Mukhtiar Ahmed Siyal vs Piyaro and others

ORDER

Abdul Maalik Gaddi, J-. Through this criminal acquittal appeal, the appellant has impugned the judgment dated 12.01.2013, passed by learned 5th Additional Sessions Judge, Larkana, in Sessions case No.1242/2004, Re; State Vs. Piyaro and others, culminating from Crime No.33/2003, Police Station Bakrani, registered under Sections 302, 324, 337-H (2), 114, 148, 149 P.P.C; whereby the respondents No.1 and 2 have been acquitted under Section 265-H (i) Cr.P.C.

2. Per case of prosecution, the allegation against the respondents No.1 and 2 is that, respondents No.1 and 2 gave "hakals" to complainant party and made aerial firing, whereas respondent No.2 Illahi Bux has also been assigned the role of instigation to principal accused.

3. Since the matter was fixed at Katcha Peshi stage and learned counsel for the appellant was directed to satisfy this Court with regard to maintainability of this appeal in the scenario that appeal has been filed after expiry of appeal period, hence he has been heard.

4. It is inter-alia contended by the learned counsel for the appellant that the learned trial Court did not appreciate evidence available on record while passing the impugned judgment and did not apply its judicious mind. According to learned counsel for the appellant, the learned trial Court has passed the impugned judgment in favour of the respondents No.1 and 2/accused without going through the material on record and facts that complainant and eyewitnesses of the case have produced the ocular evidence against respondents No.1 and 2 and no material contradictions have come on record in between the prosecution witnesses. Learned counsel further contended that at the instigation of respondent No.2 the main culprits have attacked on complainant party.

5. On the point of delay in filing appeal, it is argued by the learned counsel that complainant had no knowledge about the judgment and as and when he came to know about the judgment he filed present appeal with an application under Section 5 of Limitation Act mentioning the reasons for filing the appeal after expiry of appeal period, therefore, he prayed that impugned judgment of acquittal is liable to be set-aside.

6. We have heard the learned counsel for the appellant and perused the record.

7. As per record prosecution in support of its case examined in all ten witnesses, namely, complainant Mukhtiar Ali, P.Ws Nisar Ahmed, Irfan Ali, H.C Hakim Ali, Inspector Assadullah, Dr. Rahim Bux, H.C Dhani Bux, P.C Irshad Ali, Dr. Akhtar Ali and ASI Ghulam Mustafa.

8. We have carefully scrutinized the evidence of the aforesaid witnesses only to the extent of case of present respondents No.1 and 2 and have found contradictions on material particulars. Besides, there is no convincing evidence on record showing that present respondents have given "Hakals", made aerial firing and instigated to principal accused for attack on complainant party. Evidence, if any against the respondents also found sketchy and partisan, has rightly been discarded by the Court below. In this regard we are supported with the case of Haji Amanullah Vs. Munir Ahmed and others, reported as 2010 SCM R 222, wherein it has been laid down as under: "Entire prosecution evidence being vague, sketchy and partisan, had rightly been discarded by the Courts below. Evidence had been appreciated in its true perspective in accordance with principles laid down by Supreme Court qua appreciation of evidence. No illegality, infirmity, misreading or non reading of evidence, could be pointed out warranting interference in the impugned judgment of acquittal, which being unexceptional-able could not be reversed."

9. It may be observed that it is a legal parlance that every accused is blue-eyed child of law and is presumed to be innocent unless and until he is held guilty by due course of law. Maxim exists that error in acquittal is better than the error in conviction and more so, after yielding acquittal dual presumption of innocence is attached with an accused. Further more, once an accused is acquitted by a competent Court of law after facing the trial, than he earns the presumption of double innocence which cannot be disturbed slightly unless grave illegality and injustice was established in the impugned order of acquittal. On this aspect of the case we are supported with case of The State through Advocate General, Peshawar NWFP Vs. Gulla reported in 2011 P.Cr.L.J 696.

10. Besides, this appeal merits outright dismissal on the ground of limitation alone. The impugned judgment is dated 12.01.2013, while the appeal has been filed on 12.03.2013. Under subsection (2-A) of Section 417 Cr.P.C, a person aggrieved by the order of acquittal passed by any Court, other than a High Court; may, within thirty days, file an appeal against such order. Thus the appeal in hand having been filed beyond thirty days, i.e. after two months which is hopelessly barred by time. The explanation furnished by the appellant through application under Section 5 of the Limitation Act, is not convincing as the delay of each day in filing the appeal has not been reasonably explained.

Besides, negligent in keeping himself informed about fate of his case is no ground of condonation of delay. Such plea of accused being frivolous and baseless is devoid of merit. Defaulting party while applying for condonation of delay must explain and account for the delay of each day, because on expiry of period of limitation, a valuable right is created in favour of other party, but in this case appellant failed to do so.

11. The learned counsel for the appellant, during course of arguments has failed to point out any illegality or irregularity in the impugned judgment of the trial Court to the extent of present respondents.

12. In view of the above facts and circumstances, no perversity, illegality and incorrectness have been found in the impugned judgment. Learned trial Court while passing the impugned judgment has appreciated all the points involved in this case. We, therefore, under facts and circumstances of the case find no merit in this criminal acquittal appeal, which stands dismissed alongwith an application filed under Section 5 of the Limitation Act.