2014 P Cr. L J 914
[Balochistan]
Before Jamal Khan Mandokhail and M uhammad Kamran Khan Mulakhail, JJ
NAZEER AHMED---Appellant
Versus
ABID AHMED and another---Respondents
Criminal Acquittal Appeal No.337 of 2013, decided on 20th March, 2014.
(a) Criminal Procedure Code (V of 1898)---
----S. 417(2-A)---Appeal against acquittal---Delay in filing appeal, condonation of---Special
limitation of thirty days for fili ng of appeal against acquittal ha d been provided under provisions
of S.417(2-A), Cr.P.C.---If appeal against acquittal had not been filed within said prescribed
period of 30 days, then accused would acquire a valuable right of liberty, which could not be
withheld on the basis of ignorance of law; as it would amount to k eeping a lis alive---Irrespective
of the reasons mentioned in the application fo r condonation of delay for filing appeal against
acquittal, delay was not to be condoned, unless it could be shown that the person seeking
condonation was actually kept out of knowledge of the acquittal; and/or prevented by some act
of accused from coming in time---Delay would scar cely ever be condoned; and certainly not only
the ground that appellant had miscalculated the period of limitation; and therefore there was
delay for doing the needful within time---Special limitation prescribed by statute itself, was not
subject to the application of S.5 of the Limitation Act, 1908, due to bar contained in
S.29(2)(a)(b) of Limitation Act, 1908---If an aggrieve d person would bring an appeal against
acquittal after the expiry of time limit, the courts were bound to look into the sustainability of
verdict of acquittal, and if, reas onable justification was available manifesting interference of
appellate court, when the verdict of the Trial Co urt was suffering from inhe rent legal defects; and
being perverse, shocking and verdict rendered, was not supported by the record; or having been
passed in utter violation of Supreme Court di ctum, then the court was bound to look into the
matter at the touchstone of the administration of criminal justice for reappraisal of evidence.
Abdul Qayyum v. Ghulam Yasin PLD 1963 SC 151; Mst. Zeenat Sultana's case PLD
2004 SC 667 and Noor Hussain v. M uhammad Salim 1985 SCMR 893 ref.
(b) Words and phrases---
----"Aggrieved"---Meaning, explained.
Black's Law Dictionary 4t h Edition at page 87 ref.
(c) Words and phrases---
----'Person aggrieved', defined and explained.
Mir Gul's case 1999 PCr.LJ 1507 ref.
(d) Penal Code (XLV of 1860)---
----Ss. 337-A(i), 337-F(i) & 34---Criminal Proce dure Code (V of 1898), S. 417(2-A)--- Causing
Shajjah-i-Khafifah, damiyah, common intention ---Appeal against acquittal, competency of---
"Person aggrieved"---Appeal against acquittal was not filed by the victim lady, but by her
brother---Contention of appellant was, since the victim of the case was a "Pardahnashin" lady,
appellant being her brother and the complainant of the case, fulfilled the requirement of law as
"person aggrieved"---Further contention was th at there was no impediment under the law, and
the complainant could file an appeal agai nst acquittal---Validit y---Contentions of
appellant/brother of victim lady, did not carry a ny weight---Record had revealed that the victim
lady, not only appeared before the Trial Cour t, but had also faced the cross-examination
conducted by the defence---For filing appeal agai nst acquittal the victim or the aggrieved person
was required once only, to swear up on an affidavit appended with me mo of the appeal before the
Commissioner for taking oath in the presentation branch of the c ourt---Victim lady was not
required to remain present on each and every date---Complainant being informer alone did
not qualify the test of an "aggrieved person"---In jured/victim lady, neither was minor nor insane,
and was alive---Appeal against acquittal filed by brother of the victim lady, in circumstances,
was incompetent and liable to be dismissed.
Jamal Abdul Nasir for Appellant.
Date of hearing: 5th December, 2013.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.-- -This appeal filed by Nazeer
Ahmed son of Muhammad Umar, brother of in jured Mst. Khalida Bibi under section 417,
Criminal Procedure Code, 1898 ("Cr.P.C") to challenge the judgment dated 25-10-2013 passed
by the Judicial Magistrate-III, Quetta, whereby respondent has b een acquitted of the charge
under sections 337-A(i) and 337-F(i) read with section 34 of Paki stan Penal Code ("P.P.C.").
