2019 PLP 836 (YLR)

FAHIM AHMED SIDDIQUI, J.

The appellant, by filing the instant criminal acquittal appeal, questions the impugned order dated 22.10.2010, passed by the learned Judicial Magistrate-III, Karachi South. Through the impugned order, the learned trial Court acquitted the accused/respondent No. 2 from the charge by invoking provision under Section 249-A of the Code of Criminal Procedure (Cr.P.C.).

2. The appellant has lodged FIR No. 41/09 at PS Ferrier under Section 381, P.P.C. on 02-03-2009. Being complainant, she described in the said FIR. that she is a resident of Flat No. 2/2, Rimpa Twin Star Apartments, Shahra-e-Faisal, Karachi and serving as a doctor in Unilever. On 24-02-2009, she placed her valuable articles in the almirah i.e. 10 gold bangles of one tola each, 4 karas of gold, one gold set, one chain weighing 10 tolas, five other ladies rings, 4 earrings, two biscuits of gold weighing 3 tolas each, one set of precious gems, one gold necklace. US$ 20,000/-, 400/- and Rs. 4000/- and other Singaporean currency and Riyals. Subsequently, when she checked the almirah on 27-02-2009 at about 23:00 hours, the said articles were found missing. She further mentioned in FIR that there are two housemaids namely Mst. Surraya wife of Zafar lqbal and Mst. Fiza aged about 50 to 55 years and she was sure that they have stolen the said articles. As her husband was out of the country; therefore, she waited for his return and thereafter she came to the police station to report the incident.

3. The respondent No. 2 succeeded in getting bail on 18-03-2009, thereafter the Final Report (Challan) was filed in the case against respondent No. 2 while the other housemaid Mst. Fiza was shown as an absconder. Subsequently, an application under Section 249-A, Cr.P.C. was filed. The trial Court, after hearing the parties, allowed the said application and respondent No. 2 was acquitted.

4. As the instant appeal is barred by time; therefore, office has placed an objection as 'How appeal is in time?'. The learned counsel for the appellant was asked to address on the point of maintainability of the instant appeal.

5. While pressing the instant acquittal appeal, the learned counsel for the appellant submits that the order of the trial Court was passed on 22-10-2016 and the certified copy of the said order was obtained on 30-10-2010. She further submits that the appeal was filed before Sessions Court on 20-11-2010, which was disposed of on 24-12-2010 on the ground that it was filed before wrong forum. Thereafter the appeal was filed before this Court on 30-12-2010. She contends that the acquittal appeal was filed before the Sessions Court instead of filing before this Court, which was a technical mistake and not deliberate. Referring Section 14 of the Limitation Act, she submits that the duration consumed before the wrong forum ought to be deducted and if the same is deducted then the appeal is within time. In response to a query, she submits that leave to file an appeal against acquittal is needed by government and not by a private complainant.

6. As in the instant matter, the notices to respondent No. 2 and learned PG were already issued; therefore, the learned counsel for respondent No. 2 also appeared and preferred his submissions. According to him, the limitation is 60 days for leave otherwise it is 30 days for an appeal against acquittal. He submits that as no permission was sought by the complainant for filing appeal and even no application for leave is filed; therefore, the instant appeal is not only time-barred, but also to be dismissed on the grounds that no leave was sought by the complainant.

7. The learned DPG submits that the instant appeal is time barred and leave is required to be sought. According to him, even otherwise merits of the case are not in favour of the appellant.

8. I have heard the arguments advanced at the bar and have gone through the record of the case. In the instant case, the time of the appellant was consumed before a wrong forum. As far as the limitation is concerned, it is settled that a litigant should be vigilant in this respect. It is the mistake of the appellant that she had filed an acquittal appeal before the Sessions Court, where it was not maintainable. There is no question about it that no one can claim benefit on account of his own wrong. For choosing wrong forum, no proper explanation was given by the appellant except that it was a technical mistake. As the appeal before the wrong forum was filed by a counsel; therefore, it was not simply a technical mistake. The choosing of a wrong forum with the bona fide intention, no doubt, can be a ground to get the benefit of section 14 of the Limitation Act, but a technical mistake cannot be termed as a mistake with the bona fide intention, as such it is no ground to press under Section 14 of the Limitation Act, 1908.

9. This has been a consistent view of the Hon'ble Supreme Court that if a litigant has not acted in a bona fide manner or he has acted without due diligence in prosecuting remedies before a wrong forum, he cannot be benefited under Section 14 of the Limitation Act. In a case reported as Muhammad Ishaq v. Province of the Punjab (1998 SCMR 9), it was held that prosecuting remedies before wrong forum hardly amounted to a bona fide mistake and did not constitute due diligence the essential requirement of section 14 of the Limitation Act. Similarly, in the case reported as Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102), it was held that defence given by a lawyer that remedy in a wrong Court was prosecuted, is not a good ground for exclusion of time for limitation either under section 5 or section 14 of the Limitation Act. In the case of Chaudhry Muhammad Sharif v. Muhammad Ali Khan and others (1975 SCMR 259), it was held by the Apex Court that failure to acquaint himself with relevant provisions of law relating to the jurisdiction of the Court, amounting to negligence on the part of counsel and hence the delay was not condoned.

10. As far as, leave to appeal in case of acquittal is concerned, the law is very much clear. The proposition of law is that in a case instituted upon a complaint, the acquittal appeal can only be filed upon the grant of a special leave by the High Court in terms of subsection (2) of Section 417, Cr.P.C. within 60 days of the acquittal judgment or order. A direct appeal against acquittal cannot be entertained under sub-section (3) of Section 417, Cr.P.C. However, after insertion of subsection (2-A) of Section 417, Cr.P.C. through Second Amendment Act, 1994 of the Code of Criminal Procedure, 1898, any person aggrieved by an order of acquittal has a statutory right as contemplated under subsection (2-A) of Section 417, Cr.P.C., to prefer an appeal to the High Court within 30 days of such order or judgment of acquittal without applying for a special leave.

11. The ultimate outcome of the above discussion is that the instant criminal acquittal appeal is not competent, as such the same is dismissed. SA/A-3/Sindh Appeal dismissed.