2002 PLP 1973 (MLD)

Masooda Siraj, State Counsel. Date of hearing: 21st March, 2002. The appellant Akhtar Zamin stood his trial in the Court of Session, Karachi (East) for an offence punishable under sections 393 read with 398 and 34, P.P.C. The case of prosecution concisely stated is that on 3rd January, 1999 complainant Ibrahim, Kathiawari Commission Agent in wholesale Fruit Market, Sabzi Mandi, Karachi, was sitting in his shop situated on the ground floor of the market while his younger brother Haroon, their Clerk Yousaf and servant Javed were counting cash on the mezzanine floor' of the shop. At about 10‑30 a.m. two persons entered the shop. One of them stood over the complainant pointing his pistol cautioned him not, to move, while the other went upstairs to the mezzanine but complainant's brother Haroon pushed him back with the panel of the door as a result of which he lost his balance and fell down. Having failed in their attempt, they started running away. They were chased by the people present in the market who succeeded in apprehending one of them who was standing over the complainant. The pistol was seized from him and was handed over to police who had reached there on hearing about he incident. A.S.‑I. Muhammad Saleem took him in his custody and on enquiry the accused disclosed his name as Akhtar Zamin and that of his companion as Arshad. He secured the pistol and found that there were four cartridges in its magazine and one, stuck‑up in its chamber. He took the accused and the pistol to the Police Station of Pir Illahi Bakhsh Colony, registered the F.I.R., conducted the investigation and filed challan through the Station House Officer, showing accused Arshad as absconder. Despite all possible efforts Arshad could not be arrested and, was declared a proclaimed offender. The appellant pleaded not guilty to the charge whereupon the prosecution examined the witnesses namely: P.W.1 Ibahim, P.W.2 Haroon, P.W.3 Yousaf, P.W.4 Ahmed Luqman Memon, P.W.5 Noor Muhammad and P.W.6 Muhammad Saleem. Statement of appellant was also recorded under section 342, Cr.P.C. wherein he denied the allegations. He examined himself on oath but did not lead defence. The learned trial Court on assessment of the evidence held the appellant guilty and convicted him for offence under section 393 read with sections 398 and 34, P.P.C. and sentenced him to undergo rigorous imprisonment for a term of seven years and to pay fine of Rs.2,000 (Rupees two thousand only) for in default payment of fine to undergo simple imprisonment for one month ‑more. On perusal of the evidence it would be seen that the main witnesses have fully implicated the appellant stating that an attempt was made to commit robbery on point of pistol, which failed and the appellant was caught on the spot alongwith pistol. Investigating Officer also corroborated the version of witnesses. There is enough ocular evidence in support of the charge. The learned trial Court has fully discussed the evidence and come to the conclusion that there existed nothing on record to show that there was any enmity between the witnesses and the appellant, or there was a ground to implicate him falsely. The appellant was apprehended on the spot and trustworthy evidence has come on record on, this point through eye‑witnesses Ibrahim, Haroon, Yousaf and Javaid. The learned trial Court was justified in believing the same. The fire‑arm namely T.T. Pistol used in the commission of offence was also secured thereby corroborating the version of eye‑witnesses. The defence plea has duly been considered and rejected being improbable and unbelievable. The finding of conviction as such cannot be interfered with. Simultaneously, it may be observed that on 1‑12‑2000 the appellant was forwarded to central prison to serve out his sentence. He applied for the certified copy of 13‑4‑2001 where after the jail appeal was forwarded to this Court by Superintendent, Central Prison, Karachi through his letter dated 27‑4‑2001. Obviously, a period of more than 4 months had elapsed up to the time he applied for certified judgment, the appeal was, therefore, manifestly barred The only explanation offered by the appellant is that the poor man. This is a general ground and cannot condoning the delay occurred in institution of this appeal was required for filing jail appeal. On this score the appeal is dismissed. Ms. Masooda Siraj learned State Counsel, however, out that the appellant was remanded to custody on the day of announcement of judgment and there is .no rebuttal of the presumption that the copy of judgment was furnished to him in normal course. Nevertheless, perusal of R&P of the trial Court shows that the certified true copy of the judgment was forwarded by the trial Court to Superintendent, Central Jail, Karachi on the very day i.e. 1‑12‑2000 which was delivered to the appellant on 5‑12‑2000 by the Superintendent, Central Jail, Karachi and such receipt was obtained from him which was forwarded to trial Court and is available on record. Indeed; he could have filed an appeal through jail on the basis of copy of judgment supplied to him by the trial Court but he did not opt to file appeal within 60 days prescribed under Article 155 of the First Schedule to Limitation Act, 1908. This factor militates seriously against the plea of delay as the copy of judgment has been duly supplied to him free of cost within the meaning of section 37, Cr.P.C. The appeal is thus hopelessly time‑barred and no application has been moved for condonation of delay. In view of the above, the appeal is dismissed. However, the appellant complains that he has not been allowed rebate and/or remission in sentence in accordance with law. The Superintendent Jail shall provide him all concessions in accordance with law and furnish a quarterly report to M.I.T. of this Court. H.B.T./A‑348/K Appeal dismissed.