Asif Fahim Malik VS The State, etc

Form No: HCJD/C-121

JUDGMENT SHEET.

IN THE ISI.AMABAD HIGH COURT, ISLAMABAD,

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Criminal Appeal No. 146 of 2O2O

Asif Fahim Malik through his Special Attorney Muhammad Akif Khan Versus The State and another.

Appellant by: Syed laved Akbar, Advocate.

Respondents by: Sardar Muhammad Ashfaq, Advocate. Mr. Kashif Hussain, Iearned State Counsel.

Muhammad Asghar, S.I.

Dates of hearing: 22.09.2020, 24.02.202L, 25.10.2022, 22.12.2022 & 24.0r.2023.

TARIQ MEHMOOD JAHANGIRI, J: Through the instant criminal appeal filed under Section 4L7 Cr.P.C, the appellant has impugned judgment dated 29.02.2020, passed by tearned Judicial Magistrate Sec.30, West-Islamabad, whereby respondent No. 2 / accused has been acquitted In case F.I.R No. 570/20L5, dated 04.L2.2015, offence UIS 420 P.P.C, registered at P/S Margalla, Islamabad.

02.Brief facts narrated in the instant appeal are that complainant namely Asif Fahim Malik, alleged in instant F.I.R that his late father namely Col. (Retd) Mian Muhammad Khan, who lastly resided in the United States, opened an account No.

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173910055206, maintained with UBL Bank, F-8 Markaz, Islamabad. Due to old age and shaky handwriting, father of the complainant authorized brother of the complainant namely Waqar Naeem Malik, to operate said account with his signatures but the same was done under the strict obseruation of his father. The father of the complainant died on 05.02.2015, leaving behind four sons namely Akhtar Saleem Matik, Shahid Atiq Malik, Waqar Naeem Malik (accused) and Asif Fahim Malik, (complainant). That at the time of death, father of the complainant had an amount of Rs. 3,77,30,977.701- in his above mentioned account, which was the rental income of different propefties. After the death of comptainant's father the authority of Waqar Naeem Malik to operate account with his signatures had ceased and the said amount was to be devolved upon al! the legal heirs equally but despite knowing all legal position, the accused, Waqar Naeem Malik came to Pakistan from the U.S.A and by concealing the fact of death of his father from the concerned UBL Bank, he withdrew an amount of Rs. 2,00,000/-, Rs. 3,70,00,000/- and Rs. 5,33,7001- on 11.03.2015, 12.03.2015 and 19.03.2015, respectively from the said account and dishonestly put the said amount to his own use without any legal or moral justification that when the complainant came to know about

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the misappropriation committed by Waqar Naeem Malik, he came to Pakistan.

03.After conclusion of the investigation, complete repoft / chaltan in the matter within the meaning incorporated in section 173, Cr.P.C was submitted by the prosecution. Copies of statement of allegations were supplied to the accused as required U/S 24t-A, Cr.P.C. Thereafter, charge against the accused was framed on 29.03.20L7 . After recording the evidence and fulfilling al! legal and codal formalities, learned trial Court has acquitted respondent No. 2 / accused vide judgment dated 29.02.2020.

04.Learned counsel for the appellant / complainant inter alia contends that the impugned judgment is not sustainable under the !aw; sufficient evidence was produced on the basis of which respondent No. 2 / accused was liable to be convicted; the impugned judgment has been passed on mis- reading and non-reading of evidence; delay in filing of appeal is liable to be condoned due to spread of Coronavirus Pandemic; no notice regarding preparation of the ceftified py was issued by the copy branch to the appellant, so the delay in filing of appeal was neither willful nor intentional, hence impugned judgment is liable to be set-aside. Learned counse! has relied upon the cases titled as Shehnaz Akhtar

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another vs. Mst. Zeenat Tariq and others (2o22 PLD 360 Istamabad) Muhammad Akram vs. DCO Rahim yar Khan and others (2077 SCMR 561 Board of Governors Area Study Centre for Africa & lVotth America Quaid-e-Azam ltniversity Islamabad 8. another Vs. Ms, Farah Zahra (PLD 2OOS SC 753) sarwar Khan vs. Mir Ati & 7o others (798O CLC 77Q', Sikandar Hayat Vs. (7) Ata (2' Waryam (3) Noora (4) Hashmat (5) Akbar and (4' The State (PLD 797O SC

05.Conversely, Iearned State Counsel assisted by learned counsel for the respondent No. 2 I accused has stated that the appeal against acquittat has been filed by Asif Fahim Malik, complainant of the F.I.R through his Specia! Attorney namely Muhammad Akif Khan, hence same is not competent; the appeal has been filed after inordinate delay of L76 day:, hence on the point of limitation the appeal is liable to be dismissed. Learned counse! has relied upon the cases titled as Mian Muhammad sabir vs. Malik Muhammad sadiq through Legat Heirs & others (PLD 2OO8 SC 572' Khatid Mehmood & 3 others Vs. Safdar fqbal & another (2077 PCr.L.J 77O4t Quaid Johar Vs. Murtaza Ali & another (PLD 2OO8 Karachi 342) and Khan vs. saiiad &

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2 others (2OO4 SCMR 275).

