1. ' This is an acquittal appeal filed by Illahi Bux against Wazir, Muhammad Qasim and Muhammad Hashim passed by Judicial Magistrate, Warrah in Criminal Case No,106 of 1997, under sections 337- A(3) and 34, P.P.C.
2. The office raised an objection that criminal acquittal appeal is barred by time to at least a year.
3. The contention of counsel for the appellant is that mistakenly appeal was preferred before the Court of Session instead of this Court. The appeal before the Court of Session was filed on 27-11- 2000 and it was withdrawn on 8-8-2001 by the appellant. Application for the certified copy of order, dated 8-8-2001 was moved on 31-8-2001 which was supplied on 1-9-2001; whereas this IA appeal was presented on 5-9-2001.
4. ' Mr. Muhammad Ismail Bhutto, Advocate appearing on behalf of the State at the outset referred to the case of Haji Muhammad Ashraf v. The State 1999 M LD 330 Kar., wherein it has been held that section 5 of the Limitation Act is not applicable to the appeal under section 417(2-A), Cr.P.C. In addition to this he submitted that even if the delay is to be considered then it is to be seen whether the appellant was otherwise vigilant in pursuing this remedy or not in that he referred to the fact that the Additional Sessions Judge passed an order allowing the withdrawal of the appeal on 8-8- 2001 but the appellant did not apply for the application on the same day or on the next day but applied on 31-8-2001. There is no explanation from the appellant as to why he delayed in obtaining the certified copy of the order, dated 8-8-2001. Mr. Memon has not been able to controvert the above legal and factual position.
5. ' In the circumstances, application under section 5 of the Limitation Act is dismissed as not maintainable in consequence, therefore, the Criminal Acquittal Appeal No,16 of 2001 is also