PLJ 2024 Cr.C. (Note) 226
[Sindh High Court, Karachi]
Present:
Arshad Hussain Khan, J.
UTILITY
STORES CORPORATION through Regional Manager Karachi North--Appellant
versus
KAMRAN
and another--Respondents
Crl.
Acq. A. No. 220 of 2019, decided on 26.2.2024.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 417--Acquittal appeal--The acquittal order, could only
be interfered with when the same is found perverse, arbitrary unreasonable,
ridiculous based on misreading of material evidence or based on surmises
unwarranted under the law, but in the instant case no such eventuality is found
available--Held: It is also settled
principal of law that after getting acquittal, the accused always earns double
presumption of his innocence and Superior Courts have avoided interfering with
such acquittal findings. There is no cavil with the legal proposition that an
acquittal appeal stands on a different footings than an appeal against
conviction. In acquittal appeal, the Superior Courts generally do not interfere
with unless they find that miscarriage of justice has taken place. The factum
that there can be a contrary view on re-appraisal of the evidence by the Court
hearing acquittal appeal simpliciter would not be sufficient to interfere with
acquittal judgment--Instant appeal against acquittal has been filed for no
reason, even the basic ingredients for initiating appeal against
acquittal--Appeal dismissed. [Para
9 & 10] A & B
Mr. Muhammad Zahid, Advocate for Appellant.
Mr. Ameet Kumar, Advocate for Respondent.
Mr. Altaf Ahmed Sahar, Assistant Attorney General.
Date of hearing 26.2.2024.
Judgment
Through this Criminal Acquittal Appeal, the appellant/
complainant has challenged the judgment dated 27.10.2018 passed by the Special
Court (Central-1), Karachi in Case No. 12 of 2016 (The State v. Kamran s/o
Muhammad Hameed) arising out of Crime No. 09 of 2016 registered at P.S FIA CCC.
Karachi for offences under Sections 409/109/34, PPC, whereby respondent /
accused namely Kamran son of Muhammad Hameed has been acquitted under Section
245(1), Cr.P.C. of the charges.
2. Briefly the facts as narrated in the FIR are that during the
period from 31.10.2014 to 08.12.2014, the respondent while posted as Incharge
of FC Area Utility Store, Karachi being Public Servant by abusing or
misemploying his official position misappropriated and embezzled the Government money/stock amounting to Rs. 34,15,182.75 which
was detected during surprise audit and reconciliation of the account of the
respondent store by the Accounts Department on 08.12.2014 out of which. An
amount of Rs. 8,97,902.52 was deposited by the accused and an amount of Rs.
25,17,280.23 is still outstanding against him and as such, the accused caused
wrongful loss to the Government Exchequer.
3. This Court on 29.08.2023 while issuing notices to the DAG
and respondent directed the learned counsel for the appellant to satisfy this
Court with regard to maintainability of this appeal as the appeal has been
filed with inordinate delay after expiry of appeal period, as such, he has been
heard.
4. Learned counsel for appellant/ complainant submits that the
Trial Court has failed to appreciate the facts and law involved in the case. As
such, the impugned judgment is bad in law, illegal, capricious, without
jurisdiction, null and void. He further submits that impugned judgment is based
on misreading and non-reading, mis-appreciation of the documents available on
record. He on the point of delay in filing appeal has argued that the delay was
caused on account of preparation of appeal and in acquiring certified copies,
which are annexed with the appeal. He further submits that the delay was neither
intentional nor deliberate but it was due to circumstances beyond the control
of the appellant. He lastly prayed that this appeal may be allowed and impugned
judgment may be set-aside.
5. Learned counsel appearing on behalf of respondent and
learned Assistant Attorney General support the impugned judgment and submit
that the appeal is hopelessly time barred and the appellant has failed to
explain such delas for each day, which is requirement of law. They also submit
that the Trial Court has rightly acquitted the respondent and there is no
illegally and infirmity in the impugned judgment.
6. Heard learned counsel for the parties and perused the record
carefully with their assistance.
7. From the record it appears that the impugned judgment is
dated 27.10.2018. while the appeal has been filed on 02.03.2019. Under
subsection (2-A) of Section 417, Cr.P.C. a person aggrieved by the order of
acquittal passed by any Court, other than a High Court: may, within thirty
days, file an appeal against such order. Thus the appeal in hand having been
filed beyond thirty days, ie, after four months, which is hopelessly barred by
time The explanation furnished by the appellant through application under
Section 5 of the Limitation Act, is not convincing as the delay of each day in
filing the appeal has not been reasonably explained. Besides. Preparation of
appeal and obtaining of certified copies are no ground of condonation of delay.
Such plea of accused being frivolous and baseless is devoid of merit.
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 other party, but in this case appellant
failed to do so. In the circumstances, the appeal is hopelessly time barred.
8. On merits, the record reflects that after full dressed
trial, the trial Court, having evaluated the evidence produced by the
prosecution. Acquitted the accused/respondent under Section 245(1), Cr.P.C.
After having careful examination of the impugned judgment. I am of the
considered view that the prosecution evidence as brought on record does not
inspire confidence, hence, no illegality and infirmity has been committed by
the trial Court in the impugned judgment while acquitting the respondent, which
could warrant interference by this Court. A perusal of impugned judgment shows
that the respondent was not a permanent employee of U SC and working on daily
wages, so also usually no charge of any store is handed over to a daily wages
employee but despite of that charge of F.C. Area Utility Store was handed over
to the respondent whereas he was not capable to be posted as Incharge of the
said store. Even. The respondent sold out articles/items of the store on the
directions of his superior officers on credit against the post-dated cheques
but such officers were not joined as an accused in the case. Facts and
circumstances, placed before the Trial Court created doubt and the respondent
was acquitted by the trial Court extending the benefit of doubt.
9. Apart from the above, it may be observed that the acquittal
order, could only be interfered with when the same is found perverse, arbitrary
unreasonable, ridiculous based on misreading of material evidence or based on
surmises unwarranted under the law, but in the instant case no such eventuality
is found available. It is also settled principal of law that after getting
acquittal, the accused always earns double presumption of his innocence and
Superior Courts have avoided interfering with such acquittal findings. There is
no cavil with the legal proposition that an acquittal appeal stands on a
different footings than an appeal against conviction. In acquittal appeal, the
Superior Courts generally do not interfere with unless they find that
miscarriage of justice has taken place. The factum that there can be a contrary
view on re-appraisal of the evidence by the Court hearing acquittal appeal
simpliciter would not be sufficient to interfere with acquittal judgment.[1]
10. In view of above as well as keeping in view the
pronouncements of the Supreme Court, it appears that instant appeal against
acquittal has been filed for no reason, even the basic ingredients for
initiating appeal against acquittal, as laid down by the Supreme Court of Pakistan
in the case of Ghulam Sikandar and another v. Mumaraz Khan and others [PLD
1985 Supreme Court 11], are also lacking in this case. Accordingly, this appeal
is dismissed alongwith application filed for condonation of delay [CMA No.
3418/2019].
(A.A.K.) Appeal dismissed