THE HIGH COURT OF SINDH AT KARACHI

Cr. Acquittal Appeal No.141 of 2018

 

Appellant                   :           Utility Store Corporation of Pakistan (Pvt.) Ltd.

                                                through Mr. Ayaz Ali Hingoro, Advocate

 

Date of hearing         :           26.3.2018

 

Date of Judgment     :           26.3.2018

 

1.      FOR ORDERS ON M.A. NO.1821/2018.

2.      FOR ORDER ON MA NO.1822/2018

3.      FOR HEARING OF MAIN CASE

 

JUDGMENT

 

 

Abdul Maalik Gaddi, J:   This Criminal Acquittal Appeal has been filed by Utility Store Corporation of Pakistan (Pvt.) Ltd. through its Regional Manager against the Judgment of learned Special Court (Central-I) Karachi dated 30.10.2015 in Case No.07/2001 (re. The State vs. Syed Hassan Akhtar Rizvi) arising out of  Crime No.03/2001 registered at PS FIA Crime Circle-I, Karachi, under Section 409 PPC read with Section 5(2) of PCA-II 1947, whereby the learned trial Court after full dressed trial acquitted the respondent No.2 under Section 265-H(1) CrPC by giving him benefit of doubt.

 

2.                  Brief facts of the case as per FIR are as under:-

“on receipt of a written complaint/ report from Mr. Izharul Hayat, Regional Manager, Utility Stores Corporation of Pakistan (Pvt.) Ltd. Regional Office at C-32, SITE, Karachi vide letter No.PC/Sales/2000/3431 dated 29th July, 2000, an Enquiry No.15/2000 was registerd at PS FIA, Crime Circle-I, Karachi on 26.8.2000. The contents of the complaint/ report are reproduced as under:

UTILITY STORES CORPORATION OF PAKISTAN (PRIVATE) LIMITED REGIONAL OFFICE, C-2, S.I.T.E., KARACHI.

 

NO.PC/Sales/2000/3431                                         Dated 29 July, 2000

The Director, K.Z.,

Federal Investigation Agency,

25-A Lalazar, Moulvi Tamizuddin Khan Road,

Karachi.

 

Subject:          FIRST INFORMATION REPORT.

 

            This is to inform you that Mr. Hassan Akhtar Rizvi son of Syed Muhammad Akhtar Rizvi was appointed in this Corporation as Assistant Salesman with effect from 26/10/1990.

 

            He was posted as Incharge at our Utility Store located at Nagan Chowrangi, Karachi, on 10/02/1999 vide letter No.PC/Sales/99-608 and after handing over the charge of the store his (Mr. Hassan Akhtar Rizvi) Accounts during the period of 12/01/2000 to 27/01/2000 revealed huge shortage. Apart from this, during the charge of Model Colony, Utility Store, Karachi, huge loss of stock due to theft committed on 21-22/04/1996 as reported by Mr. Hassan Akhtar Rizvi and on completion of investigation and survey by NIC’s Surveyor a report received from our Head Office authority vide letter No.1281/Burlary/claim dated 14/04/2000 wherein responsibility of such loss falls with individual concerned (Mr. Hassan Akhtar Rizvi) as declared in the report in this regard, preliminary disciplinary actions against the individual have been completed and a final action such as dismissal from service is being finalized. A comprehensive statement of accounts as prepared by our Accounts Officer vide No.Acctt/RM/2000/1926 dated 24.7.2000 is enclosed herewith declared outstanding balance against Mr. S. Hassan Akhtar Rizvi is as Rs.353,125/50.

 

3.                  It appears from the record that copies of police paper were supplied to the accused and charge was framed against the respondent No.2/ accused at Ex.2, wherein he pleaded not guilty and claimed trial. 

 

4.                  At the trial, prosecution had examined the following witnesses:-

(i)                PW-1 Shoaib Ahmed Khan, Account Assistant, USC, Hyderabad Division at Ex.3, who produced seizure memo/mashirnama and copy of Inventory Control Ledger bearing Pages No.445 and 446 of Article ‘A’ as Ex.4 & Ex.5;

 

(ii)             PW-2 M. Izharul Hayat (Retd.) Regional Manager USC at Ex.6, who produced attested copy of embezzlement report of account officer, charge sheet, account office letter dated 15.07.2000, letter of enquiry, enquiry report, final show cause notice, letter of guarantor and dismissal letter at Ex.9 to Ex.16;

 

(iii)           PW-3 Muhammad Naeem, (Retd.) Supervisor USC at Ex.21, who produced list of Stock Debit Note (SDN) of Nagan Chowrangi, Utility Store at Ex.22;

 

(iv)           PW-4 Javaid Rehmat, Audit Officer, AGPR at Ex.23;

 

(v)              PW-5 Syed Bahadur Ali at Ex.24, who produced attested copy of office order at Ex.25;

 

(vi)           PW-6 Muhammad Zafeer, Ex-employee USC at Ex.26, who produced letter/report dated 08.11.2000 alongwith copies of M.R. at Ex.26/A to Ex.26/C;

 

(vii)         PW-7 Nisar Ahmed, Establishment Assistant USC at Ex.27;

 

(viii)      PW-8 Javed Akhtar, Warehouse Incharge USC Korangi K Area at Ex.28;

 

(ix)           PW-9 Mansoor Ahmed Khan, Incharge Warehouse USC at Ex.31;

 

(x)              PW-10 Inayatullah, Sr. G.M. USC, Islamabad at Ex.32, who produced appointment letter dated 27.12.1990, enquiry report dated 17.04.1996, national insurance corporations letter dated 26.05.1999, head office letter dated 21.04.2000, posting order dated 21.01.2000, second posting order dated 10.02.1999 alongwith covering letter of department at Ex.32/A1 to Ex.32/A10, further documents viz. settlement of burglary claim dated 01.11.2000 and shortage;

 

(xi)           PW-11 Ali Athar Khan (Retd) Deputy Director, FIA at Ex.33, who produced FIR as Ex.33/A and Memo of Arrest as Exh.33/B.

