2004 PLP 2022 (MLD)

Impugned in instant criminal appeal filed under section 417(2)(a), Cr.P.C. Is the judgment dated 13-5-2004 passed by Mrs. Zarqaish Sani, learned Additional Sessions Judge-I, D.I. Khan, whereby on extending benefit of doubt, she acquitted Marwat Khan, accused-respondent involved along with his brother Shah Jehan in a case registered under section 324/34, P.P.C. Vide F.I.R. No.38 dated 4-7-1997 at Police Station, Chaudhwan at the behest of complainant Ghulam Habib.

2. On the night of occurrence i.e. 3-7-1997, complainant had come to the house of his cousin Shah Jehan when at midnight he woke up and found Shah Jehan cutting the nose of his wife Mst. Sughran Bibi and Marwat Khan, accused respondent was standing near him. On intervention, Shah Jehan also cut the nose of the complainant. Both the brothers made the complainant and Mst. Sughran Bibi sit in room of the house. Explaining the motive, it was stated that Shah Jehan was suspecting the complainant of having illicit relations with his wife Mst. Sughran Bibi.

3. The formal charge was framed against the accused respondent and his co-accused to which they pleaded not guilty and claimed trial. Resultantly, the proceedings commenced against them. The prosecution in order to prove its case produced eight witnesses namely Lady Doctor Shamim Ara (P.W.1), Hussain Bakhsh, S.H.O. (P.W.2), Sardar Bakhsh Inspector (P.W.3), Ismail FC (P.W.4), Dr. Rashid Ahmad (P.W.5), Hidayatullah Khan, S.I. (P.W.6), Fazil Khan (P.W.7) and Habib-urRehman, complainant (P.W.8). The accused in their statements recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged. They led no evidence in defence nor appeared as their own witnesses on Oath as required under section 340(2), Cr . P. C .

4. The learned trial Judge after appropriate appraisal of evidence available on record, acquitted the accused-respondent of the charge whereas convicted and sentenced co-accused Shah Jehan.

5. Mr. Muhammad Afzal Nadir, Advocate for the appellant contended that the finding recorded and conclusion drawn by the learned trial Court are not in accordance with settled principles of dispensation of criminal justice; that the trial Judge has misconceived the entire evidence and has wrongly extended benefit of doubt to the respondent and that there was sufficient material on the file to connect the accused respondent with the commission of offence which has been totally ignored causing material prejudice to the interest of the appellant.

6. Having heard the arguments of learned counsel for the appellant in the light of the material on record, I find that the prosecution has not been able to prove its case satisfactorily against the accused-respondent and there is no show of misreading and non-reading of evidence on the part of the learned trial Court rendering the impugned judgment as unsustainable. The evidence has been appreciated in right direction and no illegality or infirmity has been pointed out in the judgment of acquittal. Moreover, the appeal is hopelessly barred by time. The impugned judgment was announced on 13-5-2004, application for obtaining attested copies was submitted on 31-5-2004 on which date, copies were issued but instead the appeal was filed on 1-7-2004. The appeal is accompanied by an application for condonation of delay. The only ground taken in the application for condonation of delay is that due to serious indisposition, appellant was prevented from filing the appeal in time and the delay was not intentional or deliberate. There is nothing onthe record in support of the plea raised. The mere assertion of the appellant that the delay was on account of his ailment, without a positive attempt on his part to substantiate the same, is of no consequence. The learned trial Judge has advanced valid and cogent reasons for passing an order of acquittal. Having regard to facts and circumstances of the case, I find that the impugned judgment is unexceptionable and hardly calls for interference of this Court. The appeal fails which is hereby dismissed in limine. The impugned judgment is maintained. H.B.T./218/P Appeal dismissed.