2016 P Cr. L J 1726
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail and Muhammad Hashim Khan Kakar, JJ
MUHAMMAD SALEEM ---Appellant
Versus
KAREEM KHAN and 4 others ---Respondents
Criminal Acquittal Appeal No.S -29 of 2014, decided on 28th November, 2014.
Penal Code (XLV of 1860) ---
----Ss. 337- A, 354, 504 & 34 ---Criminal Procedure Code (V of 1898), S.417(2- A)---Causing
Shajjah, assault or criminal force to woman with intent to outrage her modesty, intentional insult
with intent to provoke breach of peace, common intention---Appeal against acquittal ---
Reappraisal of evidence ---Inordinate delay of about 11 hours in reporting the matter and
registration of FIR, was not satisfactorily explained; which had shown that the FIR was lodged
after deli beration and consultation---Witnesses, deposed that they themselves did not witness the
alleged occurrence, nor alleged quarrel took place in front of them ---Complainant, had made
dishonest improvements in his statement and he was not an eye -witness of the alleged
occurrence, and his statement was based on hearsay version--- Alleged injured witness, did not
appear, even in reply to application filed under S.249- A, Cr.P.C., despite ten consecutive
adjournments ---Presumption would be drawn against the prosecut ion that said witness would not
have supported the complainant's version--- In case of non- appearance of witness, presumption of
innocence would necessarily be drawn in favour of accused on the analogy that the witness was
no more interested in prosecution against accused ---No conviction under qisas and diyat could be
recorded, when such witness himself/herself did not appear ---Pendency of trial, would not serve
any useful purpose in that regard---Complainant, was neither aggrieved person nor the injured
was a person of tender age, on whose behalf the father being Wali, could assail the acquittal ---
Appellant, not coming within the category of the person aggrieved, appeal filed by him was not
maintainable ---Accused after his acquittal would carry double presum ption of innocence in his
favour ---Same could not be lightly interfered until and unless it was found that impugned
judgment of acquittal was perverse, shocking or ridiculous.
Manzoor and others v. The State 1992 SCMR 2037; Asghar Ali alias Sabah and othe rs v.
The State 1992 SCMR 2088 and Payo Khan v. sher Biaz 2009 SCMR 803 rel.
Nazeer Ahmed v. Abid Ahmed 2010 PCr.LJ 914 ref.
Hasnain Iqbal Minhas for Appellant.
Nemo for Respondents.
Date of hearing: 26th September, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---This appeal is directed against
the order dated 23rd January 2014 ("impugned order"), passed by the Judicial Magistrate/MFC,
Mach ("trial court.), whereby the private respondents were acquitted of the charge in case FIR
No.50 of 2013 lodged w ith police station Saddar, Mach under sections 337- A, 354, 504, 506 and
34 of the Pakistan Penal Code, 1860 ("P.P.C."), while exercising jurisdiction under section 249-
A of the Criminal Procedure Code, 1898 ("Cr.P.C.").
2. Brief facts of the case are that on complaint of the appellant the aforesaid FIR was lodged
alleging therein that his daughter was married to respondent No.1 Kareem Khan at Mach. Out of
the said wedlock two daughters were born. On the date of incident, the appellant's daughter
called him and told that her husband along with his brothers have beaten her with sticks, causing
injuries to her left hand and shoulder. Therefore, the FIR was lodged.
3. On completion of investigation challan was submitted before the learned trial court
against the respondents. The charge was framed and read over to them on 10.12.2013, to which,
they did not plead guilty and claimed trial.
During the course of trial when the prosecution was leading its evidence to substantiate
the charge, the defence moved an appli cation under section 249- A, Cr.P.C. for acquittal of the
respondents. The learned trial court decided the said application in favour of the respondents
vide impugned order. Relevant portion of the impugned order reads as follows:
" In view of above discuss ion I am convinced that there is no prima -facie case as well as
incriminatory evidence is [sic] available on record against accused persons and there is
no probability of their conviction and case is pending from long period. As such in the
interest of jus tice, the application under section 249- A, Cr.P.C. is accepted and accuse
(sic.) persons are acquitted in the instant case."