 

(xii)         PWs Naseemuddin and Ziaullah Khan were given up by the Prosecution vide statements at Exh.18 and 19.

 

(xiii)      PW-12 Muhammad Azam at Ex.20;

 

(xiv)       PW-13 SI Muhammad Ali at Ex.30.

 

These witnesses were cross-examined by the counsel for the respondent No.2/ accused. Thereafter, learned Special Prosecutor, FIA closed the prosecution side vide statement at Ex.34.

5.                  Statement of respondent No.2/ accused was recorded under Section 342 CrPC at Ex-43, in which he denied the prosecution allegations and claimed himself as innocent. However, respondent No.2/ accused neither examined himself on Oath, nor led any evidence in his defence.

 

6.                  From the perusal of case file, it appears that the impugned judgment has been passed on 30.10.2015, whereas this Criminal Acquittal Appeal has been filed on 22.02.2018, after the delay of about two (2) years and three (3) months along with application under Section 5 of the Limitation Act, 1908, as such, learned counsel for appellant has been heard on the point of limitation.

 

7.                  Mr. Ayaz Ali Hingoro, counsel for appellant contended that the Judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-à-vis the evidence on record; that the grounds on which the trial Court proceeded to acquit the respondent No.2 are not supportable from the evidence on record; he further submitted that the respondent No.2 has been directly charged and that discrepancies in the statement of witnesses are not so material on the basis of which respondent No.2 could be acquitted. On the point of limitation, he submitted that though this appeal is time barred but according to him reasons assigned in the application under Section 5 of the Limitation Act are convincing on the ground that for initiating any proceeding before the Court of law, the matter was referred to high-ups at Islamabad through proper channel and after accorded approval, the matter was brought before the Court. He further submit that in the instant case also the Judgment was communicated to the next higher authority and then to Islamabad for seeking approval for filing appeal before this Court which took time and hence the delay occurred. Therefore, under the circumstances, he was of the view that the delay in filing appeal is not deliberate, therefore, the delay in filing appeal, if any, may be condoned and notices may be issued to the respondents.

 

8.                  I have given my anxious thoughts to the contentions raised at the bar and have gone through the case papers so made available before me.

 

9.                  It is an admitted fact that the impugned order has been passed by the trial Court on 30.10.2015, whereas this Criminal Acquittal Appeal has been filed on 22.02.2018 after the delay of about two (2) years and three (3) months. During the course of arguments, I have specifically asked the question from the learned counsel for appellant whether the appeal filed by the appellant is in time or otherwise, he replied that though this appeal is time barred, but according to him, in the instant case, the Judgment passed by the trial Court was communicated to the higher authorities and then to Islamabad for seeking approval of filing appeal before this court, which took time, hence the delay occurred in filing appeal.

 

10.             I am not convinced with the arguments as advanced by learned counsel for appellant on the ground that delay of each day in filing appeal must be reasonably explained as held in case of Mst. Sirajun Munira vs. Pakistan through Assistant Deputy Director General (Admn), Islamabad reported in 1998 SCMR 785. In the application and affidavit, each and every days delay has not been explained. I have also gone through the case of Pakistan through Secretary, Ministry of Defence vs. M/s Azhar Brothers Ltd. reported in 1990 SCMR 1059, wherein it has been held that Government cannot be treated differently from a private litigant on question of limitation under Section 5 of the Limitation Act. Again, I am supported with the case law reported in 2002 SCMR 1903, wherein it has been held that defaulting party while applying for condonation of delay must explained and account for the delay of each day because on expiry of period of limitation, a valuable right has been created in favour of the other party. In the instant case, as observed above, each and every day delay has also not been explained in the application as well as in the affidavit and the grounds/explanation for filing appeal after expiry of limitation period are also not convincing.

 

11.             I have also gone through the caselaw reported as The State vs. Syed Ali Baqar Naqvi and others reported in 2014 SCMR 671. The Hon’ble Supreme Court while dealing the question of limitation filed by the State in criminal acquittal appeal and while relying on Article 157 of the Limitation Act, as prescribed 06 months’ time to file appeal against acquittal from the date of order, but as observed above, this appeal has been filed much after the expiry of limitation period, as such the same is hopelessly time barred. Learned counsel for appellant has not been able to satisfy this Court with regard to delay in filing this appeal, therefore, M.A. No.1821/2018 under Section 5 of Limitation Act is dismissed. Resultantly, this Criminal Acquittal Appeal is also dismissed being time barred along with listed application. Since this appeal is hopelessly time barred. Therefore, it would be futile exercise to consider the case on merit.

 

JUDGE

 

 

asim/pa