2021 Y L R 1619
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
ABDUL KHALIQ ---Appellant
Versus
SHER ALI and 3 others ---Respondents
Criminal Acquittal Appeal No. 20 of 2020, decided on 30th June, 2020.
(a) Penal Code (XLV of 1860 )---
----Ss. 337- A(i), 337- F(i), 337- L(2), 427, 147, 148 & 149--- Shajjah -i-khafifah, ghayr -jaifah -
mudihah, causing hurt, mischief causing damage to the amount of fifty rupees, rioting,
rioting armed with deadly weapons, unlawful assembly---Appeal against acquittal ---
Appreciation of evidence ---Benefit of doubt ---Prosecution case was that the accused and
unknown co- accused while armed with deadly weapon assaulted on complainant party, due
to which, the companion of complainant sustained injuries ---Record tran spired that injured
witness stated in his statement before the Trial Court that his both hands were fractured due to beating but on the other hand medical certificate produced by Medical Officer was silent to that effect ---Complainant stated in his report that he received deep injuries due to beating
but on the other hand Medical Officer admitted during cross examination that she did not find any injury on the body of complainant ---Victim/injured had not challenged the acquittal
of accused persons as the ap peal had been filed by the complainant, who had not received
any injury in the incident as provided under S.417(2- A), Cr.P.C. ---Report of the complainant
revealed that victim had received injuries, which showed that the victim was not minor rather he was h aving sense and was alive--- Complainant, who was not an injured, could not file the
appeal ---Injured alone was competent to file appeal being an aggrieved person--- Injured
person being the aggrieved was neither insane nor minor, did not come forward to cha llenge
the judgment impugned---Appeal filed by the complainant was incompetent, in circumstances --
-Trial Court had considered all the material present on record properly and arrived to the
conclusion which was based on proper appreciation of the facts and law, thus did not need
interference by High Court ---Appeal against acquittal was dismissed in limine.
Mir Gul's case 1999 PCr.LJ 1507 and Jallan v. Muhammad Riaz PLD 2003 SC 644
rel.
(b) Appeal against acquittal ---
----Double presumption of innocence ---Interference---Acquittal carried with it double
presumption of innocence ---Such order could only be reversed when found blatantly
perverse, resting upon fringes of impossibility and resulting into miscarriage of justice ---
Order of acquittal could not be set aside merely on the possibility of a contra view.
Jameel Ramzan Dehwar (absent) for Appellant.
Date of hearing: 25th June, 2020.
ORDER
ROZ1 KHAN BARRECH, J. ---This criminal acquittal appeal was filed to question
the validity of judgment dated 14th Dec ember 2019 (hereinafter "the impugned judgment")
passed by learned Judicial Magistrate, Dasht (hereinafter "the trial Court"), whereby the
respondents Nos. 1 to 3 were acquitted of the charge.
2. Relevant facts for disposal of the instant appeal are that o n 6th November 2018 at
2:45 pm, the complainant Abdul Khaliq lodged FIR No. 33 of 2018 at Levies Station Dasht District Mastung under sections 337- A(i), 337 -F(i), 337- L(2), 427, 147, 148, 149, P.P.C.
with the averments that he has a civil dispute with the accused and in this regard he along with one Bashir Ahmed went to the Assistant Commissioner Office Dasht; that at about 02:25 p.m. when they were coming back, the accused Sher Ali, Muhammad Ali, Javed and Humayun along with three unknown muffled face pers ons, equipped with iron rods and
Kalashnikovs, came in a green cruising car with minister number plate and attacked upon him and Bashir Ahmed and caused them serious injuries; that at the same time Muhammad Azeem and Ghulam Mustafa came there who are the e ye-witnesses of the occurrence. Hence,
the crime report.
3. After completion of usual investigation challan of the case was submitted before the
trial Court. The charge was framed against the accused/respondents Nos. 1 to 3 to which they pleaded not guilty and claimed trial.
During the trial the prosecution produced eight witnesses, whereafter the
accused/respondents Nos. 1 to 3 were examined under section 342, Cr.P.C. whereby they categorically disowned the prosecution case and claimed innocence, the accus ed neither opt
to recorded their statement on oath under section 340(2), Cr.P.C., nor produced any witness in their defense.
4. The learned trial court after hearing arguments of learned counsel for the parties
acquitted the accused/ respondents Nos. 1 to 3 from the charge. Hence, this appeal.
5. The instant appeal is lingering on at Katcha Peshi stage since 13th January 2020.
Notices for each date have been served on learned counsel for the appellant but he is reluctant to argue the matter, as such, we hav e left no option but to decide the same after
going through the record.
6. A variety of reasons weighed with the learned trial Judge to acquit the accused from
the charge, which include; contradictions in the statements of witnesses and medical certificate as well as base of a case against accused with no evidence. None of the reasons
cited by the learned trial Judge has been found by us as artificial or unrealistic. Even
otherwise on independent analysis, genesis of prosecution case does not appear to be f ree
from doubt. The record transpires that PW -2 Bashir Ahmed stated in his statement before the
trial court that his both hands fractured due to beating but on the other hand medical certificate (Ex.P/7 -A) produced by PW -7 Dr. Aisha Faiz, is silent to this effect. There are
major contradictions in the statements of witnesses which have been mentioned by the
learned trial Judge in detail in his judgment. The complainant/ appellant Abdul Khaliq stated
in his report (Ex.P/1 -A) that he received deep injuries du e to beating but on the other hand
PW-7 Dr. Aisha Faiz admitted during cross -examination that she did not find any injury on
the body of complainant Abdul Khaliq. The victim/injured Bashir Ahmed has not challenged the acquittal of respondents Nos. 1 to 3 before this court 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.
7. Before proceedings any further it would be advantageous to reproduce the sec tion
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 the complainant Abdul Khaliq, who appeared before the
trial court as PW -1, has not received any injury in the alleged incident. According to the
report of the complainant one PW -2 Bashir Ahmed received injuries, which shows that the
victim is not minor rather he is having sense and is alive.
8. 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 ex amine the identical proposition, 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 p erson 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 grandfathe r 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 s tatus 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), 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 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
howso- ever 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. "
9. In view of the judgment supra, 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 person being the aggrieved is neither insane nor
minor, did not come forward to challenge the judgment impugned. Under such circumstances, the appeal filed by the complainant is incompetent.
Even otherwise, while 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 failed 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.
10. It is by now well settled that acquittal carries with it double presumption of
innocence; it is reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice. It cannot be set aside merely on the possibility of a contra view.
11. In our humble view, the tri al Court has considered all the material present on record
properly and arrived to the conclusion which is based on proper appreciation of the facts and law, thus does not need interference by this Court.
The appellant has failed to point out any defect i n the impugned judgment, therefore,
the appeal being devoid of merits is accordingly dismissed in limine.
JK/102/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,
let us know.