted the appellant under section 318/319, P.P.C. (as amended) and sentenced him to five years' R.I. With the benefit of section 382-B, Cr.P.C. Plus the imposition of Diyat to be paid by the appellant within a period of six months to the legal heirs of the deceased.
4. This appeal dated 25-8-1996 has been presented on 24-3-1997 alongwith a Miscellaneous Application No,60 of 1997 seeking for condonation of the delay in filing the appeal. The appeal was admitted subject to the point of limitation by this Court vide order, dated 1-4-1997.
' The learned counsel for the appellant and the learned Additional Advocate-General heard. The learned counsel for the appellant submitted that he does not press the appeal on merits rather seeks favour and indulgence of the Court for granting time period to the appellant for payment of the Diyat amount in installments to the legal heirs of the deceased, as according to him the appellant has already undergone his imprisonment period. The learned counsel to cover up the delay in preferring appeal from being hit by the prescribed period of limitation of 30 days as provided under section 7(2) of Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) submitted that the appellant is an illiterate person was under the impression that he will be set at liberty upon serving out the sentence period and on account of poor financial conditions he could not prefer the appeal within the prescribed time.
' The learned Additional Advocate-General controverting the contentions put forth on behalf of the appellant submitted that the appeal being time-barred hopelessly is liable to dismissal as no cogent reason has been advanced for condonation of the inordinate and exceptional delay.
We have considered the respective contentions canvassed by the learned counsel for the parties.
The reasons given by the learned counsel for the appellant by not filing the appeal within the prescribed period of 30 days are not only imprudent and irrational rather inconsistent too. The non-filing of the appeal due to poor financial conditions; or the sentence of five years imprisonment is no ground to condone the exceptional and inordinate delay of about three and half years. On the other hand it has been submitted by the learned counsel that the appellant was under the impression to be released after serving out the sentence period and thereafter he came to know that he will not be released until the Diyat is paid. The appellant in support of this plea has not given the date of the completion of his undergone sentence nor even has shown as to when he came to know about the alleged afore-stated position. Moreover; the ignorance of law could not be an excuse by itself to condone such a long delay in fling of the appeal against conviction order and both the grounds taken for condo nation of the delay are inconsistent as well. The appeal and the application appears to have been typed out on 25-8-1996 as dated which bear the signatures of the appellant's counsel and presented in the office on 24-3-1997. The application is also not supported by any affidavit nor any explanation has been offered by the learned counsel as to why the appeal was presented on 24-3-1997 since the date of its being already complete and typed out, whereas; the copy of the impugned judgment annexed with the appeal was supplied to the appellant on 22-7-1996 on his application dated 17-7-1996 while the appeal presented on 24-3- 1997 by the learned counsel.
5. In appropriate cases for substantive and plausible reasons if a convict is precluded to prefer appeal within the prescribed period of limitation, such a delay could be condoned in the interest of justice, however; the negligent conduct, self-styled assumption of certain facts 'or the ignorance of law or the misapplication of the law cannot form valid basis for condemnation of delay in filing appeal against conviction.
6. The learned counsel has next contended that since the appellant has served out his sentence and was not released from jail due to the non-payment of Diyat amount to which he is ready to pay in installments provided he be released from the custody. It has been stated in the application seeking for condemnation of the delay that the appellant is absolutely not in a position to pay Diyat, therefore, the submission of the learned counsel in this behalf appears to be not based on facts rather a halfheartedly attempt to get the relief which is not permissible under the law. For convenience section 331, P.P.C. (as amended) is reproduced hereunder:-- "331. Payment of Diyat.--- (1) The Diyat may be made payable in lump sum or in installments spread over a period of three years from the date of the final judgment.
(2) Where a convict fails to pay Diyat or any part thereof within the period specified in subsection (1), the convict may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until the Diyat is paid full or may be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court.
(3) Where a convict dies before the payment of Diyat or any part thereof, it shall be recovered from his estate."
' Under subsection (1) of section 311, P.P.C. (as amended) the Diyat amount is payable by a convict in lump sum or in installments spread over a period of three years as may be directed by the Court from the date of final judgment but where an appeal is not preferred, the date of the judgment of the Court of original jurisdiction shall be treated to be the final judgment for the purpose of reckoning the period of three years for payment of Diyat amount in installments if not, paid in lump sum and in other case from the date of the judgment of the Court of appeal; however; under subsection (2) of the above quoted section the trial Court is competent to release a convict on bail subject to his furnishing of security equivalent to the amount of Diyat if the convict fails to pay Diyat or any part thereof within the period of three years that may be specified by the Court under subsection (1) of section 331. Provided the convict is not undergoing the awarded imprisonment.
The concession of the specified period of three years for payment of Diyat in installments as provided in subsection (1) has not been granted to the appellant by the learned trial Court, therefore, on his failure to pay the Diyat he is to be kept in jail in the manner as if Gcinenced to simple imprisonment until the Diyat is paid provided he has undergone the sentence of R.I.
Awarded by the Court and thereupon a convict could be released on bail by the Court if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court.
If a convict who is liable to pay Diyat or any part thereof despite having undergone the period of imprisonment sentenced to, has to remain in jail custody as if sentenced to shill e imprisonment till such time he discharges the liability of Diyat; if not earlier released on bail by the Court subject to the furnishing of security for the payment of Diyat or any part thereof as the case may be within the meaning of subsection (2) of section 331, P.P.C. (as amended).
' The appellant's counsel did not offer to furnish security for the payment of Diyat as provided under the law. In the Miscellaneous Application it has been categorically stated that the appellant absolutely cannot pay the Diyat, therefore, the appellant does not deserve to be released on bail even; neither he could be exempted from the payment of Diyat due to the impugned judgment being in the field.
' The appellant, however; in the interest of justice may if so deemed fit to approach the learned trial Court to be released on bail provided he has undergone the period of awarded sentence (imprisonment) and furnishes bail bonds for the due discharge of the liability of Diyat equal to the Diyat amount to the satisfaction of the Court.
For the foregoing reasons, the appeal being barred by time hopelessly and meritless is dismissed.
' Announced in Court.