2009 PLP 580 (YLR)

GHULAM DASTAGIR A. SHAHANI, J.

Pervez Peter has filed appeal being aggrieved and dissatisfied with the impugned judgment dated 12-12-2007 passed in Criminal case No.413/2001 under section 406, 34, P.P.C. by the learned IXth Judicial Magistrate East Karachi, whereby he has acquitted the accused/respondents Nos.2 and

3. Facts in brief are that on 2-10-2001 Pervez Peter moved an application to the Senior Superintendent of Police Karachi East alleging therein that, on 20-6-1996 he made a payment to one Rafiq Shahzad alias Gullu for arranging the proceeding of complainant to London. He further states that they usurp his money. In September 1996 accused Gullu promised that he would send him to London in an illegal manner. He further alleged that he has also deceived other people due to which Gullu and William were also arrested at Islamabad Airport in the month of December 1996. Complainant also alleged that he sent 4145.70 pounds and they sent 286 pounds' and now they owned 1296 pounds and 166 pounds are payable by Gullu. Further case of the complainant is that he possessed all the receipts. However he has lastly alleged total amount of Rs.1,40,000 payable by the accused to him. On the basis of complaint, F.I.R. was registered against Rafiq Shazad. After usual investigation challan was submitted in the Court of law and accused Mst. Rasheeda and William were shown as absconder 'under section 512 Cr.P.C. Whereas Mst. Rasheeda got pre-arrest bail from the Court of Sessions Judge Karachi East. However application under section 249-A, Cr.P.C. was submitted before the trial Court and after hearing to the learned defence counsel, as well as P.I. for the State, vide order dated. 12-12-2007 acquitted the applicant/accused Masih William Jhan son of Mushtaq Masih, from Criminal case No.413/2001 and allowed application moved under section 249-A, Cr.P.C. hence present acquittal appeal submitted on 11-2-2008, whereas application under section 5 of the Limitation Act submitted on 22-10-2008, for condonation of delay, on the ground that, appellant visited the peshkar of the Court after every 5/6 days in order to enquire about his case and lastly he was informed by the peshkar in respect of acquittal of the accused. Application was submitted for certified copy, which was delivered to him on 16-1-2008 and preferred present appeal on 11-2-2008. According to him, limitation will start from the date of the knowledge, therefore, delay if any, in filing of appeal, is not wilful, deliberate and excusable. Furthermore, Mr. Zahid Khan learned counsel for the appellant mostly reported same facts, as disclosed in the memo. of appeal, as well as in the interlocutory application. He further states that order dated 12-12-2007 is perverse and based on presumption and result of misreading and non-reading of the facts, and technicalities should not be allowed to stand in the way to reverse the illegal order. Reliance is placed on the case of Muaz Ahmad v. Haji Muhammad Ramzan and others reported in 2008 SCMR

529. On the other hand Mr. Fazlur Rehman Awan learned State counsel supported the impugned order and requests for dismissal of present appeal being time barred, as each and every day is to be explained and there must be sufficient ground for condonation of delay. Heard both the learned counsel and with their assistance perused the impugned order, so also material available on record. As per record impugned order was passed on 12-12-2007, costs for certified copy was deposited on 16-1-2008 and copy of the same was delivered to the party on the very day, whereas present appeal filed on 12-2-2008, without any explanation that why appeal was not preferred on receiving a certified copy of the impugned order w.e.f. 16-1-2008 to 11-2-2008. Even no condonation application was submitted. However application under section 5 of the Limitation Act, for condonation of delay was submitted on 22-10-2008. So far delay is concerned, each and every day is to be explained, to the extent that there were serious and special circumstances due to which it became impossible and beyond the control of the appellant to appear and file acquittal appeal in time, as party be so conscious and fully vigilant in respect of his relief and claim and in case of failure no one said to be responsible for his act and negligence, in case of failure he cannot blame any body else, because, unawareness is not a ground of condonation of delay, even delay of one day has not been condoned in an acquittal appeal. Reliance is placed on the case of Noor Hassain v. Muhammad Salim reported in 1985 SCMR

893. Furthermore no condonation application was filed by the appellant at the time of filing of acquittal appeal and moved later on viz. 22-10-2008 and no sufficient ground or reason, as well as circumstances have been disclosed for condonation of delay and there is only word against word, though each and every day is to be explained and party has to prove his own case and his version must be corroborated by some body else and he could not be benefited on the weakness of other side, if any, and there is no sufficient ground for condonation of delay. So far the law referred by the learned counsel for the appellant is concerned, is not relevant nor identical to the case in hand, as case of Moiz Ahmed v. Muhammad Ramzan and others was in respect of quashment of F.I.R. and without affording an opportunity of hearing to the petitioner matter was disposed of, as such petition was converted into appeal and orders were set aside and case was remanded for hearing afresh, strictly on merits. In view of aforesaid facts and circumstances, present Acquittal appeal is dismissed being time barred. A.M.R./P-44/K Appeal dismissed.