THE HIGH COURT OF SINDH AT KARACHI

Cr. Acq. Appeal No.482 of 2019

 

 

 

Appellant                    :           Shah Nawaz Khan s/o Zohrab Gul

                                                Through Mr. Irshad Ali Shar, Advocate.

 

Respondents No.1-4   :           (1) Zahid Nadeem (2) Muhammad Yaseen (3) Saleem

                                                and (4) Khuwaja Imran (None present, as notice was

                                                not issued to them)

 

Respondent No.5:                   The State Through Ms. Amna Ansari,

Additional Prosecutor General Sindh.

 

Date of hearing           :           25.10.2019

 

Date of Judgment       :           25.10.2019

 

1.      For order on office objection as at flag ‘A’

2.      For order on MA No.9448/19

3.      For hearing of main case.

 

JUDGMENT

 

 

Abdul Maalik Gaddi, J. – This Criminal Acquittal Appeal has been filed by the appellant (Shah Nawaz Khan) against the Judgment dated 27.4.2019 passed by the learned 7th Civil Judge & Judicial Magistrate, Malir, Karachi in Criminal Case No.78/2018 relating to Crime No.187/2018 under Section 407/511/34 of PPC at PS Bin Qasim, whereby the learned trial Court after full dressed trial acquitted the respondents by giving them benefit of doubt.

 

2.         Brief facts of the prosecution case are that complainant, who is working in Allied and Co-private company as Munshi, on dated 15.10.2018, he purchased a chemical for fertilizing the land (Urea Khad) about 100 sacks from FFBL Plant, and loaded in Tractor bearing registration No.TLC-071 to broker Zahid Nadeem son of Late Muhammad Mushtaq (Truck Owner) driver Saleem son of Muhammad Mushtaque and sent to Farooqabad City, Shekhupura Province Punjab, by loading the above fertilizer in the above numbered truck, that on 19.10.2018 the owner namely Muhammad Waqas received a notice from FFBL plant FFC Marketing Group distribution Office, whereby they disclosed that which fertilizer i.e. 1100 sacks of Urea Khaad had purchased by you from our company and sent the same towards the Farooqabad, same has still not reached there. Upon such we inquired then it came into know that broker Zahid Nadeem, owner of truck and driver Saleem on the instigation and help of dealers other khaad companies i.e. Khuwaja Imran Khaad company and Yaseen Khaad company and with the help of other unknown accused persons deliberately did not deliver the goods and same has been usurped. Hence this FIR.

 

3.                  It reveals from the record that after framing of charge, prosecution in order to prove its case examined five witnesses. First of all, prosecution examined P.W-1/ Manager of Allied & Company Mir Akbar Khan son of Mughal Khan at Ex-05, who produced memo of arrest of accused at Ex-05/A, Memo of place of incident at Ex-05/B, warning letter of FFC company at Ex-05/C, PW 02/ Munshi of Allied Company Shahnawaz Khan son of Zohrab Khan examined at Ex-06, who produced copy of FIR at Ex-06/A, authority letter at Ex-06/B, bilt No.3257 at Ex-06/C, bilt No.3256 at Ex-06/D, fair charge receipt at Ex-06/E, letter dated 19th October 2018 issued by FFC Co. Ltd. at Ex-06/F, memo of arrest of at Ex-06/G, with annexures at Ex-F(i), PW 03 H.C Talib Hussain examined at Ex-07, PW 04 ASI Muhammad Hassan examined at Ex-08 who produced roznamcha entry No.41 at Ex-08/A. PW 05/ I.O SIP Manzoor Ahmed examined at Ex-09 who produced roznamcha entry no.09 of arrival for search of accused at Ex-09/A, roznamcha entry No.21 of departure for arrest of accused at Ex-09/B and roznamcha entry No. 27 for arrest of absconding accused at Multan.

 

4.                  Statements under Section 342 CrPC of accused above named were recorded at Ex-11 to 14, wherein they did not admit their guilt.

