KHADIM HUSSAIN TUNIO, J.---Through captioned appeal appellant has assailed the conviction and sentence awarded by the learned trial Court vide order dated 03.04.2013 whereby he has been convicted and sentenced to suffer for offence punishable under section 468, P.P.C. for four years R.I., under section 420, P.P.C. for one year R.I. and offence under section 471, P.P.C. for one year R.I. with fine of Rs,3,60,000/- and in default in payment of fine he has to further undergo for sixteen months.
All the convictions and sentences ordered to run concurrently. The amount if recovered from the convict may be paid to the complainant bank of the case. However, benefit of section 382-B was extended to him.
2. Brief facts of the case are that appellant along with co-accused fraudulently got ATM card in the name of account holder Mst. Anita maintaining her account in KASB bank and after forging her signature in connivance with co-accused Moinuddin and Mustafa Karim had withdrawn the amount of Rs,107,5000/- from the bank through ATM card and subsequently it was transferred in the account of appellant/ accused maintained with KASB bank Electronic Market Branch Karachi.
3. On the basis of said allegation FIR was registered and after conducting usual investigation accused Muhammad Hussain was charge sheeted and after compliance of section 265-C a formal charge was framed to which appellant accused Muhammad Hussain admitted his guilt and filed application through Superintendent of Central Prison Karachi in which he also repeatedly admitted his guilt therefore, he was convicted and sentenced by the trial Court as stated above.
4. At the very outset, the learned counsel for appellant did not press the appeal on merits and requested for modification of sentence, from consecutive to concurrent on the ground that appellant is not previously convicted and the only earning soul for his family, consisting of an old mother, a wife and a son. Learned counsel for appellant has relied upon cases reported 2018 SCM R 418 "Rahid All v. The State" and PLD 2015 SC 15 "Mst. Shaista Bibi and another v. Superintendent, Central Jail, Mach and 2 others" .
5. On the other hand, learned DAG for the State has supported the impugned order, and attacked upon the maintainability of present appeal while arguing that the appellant has pleaded guilty before the trial Court, therefore, appeal does not lie and barred under section 412, Cr.P.C.
6. Having heard learned counsel for the parties and perused the material placed before us. The contention of learned counsel for the appellant that the learned trial Court awarded many sentences to the appellant and ordered that sentences shall run consecutively instead of concurrently, therefore, she urged for modification of the sentences in default of payment of fine amount. Even otherwise, appeal is barred under section 412 of Cr.P.C. which is reproduced here-in- below for ready reference and convenience:-- "412 No appeal in certain cases when accused pleads guilty.--Notwithstanding any thing hereinbefore contained where an accused person has pleaded guilty and has been convicted by a High Court, a Court of Session or Magistrate of the First Class on such plea, there shall be no appeal except as to the extent or legality of the sentence."
7. Admittedly, appellant committed a fraud and fraudulently got ATM card in the name of account holder Mst. Anita maintaining her account in KASB Bank and after forging her signature in connivance with co-accused Moinuddin and Mustafa Karim had withdrawn the amount of Rs,107,5000/- from the bank through ATM card and subsequently it was transferred in the account of appellant/ accused maintained with KASB Bank Electronic Market Branch Karachi. A formal charge was framed to which the appellant pleaded not guilty and claimed to be tried. At trial prosecution examined PW Syed Shiraz Ahmed. Thereafter appellant has admitted his guilt and submitted an application to that effect before the trial Court through Superintendent Central Prison Karachi and statement of appellant was also recorded about his admitting guilt. The conviction and sentence of the appellant is based upon on his own plea of guilt, therefore, he is not entitled to challenge the legality of his conviction by virtue of the bar contained in section 412 of the Code of Criminal Procedure, therefore, appeal of the appellant is not maintainable in law and liable to be dismissed. There is nothing illegal in the conviction and sentence awarded to the appellant. The sentence in fact inclines towards leniency. The object of punishment as pointed out by Tyron Edward, is three-fold for just retribution; for the protection of society; for the reformation of the offender. The length and severity of the sentence has, therefore, to be determined on the circumstances of each case, keeping in view the object of punishment. Learned trial Court has already taken lenient view while convicting the appellant. It is pertinent to mention here that the impugned judgment has been passed on 03.04.2013 and instant appeal has been filed on 31.07.2017 and inordinate delay in filing of appeal has not been fully explained by the appellant as well as no sufficient ground has been furnished by the appellant for condonation of delay, if any.
