2019 Y L R 2843
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
MUHAMMAD ISMAIL KHAN---Appellant
Versus
YAR MUHAMMAD and 3 others---Respondents
Criminal Acquittal Appeal No.100 of 2019, decided on 2nd August, 2019.
(a) Criminal Procedure Code (V of 1898)---
----S. 417(2A)---Penal Code (XLV of 1860), Ss.337-A, 337-F, 337-Q & 34---Appeal against
acquittal---"Person aggrieved"--- Scope--- Appellant/ complainant, being father of injured person, filed
appeal against acquittal under S. 417(2A), Cr.P.C.---"Person aggrieved" was a person who was primarily
interested in conviction of the accused because he was allegedly caused hurt---Word "person aggrieved"
was not open to the extent of including every person who was a member of society or claimed to be
interested in the conviction of an accused person in cases of hurt---Legal heirs in murder cases had the
right to participate in court proceedings and impugn the judgment if they felt themselves aggrieved by
it---Complainant of the case was not present at the spot rather he was informed in respect of the alleged
occurrence---Complainant was neither abused, beaten nor threatened by the accused, thus, under the
circumstances, father of victim was not competent to file appeal against acquittal under S.417(2A),
Cr.P.C.---Appeal was dismissed.
Mir Gul v. Abdul Karim 1999 PCr.LJ 1507 rel.
(b) Words and phrases---
----Person aggrieved--- Meaning.
Black's Law Dictionary ref.
Muhammad Ali Rakhshani for Appellant.
Date of hearing: 30th July, 2019.
ORDER
ABDUL HAMEED BALOCH, J.--- This Criminal Acquittal Appeal has been preferred against the
order dated 26.03.2019 (impugned order), passed by the learned Judicial Magistrate-II, Kharan (trial
Court), whereby the private respon-dents were acquitted of the charge in case FIR No.06 of 2018 under
Section 337-AF Q&D read with 34, P.P.C. lodged with Levies Thana, Kharan.
2. Brief facts of the case are that on 21.05.2018 at about 11:00 p.m., complainant Muhammad Ismail
Khan lodged a report with Levies Thana Kharan, alleging therein that on the fateful day at about 8:30
p.m. his son namely Noor Ahmed went to the nearby tank for ablution, when the private respondents
were already hiding there. Firstly accused Yar Muhammad hit his son on the head, due to which he fell
down. Afterwards, other two accused persons started beating him with sticks and fin belt. On this his son
started shouting, whereupon his (complainant) two sons went out to check the position, and saw the
accused persons beating Noor Ahmed who was unconscious. When the accused saw them, they ran away
leaving behind their Chadir, sticks, fin belt, and one mobile. Consequently the referred FIR was lodged.
3. After registration of FIR and completion of usual investigation challan of the case was submitted
before the trial Court, whereby on denial to the charge by the respondents, the prosecution produced as
many as eight witnesses. On conclusion of prosecution witnesses, respondents/accused were examined
under Section 342, Cr.P.C. They did not profess to record their statements on oath as envisages under2019 Y L R 2843 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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Section 340(2), Cr.P.C., nor produced any witness in their defence except one accused produced two
witnesses in his defence as DW-1 and DW-2. On completion of trial, the trial court acquitted the private
respondents/accused of the charge vide impugned judgment. Hence this appeal.
4. Learned counsel for the appellant contended that the judgment of the trial court is against the
principle of natural justice; that the prosecution witnesses despite subjected lengthy cross-examination
by the defence remained constant, but the trial court without appreciating the same has wrongly acquitted
the accused/respondents. He lastly urged for setting-aside the impugned judgment and prayed for
conviction of the accused/respondents.
5. We have heard learned counsel for the appellant and also perused the record with his able
assistance. It was the prosecution case that the complainant/ appellant Muhammad Ismail lodged the
referred FIR with allegation that the respondents have beaten his son Noor Ahmed, due to which who
received injuries on his different part of the body. The complainant being father of the victim has
preferred the instant appeal, under such circumstances the question arises whether the appeal is
maintainable or not, the following points are required to be determined:
1. Whether the father comes within the definition of aggrieved person?
2. Whether the appeal could be filed other than the injured?
6. To reach to the just decision of the afore-referred points, it would be appropriate to reproduce the
sub-sections (1), (2) and (2-A) of Section 417, Cr.P.C. herein below:
"(1 ) Subject to the provision of sub-section (4), the Provincial Government may, in any case, direct
the Public Prosecutor to present an appeal to the High Court from an original or appellate order of
acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on
an application made to it by the complainant in this behalf grants special leave to appeal from the
order of acquittal the complainant may present such an appeal to the High Court.
(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court, may,
within thirty days, file an appeal against such order."
7. In subsection (2-A) of Section 417 the word "person aggrieved" has been used. Under such
circumstances the question arises who would be person aggrieved competent to file appeal, it would be
appropriate to refer the definition of aggrieved person as enumerated in Black's Law Dictionary which
reads as under:
"Person aggrieved. To have standing as a 'person aggrieved' under equal employment opportunities
provisions of Civil Rights act, or to assert rights under the Federal regulatory statute, a plaintiff
must show (1) that he has actually suffered an injury, and (2) that the interest sought to be
protected by the complainant is arguably within the zone of interest to be protected or regulated
by the statute in question.
A 'person aggrieved' as contemplated by federal rule governing standing to object to alleged illegal
search and seizure is one who is the victim of the search and seizure, as distinguished from one
who claims prejudice only though the use of evidence gathered in a search directed at someone
else."
8. In view of the referred definition, subsection (2-A) of Section 417, Cr.P.C. the word "person
aggrieved" would be a person who is primarily interested in conviction of the accused because he has
allegedly caused hurt to him and the word 'person aggrieved' is not open to the extent of including every
person who as a member of society may claim or to be interested to get the offender punished in the
cases of hurt, however in the cases of murder the legal heirs of the deceased have the right to participate
in the court proceedings and impugned the judgment if they feel themselves aggrieved by it. Since the2019 Y L R 2843 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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complainant of the case was not present at the spot rather he was informed in respect of the alleged
occurrence. He was neither abused, beaten nor threatened by the respondents/accused, thus, under such
circumstances we are of the view that under Section 417-2-A, Cr.P.C. the father of victim is not
competent to file acquittal appeal.
9. For rendering this view, we are fortified from the judgment passed by this on the case of Mir Gul v.
Abdul Karim 1999 PCr.LJ 1507 wherein it has been observed as under:
"Appeal under section 417(2-A), Cr.P.C. in the 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."
In the instant case the injured is neither minor nor insane and the appellant in view of the judgment
supra does not come within the definition of aggrieved person, therefore the instant appeal filed by the
appellant is not maintainable, which is hereby dismissed in limini.
SA/77/Bal. Appeal dismissed.
;2019 Y L R 2843 https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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