KHADIM HUSSAIN M. SHAIKH, J.---This criminal acquittal appeal is directed against the judgment dated 26.10.2013, passed by the learned Civil Judge and Judicial Magistrate, Nangarparkar, whereby the learned Judicial Magistrate has acquitted the respondents Nos.1 to 6; namely, Kirar, Amin, Yousuf, Fateh Ali, Ghafoor and Mehboob under section 245(i), Cr.P.C, extending them benefit of doubt, in Criminal Case No,49/2013, re: State v. Kirar and others, culminated from FIR No,63/2013 for offence under sections 382, 457, 147, 148, 149, 337-F(i), 504, P.P.C. Of Police Station Nangarparkar, lodged by the appellant Yaqoob Joyo.
2. Briefly, the facts of the case are that on 30.08.2013, complainant Yaqoob Joyo lodged his FIR at Police Station Nangarparkar, alleging therein: that he has matrimonial dispute with Kando alias Karim Dad. On 07.08.2013, complainant along with his family members was available in his home, when at about 10.00 p.m. Accused Kando alias Karimdad, Kirar, Amin, Yousuf, Fateh Ali, Ghafoor all resident of Village Jado Joyo and Mehboob resident of village Gaucher armed with hatchets and lathis intruded into the complainant's house and after abusing, accused Kando alias Karimdad and Kirar started causing kicks and fists blows to the complainant and then they put the complainant party in restraint while the other accused entered in the room and committed theft of cash amounting to Rs,50,000/-, ornaments of silver, one nose ring of gold and other dowry articles; the complainant raised cries, which attracted Wasand and his brother Abdul Rahim, who came running there and seeing them coming, accused ran away. The complainant then narrated such facts to the P. Ws, and then to his Nek Mards for Faisla, but to no avail, hence the complainant by obtaining order from the learned Sessions Judge/Ex-Officio Justice of Peace, Mithi, lodged his above FIR. After usual investigation, Challan was submitted showing all the 07 accused as absconders. Later on, all the accused except accused Kando alias Karimdad obtaining pre-arrest bail joined their trial.
3. Thereafter, formal charge was framed at Ex.3 against the aforesaid six accused, who pleaded not guilty and claimed their trial. Prosecution examined complainant Yaqoob at Ex.4, he produced FIR at Ex.4-A, P.W-2 Vasand at Ex.5, P.W-3 Ahmed/mashir of spot at Ex.6, he produced the mashirnama of vardat at Ex.6/A, P.W-4 Abdul Rahim at Ex.7 and P.W-5 1.0/ASI Ghafoor at Ex.8. Then the statements of the accused under section 342, Cr.P.C. Were recorded at Ex.10 to Ex.15, in which they denied allegations of prosecution and professed their innocence; they further asserted that they had not committed the alleged offence, but due to dispute over matrimonial issue, false case was registered against them; and, that sometime ago absconding accused Karimdad and daughter of P.W. Wasand had contracted free will marriage to which complainant party in annoyance lodged this false case. Accused did not examine themselves on oath under section 340(2), Cr.P.C, nor did they examine any defense witness.
4. After hearing the arguments, the learned Trial Court i.e, Court of Civil Judge and Judicial Magistrate, Nangarparkar vide impugned judgment dated 26.10.2013, acquitted the above named accused/ respondents 1 to 6, hence this appeal.
5. Record reflects that this appeal was filed on 09.12.2013 against the impugned judgment dated 26.10.2013. On filing the appeal, office had raised objection as to how this criminal acquittal appeal is in time. Thus in this case first and foremost consideration for the Court would be to decide the point of limitation involved in this case, as there is delay in filing the instant appeal, which being a crucial point would go to the root of the case. Consequently, the learned counsel for the appellant was asked to satisfy the Court as to how this appeal is maintainable being time barred.
6. Learned counsel for the appellant has contended that the Trial Court was lying vacant, therefore, the appellant could not be able to get knowledge about the impugned judgment dated 26.10.2013 in time. He, therefore, requests that the delay in filing the instant appeal may be condoned.