06.Arguments advanced by learned counsel for the pafties have been heard and record has been perused with their able asslstance.

07.It is important to decide the following two objections raised by learned counsel for the respondent No. 2 / accused;

i. Competency of appeal against acquittal, filed through special attorneY.

ii. Delay of L76 days (06-Months approximately) in filing of appeal.

08.The concept of filing of criminal appeal through attorney is not provided in criminal !aw. There is neither any section of the Criminal Procedure Code (Cr.P.C) nor any other provision of taw on the basis of whlch crimina! appeal can be filed through special attorney. Learned counsel for the appellant has completely failed to point out any law to show that any person can prosecute on behalf of attorney. Reliance in this regard is placed on the following cases:

i. Quaid Johar Vs. Murtaza Ali and another (PLD 2OO8 Karachi 342)

ii. Ghazanfar Ali Vs. M. Zahid Hussain and others (PLD 2O77 Lahore 779).

iii. Khalid Mehmood and 3 otherc Vs. Safdar

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fabal and another (2O77 PCnL.J 77O4).

09.As far as second objection with regard to filing of appeal with a delay of L76 days is concerned, for the convenience Section 417(2-A), Cr.P.C is reproduced as under:

4t7, Appeal in case of acguittal:

(2-A) A percon aggrieved by the order of acquittal passed by any Court, other than a High Court, mah within thirty days, file an appeal against such orden

10.The limitation for filing of appeal against acquittal is provided as 30 days in the section supra, as far as the argument of learned counsel for the appellant regarding condonation of delay is concerned, Section 5 of the limitation Act (IX of 1908) for condonation of delay is not applicable to section 417 of the Criminal Procedure Code (Act V of 1898) as clearly laid down under section 29 of the Limitation Act (IX of 1908) which is reproduced as under:

"(7) lllothing in this Act shall affect secttbn 25 of the Contract Act, 7872,

(2)Where any special or local law prescribes for any suit, appeat or application a period of limitation different from the period prescribed therefor by the Firct Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of timitation prescribed for any suit, appeal or

Criminal Appeal No. 146 of 2020

apptication by any special or local law:

(a)the provisions contained in section 4, sections 9 to 7& and section 22 shall apPly only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b)the remaining provisions of this Act shall not aPPlY,"

11.Hence it is clear that if there is a special provision of limitation provided under the relevant law then section 5 of the Limitation Act, 1908 will not be applicable for condoning the delay. Retiance is placed upon a case titled as Muhammad Sharif and otherc Vs. The State and otherc eoos MLD 7333).

L2. As far as arguments made by learned counse! for the appettant that no notice was sent by the copying agency, informing that the certified copy has been prepared, in this regard taw has been laid down by the Hon'ble Supreme Court of Pakistan in a case titled as Mian Muhammad Sabir Vs, Malik Muhammad sadig through Legal Heirs and others (PLD 2OO8 Supreme court 577), which is as under:

" We have heard the learned counsel for the parties and examined the material available on record. Even according to the narrative furnished by

Criminal Appeal No. 146 of 2020

the learned counsel, (viz, the appellant applied for the ceftified copy on 72-2-7998, it was prePared and ready for detivery on 27-2-7998 and the petition was fited on 3O-70-1998) the petition was barred by I months and 9 days, The stance of the learned counsel is that is if the time is computed from date of delivery of the certified coPy of the impugned iudgment, then the petition is within time, Learned counsel when asked as to why chit/receipt issued by the copying branch was not placed on record stated that he is not aware as to whether chit or receipt was issued by the copying agency or not as the certified copy was apptied by the appettant The learned counsel has also not been abte to disclose about the date, which was given by the copying agency or indicated on the receipt issued by the copying agency to obtain ceftified coPy. It is a matter of common knowledge that when a person applied for ceftifred coPy, the copying agency issues a receipt/chit indicating tentative date of preparation of certified copy and on that date and applicant is obliged to enquire from the copying agency as to whether the requisite copy is prepared or not fnhrestingly, the appellant in his application for condonation of delay even did not mention the date given by the copying agency to the appeltant for obtaining the certified copy of the judgment This Coutt in a case reported as Fateh Muhammad and otherc v. Malik Qadir Bakhsh (1975 SCMR 157) has hetd that the time "requisite" for obtaining copy of order within the meaning of sedion 72 of the Limitation Adl 7908, means onlv the interual between the date of a ' ^*' for su of co , and the date when it is readv for delivery and that the time between the date on which the copy

