' This is an appeal under section 417(2), Cr.P.C. Through special leave to appeal against the judgment, dated 16-4-1980 passed by Magistrate 1st Class, Mailsi in a private complaint under section 420/468/471/34, P.P.C. Filed by Muhammad Sharif against respondents Nos.1 to 4 namely Muhammad Hussain, Ahmad Khan, Aurang Zeb and Muhammad Ashiq Patwari, passed by virtue of section 249-A, Cr.P.C. Acquitting the respondents of the charge. The appellant instead of filing special leave to appeal as provided under section 417(2), Cr.P.C. Filed a revision petition against the acquittal of the respondents before the learned Sessions Judge, Vchari, who vide judgment, dated 20-7-1980 dismissed the revision petition being incompetent. The appellant thereafter filed a petition for special leave to appeal before this Court on 30-8-1980 with an application under section 5 read with section 14 of the Limitation Act, seeking condonation of delay in filing the petition on the ground of ill-advice of the counsel and the illness of the appellant. Leave was granted to the petitioner and notice was accordingly issued to the respondents by this Court leaving question of limitation open to be considered at the time of regular hearing of the appeal.
2. Briefly the facts of the case as stated in the complaint are that Muhammad Sharif complainant purchased land measuring 100 Kanals and 8 Marlas in Chak No,114/W.B. For Rs,40,000 from Muhammad Hussain respondent through Sai Muhammad, his general attorney but later on Muhammad Hussain respondent appointed Niaz Muhammad as his general attorney and disowned the bargain entered into by Sai Muhammad on his behalf. The complainant was constrained to file a civil suit which was decreed and accordingly effect was given in the Revenue Record on 16-4-1974. Muhammad Hussain respondent in connivance with Ahmad Khan, Aurang Zeb and Muhammad Ashiq Patwari sold the land purchased by the complainant and subject- matter of the civil suit to Sardar Muhammad (since dead) through a mutation. The appeal filed by the complainant against the mutation in question before Assistant Commissioner, Mailsi was accepted and the mutation was set aside. The complainant having failed to get a case registered against the respondents filed a private complaint initially under section 416/420/471/34, P.P.C.
However, after dismissal of the petition under section 561-A, Cr.P.C. Filed by Aurang Zeb and Ahmad Khan for quashment of criminal proceedings against them, Muhammad Ashiq Patwari in the light of observation made by this Court in the dismissal order was also summoned and a fresh charge under section 420/468/471/34, P.P.C. Was framed against the respondents.
3. On the denial of the respondents to the charge and pleading not guilty, the complainant was directed to produce his evidence in support of the complaint but he failed to produce any evidence, oral or documentary, at the trial throughout. He rather moved an application for summoning Ahlmad of the Civil Court at Multan with relevant record relating to the civil suit decreed in his favour on 6-5-1974 which application was dismissed. The complainant thereafter for another considerable period failed to produce any evidence before the Court. Resultantly, on an applicatin under section 249-A, Cr.P.C. Moved by the respondents, the trial Court vide order dated 16-4-1980 acquitted the respondents.
4. The learned counsel for the appellant contended that because of the wrong advice on the part of the counsel the appellant at the first instance instead of filing a petition under section 417(2), Cr.P.C. Before this Court, invoked the revisional jurisdiction of the learned Sessions Judge. He submitted that the revision petition was filed with bona fide intention, therefore, the time consumed there, is to be excluded by virtue of section 14 of the Limitation Act. He next submitted that after dismissal of the revision petition on 20-7-1980, the appellant could not immediately file petition under section 417(2), Cr.P.C. Before this Court because of his illness. The petition was, however, filed on 30-8-1980 which be treated within time.
5. The explanation offered for the delay both for choosing wrong forum and the ground of illness are not sound enough to give the benefit of section 14 or 5 of the Limitation Act to the appellant.
The revision petition before the learned Sessions Judge was filed by the appellant through a counsel and therefore, the ground of ill-advice cannot be availed by him. It is otherwise not a good ground to condone the delay. The choosing of a wrong forum with bona fide intention no doubt can be a ground to get the benefit of section 14 of the Limitation Act, but the ignorance of law is no ground to press under section 14 of Limitation Act. Anyhow, after dismissal of the revision petition on 20-7-1980, the appellant kept silent till 30-8-1980 i,e. For another period of more than a month.
The ground of illness taken by the appellant for this delay after dismissal of his revision by the learned Sessions 'Judge was also not available to him for the simple reason that for the purpose of filing petition under section 417(2), Cr.P.C. His personal appearance was not required and it could have been done easily by his counsel in his absence. There is nothing on record that what was the nature of ailment of the appellant and when he recovered from his ailment. Mere taking the ground pf illness is not enough to condone the delay in filing the petition. The right of acquittal is a very valuable right and the delay of each day in filing the petition against acquittal was specifically requked to be explained by the appellant. The delay in filing the petition for leave to appeal under section 417(2), Cr.P.C. Against the acquittal of the respondents has not been satisfactorily explained. The appeal stands dismissed on this ground alone.
6. The appellant in spite of opportunities provided to him failed to produce the evidence in support of his case at the trial. The learned counsel without giving any explanation for non-production of the evidence by the appellant at the trial Court, argued that the trial Court was bound to record the findings of the charge being groundless and that there was no probability of the accused being convicted of an offence without which the acquittal of respondents was bad under section 249-A, Cr.P.C. He argued that without satisfying the necessary requirement of section 249-A, Cr.P.C. The trial Court was not justified to pass the impugned order.
7. I am afraid, except the allegation in the complaint itself there was no other evidence in support thereof before the trial Court. It is a matter of common sense that a criminal charge is always groundless and there cannot be question of conviction of a person without the evidence on the record. The probability, or the possibility of conviction or otherwise is to be judged on the basis of material available on the record and not on the contents of the F.I.R. Or the complaint as the case may be. The insufficiency or non-availability of the material shall bring no other result except the acquittal and, therefore, there was no probability of the respondents being convicted of the charge for want of evidence. The trial Court in these circumstances had no option except to proceed under section 249-A, Cr.P.C. It is not the grievance of the appellant that his evidence was available but was not recorded. There is no valid ground to disturb the acquittal of the respondents after such a long time.
8. For the foregoing reasons, I see no force in this appeal which fails and is dismissed.