ZIAUDDIN vs Malik M. ASHRAF and others

ORDER

1. ' In a Direct Complaint Case No,317 of 1996 re: Ziauddin v. Malik Muhammad Ashraf and Iqbal, which was registered against both the accused/ respondents under sections 447, 448, 504, 506 and 34, P.P.C. And tried by the learned Judicial Magistrate-I, Karachi (South) whereby he acquitted the accused Muhammad Ashraf under section 245(1), Cr.P.C. And kept the case against absconding accused/respondent Iqbal on dormant file, vide his judgment, dated 13-3-1997.

2. ' It is against this judgment of acquittal that the appellant Ziauddin has come in appeal under section 417, Cr.P.C.

3. ' Vide Act XX of 199,4, which came into force on 14-11-1994, subsection (2-A) of section 417, Cr.P.C., was added by virtue of which the complainant/an aggrieved person was conferred a right of appeal against a judgment of acquittal.

4. ' The appellant/complainant, Ziauddin, has, therefore, assailed the abovesaid judgment of acquittal under these provisions of law on The ground, inter alia, that the learned Judicial Magistrate has failed to appreciate the evidence on record comprising of seven prosecution witnesses. The learned Magistrate has failed to take into consideration the decree passed by the Civil Court in favour of the appellant. The appellant is actually a tenant in respect of the shop in dispute of which the respondent No,1 is the landlord and that the evidence of the prosecution witness cannot be discarded merely because the witnesses are related to the appellant or have friendly relations with him.

5. ' After a long time spent in effecting service of process of N.B.Ws., Mr. Makhdoom Ejaz, Advocate, was engaged by the respondents. It was reported that respondent Iqbal was confined in Central Jail, Jehlum.

6. ' The learned counsel for the respondents has at the very outset taken a strong objection to the maintainability of this appeal. According to him, the appeal was hopelessly time-barred and that no application for condonation of delay in filing the appeal has been filed alongwith the appeal.

7. ' On perusal of the record, it transpires that the impugned judgment of acquittal was passed on 13- 3-1997. An application for obtaining a certified true copy of the judgment was filed on 19-3-1997 which was delivered to the appellant on 2-4-1997. Excluding the time spent in obtaining the certified copy of the judgment the appeal should have been filed on or before 27-4-1997. The period for filing such an appeal is only 30 days from the date of judgment. Present appeal was filed on 7-5-1997 i,e, after ten days from the date on which the appeal had to be filed. There is neither an application for condonation of delay nor any prayer/reasons for not filing the same within time.

8. ' The learned counsel for the appellant has argued that subsection (3) of section 417, Cr.P.C. Allows time of two months in obtaining special leave to appeal at the time of filing of the appeal. He has contended that in view of that the appeal filed by him would be within time.

9. The contention raised by the learned counsel for the appellant appears to be misconceived as in so far as an appeal filed by an aggrieved person under subsection (2-A) is concerned, no leave to appeal from an order of acquit required to be obtained. The provisions contained in subsections

(3) and relate to the filing of such an appeal by the State. The appeal under subsection (2-A) from an aggrieved person does not involve the question of special leave to appeal.

10. ' An accused of a criminal offence as a result of his acquittal by a competent Court of law has a very valuable vested right in him. A criminal appeal against acquittal is different from an appeal preferred against a judgment of conviction and sentence. Furthermore, in matters of period of limitation, delay of each day has to be satisfactorily explained. There is no such application for condonation of delay much less its satisfactory explanation.

11. ' Both the learned counsel were allowed time to produce law on the point involved. The learned counsel for the appellant, however, failed to produce any law in support of his contentions. On the other hand, the learned counsel for the respondents has relied upon 1996 M LD 1488, NLR 1997 Criminal 386 and 1996 PCr.LJ 1475. The case-law cited by the respondents supports the contentions raised on their behalf.

12. ' The learned counsel for the State has also supported the case of the respondents and argues that the appeal fails as being time-barred.

13. ' In view of the above discussion, I have reached the conclusion that the present appeal is barred by time without there being a prayer for condonation of such delay. The same is, therefore, dismissed in limine in respect of only respondent accused, Malik Muhammad Ashraf. As far as the acquittal appeal of the appellant against respondent No,2, Muhammad Iqbal is concerned, the same is also dismissed as being incompetent, since respondent Muhammad Iqbal did not face the trial being an absconding accused and his case has been kept on the dormant file meaning thereby that he shall be tried for the said offence whenever he is arrested. The respondent, Malik Muhammad Ashraf is on bail. His P.R. Bond and bail bond of the surety shall stand discharged.