Being aggrieved by the impugned order the appellant has assailed the same in the instant
appeal.
4. Learned counsel for the appell ant contended that the trial court has failed to apply its
judicial mind to the facts and circumstances of the case. He maintained that the trial court, while
delivering the impugned order has wrongly acquitted the respondents of the charge despite the
fact that sufficient incriminating evidence was available on the record to connect the respondents
with the commission of the offence. He was of the view that the trial court's order is non-
speaking because it neither discussed the evidence available on recor d nor provided a fair
opportunity to the appellant to establish his case. He added that the learned trial court acquitted
the respondents of the charge at a premature stage by exercising powers under section 249 -A of
the Criminal Procedure Code, 1898 ("Cr.P.C."). He asserted that the manner and procedure
adopted by the learned trial court is against the norms of natural justice as the statement of
injured witness namely Mst. Bibi Saeeda was yet to be recorded. He argued that the learned trial
court recorded acquittal in slipshod and hasty manner despite the fact that statements of eye -
witnesses were recorded and case property i.e. stick 'Danda' was also recovered on pointation of
the principal accused. The learned counsel further added that on basis of state ments of witnesses
there was every possibility of accused being convicted on conclusion of trial. He finally urged
that the impugned order of acquittal is not sustainable being perverse and contrary to principles
laid down by the Hon'ble Apex Court. Theref ore, the impugned order deserves to be set aside
and respondents be dealt with in accordance with law.
5. We have heard the learned counsel and have gone through the record appended with the
appeal. The perusal of record shows that the occurrence was alleg ed to have taken place on
21.10.2013 at 9:25 p.m., while the FIR was lodged on 22.10.2013 at 8:30 am. According to the
FIR the place of occurrence is situated at a distance of two and a half furlong from the police
station but the inordinate delay caused i n reporting the matter and registration of the FIR was not
satisfactorily explained, which shows that the FIR was lodged after deliberation and consultation.
The record shows that due to strained relation between the spouses, the matrimonial dispute
arose and after registration of FIR as many as four witnesses were produced by the prosecution.
PW-1 Haji Muhammad Noor and PW -2 Haji Abdur Rauf are stated to be the eye -witnesses of
the occurrence. Both of them deposed on similar lines and stated that complaina nt Muhammad
Saleem called them on telephone and told that due to quarrel between the spouses he wants to
bring his daughter back from the house of his son in law. On their arrival the respondents
Kareem and Wali Dad appeared and on their appraisal the comp lainant's daughter was called and
allowed to go with the complainant. They further deposed that they themselves did not witness
the alleged occurrence nor any quarrel took place in front of them. It was further admitted by the
witnesses that on account of intended second marriage of respondent No.2 the relationship
between the spouses became strained and the complainant was demanding separate home for his
daughter.
6. The complainant Muhammad Saleem appeared as PW -3 and reiterated the allegation
contained i n the FIR but he stated that his daughter came out of her matrimonial home with a
broken arm but the said portion of his statement based on dishonest improvement because the
FIR is silent in this respect. Thereafter the case remained pending for the statem ent of injured
witness. The factum of her alleged injuries was not corroborated by the statements of PW -1 and
PW-2. Whereas the complainant himself made a statement, which is based on hearsay version, as
admittedly, he too was not an eye -witness of the alleged occurrence. The learned trial court has
further observed that charge in this case was framed on 10th December, 2013 and despite ten
consecutive adjournments the injured witness did not appear even in reply to application filed
under section 249- A, Cr. P.C., the complainant side, which was represented by Mr. Sami Khan,
Advocate, stated in clear terms that they will not produce the injured witness on account of
amicable settlement between the spouses. Astonishingly, neither the witness appeared nor the
compromise so effected between the spouses was submitted before the court.
