HIGH COURT OF SINDH AT KARACHI
Criminal Acquittal Appeal No. 230 of 2019
Appellant : Mehtabuddin s/o Shahabuddin
through Mr. Aroon Parsad, Advocate
Respondent No.1 : The State
Respondents No.2-4: None present for Khan Muhammad, Saeed-ur-
Raheem & Abdul Hameed Qureshi,
as notice not issued to them.
Date of hearing : 25.4.2019
Date of Judgment : 25.4.2019
J U D G M E N T
Abdul Maalik Gaddi, J.– Through this appeal, the appellant has assailed the legality and propriety of the Judgment dated 06.3.2019 passed by the learned XXIV-Judicial Magistrate, Karachi West, in criminal case No.85/2018 re. State vs. Khan Muhammad & others under Crime No.509/2017 registered under Sections 448, 427, 34 PPC at P.S Surjani Town, Karachi, whereby the learned trial Court, after full dressed trial, acquitted the respondents No.2 to 4 under Section 245(i) Cr.P.C. by giving them benefit of doubt.
2. Brief facts of the prosecution case narrated in the FIR by complainant Mehtabuddin s/o Shahabuddin Qureshi, resident of House No.D/89, Street No.3, Noor Colony, Sector-10, Orangi Town, Karachi, are that he is residing on above address. In the year 2009, he purchased two plots Nos.L-218 and L-219 admeasuring 80 sq.yds. Block-F, Phase-II, Gulshan-e-Sarjani and he constructed boundary wall. On 05.10.2017 at about 05.00 p.m. he went to look-after his plots, where he saw boundary wall of both plots was demolished and inside one plot a water tank was constructed and some construction was raised. On enquiry, complainant came to know that Abdul Hameed, Khan Muhammad and Saeed-ur-Rahman have occupied the same after demolishing wall and thereafter, complainant got registered FIR. After investigation case was challaned for offences punishable under sections 447, 448, 34 PPC.
3. It reveals from the record that after submission of challan against respondents No.2 to 4, the charge against respondents No.2 to 4 was framed in which they have pleaded not guilty and claimed to be tried vide their pleas available on record at Exh. 2/A to 2/C respectively.
4. At trial, prosecution has examined as many as five witnesses, Complainant Mehtabuddin was examined as PW-1 at Ex.3. He produced application moved by him to DPO, Sarjani Town with list of witnesses at Ex.3/A, FIR at Ex.3/B, memo of inspection of wardat, photographs at Ex.3/D, Verification Letter issued by Traditional Builders & Developers at Ex.3/E, Letter of Investigating Officer sent to General Secretary, Gulshan-e-Sarjani Welfare, Association, Karachi at Ex.3/F and documents in respect of his plots containing 23 pages. PW-2 Muhammad Arshad Butt at Ex.4, PW-3 Mirza Imtiaz Baig at Ex.5, PW-4 Shahab Mirza at Ex.6 and PW-5 SIP Bagh Ali Junejo (Investigating Officer) at Ex:7, who produced order dated 20.7.2018 regarding dismissal from service of ASI Shamsi Muneer Hussain (author of FIR) at Ex.7/A, entry No.11 at Ex.7/B, entry No.15 at Ex.7/C, copy of agreement of sale at Ex.7/D-1, receipt at Ex.7/D-2, and agreement of sale dated 29.7.2017 at Ex.7/D-3 and Ex.7/D-4. These witnesses were cross-examined by the counsel for the respondents No.2 to 4. Thereafter, learned ADPP for the State through statement (Ex.8) closed the side of prosecution.
5. In 342, CrPC, statements recorded at Ex.9 to 11, all accused, namely, Khan Muhammad, Saeed-ur-Raheem and Abdul Hameed Qureshi have repudiated the allegations of prosecution case. They have neither opted to examine themselves on oath nor examined witness in their defence. Accused Saeed-ur-Raheem has produced copies of notices of Civil Suit No.1945/2018 Zakir Khan vs. Mehtabuddin & others and Civil Suit No.1946/2018 Saeed-ur-Raheem vs. Mehtab-uddin & others, issued by the Court of Honourable Senior Civil Judge-XIV, Karachi West at Ex.10/A and Ex.10/B. They have prayed for justice.
