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Criminal Appeal No. 68 of 1980, decided on 19th November,1985.

(On appeal from the judgment of the Lahore High Court, dated 13‑4‑1976, in Criminal Appeal 1109 of 1975).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 366/376/342‑‑Appeal against acquittal‑‑Leave to appeal granted to consider whether High Court was in error in accepting evidence of respondent as to alibi when it was vague and of inconclusive nature such as could not negative direct evidence furnished by appellant and at least two independent witnesses.

‑‑‑Art. 185(3)‑‑Limitation Act (IX of 1908), S. 5‑‑Supreme Court Rules, 1980, O. XIII, r. 1‑‑Limitation‑‑Condonation of delay‑‑Appeal against acquittal‑‑Supreme Court not taking notice that petition was time‑barred, granted leave to appeal‑‑Preliminary objection raised by respondent at time of hearing of appeal on ground that delay in acquittal matters is condoned only in case where petitioner is prevented by any act of respondent to file petition for leave to appeal‑‑Grounds for condonation of delay not being sufficient, held, that in consonance with principle that order of acquittal was not to be lightly exposed to jeopardy by condoning delay in filing petition to challenge same‑‑Order granting leave recalled‑‑Appeal dismissed as time‑barred.

Piran Ditta v. The State 1970 S C M R 282 rel.

‑‑Art. 185(3)‑‑Limitation Act (IX of 1908), S.5‑‑Supreme Court Rules, 1980, O.XIII, r.l‑‑Limitation‑‑Con donation of delay‑‑Sufficiency of cause‑‑Petition for leave to appeal against acquittal‑‑Time‑barred‑ Reasons of delay being that case appeared in supplementary cause list of High Court for announcement of judgment and counsel came to know about it subsequently‑‑Petitioner applied for certified copy next day thereafter and collected copy 6 days after it, was ready for delivery‑ Assertion that despite attending High Court office every day even after preparation of copy, he was not informed that same was ready for delivery, found difficult to believe‑‑No sufficient ground for condoning delay in petition against acquittal‑‑Order of acquittal not to be lightly exposed to jeopardy by condoning delay in filing petition to challenge same‑‑Petition dismissed as time‑barred.

Piran Ditta v The State 1970 S C M R 282 ref

S.M. Tayyab, Advocate Supreme Court with Ch. Muhammad Aslam, Advocate‑on‑Record for Appellant.

Maqbool Elahi Malik, Senior Advocate Supreme Court with S. Inayat Hussain, Advocate‑on‑Record for Respondent No. 1.

Sh. Ijaz Ali Advocate‑on‑Record for Respondent No. 2.

Date of hearing: 19th November, 1985.

‑Respondent Muhammad Riaz, his brother of one Muhammad Irshad and their sister Mst. Salma Akhtar were tried by Ch. Nasrullah Khan Cheema, Magistrate Section 30, Lahore, for offence under section 366/376/342, P.P.C. read with Martial Law Regulation No.36. The learned trial Magistrate by his judgment, dated 28th November, 1975, acquitted Mst. Salma Akhtar but convicted her two brothers, namely, Muhammad' Riaz and Muhammad Irshad, under section 366/376, P.P.C. and sentenced them to five years' R.I. each on each count.

2. On appeal a learned Single Judge of the Lahore High Court, Lahore, while upholding the conviction of Muhammad Irshad, accepted the appeal of Muhammad Riaz respondent and set aside his conviction by giving him the benefit of doubt and thereby acquitted him, vide judgment, dated 13th April, 1976.

3. Mst. Rafiqan, the appellant herein, against whom the offence of rape was allegedly committed, being dissatisfied with the aforesaid order of the learned Judge in the High Court acquitting Muhammad Riaz, respondent, called in question the same in criminal petition for leave to Appeal No.265/76, which was accepted and leave to appeal was granted vide order, dated 10th June, 1980. The point for consideration was whether the learned Judge in the High Court was in error in accepting the defence evidence of the said respondent as to alibi, when it was of vague and of inconclusive nature such as could not negative the direct evidence furnished by the appellant and at least two independent witnesses. The learned Judges of the Bench, who heard the leave petition, however, were not informed that the petition was time‑barred and as such no notice of this aspect was taken at that stage.

4. Today when this appeal was taken up for hearing learned counsel for the respondent took up the preliminary objection that the petition was time‑barred and contended that no satisfactory explanation for condonation of delay has been shown in the application for this purpose. The relevant. particulars in this behalf are that the impugned judgment. of the High Court was announced on 30th April, 1976. The appeal was heard earlier and was reserved for judgment on 25th March, 1976. The explanation of the appellant is that the case appeared in supplementary cause list for announcement of judgment on 13th April, 1976, with the result that the counsel for the appellant, "could not lay hand on the supplementary cause list, hence he was not aware about the date of the announcement., i.e. 13th April, 1976". According to the appellant the counsel came to now about the date of the decision of the appeal on 9th May, 1976, when he went to the Criminal Branch of Lahore High Court in connection with another matter and inquired whether the judgment in this case was announced. It is further stated that this information was conveyed to Muhammad Tufail, uncle of the appellant who was pursuing the matter and accordingly an application for certified copy was submitted on the next day, i.e. 10th May, 1976, and the copy was delivered to Muhammad Tufail on 19th May, 1976. Then the petition for leave to appeal was submitted on 21st May, 1976. It is submitted in the application that during the period between 13th May, 1976, when the copy of the judgment was prepared and 19th May, 1976 when it was delivered, Muhammad Tufail was regularly attending the Office of the Lahore High Court for collecting the copy but every time he was informed that the copy was not ready for delivery. This application has been supported with an affidavit by Muhammad Tufail.

5. It has been urged on behalf of the appellant that there was no negligence on the part of the appellant or her counsel in applying and obtaining the copy of the judgment and, that there is, therefore, sufficient ground for condonation of delay of 4 days in presenting the petition for leave to appeal. It may be pointed out at the very outset that the general principle followed by this Court is that delay in acquittal matters is condoned only in a case where the petitioner is prevented by any act of respondent to file the petition for leave to appeal in time, see Piran Ditta v. The State 1970 S C M R 282. The grounds urged in support of the prayer for condonation in this case obviously do not fall within this general principle. There is no allegation that the respondent had anything to do to keep the petitioner from applying for copy of the judgment or from filing the petition for leave. Even otherwise, we are not satisfied with the explanation as such to be sufficient for not applying for copy of the judgment with such delay which was avoidable, as well as for not promptly collecting the copy of the judgment which was made ready for delivery on 13th May, 1975, with result that the petition became late by 4 days. The assertion that the appellant's uncle Muhammad Tufail attended the Office of the High Court even after the preparation of the copy but was not informed that the same was ready for delivery, is difficult to believe. There is no earthly reason on the part of the concerned official personnel from withholding the said information. In consonance with the principle that an order of acquittal will not be lightly exposed to jeopardy by condoning delay in filing the petition to challenge it, we feel that no sufficient ground for such prayer has been made out. The application for condonation of delay is accordingly rejected. In this view of the matter, we do not, feel called upon to go into the merits of this appeal, as the leave granted order is liable to be recalled. In the result this appeal is dismissed as time‑barred and the bail bonds of respondent No‑1 Muhammad Riaz, accordingly stand discharged.

M. I. Appeal dismissed.

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