7. The careful consideration of record clearly manifests that the injured Bibi Saeeda was
either not ready to appear before the court or was not supporting the complainant's version,
therefore, her statement on oath was intentionally withheld, therefore, the presumption as
enumerated under Article 129(g) of the Qanun -e-Shandat Order, 1984 come into play. The
presumption will ultimately be drawn against the prosecution that the said witness was not
supporting the complainant's/prosecution version therefore, was not brought before the court.
Article 129(g) of the Order reads as under:
"129. Court may presume existence of certain facts.
(g) that evidence which could be and is not produced would, if produced, be unfavourable
to the person who withholds it:
The ap pellant's case relates to Qisas & Diyat and in view of dictum laid down by the
Hon'ble Apex Court that in case of non- appearance of witness presumption of innocence shall
necessarily be drawn in favour of the accused on the analogy that the witness was no more
interested in prosecution against the accused, therefore, no conviction under Qisas and Diyat can
be recorded when the witness himself/herself does not appear and pendency of trial would not
serve any useful purpose. Reliance is placed in Manzoor and others v. The State (1992 SCMR
2037) and Asghar Ali alias Sabah and others v. The State (1992 SCMR 2088).
8. This appeal has been filed by the complainant against the acquittal of the respondents, but
he was neither the aggrieved person nor the injured Bibi Saeeda is a person of tender age, on
whose behalf the father being Wali can assail the acquittal, therefore, the appellant does not
come within the category of the person aggrieved, therefore, appeal filed by him is not
maintainable. Reference is made to this court's judgment in case of Nazeer Ahmed v. Abid
Ahmed (2014 PCr.LJ 914), wherein this court observed as under:
"Before considering the second contention of the learned counsel 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 invaded by an act, complained of or whose pecuni ary interest is
directly affected by a decree or judgment. 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 the purpose of appeal against acquittal in hurt
cases had come before this Court in Mir Gul's case reported in 1999 PCr.LJ 1507,
wherein a larger Bench was constituted to examine the identical proposition and followed
question was framed.
"Whether in p resence of injured/victim the complainant/informer could be termed as the
person aggrieved within the provision of section 417(2- A), Cr.P.C."
While dealing with the proposition the law was laid down and "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 out 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 paternal 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 statute, by making reference to different provisions under the same law, i.e.
section 345(2), Cr.P.C. and seeking help from section 337(O), P.P.C. we are inclined to
hold that under section 417(2- A), C r.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 file appeal in the case of hurt."
Thus, for the foregoing reasons above questione rs 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 minor or insane then appeal will be competent on his
behalf by his father and grandfather or a paternal grandfather howsoever high he may be,
if he (convict) dies for any other reason before final decision of the hurt case then appeal
would be competent by his legal heirs"
Thus, in view of dictum laid down by the Hon'ble Apex Court in Manzoor v. The State
and Asghar Ali v. The State (judgments supra) since the injured witness herself did not appear
before the court, therefore no conviction could have been recorded against the respondent. In
view of judgment rendered by this court the appellant does not fulfil the definition of a person
aggrieved, therefore, appeal filed by him is not maintainable. Here we may observe that after
getting acquittal, the respondent carries double presumption of innocence in his favour, firstly he
is presumed to be innocent till proven guilty i.e. on initiation of trial and secondly after
conclusion, when he has been acquitted of the charge. Thus, in view of dictum laid down by the
Hon'ble Apex Cour t, same cannot be lightly interfered until and unless it is found that the
judgment impugned is perverse, shocking or ridiculous. Reference is made to the case of Payo
Khan v Sher Biaz (2009 SCMR 803).
Therefore, the judgment dated 21.02.2013 passed by the learned trial court is
unexceptional. Consequently, the appeal is dismissed in limine.
HBT/56/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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