2. Precisely stating the facts gi ving rise to instant appeal ar e that on 11th February, 2011 an
F.I.R. No. 198 of 2012 was registered with Police Station, Brewery Quetta on written report of
the appellant/complainant. It is alleged that he was on his official duty when he received a
mobile call from her sister Mst. Bibi Khalida, who told him that she af ter having been severely
beaten and pronouncing a Talaq upon her, has been turned out from her matrimonial home by
her husband Abid Ahmed. On such information th e complainant rushed to his sister's house and
took her to the hospital and thereafter, the aforesaid F. I.R. was lodged against the
accused/respondent.
3. After investigation, the challan was submitted before the learned Judicial Magistrate-III,
Quetta. After denial of charge th e respondent decided to face the trial. The prosecution examined
six witnesses and on conclusion of trial the lear ned trial Court while ex tending the benefit of
doubt in favour of the accused/respondent, acqui tted him of the charge vide impugned judgment.
4. A query was posed to the learned counsel for the appellant, firstly, whether the appellant
qualifies the test of an aggrieved person and s econdly, how the appeal is competent when filed
beyond the prescribed time limit as provided under section 417(2-A), Cr.P.C. The learned
counsel for the appellant stated th at the appeal is delayed by four days, however, he referred to a
Criminal Miscellaneous Application No.324 of 2 013 filed under section 5 of the Limitation Act,
1908 for condonation of delay, which is also f iled with the appeal. The learned counsel
submitted that delay was occasioned due to miscalculation of dates and requested for
condonation of the same. While in response to the question as to how the appellant qualified as
an aggrieved person and to file an appeal against acquittal, he stat ed that since the victim of the
case is a 'Pardah Nasheen' lady and the appellant being her real brother and the complainant of
the case, fulfils the requirement of law as 'a person aggrieved'. Be sides that, there is no
impediment under the law, and the complainant can file an appeal agains t acquittal. The learned
counsel argued that the appeal is filed correctly, and the delay is also satisfactorily explained,
thus, this court can look into the vera city of the judgme nt impugned herein.
5. Before adverting to the merits of the cas e, we are in unison to consider the legal
dimension of the case. Since the appeal against acquittal is governed by section 417(2-A),
Cr.P.C. and the provision being rele vant is reproduced hereunder:--
"417. Appeal in cases of acquittal.
(2-A) A person aggrieved by the order of acqu ittal passed by any court other than a High
Court, may, within 30 days file an appeal against such order."
The provision quoted supra provides a special lim itation of thirty days for filing of
appeal and if an appeal against acquittal has not been filed within prescribed period of 30
days then the accused person acquires a valuable right of liberty, which cannot be withheld on
the basis of ignorance of law, as it will amount to keep a lis alive. We ar e afraid that if this
reason is accepted as plausible explanation for condonation of delay, then, not only this provision
of the statute but the whole scheme of the la w and the law of limitation will become redundant.
Even otherwise, applicability of section 5 of the Limitation Act is subject to provision of section
29(2)(a)(b), which reads as under:--
"29. Saving. (1)... .....
(2) Where any special or local law prescribes fo r any suit, appeal or application a period of
limitation different from the period prescribed th ereto by the First Schedule, the provisions of
section 3 shall apply, as if such period were pres cribed therefor in that Schedule, and for the
purpose of determining any period of limitation prescr ibed for any suit, appeal or application by
any special or local law:
(a) the provisions contained in section 4, sec tions 9 to 18, and secti on 22 shall apply only
insofar as , and to the extent to which, they ar e not expressly excluded by such special or local
law; and
(b) the remaining provisions of this Act shall not apply."
Thus, irrespective of the r easons mentioned in the applic ation for condonation of delay
for filing an appeal against acquittal is not to be condoned unless it can be shown that the person
seeking condonation was actually kept out of know ledge of the acquittal, and/or prevented by
some act of the respondent/accused from coming in time. This view is based on the principle
enunciated by the Hon'ble apex Court in the case of Abdul Qayyum v. Ghulam Yasin PLD 1963
SC 151. In this case Hon'ble Supreme Court has refused to condone delay with the observation
that in case of condoning the delay the responde nt might be placed once again in peril of his
liberty by a petition of this kind, and it is fo r this reason that the technical requirement of
limitation assumes importance. It is not too much to ask that he who seeks to place his fallow-
citizens' liberty in peril, by legal process, should satisfy all the technical requirement of the process. Delay would scarcely ever be c ondoned and certainly no t only the grounds here
advanced, namely, that the petitioner has miscal culated the period of lim itation and therefore he
was delayed for doing the needful within time.
