2010 PLP 961 (MLD)

HAFIZ ABDUL REHMAN ANSARI, J.

Respondent No.2 Muhammad Iqbal son of Wall. Muhammad faced trial in case F.I.R. No.264, dated 28-5-2004, registered with Police Station Mumtazabad, Multan, for an offence under section 489-F, P.P.C., and the Judicial Magistrate, Multan, at the conclusion of the trial vide judgment, dated 6-6-2006 acquitted him of the charge. The petitioner-complainant filed an appeal on 5-11-2009 under section 417(2-A), Cr.P.C. against the said acquittal order, which is barred by limitation. He has filed the instant application under section 5 of the Limitation Act, for condonation of delay, which is going to be decided now through this order.

2. Brief facts of the case are that on the application of the Maj. (Rtd.) Qamar-ud-Din/petitioner, Recovery Officer, Fatima Enterprises Limited, Mumtazabad, case was registered with the allegation that the respondent had been dealing with the Mills for the purchase of ghee and he distributed it to his relative Muhammad Anwar and subsequently he relinquished the business. The accused about two years prior to the registration of the case had given a cheque; the accused could not pay the amount before April, 2004, therefore the cheque was tried to be encashed, which on presentation to the concerned bank was bounced.

3. During investigation the respondent was found guilty and challan was submitted. Charge was framed against him to which he pleaded not guilty and claimed trial.

4. Prosecution in support of its case produced six witness in all. In the statement of the accused under section 342, Cr.P.C., he pleaded his innocence.

5. In support of the application for condonation of delay, the learned counsel contends. that as the circumstances were out of the control of the appellant-petitioner so appeal could not be filed within the prescribed period of 30 days.

6. At the very out set, learned counsel has to face the question of limitation. The judgment of acquittal was passed on 6-6-2009, whereas the appeal against the said judgment and was filed on 5-11-2009, whereas it should have been filed within 30 days of the impugned judgment. It is an appeal against acquittal wherein presumption of double innocence is available to the accused. In the appeal against the acquittal the appellant has to explain and give the reasons for each and every day for filing the appeal if it is time-barred. In appeal against conviction the delay is conducted favourably. Although application under section 5 of the Limitation Act has been filed along with the appeal, but no sound reasons have been given for filing the appeal with delay and for condonation of delay. Further, condonation of delay under section 5 of the Limitation Act is not available for filing appeal against acquittal under section 417(2A), Cr.P.C. Reference may be made to the case reported as Roshan v. Muhammad Saleh and 2 others (2008 MLD 187 Karachi.).

7. The appeal is hopelessly time-barred. There is no sound ground to condone the delay in filing the appeal. Therefore, this application is dismissed in limine. H.B.T./Q-8/L Application dismissed.