' IRSHAD HASAN KHAN, J.---This petition for leave to appeal under Article 185(3) is directed against the judgment of the Peshawar High Court, D.I. Khan Bench, whereby a Division Bench partly accepted the appeal filed by the respondent No,1 and has altered the sentence from seciton 302, P.P.C. To section 326, P.P.C. And also altered the sentence from life imprisonment to 10 years' R.I. And dismissed the connected Revision Petition No,4 of 1994, filed for enhancement of the sentence of respondent No,1 from life imprisonmetn to death and the Criminal Revision No,5 of 1994 against the acquittal of the respondents Nos. 2 and 3 and all the aforementioned matters i.e, Appeal No,9 of 1994, Criminal Revision No,4 of 1994 and Criminal Revision No,5 of 1994 passed by learned Additional Sessions Judge has convicted the respondent No,1 under section 302, P.P.C. And sentenced him to imprisonment for life and also pay a fine of Rs,50,000 or in default to suffer further 2 years' S.I. And the learned Additional Sessions Judge has acquitted the other 2 accused i.e, respondents Nos.2 and 3 from the same charge in case F.I.R. No,59 dated 26-6-1986, registered at Police Station Pezu, Tehsil and District Lakki Marwat for the murder of Rafi-ud-Din.
2. The petition is admittedly out of time by 33 days. Leave to appeal is sought to be condoned on the ground stated in paragraph 2 of the application for condonation of delay moved under section 5 of Limitation Act read with Rule 2 of Order XXIII of Supreme Court Rules, 1980. It reads as under:- "That the impugned judgment of the Peshawar High Court, Peshawar was commenced on 21-10- 1996 and the petitioner applied for its certified copies on 26-10-1996 and the copies were supplied on 24-2-1997 and there was a confusion in the rules about the limitation regarding such-like petition that whether the limitation is 30 days or 60 days as Rule 1 of Order XXIII firstly provides that all provision with respect to the petition for leave to appeal in civil proceeding shall mutatis mutandis apply to the criminal matter except court-fee, process fee and search fee etc, but there is no mention of limitation. However, Rule 2 provides separate the limitation of 30 days but anyhow the proviso to such rules provides stoat in case of the petition by the Attorney-General or Advocate-General against acquittal the limitation shall be 60 days."
3. We are afraid the plea raised by the petitioner does not constitute a valid ground for condonation of delay. 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. Refer Mst. Rabia Bibi v. Rasool Bakhsh, etc. (PLD 1966 SC 531), wherein this Court held:-- "That while the grant of leave to appeal was amply justified by considerations arising out of the merits of the matter, the rule laid down in the case of Abdul Qayyum v. Ghulam Yasin was one which was clearly in accordance with right principle and no circumstances appeared out of the relevant facts in the present case to justify any departure from that rule. Accordingly, the leave granted to the widow of the deceased to appeal against the acquittal of accused was rescinded and the order by which that leave was granted was withdrawn."
4. In Abdul Qayyum v. Ghulam Yasin (PLD 1963 SC 151), Cornelius, CJ, dismissed a similar petition with the following observations:- "The convict might be placed, once again, in peril of his life, by a petition of this kind, and it is for this reason that the technical requirement of limitation assumes importance. It is not too much to ask that he who seeks to place his fellow-citizen;s life in peril, by legal process, should satisfy all the technical requirements of the process. Delay would scarcely ever be condoned, and certainly not on the grounds here advanced, namely, that the petitioner was misinformed about the period of limitation, and that he was delayed in his village through the serious illness of his wife."
5. In Nabi Bakhsh v. Ghulam Sarwar and others (1968 SCM R 780), it was held:-- "Petition for Special Leave to Appeal from order of acquittal by private complainant cannot be condoned unless he can show that he was actually kept out of knowledge of acquittal or was by some act of respondents themselves kept in the dark."
' The same view was reiterated in Piran Ditta v. The State and others (1970 SCM R 282), and Mst.
Zeenat Sultan v. Mumtaz Khan etc. (PLD 1994 SC 667), wherein it was inter alia held:-- "The convict might be placed once again in peril of his life by a petition of this kind, and it is for this reason that the technical requirement of limitation assumes importance. It is not too much to ask that he who seeks to place his fellow-citizens' life in peril, by legal process, should satisfy all the technical requirements of that process.
' The right to life is the basic right that human beings process. Once a charge for a capital offence, duly tried, results in acquittal, the accused person acquires a very precious right and he should not, therefore, be put in jeopardy of his life by a petition for leave to appeal filed out of time. The law that enables interference with the acquittal must, therefore, be strictly applied in favour of the accused person."
6. In the instant case, the reasons stated by the petitioner in his application for condonation of delay that there was a confusion about the rules pertaining to limitation are ex facie unsustainable.
The petitioner had failed to make out a case for condonation of delay in filing this petition. When faced with this, learned counsel for the petitioner placed reliance on Asad Ali v. Federation of Pakistan (1998 SCM R 15), to contend that under Order XXXIII, Rule 1 of the Supreme Court Rules, this Court is competent to condone the delay in suitable cases. That is true, but as pointed out above lapse of time in a criminal petition against an order of acquittal is sufficient to provide protection to a person acquitted against further judicial process through the petition for leave to appeal.
7. Raja Ibrahim Satti, Advocate Supreme Court, learned counsel for the petitioner, next relied on Asad Ali v. Federation of Pakistan (supra), to contend that the provisions of Order XV, Supreme Court Rules, 1980, framed under Article 191 of the Constitution being regulatory in nature do not affect the jurisdiction of the Supreme Court which is conferred under Article 184(3) of the Constitution. There is no cavil with the above proposition. In the instant case, however, we find that this is not a fit case to grant leave in exercise of the discretionary jurisdiction conferred under Article 185(3) of the Constitution, by condoning the delay on the ground being advanced, namely, that the petitioner was confused about the period of limitation with reference to the Supreme Court Rules. The learned counsel, frankly conceded that 30 days have been provided under the rules for filing petition for leave to appeal against the, impugned order. The plea as to confusion in the rules as to period of limitation being frivolous and baseless, merits no serious consideration.
8. Order XXXIII, Rule 7 of the Supreme Court Rules, heavily relied upon by the petitioner envisages:-- "7. Where at any stage of the proceedings in the Court, there has been a failure to comply with these rules, the failure shall be treated as an irregularity and shall not nullify the proceedings or the judgment. The Court may, on such terms as to costs or otherwise, as it thinks just, set aside either wholly or in part the proceedings in which such failure has occurred."
9. This plea is wholly devoid of merit. Suffice it to say that the above rule relates to proceedings in the Court and empowers it to set aside the proceedings either wholly or in parts where there has been failure to comply with the rules. Here leave to appeal has not yet been granted and no proceedings have been taken which are sought to be set aside. Filing of a time-barred petition alongwith I an application seeking condonation thereof does not fall within the ambit of the phrase "at any stage of the proceedings in the Court", in terms of Order XXXIII, Rule 7, of the Supreme Court Rules, 1980.
10. Resultantly, the petition is dismissed as barred by time.