MUHAMMAD ASIF Versus SHEHZAD HUSSAIN
ABDUL MAALIK GADDI, J .---This Criminal Acquittal Appeal is directed against the Judgment dated 13.11.2018, passed by the learned XXVIth Civil Judge and Judicial Magistrate, Karachi South in Criminal Case No. 2759/2016 registered under sections 408, 420 and 468, P.P.C. under Crime No. 228/2016 of Police Station Preedy, whereby he has acquitted the accused/respondent No.1 by extending the benefit of doubt. Appellant having aggrieved and dissatisfied with the impugned judgment, has filed instant appeal.
2. As per the contents of complaint/ FIR that on 03.05.2016, complainant registered case against accused that on 20.08.2009 accused was appointed as Assistant Manager Services in NG Auto Industry and similarly on 01.11.2014. Accused was promoted as Manager Sales of Hyderabad Region. Company conducted its audit on 01.12.2015, it came in the knowledge of company that accused being employee made criminal breach of trust by delivering motorbikes to unknown persons on fake/forged documents and misappropriated property of Rs.1383894 of the company.
3. It appears from the record that charge was framed against the accused at Exhibit-2 and plea of accused is on record at Exhibit-2/A, where he did not plead guilty and claimed for trial.
4. At trial, deposition of PW-1 namely Muhammad Asif was recorded at Ex.3. He produced an application made to S.H.O. Police Station Preedy at Ex.3/A, FIR at Ex.3/B, memo of site inspection at Ex.3/C, documents for verification made from the dealers at Ex.3/D to 3/E, copy of legal notice sent to accused person at Ex.3/F, authority letter for lodging FIR at Ex.3/G, joining and promotion letter of accused Shehzad at Ex.3/H and 3/I, audit report and challans of company at Ex.3/J, copy of fake challans issued by accused at Ex.3/K. Deposition of PW-2 namely Muhammad Usman was recorded at Ex.4. He produced complaints received from customers/dealers at Ex.4/A to 4/C, audit report conducted by company consisting of two pages at Ex.4/D. Deposition of PW-3 namely Sir Sahib Jatoi was recorded at Ex.5. He produced entry for receiving of investigation at Ex.5/A, entry for joining of investigation by accused at Ex.5/B. Deposition of PW-4 namely Muhammad Shafiq was recorded at Ex.6. He produced copy of statement under section 154, Cr.P.C. at Ex.6/A, copy of application sent to SSP for approval of lodging of FIR at Ex.6/B and copy of approval receipt from SSP for lodging of FIR at Ex.6/C. Deposition of PW-5 namely Ghulab Khan was recorded at Ex.7.
5. These witnesses were cross-examined by the counsel for the accused. Thereafter, the prosecution has closed his side through a statement on record.
6. Statement of accused was recorded under section 342, Cr.P.C. at Ex.9, in which he denied the allegations as levelled by the prosecution and stated that he is innocent and has falsely been implicated in this case by the complainant, as he used to work with the appellant's company and thereafter resigned from the service. Thereafter, they were demanded undue return of amount, when he refused, the complainant lodged this false FIR. However, respondent neither examined himself on oath nor led any evidence in his support.
7. It may be mentioned here that this appeal was presented on 28.12.2018 and vide order dated 03.01.2019, which was the first date of hearing, on which date, learned counsel for the petitioner was put on notice to satisfy this Court on the point of limitation as the appeal, as per office objection, was time barred and further the appeal was not maintainable even on merit.
8. Today, counsel for the appellant filed an application under section 5 of the Limitation Act along with affidavit of appellant, taken on record stating therein that the advocate who was pursuing the case before trial Court has not informed about the date of judgment to appellant in time, therefore, period of limitation may be condoned.
9. Mr. Shab Alam, learned counsel for the appellant contended that the Judgment passed by the learned trial Court is perverse and the reasons are artificial viz-a-viz the evidence on record, that the grounds on which trial Court proceeded to acquit the respondent, are not supported from the documents and evidence on record. He further submitted that the respondent has been directly charged and the discrepancies in the statement of witnesses are not so material on the basis of which respondent could be acquitted. He further contended that the learned trial Court has based its findings of acquittal merely on the basis of minor contradictions or non-vital point in the statement of prosecution witnesses and the prosecution evidence has not been properly appreciated. He further argued that the appeal filed by the appellant though the time barred but in this regard he submits that sufficient reason has been assigned in the application for condonation of delay for condoning the period of limitation as the judgment was passed on 13.11.2018 but his advocate informed about judgment on 30.11.2018 and after receiving the certified true copies on 26.11.2018, appellant filed present appeal, therefore, this appeal may be allowed and the period of limitation may be condoned. In this regard he has relied upon case laws reported in 2001 SCMR 827 (Muhammad Shafi v. Muhammad Hussain) and PLD 1980 Supreme Court 14 (Asghari Khanum v. The State and 3 others).