Criminal Appeal No. 146 of 2020

was ready for delivery, and the date on which the a " ^ t chooses to take deliveru thereof is not a portion of time "reouisite" for obtainino a co^v. Even section 72(5r of the Limitation Act is of no heln to the apn t as he failed to Produce the chit ''* issued bv the co ! '-r aoencv showina the date for Dre ^-^o' of certified co ' inasmuch as, no such date has been indicated in the application for condonation of delay, Had the appellant produced a chit issued by the copying agency and the copy was not ready on the date indicated in the chit, then the appeltant could have taken shelter under section 12(5) of the Limitation Ad. This Court under the similar fa6 and circumstances of the case reported as Zulfigar Ali v, Superintendent of Police and. otherc (2OO3 SCMR 1562) refused to condone the delay of nearly 5O days while in the present case the delay is of 249 days. The case of Zulfigar Ali (ibid) applies to the facts and circumstances of the case in hand on all fouts,

There is another aspect of the case. The appettant apptied for certified copy on 72-2-7998 and he waited for a period of neaily eight months to inquire about the copy, as he obtained the copy on 7- 70-lgg8. The an 'after a^ ! ' for the certified ,o^, of the + * went into a deen slumb€r ?nd did not enquire from the co '' aoencv about the fate of his a ' ^*' for the arant of ceftified co ' for approximately eight months, Even if it be presumed that no chit/receipt was issued by the copyingagencYlth", '' *wasaq" tn should have acted with reasonable --*'*ude and dilioent and should have a t, ^ Lod the co ''

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aaencv inauirino about certified coiv within a reasonable time. The appellant was extremely negtigent in securing the ceftified copy of the judgment and did not bother to inguire from the copying agency about the preparation of certifred copy for neaily I months, which was ready for delivery on 27-2-7998, Learned counsel for the respondenB has rightly referred para-3 of the application for condonation of delay, in which he appettant stated that he visited the copying branch several times for collecting the certified coPy but was totd that the same has not yet been prepared. Suffice it to say that the said assettion, on the face of it seems to be erroneous. Had the appellant visited the copying agency after 27-2-7998 he would have definitety got the ceftified copy as according to him it was prepared on the said date, ft leads to the irresistible conclusion that the appellant never visited copying agency during the period from 27-2-7998 to 7 - 7 O- 7 998."(Emphasis added)

13.The Hon'ble Supreme Couft of Pakistan while dismissing the petition for leave to appeal against acquitta! filed with a delay of one (01) day has held in a case titled as wooI Hussain Vs. Muhammad Salim (7985 SCMR 893), that:

"The petition is, howeve4 barred by time by one day. The petitioner's counsel has not been able to explain the detay satisfadorily. ft appearc that the learned Advocate-on-Record negleded to frle the petition promptty after obtaining the copy of the impugned iudgment, Notwithstanding the fact that the detay is only of one day, we do not

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consider it a fit case for condonation of the delay as Muhammad satim son of Muhammad Ramzan (respondent No. 7) has acguired the right to live, white otherc have acquired the ualuable right of liberty."

L4. In the case in hand neither any application for the condonation of delay was filed nor any plausible explanation was extended by learned counsel for the appellant, with regard to filing of appea! with an inordinate delay of L76 days.

As per dictums laid down by the Hon'ble Supreme Court of Pakistan, it is wett settled principle of law that delay of each day has to be satisfactorily explained, ds after expiry of limitation period a vested right is created in favour of the other party which could not be easily brushed aside as the law atways helps the vigilant and not the indolent.

15.It is held by the Hon'ble Supreme Court of Pakistan in a case titled as Water and Power Development AuthoriU ft988 SCMR 7354) that:

"rt is well settled that after the prescribed period of limitation has elapsed, the door of iustice is closed and no ptea of iniustice, hardship or ignorance can be of any avail unless the detay is propeily explained and accounted fon" Reliance is atso ptaced upon the cases titled as Khushi MuhammaOl and others Vs. Mst Fazal Bibi and other

L2

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(pLD 2076 SC 872) and Muhammad sarfraz siyal vs.

Fazat Hussain Khan (2O27 CLC 867 -clamabadtt

16.In view of above discussion, I hold that the appea! in criminal case cannot be filed through specia! attorney as well as after an inordinate delay of L76 days, hence instant appeal against acquittal of respondent No. 2 / accused is dismissed being not maintainable.

MOOD IRI)

JUDGE

Announcecl in ooen Couft on this OTth day of February 2O23.

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Approved for RePorting Eilal /-