Dr. Ghulam Farid Malik appellant impugns the order dated 3-5-2000 of acquittal of respondent passed by the learned Civil Judge 1st Class/Judicial Magistrate Section 30, Islamabad, by accepting the application under section 249-A, Cr.P.C. Of the respondent Ikram Saqlain Haider, in case F.I.R. No.207, dated 17-10-1998, Offence under sections 320, 279, 427, P.P.C. Registered at the Police Station Sehala, District Islamabad.
2. The complainant-appellant is not eye-witness of the occurrence. He received the information with regard to the accident of his were while, he was abroad. According to the complainant, on 30- 9-1998 at 8-15 p.m. His brother Major Islam alongwith his were were proceeding to Lalazar Rawalpindi, through his Car No.IDB-3119, when they crossed the KRL Chowk Suzuki No.IDF No.3056 was standing there. The lights of the said vehicle were of Major Islam applied brakes and the moment he stopped a double cabin No.EDB-6817 rashly and negligently driven by the respondent No. 1 hit the car at the rear. Due to which the car was badly damaged and complainant's were sustained injuries, she was taken to the hospital who succumbed to the injuries and later on died.
3. After the submission of the final report under section 173, Cr.P.C. In Court the respondent Ikram Saqlain Haider moved an application under section 249-A, Cr.P.C. Which was accepted vide the impugned order dated 30-5-2002 passed by the learned Civil Judge/Magistrate Section 30, Islamabad who acquitted the respondent. The appellant initially filed a revision petition under section 435, Cr.P.C. Challenging the order dated 3-5-2000, passed by the Judicial Magistrate Section 30, Islamabad. This revision petition was dismissed by the learned Sessions Judge, Islamabad vide his order, dated 9-8-2000.
4. The appellant filed the present appeal before this Court on 8-9-2000. Alongwith the appeal an application (C.M. 1031 of 2000) for condonation of the delay has also been filed, on the ground that the petitioner was prosecuting with due diligence and good faith his case before the learned Sessions Judge, Islamabad, who did not entertain it because of lack of jurisdiction.
5. The learned counsel for the appellant on the strength of the case reported as Muhammad Sharif v. Jamshed Ali and others PLD 1996 Lah. 471, argues that under section 5/14 of the Limitation Act, 1908 in view of the special circumstances, as the appellant filed the revision petition against the impugned order of the Magistrate before the wrong Court of Sessions Judge, Islamabad, therefore the case is fit to condone the delay. It has been contended that the complainant has not been given chance to prove the case and the learned trial Court has relied on the irrelevant document.
6. Conversely, the learned counsel for the respondent argues that section 5 of the Limitation Act is not applicable to appeal against acquittal under section 417(2)(a), Cr.P.C. In view of the bar contained- in section 29(2)(a) and (b) of the Limitation Act. Reliance has been placed on the case of Hati Muhammad Ashraf v. The State and 3 others 1999 MLD 330. Further he relied on the case of Hussain Bakhsh v. Allah Bakhsh etc. PLJ 1981 SC 619, to argue that the delay cannot be condoned unless it is shown that the delay was caused by act of acquitted accused or by circumstances or compelling nature. Further on merits he contends that there is no data/evidence in the hands of the prosecution which could have been relied by the learned trial Court to proceed in the matter and continuation of the proceeding would have been fertile, therefore, the learned Magistrate has rightly accepted the application under section 249-A, Cr.P.C. And acquitted the respondent.
7. Before I proceed to examine the contention of merits, firstly I will proceed to decide the issue of limitation. Section 417(2-A) reads: A person aggrieved by the order of acquittal passed by any Court, other than a High Court, may within 30 days, file an appeal against such an order. The period of 30 days for tiling such an appeal against acquittal has been prescribed under by section 417, Cr.P.C. Itself and section 5 of the Limitation Act cannot be made applicable to such an appeal which is filed under the provisions of subsection (2-A) of section 417, Cr.P.C. In -this respect the provisions or section 29 of the Limitation Act are fully attracted. Relevant part of section 29 of the Limitation Act is reproduced hereunder:-- "29(1)
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefore in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law;
(3) The provisions contained in section 4, sections 9 to 18 and section 22 shall apply only insofar as, and to the extent to which they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply."
8. In the case of The State v. Zahid Hussain 1999 SCMR 164 it was held by the Honourable Supreme Court that where period of limitation is prescribed by special law or of local law and it is different from the one in the Limitation Act the period prescribed in special or local, law will prevail over that of the Limitation Act. For the above reasons and upon the circumstances of the above case-law I am of the firm view that section 5 of the Limitation Act is not applicable to the acquittal appeal filed under subsection (2-A) of section 417, Cr.P.C. In view of the bar contained under section 29(2)
(a) and (b) of Limitation Act. In case reported as Hussain Bakhsh v. Allah Bakhsh and others PLJ 1981 SC 619, it has been ruled that:-- "S.417. Appeal against " acquittal Leave to appeal. Petition delayed by three days. Petition dismissed. Reasons. In most jurisdictions acquittal recorded by competent Court is final. In our law acquittal can be challenged in certain circumstances within period allowed by law. Delay cannot be condoned unless it is shown that delay was caused by act of acquitted accused or by circumstance of compelling nature. Petition dismissed as barred by time."
9. In the instant case the acquittal order was passed in favour of the respondent on 3-5-2000. The appellant filed the Revision Petition No. 10 of 2000 against the above-said order. The same was dismissed by the Session Judge, Islamabad, on 9-8-2000, being not maintainable. The petitioner applies for the supply of the copy on 10-8-2000 which was delivered to him on 18-8-2006. Firstly this Court has no power to condone the delay under section 5 of the Limitation Act has observed earlier and if at all the jurisdiction can be exercised for the condonation of delay, each day has to be explained - by the petitioner. The delay in filing the appeal can be condoned up to the announcement of the judgment, of the learned Sessions Judge on 9-8-2000 or up to the supply of the copy of the order dated 9-8-2000 up to 18-8-2000 but the petitioner has not explained the delay up to 18-8-2000 till the tiling of the appeal before this Court on 8-9-2000. The delay is of about 21 days. In the case of Hussain Bakhsh (supra) PLJ 1981 SC 619, the delay of three days was not condoned.
10. The report bearing No.S-12 date 30-9-1998 prepared by Arshad Ali, A.S.-I and the statement of Major Islam where it ha been clearly mentioned that the accident tool place due to slippery because of rain, were not disputed by the learned counsel for the appellant. If the above stated report (Roznamcha No.12) and the statement of Major Islam which taken into consideration the only remaining witness according to the F.I.R. Is the employee of the complainant. Major Islam has riot supported the case of the prosecution. The conviction could have not been recorded on the statement of the employee of the complainant alone. In this view of the matter, there was no occasion for the Court to proceed with the case. In this view of the matter the continuance of proceeding was wastage of time of the parties and the Court as there was no chance of conviction on the facts and circumstances of the case. The learned trial Court was empowered under section 249-A, Cr.P.C. To acquit the accused at any stage of proceeding and by doing so the learned Magistrate Section 30 has not committed any illegality.
For what has been discussed above, this appeal fails and is dismissed.