In this manner the special limitation prescrib ed by the statute itself is not subject to the
application of section 5 of the Limitation Act du e to bar contained in s ection 29(2)(a)(b) of the
Limitation Act 1908 thus, it is held that section 5 of the Limitation Act is not applicable to the
appeal under section 417(2-A), Cr.P.C. for the obvious reason that the special limitation of thirty
days is provided in the statute itself. For renderi ng this view, we ar e supported by the
reported judgment in Mst. Zeenat Sultana's case, in PLD 2004 SC 667 and another case titled
Noor Hussain v. Muhammad Salim 1985 SCMR 893. Howe ver, if an aggrieved person brings an
appeal against acquittal after the expiry of ti me limit, the courts are bound to look into the
sustainability of verdict of acquitt al and if, reasonable justification is available which manifests
interference by this Court, when the verdict of the trial Court is suffering from inherent legal defects and being perverse, shocking and verdic t rendered is not supported by the record or
having been passed in utter viol ation of dictum laid down by the Hon'ble Ap ex Court then the
court is bound to look into the ma tter at the touchstone of the ad ministration of criminal justice
for reappraisal of evidence.
6. Before considering the second contenti on of the learned couns el for the appellant,
reference is made to the Black's Law Dictionary 4th-Edition at page 87 which defines the term
aggrieved as under:--
"AGGRIEVED:
having suffered loss or injury: damnified: injured.
While aggrieved party is defined as:--
AGGRIEVED PARTY. one whose legal right is invade d by an act, complained of or whose pecuniary interest is
directly affected by a decree or j udgment. The word aggrieved refers to a substantial grievance, a
denial of some personal or property right; or the imposition upon a party of a burden or
obligation."
The definition of "a person aggrieved" for th e purpose of appeal agai nst acquittal in hurt
cases had come before this Court in Mir Gu l's case reported in 1999 PCr.LJ 1507, wherein a
larger Bench was constituted to examine the identical proposition and following question was
framed.
"Whether in presence of injured/victim the complainant/informer could be termed as the
person aggrieved within the provis ion of section 417(2-A), Cr.P.C."
While dealing with the proposition the law was la id down "a person aggrieved" is defined with
following observations:--
"In order to further elaborate this proposition reference to the definitions of "Wali" under
section 299, Clause (m), P.P.C. would not be ou t of context according to which "Wali" means a
person entitled to claim Qisas. Similarly section 337- O, P.P.C. defines Wali in case of hurt
according to which Wali shall be victim provided that if the victim is a minor or insane, his right
of Qisas shall be exercised by his father or pate rnal grandfather howsoever high and the heirs of
the victim if the later dies before the execution of Qisas and the Government in absence of the
victim or the heirs of the victim. Thus, according to plain language of this section as well in the
case of hurt to a victim, status of Wali under the Islamic Law has been given as such applying
the principle of internal aid to interpret a st atute, by making reference to different provisions
under the same law, i.e. section 345(2), Cr.P.C. a nd seeking help from section 337(O), P.P.C. we
are inclined to hold that under section 417(2-A), Cr.P.C. the victim being "a person aggrieved"
would have a right to file appeal as far as the informer and anyone else even being the heir of
victim would not be competent to fi le appeal in the cases of hurt."
Thus, for the foregoing reasons above question is answered as follows:--
"Appeal under section 417(2-A), Cr.P.C. in a hurt case defined by the P.P.C. and
tried by the Courts constituted under Criminal Procedure Code shall be competent by a
person who has been hurt, and if he is a mi nor or insane then appeal will be competent on
his behalf by his father a nd grandfather or a pate rnal grandfather howsoev er high he may be, if
he (convict) dies for any other r eason before final decision of th e hurt case then appeal would be
competent by his legal heirs."
In view of judgment supra the contention of the learned counsel for the appellant does not
carry any weight that the victim/injured witnes s being a 'Pardah Nasheen' lady cannot come to
the court. Perusal of record reveals that the vi ctim lady not only appeared before the trial Court
but had also faced the cross-examination conduc ted by the defence. For filing appeal against
acquittal the victim or the a ggrieved person is re quired once only, to swear the affidavit
appended with memo of the appeal before the Commissioner for taking Oa th in the presentation
branch of this court. Thereafter, he/she is not required to remain present on each and every date.
Therefore, in view of the dictum laid dow n in the judgments referred hereinabove the
complainant being informer alone does not qualify the test of an aggrieve d person. In the instant
case injured Mst. Bibi Khalida is admittedly neither a minor nor insane and she is also alive,
therefore, appeal by her brother viz Nazeer Ahmed is incompetent.
Thus, for the aforesaid reasons th e appeal is dismissed in limine.
HBT/24/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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