THE HIGH COURT OF SINDH AT KARACHI

Cr. Acquittal Appeal No.139 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.1817/2018.

2.      FOR ORDER ON MA NO.1818/2018

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) Karachi dated 30.7.2016 in Case No.01/1999 (re. The State vs. Syed Muhammad Yousuf) arising out of  Crime No.19/1996 registered at PS FIA Crime Circle-II, 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 that on 11.01.1996, one Babar Bashir son of Bashir Ahmed, Regional Manager, Utility Stores Corporation lodged a report with PS Gulberg, Karachi, stating therein that accused Syed Muhammad Yousuf son of Syed Ibn-e-Hasan, while posted as Assistant Salesman/ Incharge, Utility Store, Shahrah-e-Pakistan, FB Area, Karachi, during the period from 16.9.1995 to 12.11.1996 being public servant by abusing his official position embezzled/ misappropriated amount of Rs.12,70,793.90 as per statement of accounts prepared by the Accounts Section, Utility Stores Corporation caused loss to the Government Exchequer/ Utility Store Corporation. Hence this FIR.

 

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 Bashir, Marketing Manager, Utility Stores Corporation at Ex-3, who produced complaint as Ex-4;

(ii)             PW-2 Syed Irshad Hussain, Incharge, Shah Faisal Colony, Utility Store, Karachi at Ex-6, who produced inventory of the articles containing 98 pages along with certificate of handing over and taking over as Ex-6/A;

(iii)           PW-3 Abdul Jabbar, Driver, Utility Stores Corporation at Ex-7, who produced two lists i.e. Stock Debit Notes as Ex-7/A;

(iv)           PW-4 Sardar Muhammad, Store Incharge, Metroville-III, Utility Store, Karachi at Ex-8, who produced Stock Debit Notes dated 05.10.1995 and 22.10.1995 at Ex-8/A and Ex-8/B;

(v)              PW 5 Muhammad Naeem, Salesman, Defence Utility Store, Karachi at Ex-9;

(vi)           PW-6 Syed Munawwar Abbas, Accounts Officer, Regional Office, Utility Stores Corporation, Hyderabad at Ex-10, who produced photocopy of statement of store accounts at Ex-10/A;

(vii)         PW 7 Mansoor Ahmed Khan, Procurement Officer, Utility Stores Corporation, Karachi, at Ex-11, who produced Receipts/ Documents at Ex-11/A to Ex-11/F;

(viii)      PW 8 Abdul Jameel Sheikh, Warehouse Incharge, Utility Stores Corporation at Ex-12, who produced certain documents i.e. Stock Debit Notes dated 02.11.1995, 25.10.1995, 24.10.1995, 21.10.1995, 17.10.1995, 17.10.1995, 19.10.1995, 16.10.1995,  16.10.1995, 07.10.1995, 07.10. 1995, 04.10.1995, 30.9.1995, 17.9.1995, 18.9.1995 and 19.9.1995 at Ex-12/A to Ex-12/O;

(ix)           PW 9 Arbab Ali Magsi (Retd), Police Officer at Ex-13, who produced letter dated 09.02.2000 and copy of FIR No.19/ 1996 lodged at PS Gulberg, Karachi at Ex-13/A and Ex-13/B.

 

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.

5.                  Statement of respondent No.2/ accused was recorded under Section 342 CrPC at Ex-14, in which he denied the prosecution allegations and claimed himself as innocent. He further stated that he has committed no offence. In 1995, his brother Debiz Hassan @ Ayya was in MQM and, as such, continuous raid was being made at their house, therefore, he and his brother left for Iran and after three months, when he came back it was came in his knowledge that FIR has been lodged against him. 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 30.7.2016, whereas this Criminal Acquittal Appeal has been filed on 22.02.2018, after the delay of about eighteen (18) months and twenty-two (22) days 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 30.7.2016, whereas this Criminal Acquittal Appeal has been filed on 22.02.2018 after the delay of about eighteen (18) months and twenty-two (22) days. 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 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.1817/2018 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

 

 

 

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