10. I have heard the learned counsel for the appellant at a considerable length and have also examined the material available on record and the law cited at the bar.
11. Record shows that the impugned judgment was delivered on 13.11.2018 and the application for certified true copies was filed on 22.11.2018 which was delivered to him on 26.11.2018 but the appeal has been filed on 28.12.2018, after expiry of 30 days period of limitation. When confronted the above position, learned counsel for the appellant submits that though the appeal is time barred but the appellant has filed application for condoning delay stating therein the reasons to the effect that his advocate could not inform him about the date of judgment. In my opinion, this is a vague and general grounds. No certificate of previous advocate has been filed in this regard to prove this fact. This vague statement given by the appellant cannot be accepted.
12. Since admittedly the appeal is time barred after account for by about 9 days and moreover delay of each and every day has also not been explained at all by the appellant in the said application or affidavit, nor has plausibly explained the delay in filing the appeal after obtaining certified copies. Learned counsel for the appellant was not able to satisfy me as to how the application is maintainable in the absence of valid explanation of delay for each and every day.
13. It is well established principle of law that in order to seek concession of condonation and discretion of the Court in this behalf, the party seeking condonation must explain delay on each and every day, which has not been done in this case. It is also well settled that wherein appeal is not filed within the time and valuable rights accrue in favour of the opposite party, such valuable rights cannot be taken away unless very strong and convincing grounds are shown for condoning the delay. In Imtiaz Ali v. Atta Muhammad and another (PLD 2008 SC 462), it was held by the Honourable Supreme Court of Pakistan that the appeal having been filed after one day of the period of limitation, had created valuable right in favour of the respondent, and even delay of only one day was not condoned by the Honourable Supreme Court as no sufficient cause was found for filing the appeal beyond the period of limitation. In Government of Pakistan through Ministry of Works and another v. Messrs Malburo Builders Contractors Sialkot (2006 SCMR 1248), the Honourable Supreme Court was pleased to hold that the question of limitation being not a mere technicality cannot be taken lightly and the rights accrued to the other party due to limitation cannot be snatched away without sufficient cause and lawful justification.
14. I have also gone through the case of Mst. Sirajun Munira v. The Pakistan reported in 1998 SCMR 785, in this authority, it has been held that delay of each day in filing of appeal must be reasonably explained but herein this case, reasons given for the filing appeal late is not acceptable to the prudent mind. Likewise, in case of Messrs Tribal Friends Company v. Province of Balochistan reported in 2002 SCMR 1903, in this case law it has been held as under:--
"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"
15. When confronted all these facts, learned counsel for the appellant has no plausible answer with him as such application filed by the appellant for condonation of delay is not maintainable.
16. Even on merit, appellant has no case for showing indulgence in the matter for the reasons that the alleged incident with regard of alleged misappropriation by the respondent occur on 01.12.2015 but the FIR was lodged by the complainant against respondent on 03.05.2016, after about 5 months for which no satisfactory explanation has been offered. It reveals from the record that respondent was appointed in the appellant's company as Assistant Manager on 20.08.2009, subsequently he was promoted in the company on 01.11.2014 as Sales Manager and resigned from the appellant's company on 06.11.2015 but the alleged misappropriation pertains to December, 2015, much prior to the resignation of respondent. Under the circumstances, false implication of respondent in this case could not be ruled out.
17. I have also gone through the evidence on record along with impugned judgment with the able assistance of learned counsel for the appellant and found number of contradictions in between the statement of prosecution witnesses which are material and fatal to the prosecution case and these contradictions have already been highlighted by the learned trial Judge in its judgment of acquittal. During the course of arguments, I have also specifically asked the question from learned counsel for the appellant to point out any illegality or irregularity in the impugned judgment. However, learned counsel for the appellant could not show the specific part of the judgment wherein learned trial Court has committed any gross illegality.
18. It is not out of context to make here necessary clarification that appeal against acquittal has distinctive feature and approach to deal with appeal against conviction is distinguishable from appeal against acquittal, because presumption of double innocence is attached in latter case. Order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and led to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice, is not enough for interference. Suffice is to say that an order / judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. Reliance in this respect may conveniently be placed on case of Feroze Khan v. Fateh Khan and 2 others (1991 SCMR 2220). While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower Courts whereby accused were exonerated from the commission of crime as held by the Apex Court in the case of Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281).
19. Whatever mentioned above, more particularly in light of case law referred to above, I reached at the irresistible conclusion that the appellant has miserably failed to prove his case against the accused persons beyond shadow of reasonable doubt, therefore, no interference in the impugned judgment is required by the Court, as it is well reasoned and of course a speaking one.
20. Resultantly, the instant Criminal Appeal, being devoid of any merit, is hereby dismissed in limine along with listed application(s).
JK/M-118/Sindh Appeal dismissed.