IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl. Acquittal Appeal No. S- 97 of 2017
Nazeer Ahmed
...
...
..
..
...Appellant
Versus.
Israr Ahmed and another.
.
. Respondents
Mr. Shabbir
Ali Bozdar Advocate for
Appellant.
Mr. Zulfiqar
Ali Jatoi, Additional Prosecutor General for the State.
Date of hearing: 02-11-2018
Date of Judgment: 02-11-2018
J U D G M E N T
RASHEED AHMED
SOOMRO J.,
The appellant Nazeer Ahmed has challenged the
validity of judgment dated 28.02.2017, delivered by leaned Civil Judge &
J.M, Sukkur, in criminal case No. 39 of 2017 arising out of crime No.109 of
2016 registered at P.S, C-section, Sukkur for offence under sections 353,
506/2, 341 & 34 PPC, whereby the respondent No.1 was acquitted.
2. On 19.05.2017,
the appellant filed this appeal under section 417 (2), Cr.P.C. Along with an
application under section 5 of Limitation Act bearing M.A. No. 3336 of 2017 for
condonation of delay of more than two months. The appellant was
called upon to satisfy the Court on the point of maintainability of
appeal filed after prescribed period of limitation.
3. Learned
counsel for appellant has contended that the appellant has shown sufficient
cause for condonation of delay in presenting the appeal due to getting
departmental permission from the competent authority, in such circumstances,
delay may be condoned.
4. Learned
Additional P.G, in rebuttal, has argued that an inordinate delay of more than two
months has not been properly explained by the appellant so also no
correspondence with regard to getting departmental permission has not been
placed on record; that law favours those who are vigilant and not indolent,
therefore, instant appeal is liable to be dismissed.
5. Perusal of appellant's affidavit, annexed with M.A. No.3336 of
2017, would reveal that as sufficient time consumed in getting departmental
permission for filing of instant appeal, therefore, delay in filing of instant
appeal has occurred, but surprisingly no corresponding letter for obtaining
departmental permission has been placed on record to strengthen the ground
taken by the appellant for filing instant appeal with delay. Record further reflects that impugned
judgment was passed on 28.02.2017 and the appellant
applied for certified copy of said judgment on 16.03.2017, which was delivered
to him on 25.03.2017, but even then appellant preferred instant appeal before
this court on 19.05.2017.
6. It is well settled principle of law that for maintaining this
appeal, appellant has to explain each day's delay but he has failed, and
explanation offered so far is without any substance for the reason that a party
has to be so conscious and fully vigilant in respect of his relief and claim
and in case of failure no one can be said to be responsible for his act and
negligence. In case of failure, he cannot
blame anybody else, inasmuch as, ground taken by appellant is not justified to
condone such delay, even delay of one day has not been
condoned in an acquittal appeal. Reliance is placed on
the case of Noor Hassan v. Muhammad
Salim (1985 SCMR 893), in which Honble Supreme Court has been
pleased to hold as under:
2. Noor Hussain complainant has filed the present petition for leave to
appeal against their acquittal. The petition is, however,
barred by time by one day. The petitioner's counsel has not been able to
explain the delay satisfactorily. It appears that the learned Advocate on Record
neglected to file the petition promptly after obtaining the copy of the impugned
judgment. Notwithstanding the fact that the delay is only of one day, we do not
consider it a fit case for condonation of the delay as Muhammad Salim son of
Muhammad Ramzan (respondent No.1) has acquired the right to live, while others
have acquired the valuable right of liberty.
7. In the light of
above legal and factual aspect of the matter, the conduct of the appellant and
his explanation appears to be unreasonable. Resultantly, instant Crl. Acquittal
Appeal No.S-97 of 2017 being barred by more than two months
is dismissed along with pending applications.
JUDGE