The period of delay in filing the appeal is more than four years, four months and twenty six days sufficient and in cases of delay the appellant is required to explain the delay of each and every day satisfactorily. The only reason shown for seeking condonation of delay is that "the appellant did not know technicalities and was already behind the bars. The appellant after his conviction in first case filed Criminal Jail Appeal No, 275/2012 and was in an impression that his appeal is already filed before the Court." This ground is not sufficient. This cannot be termed to be a "circumstance of a compelling nature beyond the control of the appellant". Nothing has been alleged against the conviction. The ground shown for causing delay in filing of appeal is neither reasonable nor cogent.
This appeal merits dismissal.
8. In the case reported as 1986 PCr.LJ 2164 (Muhammad Anwar and others v. The State) in which it has been observed that:-- "Since the conviction of the appellant is based on their own plea of guilty they are not entitled to challenge the legality of their conviction by virtue of bar contained in section 412 of the Code of Criminal Procedure."
9. In the case reported as PLD 1967 [Karachi] 608 (Biloo Khan and another v. The State) it has been observed by this Court that:-- "Section 412 of the Code of Criminal Procedure constitutes a complete bar to the maintenance of an appeal against a conviction that has proceeded on a plea of guilty except on the point of extent and legality of the sentence. It is to be considered, therefore, in this case whether the plea of guilty made by the petitioners is a plea of the type covered by section 412 to exclude the relief of appeal...."
10. In the case reported as 2010 M LD 1159 (Bashir Ahmed v. The State) it has been observed that:-- "It is trite law that the appellant is not entitled to challenge the legality of his conviction by virtue of bar contained in section 412 of Cr.P.C., as has been held in cases "Muhammad Anwar and others v.
The State" (1986 PCr.LJ 2164) and Nawab Ali alias Nawab v. The State" (PLD 1972 [Lahore] 532). Once a conviction is recorded by a Court of competent jurisdiction on basis of a plea of guilty, an appeal would only be maintainable in respect of sentence that was imposed, as has been held in case Shafi Muhammad Magsi v. The State (2001 YLR 1917). In the present appeal no objection with regard to severity of the sentence has been taken."
11. In the case reported as Muhammad Shafiq v. The State (2018 M LD 106) it has been observed that: -- " Furthermore, having confessed the guilt, appellant is barred under section 412, Cr.P.C. to challenge his conviction and sentence by filing appeal. He could only challenge the extent or legality of the sentence which he has failed to challenge."
12. In the case reported as Wajid Ali v. The State and others (2013 PCr.LJ 1597) it has been observed that:-- "The appellant remained consistent with his statement. Learned trial Court after fulfilling codal formalities recorded his confessional statement and certified that it was true and voluntarily. We are satisfied that the accused/ appellant made his confessional statement voluntarily and it does not suffer from any defect of form or substance. No doubt the confession has retraction is not enough to make it involuntarily or diminish its intrinsic value. Even otherwise, by virtue of provision of section 412, Cr.P.C. an accused, who pleaded guilty to the charge has no right of appeal against his conviction but he can maintain appeal only to the extent of the legality of the sentence passed against him by the learned trial Court."
13. In the case reported Mrs. Moona Singh Arachige v. The State (1990 PCr.LJ 62) it has been observed that:-- "4. Section 412, Cr.P.C. bars an appeal wherein accused pleads guilty except to the extent or legality of sentence."
14. With regard the case law cited by the learned counsel for the appellant which are not applicable in the present case and based on different facts and circumstances. Particularly in none of the referred case the appellant/accused were convicted on the basis of plea of his guilt by the trial Court but the conviction and sentence was recorded in the referred cases after recording evidence of the PWs.
15. It is pertinent to mention here that the impugned judgment has been passed on 03.04.2013 and instant appeal has been filed on 31.07.2017 and inordinate delay in filing of appeal has not been fully explained by the appellant as well as no sufficient ground has been furnished by the appellant for condonation of delay, if any. Further the appellant while recording the statement under section 342, Cr.P.C. has admitted his guilt while answering the questions put to him by the trial Court.
Appellant did not cross-examine prosecution witness on material points despite grant of opportunity of hearing. The prosecution version has gone unchallenged and unrebutted, nothing has been brought on record by the appellant in rebuttal to the prosecution witnesses.
16. For what has been discussed above, we are of the opinion that the appeal filed by the appellant against the conviction and sentence awarded to the appellant vide order dated 03.04.2013 is barred by the provision of section 412, Cr.P.C., and the appellant has failed to point out any illegality or irregularity in the impugned judgment as well as there is no case of misreading and non- reading of evidence, therefore, same is dismissed and conviction and sentences are maintained.
16(sic) These are the reasons of our short order dated 30.04.2018.