2020 P Cr. L J 1633
[Balochistan]
Before Rozi Khan Barrech and Jamal Khan Mandokhail, JJ
BAHLOL KHAN KASI ---Appellant
Versus
AZMATULLAH KASI and another ---Respondents
Criminal Acquittal Appeal No. 82 of 2016, decided on 17th July, 2019.
(a) Criminal trial ---
----Burden of proof ---Scope ---Burden of proof, would lie upon the prosecution and it had to
prove the charge beyond reasonable doubt.
(b) Appeal against acquittal ---
----Double presumption of innocence ---Scope ---Accused after acquittal w ould enjoy double
presumption of innocence; the first before trial of case and second after his acquittal.
(c) Penal Code (XLV of 1860)---
----Ss. 324, 504 & 506---Attempt to commit qatl- i-amd, intentional insult with intent to
provoke breach of peace, cr iminal intimidation ---Appreciation of evidence ---Appeal against
acquittal ---Benefit of doubt ---Contradictions in the statements of witnesses ---Scope ---
Accused was charged that he made firing upon the complainant party, due to which, brother,
maternal cousi n of complainant and another person sustained bullet injuries ---Ocular
testimony consisted of evidence of complainant, injured and cousin of the complainant ---All
those witnesses were closely related to each other ---Said witnesses stated in their statements
that the accused made firing upon brother and cousin of complainant and also on another person who received injuries ---Other two witnesses stated that the accused and brother of
complainant scuffled with each other, where- after firing started but both of them had failed
to assign the role of firing to the accused--- Said two witnesses were independent and
impartial witnesses and not inimical to the other side ---Statements of eye- witnesses were
inconsistent, not firm and stable and there were many contradic tions in their statements,
hence their statements could not be believed ---Statements of eye -witnesses were
contradictory with the medical evidence ---If the injured witness and the accused scuffled
with each other and thereafter firing was made and brother of complainant received injuries then there should be blackening around the entrance wound of injured, but the medical certificate of the injured did not show any blackening on the entrance wound---Firing from such close distance might also result into exi t wound but the same was also not found in
medical certificate ---Circumstances established that the evidence furnished by the
prosecution was of interested witnesses and no independent corroboration was available on
the record and there was contradiction i n medical and ocular evidence---Prosecution, in
circumstances, had failed to prove its case against the accused ---Appeal against acquittal was
dismissed, in circumstances.
(d) Penal Code (XLV of 1860)---
----Ss. 324, 504 & 506---Attempt to commit qatl- i-amd, intentional insult with intent to
provoke breach of peace, criminal intimidation ---Appreciation of evidence --- Appeal against
acquittal ---Benefit of doubt ---Accused was charged that he made firing upon the complainant
party, due to which, brother, mate rnal cousin of complainant and another person sustained
bullet injuries ---Accused also lodged FIR against the complainant, witnesses and others on
the same date and time about the same occurrence---Accused, in the said FIR, being
complainant alleged that w itnesses of the present case received firearm injuries ---In the said
occurrence four persons received injuries and it was a case of free fight between the parties in the form of melee wherein the complainant and two others also received firearm injuries ---
Circumstances suggested that it would be rather paradoxical to infer that the injuries on the person of each of the participants could be determined or ascertained, thus it was extremely doubtful to believe the complainant's version against the accused and at least he was entitled
to the benefit of doubt ---Appeal against acquittal was dismissed, in circumstances.
(e) Penal Code (XLV of 1860)---
----Ss. 324, 504 & 506 ---Criminal Procedure Code (V of 1898), S. 417(2- A)---Attempt to
commit qatl- i-amd, intenti onal insult with intent to provoke breach of peace, criminal
intimidation ---Appeal against acquittal filed by aggrieved person--- Scope ---Admittedly,
complainant appeared before the Trial Court, who had not received any injury in the alleged incident ---Repo rt of the complainant was that his brother and others allegedly received
injuries, which showed that all the victims were not minors rather they were having sense and were alive---Complainant, who was not an injured, could not file the appeal against acqui ttal and it was the injured alone, who was competent to file appeal being an aggrieved
person---Injured persons being the aggrieved were neither insane nor minors, did not come forward to challenge the judgment impugned--- Appeal by the complainant was incompetent,
in circumstances.
