AFTAB AHMED GORAR, J. Through this criminal acquittal appeal, the appellant has assailed the legality and propriety of the judgment dated 25.03.2020, passed by the Court of learned Vth Judicial Magistrate/Model Trial Magistrate Court, Karachi (Central), in Criminal Case No.298 of 2016 [re: The State v. Waliullah Khan], culminating from Crime No.33 of 2016 registered at Police Station Joharabad, Karachi under Section 489.F, P.P.C., whereby the learned trial Court after full dressed trial, acquitted the respondent No.2 (Waliullah Khan son of Wasiullah Khan) under Section 245(i), Cr.P.C. by giving him benefit of doubt.
2. Briefly, the facts of the prosecution case, in the words of complainant Muhammad Aslam son of Ayoub Khan are as follows:- "I am resident of above-mentioned address and shown in column No.2 of the FIR, that Waliullah Khan son of Wasiullah Khan taken amount of Rs.3,500,000/- as investment in SME Business Solution (Pvt.) Ltd. Company after some time on my demand of the said amount Waliullah Khan issued a cheque to me a post-dated cheque against the said amount, the cheque bearing No.74873534 dated 25.12.2016, drawn on Bank Al-Fatah Saddar Abdullah Haroon Road, Karachi, the said cheque was presented in Bank, the said cheque have been dishonoured due to the reasons funds insufficient. Thereafter, I want to take legal action against the Waliullah Khan under relevant provision immediately. hence, instant FIR."
3. Trial Court framed the charge against the accused/respondent No.2 at Ex.2, to which he pleaded not guilty and claimed to be tried
4. At trial, prosecution examined the following witnesses:-
(i) PW-1/Complainant Mirza Hassan at Ex.13:
(ii) PW-2 SIP/I0 Faraz Shahnawaz at Ex.14;
(iii) PW-3 Shahina Sehto, Bank Operation Manager. Bank Al-Fatah, Abdullah Haroon, Karachi at Ex.15;
(iv) PW-4 SIP Rashid Hussain at Ex.16:
(v) PW-5 Mubashir Ahmed at Ex.18.
These witnesses were cross-examined by the Counsel for respondent No.2/accused. Thereafter, learned ADPP for State closed the prosecution side vide his statement at Ex.19.
5. Statement of respondent No.2/ accused was recorded under Section 342, Cr.P.C. at Ex.20 in which he has denied the allegations as levelled by the complainant and stated that he is innocent and has been falsely involved in this case. However, respondent No.2/accused neither examine himself on oath nor led any evidence in his defence.
6. It reveals from the record that this criminal acquittal appeal was filed on 09.09.2020, but on perusal of record, it appears that this appeal is time barred, therefore, under the circumstances, learned counsel for the appellant was directed to satisfy the Court on the maintainability of this criminal acquittal appeal and as such, he has been heard at length.
7. On merits, Mr. S. Hassan M. Abidi, learned Counsel for the appellant contended that the judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-a-vis the evidence on record that the ground on which the trial court proceeded to acquit the respondent No.2 is not supportable from evidence on record. Per learned counsel, the prosecution/complainant has successfully proved its case beyond any reasonable doubt as the complainant and his witnesses have fully supported its case; that the accused/respondent No.2 should be awarded exemplary punishment as he does not deserve any concession. On the point of limitation, he argued that this criminal acquittal appeal was filed after the expiry of limitation period along with application for condonation. as the appellant being old age citizen was confined in his home due to Covid-19 Pandemic Situation, hence, the delay in filing of this appeal is neither deliberate nor 'willful, but beyond the control of appellant, hence, the delay in filing of appeal may be condoned.
8. I have heard the learned Counsel for the appellant at length and perused the record.
9. It appears from the record that the impugned judgment has been passed by the trial Court on 25.03.2020 in presence of Counsel for the complainant and the appellant apply for the certified true copy of judgment on 04.07.2020 and same was provided to him on 07.07.2020, while the instant appeal has been filed on 09 09.2020, after the expiry of prescribed period of limitation for about one hundred fifteen (115) days. During the course of arguments, I have specifically asked the question from learned Counsel for the appellant that the impugned judgment was passed on 25.03.2020, but this appeal has been tiled on 09.09.2020, after the delay of prescribed time then how this appeal is within time. He replied that though this appeal is time barred, but according to him, during this period, the appellant being old age citizen was confined in his home due to Covid- 19 Pandemic Situation. I am not impressed with the ground as agitated by the Counsel for appellant for the reasons that this appeal, as admitted by the Counsel for appellant, is time barred.
I have also gone through the impugned judgment passed by the trial Court along with the evidence so brought on record and come to the conclusion that the evidence of the prosecution witnesses are contradictory on material particulars of the case. This aspect of the case has been elaborately highlighted by the trial Court in its judgment. For ready reference it would be expedient to reproduce the relevant portion of the impugned judgment which reads as under:- "27. The whole record reflects that the case of the prosecution is hinged upon documentary evidence in shape of receiving of payment by accused at Ex.8/C, undertaking for refund at Ex.81D and dishonored cheque in question along with memo. of return at Ex.8/S and Ex.8/P, but the moot question is; the corroboratory evidence cannot be read as independent rather it has to be seen and use to corroborate the version of complainant. Although these documentary evidence only depicts that payment of Rs.3500,000/- was given to accused and accused acknowledged it and executed undertaking for return the same but miserably failed. Indeed, the acknowledgment receipt signed by accused at Ex.8/B itself negate the version of complainant regarding loan. The same document shows that complainant had given such amount as investment for the proposed project not as loan and MOU dated 25.08.2015 also shows that investment was made by different investors including complainant. The documentary evidence produced by the complainant has not supported the claim of complainant pertaining to loan.
28. It is also matter of record that complainant has two versions regarding issuance of cheque in question, one taken before the instant court that cheque in question was issued to refund the loan amount and another version was taken during trial in absentia. The relevant lines are being reproduced regarding issuance of cheque.
"............... I keep on asking them about documents of the project/Business but he avoided. I approached him number of times but accused avoided deliberately. After 02 to 04 months I asked him about proof then accused issued me post dated cheque of 25-12-2015 of thirty-five lacs (examination in chief of complainant dated 31.05.2018 at Ex.8)."
10. I am also not convinced with the arguments as advanced by learned Counsel for appellant on the ground that delay of each day in filing appeal must be reasonably explained as held in case of Mst. Sirajun Munira v. Pakistan through Assistant Deputy Director Genera (Admn), Islamabad reported as 1998 SCMR 785. Here in this Case application under Section-5 of Limitation Act, 1908 and its Affidavit, each and every days delay has not been explained. Again, I am supported with the case reported as 2002 SCMR 1903, wherein it has been held that defaulting party while applying for condonation of delay must explained and account for the delay of each day because on expiry of period of limitation, a valuable right has been created in favour of the other party. In the instant case, as observed above, each and every day delay has also not been explained in the application as well as in the affidavit and the grounds/explanation for filing appeal after expiry of limitation period are also not convincing. Learned Counsel for the appellant has not been able to satisfy this Court with regard to delay in filing this appeal, therefore, Miscellaneous Application No.8639 of 2020 being application for condonation of delay in tiling of appeal is dismissed. Resultantly, this criminal acquittal appeal is also dismissed being time barred as well as on merits along with listed applications.