7. Learned counsel for the private respondents have mainly contended that the respondents Nos.1 to 6 were falsely implicated in this case by the complainant party due to their enmity with them over the matrimonial affairs; Trial Court after considering the evidence has acquitted the accused; and, the instant appeal is also time barred. They, therefore, pray that the appeal may be dismissed.
8. Learned A.P.G. For the State adopting the arguments of learned counsel for the private respondents, further submits that on acquittal the respondents Nos.1 to '6 have earned presumption of double innocence; and, he therefore, requests that the appeal may be dismissed.
9. The remedy of appeal in case of acquittal is provided under the provisions of section 417 of Code of Criminal Procedure, 1898, which is reproduced here for the sake of convenience:- "417. Appeal in case of acquittal. (1) Subject to the provision of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court.
(2-A) 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.
(3) No application under subsection (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from this date of that order.
(4) If, in any case, the application under subsection (2) for, the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection (1). "
10. It is worthwhile to mention here that by insertion of subsection (2-A) in section 417 Code of Criminal Procedure, 1898, through Act No,XIX of 1994, the right of an appeal to a person aggrieved by the order of acquittal has been provided.
11. For the purpose of deciding the question of limitation involved in this case, the relevant provision is subsection (2-A) of section 417 ibid, which provides period of thirty (30) days for filing the appeal by a person aggrieved by the order of acquittal passed by any Court other than a High Court.
12. From a perusal of the certified true copy of the impugned judgment, filed by the appellant with this appeal, it would be seen that the impugned judgment was rendered on 26.10.2013; copy whereof was applied for by the appellant on 30.10.2013 and the copy was delivered to the appellant on 31.10.2013; by excluding the period of one day spent in obtaining certified copy of the impugned judgment, the appeal is time barred by 12 days, as the appeal was to be filed latest by 27.11.2013, but A it was filed on 09.12.2013.
13. It is pertinent to mention here that the appellant has not filed any application for condoning delay in filing the appeal; even in his appeal he did not offer any explanation for such a delay in filing the appeal. The matter of fact is that certified copy of the impugned judgment was delivered to the appellant on 31.10.2013, yet the appeal was filed on 09.12.2013 i.e. after 39 days of its delivery.
Moreover even after receiving the copy of the impugned judgment, the appellant had 27 days for filing the appeal, which could be filed on or before 27.11.2013 and thus the contention of learned counsel for the appellant that the appellant did not get the knowledge of the impugned judgment in time, is patently absurd. Even otherwise the appellant has not explained the delay in filing the appeal although it is well settled that the delay of each and every day with justification is to be explained even in a case attracting provisions of section 5 of Limitation Act,but in this case the Code of Criminal Procedure, 1898, itself provides period of limitation, hence in my humble view section 5 of Limitation Act is not applicable to this case. In case of Abdul Ghaffar v. Muhammad Asif (2011 PCr.LJ 441), this Court dismissed the criminal acquittal appeal being barred by limitation with the observations that:- "In law, the provisions of Limitation Act would only be invoked if the special statute does not provide Limitation in it. If the Criminal Procedure Code provides limitation, then the provisions of Limitation Act could not be invoked. Learned counsel for the appellant could not persuade me from any provision of law that the limitation for filing of an acquittal appeal is beyond 30 days.
This appeal is barred by limitation and is accordingly dismissed in limine."
In case of Noor Hussain v. Muhammad Salim (1985 SCM R 893), the Honourable Supreme Court has held that:- "2 ........... 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, )) has acquired the right to live, while others have acquired the valuable right of liberty.
The petition is, therefore, dismissed as barred by time."
14. In view of what has been stated above, I am of the considered opinion that the instant Criminal Acquittal Appeal being time barred is liable to be dismissed.
15. Above are the reasons of short order dated 14.03.2016, whereby this appeal was dismissed as time barred. The listed application stands dismissed.