 

5.                  Learned counsel for appellant contended that the judgment passed by the learned trial Court is perverse vis-à-vis the evidence on record; that the grounds on which the trial Court proceeded to acquit respondents are not supportable from documents and evidence on record. He further submitted that the respondents have been directly charged and that discrepancies in the statements of witnesses are not so material on the basis of which respondents could be acquitted. He further contended that the learned trial Court has based its findings of acquittal merely on the basis of minor contradictions on non-vital point in the statement of prosecution witnesses and that the prosecution evidence has not been properly appreciated. Therefore, under these circumstances, he was of the view that this appeal may be allowed as prayed.

 

6.                  Learned APG has supported the impugned judgment by arguing that the impugned judgment is perfect in law and on facts and further submits that this appeal is hopelessly time barred and has been filed after expiry of more than 30 days, therefore, this appeal may be dismissed.

 

7.                  I have heard the learned counsel for parties at a considerable length and have perused the documents, evidence and impugned judgment.

 

8.                  From the perusal of record, I have come to the conclusion that prosecution has failed to establish its case against the respondents, for the reasons that in this matter alleged incident took place on 15.10.2018, whereas FIR of the alleged incident was registered on 21.10.2018 after the delay of about five days, for which no satisfactory explanation has been furnished. During the course of arguments, I have specifically asked the question from learned counsel for appellant to explain the delay in lodging of FIR, but he has no satisfactory answer with him. Besides this, I have gone through the evidence of the prosecution witnesses so examined before the trial Court and found that their evidence are contradictory to each other on material particulars of the case. These contradictions have already been highlighted by the learned trial Court in its impugned judgment. When these contradictions were confronted to learned counsel for appellant for explanation, again he has no satisfactory answer with him.

 

9.                  It appears from the record that the impugned judgment was passed on 27.4.2019, whereas this appeal was filed on 26.6.2019, much after the period of 30 days. On Court’s query, learned counsel for appellant has pointed out that an application being MA No.9448/2019 under Section 5 of the Limitation Act for condoning the delay has been filed by the appellant. Therefore, according to him, the delay in filing of the appeal may be condoned. I am not impressed with the contention of the learned counsel for appellant, for the reasons that this appeal is hopelessly time barred and has been filed much after the period of 30 days. The reason assigned for condonation of delay is that the appellant was seriously ill but in this connection, no medical certificate/ health condition of the appellant issued by any recognized hospital/ doctor has been filed with this application. Merely saying that the appellant was ill, is not enough. No substance appears in the application for condoning the delay of time in filing appeal.

 

10.             I have gone through the case of M/s Tribal Friends Co. vs. Province of Baluchistan reported in 2002 SCMR 1903. In this case-law, 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 is created in favour of the other party. Again I am supporting the case of Mst. Sirajun-Munira vs. Pakistan through Assistant Deputy Director General (Adorn.) Islamabad reported in 1998 SCMR 785. In this case-law, it has also been held that delay of each day in filing appeal must be reasonably explained. In the present case, no plausible and convincing explanation is on record to condone the delay in filing appeal. Therefore, under these circumstances, MA No.9448/2019 has no merit and the same is dismissed. I have already observed above that trial Court in its impugned judgment have highlighted all the facts involved in this case. Learned counsel for appellant could not show the specific part of the judgment, where the trial Court has committed any gross illegality or irregularity.

 

11.             It is not out of context to make here necessary clarification that appeal against acquittal has distinctive feature and approach to deal with appeal against conviction is distinguishable from appeal against acquittal, because 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-appraisal 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 is 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. Reliance in this respect may conveniently be placed on 1998 PCrLJ 1576, 1985 PCrLJ 2973, 1991 SCMR 2220, 1993 SCMR 28, 1985 PCrLJ 457, PLD 1966 Supreme Court 424. While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower Courts whereby accused were exonerated from the commission of crime as held by the Apex Court in 1998 SCMR 1281. In 1997 PCrLJ 477, it was held that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.

 

12.             Whatever mentioned above, more particularly in light of case law referred above, I reached at the irresistible conclusion that the appellant has miserably failed to prove his case against the accused persons beyond shadow of reasonable doubt, therefore, no interference in the impugned judgment is required by this court, as it is well reasoned.

 

Resultantly, the instant criminal acquittal appeal being devoid of any merit is hereby dismissed along with listed applications. 

 

    JUDGE

asim/pa