Saeed Mumtaz Durrani VS Faisal Rafique etc.

ORDER-SHEET

ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

Criminal Revision No. 45 of 2023 Saeed Mumtaz Durrani and another versus Faisal Rafique

S. No. of Date of Order with signature of Judge and that of order- order- parties or counsel where necessary. proceedings proceedings 05.11.2025. Malik Akhtar Abbas, Raja Rizwan Abbasi and Mr. Ehtisham Bukhari, Advocate for appellant, Mr. Adil Aziz Qazi and Barrister Talha Ahmed Advocate for respondent, Mr. Hanan Din Chaudhary, SPP, Imran, ASI.

Arbab Muhammad Tahir, J: Listed revision petition in terms of Section 435 read with Section 439 and 561-A Cr. PC stems from order dated 10.12.2022 passed by the learned Additional Sessions Judge-X, Islamabad West, whereby appeal under Section 408 Cr. PC filed by the petitioner assailing judgment of conviction dated 12.10.2021 of the learned Judicial Magistrate, Islamabad-West was dismissed being time- barred by observing as under:-

“9. At the very outset, it is observed that this appeal is time barred as it has been filed after about twenty two days of expiration of period of limitation. Impugned judgment of conviction was passed on 12.10.21. The appellant applied for attested copy of the impugned judgment on 25.11.21 and on the same day, its attested copy was delivered to convict/appellant. Thereafter, appellant filed this appeal on 04.12.2021. Though an application for condonation of delay had been annexed with the memo of appeal, however no justifiable and plausible reason as to such delay in filing of appeal has been mentioned. If the appellant was in hospital he could have file appeal through his counsel. One who seeks some relief should also approach the court within time limit set for initiation of proceedings to get such relief. Furthermore law favours the vigilant and nor the indolent. Keeping view the above-mentioned position, I am of the view that he appellant has failed to make out a case of condonation of delay in his favour, hence, this aspect of the matter alone is sufficient for dismissal of his appeal.”

Crl. Revison No.45-2023

2.Heard the learned counsel for the parties and perused the record with their able assistance.

3.The application for condonation of delay filed by the petitioner contains following ground:- “2. That in fact, appellant is a single eye person and during incarceration, his second eye was also affected, for which, various applications were presented, when appellant came out, he went for proper eye checkup, he was also infected by virus and remained admitted in the hospital for more than one month approximately, due to which, he could not file instant appeal within time.”

4.The appeal was barred by 22-days. The right of appeal is a substantial right which normally should not be denied on technical reasons, particularly when it relates to administration of criminal justice. The condonation of delay is normally subject to giving a reasonable explanation which might have prevented the party in approaching the court. While examining the question of limitation, circumstances claimed to have prevented in approaching the court in time, would always be a decisive factor. If the pleaded circumstances appear to be justified or likely to be believable though no proof was offered, the delay can be condoned. Guidance is taken from the law laid down by the apex Court in the case of Fazle Hakeem and another, v. Secretary, Estate & Frontier Division and others

(2015 SCMR 795).

5.On the touchstone of the principle on the subject, record had been perused in order to see whether the explanation given to condone the delay appears to be justified, the disability of partial blindness and other medical issues of the petitioner is an admitted fact which was also given due consideration during the trial as reveals through paragraph 9 of the judgment dated 12.10.2021, whereby the petitioner was found guilty

Crl. Revison No.45-2023 for offence under Section 452 Cr. PC, and exonerated of rest of the charges. This aspect ostensibly leads to conclude that the ground being pleaded appears to be justified and suffice to condone the delay of 22 days in filing the appeal against conviction. The impugned judgment of the learned appellate court is short of any observation on the ground pleaded by the petitioner for condonation of delay, therefore, not legally sustainable.

6.In view of above, listed criminal revision is allowed, impugned judgment dated 10.12.2022, passed by the learned Additional Sessions Judge-X, Islamabad- West is set-aside and pursuant thereto, application for condonation of delay filed by the petitioner is allowed. The main appeal filed by the petitioner in terms of Section 408 Cr. PC shall be deemed pending which shall be decided on merits, after giving due opportunity of hearing to the parties in accordance with law and on its own merits without being influenced by the observation recorded hereinabove which are restricted and shall be construed to the extent of appreciating the application for condition of delay in filing the appeal. Copy of this order shall be transmitted to the concerned court for compliance.

(ARBAB MUHAMMAD TAHIR)

JUDGE

Announced in the open Court on _____11/2025.

JUDGE

Shafqat