6. Learned trial Court after perusal of evidence and hearing the parties acquitted the respondents No.2 to 4 through impugned judgment.
7. Office has objected that this appeal is time barred, however, an application under Section 5 of the Limitation Act being M.A. No.3613/2019 has been filed by the applicant for condonation of delay in filing this appeal.
8. Mr. Aroon Parsad, learned 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 respondents No.2 to 4 are not supportable from evidence on record. Per learned counsel, the prosecution has successfully proved its case beyond any reasonable doubt as the complainant and his witnesses have fully supported its case; that the accused/ respondents No.2 to 4 should be awarded exemplary punishment as they do not deserve any concession. He further submitted that the said respondents have been directly charged and that discrepancies in the statement of witnesses are not so material on the basis of which said respondents could be acquitted. He further contended that the learned trial Court has based its finding of acquittal merely on the basis of minor contradictions on non-vital point in the statements of prosecution witnesses and that the prosecution evidence has not been properly appreciated. He further submits that the appeal though time barred but in this regard he has filed an application for condonation of delay as the advocate for appellant before the trial Court has not informed the appellant about the acquittal of the said respondents. Therefore, according to him the period of limitation involved in this case may be condoned and notices may be issued to the respondents. Since the point of limitation is involved in this case, therefore, learned counsel for appellant has been heard.
9. It appears from the record that the accused/ respondents No.2 to 4 have been acquitted by the learned trial Court vide Judgment dated 06.3.2019, on which date the appellant has applied for certified true copy which was delivered to him on 07.3.2019, but this appeal has been filed on 15.4.2019. The period of limitation for filing acquittal appeal for appellant was available for 30 days, but this appeal has been filed beyond the period of prescribed period of limitation. Learned counsel for appellant submits that though this appeal is time barred, he has filed an application for condonation of the period of limitation on the ground that the advocate who was appearing before the trial Court on behalf of the appellant has not been informed to the appellant in time. On perusal of record, it reveals that this fact has not been mentioned in the said application. On calculation of the period in view of the Section 12 of the Limitation Act, it also reveals that this appeal is time barred by 07 days, but no explanation of each day’s delay has been mentioned either in application or in affidavit. I have gone through the case-law reported in 2002 SCMR 1903 (M/s Tribal Friends Co. vs. Province of Balochistan), wherein it has been held that defaulting party while applying for condonation of delay must explain 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. Again I have gone through the case-law reported in 1998 SCMR 785 (Mst. Sirajun Munira vs. Pakistan through Assistant Deputy Director General (Admn), Islamabad. In this case-law, it has also been mentioned that delay of each day in filing of appeal must be reasonably explained.
10. During the course of arguments, I have specifically asked the question that why the appellant has not furnished each day’s delay on filing of this appeal, he has no satisfactory answer with him.
11. On perusal of record, even on merit, the appellant has also no case for issuance of the notice to the respondents as in this matter, the trial Court while deciding the impugned judgment has taken into consideration all aspects of the case. During the course of arguments, I have also asked the question from learned counsel for appellant to point out any illegality in the impugned judgment which is not supportable from the evidence on record, he has again no answer with him. The judgment passed in this case has been perused, but I did not find any illegality or irregularity in it.
12. In view of the above, I reach at the irresistible conclusion that the appellant has miserably failed to prove its case against the respondents No.2 to 4 beyond shadow of reasonable doubt, therefore, no interference in the impugned judgment is required by this Court, as it is well reasoned and of-course a speaking one. Resultantly, instant criminal acquittal appeal, which is hopelessly time barred and being devoid of any merit is hereby dismissed in limine along with listed applications.
JUDGE
asim/pa