Mir Gul's case 1999 PCr.LJ 1507 rel.
Appellant in person.
Respondent in person.
Ameer Hamza Mengal, DPG for the State.
Date of hearing: 19th June, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---Briefly stated facts of the case are that on 18.07.2012
when the complainant/appellant Behlol Khan Kasi along with his brothers went to the house
of their relative Malik Muhammad Younas Kasi situated at Ghalib Road near Radio Pakistan to attend the engagement ceremony of his daughter. At about 6:30 pm, the
accused/respondent Azmatullah Kasi, while going out of the room abused and threatened the
younger brother of the complainant namely Abbas. Thereafter at about 7:15 after the function
the accused/respondent intercepted the complainant's b rother Abbas and started firing upon
him, in result whereof the complainant's brother sustained bullet injury; that the
accused/respondent while fleeing also made firing upon maternal cousin of the complainant/appellant namely Asfand Yar and another, due t o which Aimel and Asfand Yar
also sustained bullet injuries. Thus, on the basis of complainant's written report the FIR No. 61 of 2012 was lodged with PS Bijli Road under section 324 Qisas and Diyat Ordinance read with sections 504 and 506, P.P.C. on the s ame date.
2. After completion of the investigation the challan was submitted before the learned
Sessions Judge, Quetta, however subsequently the same was transmitted to the file of learned Additional Sessions Judge -VII, Quetta ("trial court"). After framin g the charge, to which the
accused/respondent did not plead guilty and claimed trial, where -after the prosecution led its
evidence. On completion of prosecution evidence the trial court recorded the statement of the accused/respondent under section 342, Cr .P.C. wherein the accused/respondent once again
professed his innocence. The accused/respondent also recorded his statement on oath as envisaged under section 340(2), Cr.P.C. and also produced DW -1 Malik Muhammad Hussain
in his defense. On conclusion the t rial court vide judgment dated 29th February 2016
("impugned judgment") acquitted the respondent/accused of the charge.
3. We have considered the submissions made by learned counsel for the parties and also
gone through the evidence available on record. It is settled principle of criminal
jurisprudence that burden of proof lies upon the prosecution and it has to prove the charge beyond reasonable doubt. It is also settled principle of law that the accused after acquittal from criminal charge the accused enj oys double presumption of innocence i.e. first, before
trial and case and second after his acquittal. Thus, the courts while dealing with an acquittal appeal are bound to examine whether the court(s) below has ignored any evidence on record or had discarde d the evidence for the reasons not recognized by the law. Reference is made
to the case of Barkat Ali and Shoukat Ali (2004 SCMR 249).
4. Analyzing the prosecution evidence, the record transpires that PW -2 and PW -3 are
inimical toward the accused/responden t. The statements of complainant/appellant, PW -2 and
PW-5 cannot be taken as Gospel's truth and strong circumstantial and corroborative evidence
is required to augment their version. It is also an admitted fact that the ocular testimony in this case consis ts of evidence of complainant/ appellant Behlol, PW -2 Abbas Sadiq (injured)
who is brother of the complainant and PW -5 Inayatullah Kasi who is cousin of the
complainant/appellant and all these witnesses are closely related to each other. PW- 1, PW -2
and PW -3 stated in their statements that the accused/respondent Azmatullah made firing
upon PW -2 namely Abbas Saddiq and PW -7 Aimal Kasi and PW -8 Asfand Yar received
injuries but on the other hand when PW -7 and PW -8 appeared before the court both of them
stated that the accused/respondent Azmatullah and PW- 2 Abbas Sadiq scuffled with each
other, where -after firing was started but both of them have failed to assign the role of firing
to the accused/respondent. Both PW -7 and PW -8 are independent and impartial witnes ses
and not inimical to the other side.
