2022 PLP 73 (YLRN)

ABDUL MAALIK GADDI, J.

Through this appeal filed under section 417, Cr.P.C., the appellant Ameenul Haq has sought the indulgence of this Court to set at naught the judgment dated 12.05.2018 passed by the learned 1st Additional Sessions Judge, Kotri in case FIR No.05 of 2007 registered at P.S Coal Mine for offences under Sections 302, 201 and 34, P.P.C., whereby the learned Judge after full dressed trial acquitted the accused/ respondent No.1 by giving him benefit of doubt.

2. Briefly, the facts of the prosecution case are that, complainant Ameenul Haq lodged FIR on 04.10.2007 at 1700 hours at Police Station Coal Mine, stating therein that his brother was compounder at clinic of Dr. Abdul Ghafoor, located at Indus Coal Mine and the labourers of coal mine used to keep their money with him as Amaanat. On 24.09.2007 at 0830 hours, his brother went to Hyderabad to see the cricket match, but he never came back. The complainant remained in search of his brother and was informed by some grazers that bed smell of some dead body is coming from backside of title coal mine, particularly from the abandoned well. On receipt of such information, the complainant along with his cousin Zewar Rehman son of Danish Khan and relative Habib Rehman Pathan went to the pointed place and found some blood marks over the abundant well and also felt the smell coming from it. Upon which they went inside the abandoned well and found the dead body lying there, which was taken out and identified the body as Faizullah. The police was informed, they came and after observing the legal formalities, the dead body was then sent to Liaquat University of Medical and Health Sciences, Jamshoro for postmortem. The complainant then informed the relatives and then went to P.S and lodged the FIR that some unknown persons have committed the murder of his brother with some weapon and threw the dead body in abandoned well to hide the offence.

3. After the arrest of the accused and completion of investigation, the accused/respondent was put on trial where the provisions of section 265-C were complied with and the accused/ respondent was finally charge sheeted. However, he professed innocence and claimed trial.

4. The prosecution in order to prove its case against the accused/respondents produced and examined ten witnesses and closed its evidence. Thereafter, statement of the accused/respondent was recorded under section 342, Cr.P.C. but his stand was complete and false implication. However, neither he produced any defence evidence nor opted to be examined on oath under section 340(2), Cr.P.C.

5. On evaluating the materials brought on record, the learned trial Judge found the accused/respondent not guilty to the charge and thus acquitted him through the impugned judgment which is now under challenge by the complainant/appellant through the appeal in hand.

6. Learned Counsel for the appellant/complainant argued, with great vehemence, that the impugned judgment of acquittal in favour of the accused/ respondent is not based on correct legal premises on the following grounds:-- (i) that the prosecution has examined ten witnesses in this case and all the prosecution witnesses have fully supported the prosecution version and their evidence has not been shattered during their lengthy cross-examination but the learned trial Court has overlooked this important aspect of the case. (ii) that the impugned judgment of acquittal is based on surmises and conjectures and existing on non-reading and misreading of the evidence, non-application of relevant laws, utter disregard of the established norms of appreciation of evidence, therefore, the same is liable to be set-aside and the respondent / accused be convicted and sentenced according to law. (iii) that though this appeal is time-barred by 11 days but according to him this appeal could not be filed by the appellant due to some unavoidable circumstances, therefore, the period of delay in filing of appeal may be condoned.

7. It appears from the record that this appeal was presented before us for hearing on 03.07.2018, on which date the learned Counsel for the appellant/ complainant was put on notice to satisfy this Court with regard to maintainability of the instant criminal acquittal appeal on the point of limitation. Today, the learned counsel for the appellant has been heard at length and during the course of arguments he reiterated the grounds which he has urged as stated above. On the point of limitation, he submitted that though this appeal is time-barred by 11 days and in this regard, according to him, the appeal could not be filed within time due to some unavoidable circumstances and poor condition of the appellant/ complainant. He, however, has admitted that he has not filed any application for condonation of delay in filing such appeal.

8. We have carefully heard the learned counsel for the appellant/complainant and scrutinized the entire record of the case with the valuable assistance of the learned counsel for the appellant.

9. Perusal of record shows that the impugned judgment has been passed on 12.05.2018 and the appellant/complainant has applied for certified true copy of the judgment on 30.05.2018 and on the said date the certified true copy was supplied to him but this appeal has been filed on 23.06.2018 after the delay of about 11 days, for which absolutely no satisfactory explanation has been furnished. Besides; no application for condonation of delay in filing of acquittal appeal has been filed. During the course of arguments, we have specifically asked a question from the learned counsel for the appellant/complainant as to how this appeal is within time and if the appeal is time-barred then why the appellant has not filed the application for condonation of such delay by stating therein the reasons thereof, he has no answer with him. On perusal of the record, it reveals that this appeal is time-barred by 11 days and no application for condonation of delay in filing this appeal has also been filed. In our view, in the circumstances, the question of limitation is not a mere technicality, no party is entitled to seek condonation of delay as a matter of right. Sole test would be whether or not the delay of each and every day has been explained in a satisfactorily manner to enable the Court to exercise the discretion in favour of the party seeking condonation of delay.

10. We have gone through the case of Mst. Sirajun-Munira v. Pakistan through Assistant Deputy Director-General (Admn.), Islamabad reported in 1998 SCMR 785, wherein it has been held that; "if the appeal is time-barred, the delay of each day in filing the appeal must be reasonably explained" but here in this case as observed above though the appeal is time-barred by 11 days, even no application for condonation of delay in filing of this appeal has also been filed by the appellant.

11. We have also gone through the case of Messrs Tribal Friends Co v. Province of Balochistan reported in 2002 SCMR 1903, wherein it has been observed that; "defaulting party while applying for condonation of delay must explain and account for the delay of each day, because of expiry of period of limitation, a valuable right is created in favour of other party".

12. On merit, we have gone through the evidence already brought on the record and come to the conclusion that the learned Judge while delivering the judgment has addressed all the points involved in this case elaborately. During the course of arguments, we have also specifically asked a question from the learned Counsel for the appellant as to point out any illegality and / or misreading and non-reading committed by the learned trial Judge while passing the impugned judgment, he could not show the specific part of the judgment, wherein the learned trial Court has committed any gross illegality as the ocular and medical evidence is not favouring to the appellant/ complainant.

13. It is not out of context to make here the necessary clarification that appeal against acquittal has distinctive feature and approach to deal with the appeal against conviction is distinguishable from the appeal against acquittal because the presumption of double innocence is attached in latter case. Order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary in nature or based on misreading, non-reading of evidence or is artificial, arbitrary and led to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice, is not enough for interference. Suffice to say that an order/ judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order.

14. Keeping in view the above observations, if we examine the case in hand, we may draw a conclusion very safely that the evidence in this case is not enough to record conviction of the accused/respondent. No motive against the accused/respondent stands proved. There is no circumstantial evidence on record. The accused has not confessed his guilt.

15. From the facts and circumstances of the case discussed above, the learned trial Judge has rightly appraised the evidence brought on record and the impugned conclusion is based on correct legal footings, which needs no interference by this Court. Consequently, we find no substance in this appeal, which is hereby dismissed in limine. These are the reasons for our short order dated 11.09.2018 pronounced in open Court in early part of the day after hearing the learned Counsel for the appellant/ complainant, where this appeal was dismissed in limine. JK/A-62/Sindh Appeal dismissed.