5. On the other hand after perusal of statements of PW- 1, PW -2 and PW -3 reveals that
they were inconsistent, not firm and stable and there are many contradictions in their
statements, hence their statements cannot be believed. Moreover, the statements of PW- 1,
PW-2 and PW -5 are contradictory with the medical evidence. PW- 7 and PW -8 stated in their
statements that PW -2 Abbas Sadiq scuffled with the accused/respondent Azmatullah. For the
sake of argument if it is presum ed that PW -2 Abbas Sadiq (injured witness) and the
accused/respondent scuffled with each other and thereafter firing was made and Abbas Saddiq received injuries then there should be blackening around the entrance wound of PW -2
namely Abbas Sadiq, but the m edical certificate i.e. Ex.P/6 -A of the injured does not show
any blackening on the entrance wound. Furthermore, firing from such close distance might also result into exit wound but the same is also not found in Ex.P/6- A.
6. In the case in hand the accuse d/respondent Azmatullah also lodged FIR No. 62 of
2012 against the complainant/appellant, PW -2, PW -5 and others on the same date and time
about the same occurrence. In the said FIR the accused/respondent being complainant alleged that Aimal Kasi (PW -7 in t he instant case) and Asfand Yar (PW- 8 in the instant case)
received firearm injuries. In the said occurrence four persons received injuries and it was a case of free fight between the parties in the form of melee wherein the complainant/appellant, PW -2 Abb as Sadiq, PW -7 and PW -8 also received firearm injuries. It
would be rather paradoxical to infer that the injuries on the person of each of the participants could be determined or ascertained. We are of the view that it is extremely doubtful to
believe the complainant's version against the accused/respondents and at least he was entitled
to the benefit of doubt.
7. The above discussion would lead us to irresistible conclusion that the evidence
furnished by the prosecution is of interested witnesses and no independent corroboration is available on the record. There is contradiction in medical and ocular evidence. Moreover, the accused/respondent has earned acquittal in his favour, hence he enjoys double presumption of innocence and the courts while examining t he case of such accused must be very careful
and conscious in interfering with acquittal order and normally shall not set aside the same merely on the reason that some other view was also possible. Inference, however could be made under section 417, Cr.P.C . if it was proved that the court whose judgment was under
scrutiny has misread such evidence. In rendering this view we have been fortified by the dictum laid down by the Hon'ble Supreme Court in the case of Jallan v. Muhammad Riaz (PLD 2003 SC 644).
8. At the very outset a query was posed to the appellant/ complainant, whether the he
qualifies the test of an aggrieved person and as to how this appeal is competent as, the instant appeal has been filed by the complainant/appellant, who has not received any injury in the
incident as provided under section 417(2- A), Cr.P.C. In reply, the appellant/complainant
stated that he is competent to file the instant appeal because he is the complainant of the case and he himself had lodged the FIR. He further added that he is brother of the injured namely
Abbas.
9. Before proceedings any further with the it would be advantageous to reproduce the
section 417(2- A), Cr.P.C. here under:
"417. Appeal in cases of acquittal. (2- A) A person aggrieved by the order of acquittal
passed by any court other than a High Court, may, within 30 days file an appeal
against such order."
It is an admitted fact that Mr. Behlol Khan Kasi, Advocate is the complainant of the
case. He appeared before the trial court as PW- 1, who has not received any injury in the
alleged incident. According to the report of the complainant his brother namely Abbas Sadiq,
Asfand Yar Kasi and Aimal Kasi allegedly received injuries, which shows that all the victims are not minors rather they are having sense and are alive.
10. 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 proposit ion, in which
following were observed:
"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.
defin es 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 befor e
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(2A), 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 file appeal in the cases of hurt."
Thus, for the foregoing reasons above question is answere d 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."
11. In view of the judgment supra, the contentions of learned counsel for the appellant
does not carry any weight. The complainant, who is not an injured, cannot file the instant appeal. It is the injured alone, who is competent to file appeal being an aggrieved person. In the instant case, the injured persons being the aggrieved are neither insane nor minors, did
not come forward to challenge the judgment impugned. Under such circumstances, the
appeal filed by the complainant is incompetent.
Even otherwise, w hile judging the evidence of the prosecution on the criteria laid
down in the case of Jallan v Muhammad Riaz (PLD 2003 SC 644), we are of firm opinion that the appellant/complainant has filed to prove that any evidence is misread or received such evidence illegally. However, the accused/respondent is able to create a shadow of doubt
in the prosecution case, therefore he was entitled to its benefit not as a matter of grace but as a matter of right.
Accordingly we find no merits in this appeal, therefore the same is dismissed.
JK/78/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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