2022 Y L R Note 57
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
ABDUL HADI ---Appellant
Versus
JAFAR KHAN and 3 others ---Respondents
Criminal Acquittal Appeal No. 542 of 2019, decided on 16th September, 2020.
(a) Penal Code (XLV of 1860) ---
----Ss. 337- A, 337- D & 34 ---Shajjah, jaifah, common intention ---Appreciation of evidence ---
Appeal against acquittal ---Limitation ---Accused were charged for causing injuries by means
of danda and stone to the uncle of complainant ---Record showed that the order was passed by
the Trial Court for acquittal of the accused after submission of the challan by the police ---
Under S.417(2- A), Cr.P.C., if a person aggrieved by order of acquittal passed by any court
other than High Court might, within thirty da ys, file appeal against such order ---Order of
acquittal passed in a case instituted upon a complaint after granting special leave to appeal
from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of th at order ---Accused were acquitted of the charge from the Trial Court
and the appeal filed against the acquittal of the accused/respondents by the appellant/ complainant under S.417, Cr.P.C., would come within the definition of S.417(2- A), Cr.P.C.--
-Limitat ion for filing such appeal was thirty days from the date of order/judgment ---No
plausible explanation was furnished in the application filed under S.5 of the Limitation Act, 1908 for condonation of such inordinate delay---Appeal being barred by limitation was dismissed accordingly.
(b) Limitation Act (IX of 1908)---
----S.5 ---Condonation of delay--- Scope ---Delay of each day has to be satisfactorily
explained, as after expiry of limitation period a vested right is created in favour of the other
party which c an not be easily brushed aside as the law always help the vigilant and not the
indolent.
Lt. Col. Nasir Malik v. Additional District Judge, Lahore 2016 SCMR 1821 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 337 -A, 337- D & 34 ---Shajjah, jaifah, common inten tion---Appeal against acquittal ---
Maintainability ---Scope ---Accused were charged for causing injuries by means of danda and
stone to the uncle of complainant ---Record showed that the appeal was also not maintainable
in view of S.417(2- A), Cr.P.C. because the accused did not qualify the test of an aggrieved
person as he did not receive any injury in the alleged incident as contemplated in S. 417(2-
A), Cr.P.C. --- Admittedly, the complainant / appellant was the complainant of the case who
appeared before the Trial Court as witness but he had not received any injury in the alleged incident ---Complainant had stated that his uncle received injuries, which showed that the
victim was not a minor, rather he was having sense and was alive ---Complainant, who was
not a n injured, in circumstances, could not file the appeal ---Injured alone was competent to
file appeal being an aggrieved person--- Injured person neither insane nor minor, did not
come forward to challenge the judgment impugned---Appeal filed by the complaina nt was
incompetent, which was dismissed accordingly.
Mir Gul's case 1999 PCr.LJ 1507 rel.
Shah Rasool Kakar for Appellant.
Date of hearing: 10th September, 2020.
JUDGMENT
ROZI KHAN BARRECH, J .---This criminal acquittal appeal was
filed to question the validity of judgment dated 18.10.2019 (hereinafter "the impugned
judgment") passed by learned Judicial Magistrate, Loralai (hereinafter "the trial court"), whereby the private respondents were acquitted of the charge.
2. Brief facts for the disposal of th e instant appeal are that on 29.10.2018, the
complainant/appellant Abdul Hadi son of Sarwar Jan lodged FIR No. 28 of 2018 at Levies Thana Mekhtar District Loralai under sections 337- AD and 34, P.P.C. with the averments
that on 29.10.2018 at 05:30 pm his uncle namely Rehmatullah on his motorcycle was on his way towards Killi Ghara Mekhtar at the distance of one kilometre, accused persons namely Umar Khan, Jafar and Hashim Khan duly armed were standing on the road, stopped his uncle, accused Umar Khan gave hi m a blow on his head by means of danda due to which he
fell down and then the accused Umar Khan hit him by means of stones due to which, he sustained severe injuries. Hence, a crime report.
3. After completion of the usual investigation, the challan of the case was submitted
before the trial Court. The prosecution to substantiate its case, produced PW -1 Abdul Hadi,
PW-2 Noorullah, PW -3 Rahim Khan and PW -4 Dr. Muhibullah. During proceedings, when
the case was fixed for further prosecution evidence, learne d counsel for the respondents filed
an application under section 249- A, Cr.P.C. for acquittal of the respondents. After hearing
arguments of learned counsel for the parties, the application under section 249- A, Cr.P.C.
was accepted and the accused were acq uitted of the charge on 18.10.2019, whereafter the
instant appeal has been filed.
4. We have heard learned counsel for the appellant and have perused the available
record.
5. We have carefully scanned the material available on record. This appeal has been
filed under section 417, Cr.P.C., the limitation of filing appeal is thirty (30) days from the
date of impugned order/judgment. In the instant case, the impugned order was passed on 18.10.2019, and the appeal was filed before this Court on 16.12.2019 after a delay of more
than fifty -eight (58) days. Learned counsel for the appellant has also filed an application
under section 5 of the Limitation Act, 1908 (hereinafter "the Act") for condonation of delay
but in the instant application learned counsel for the appellant did not give any reason for the
filing of the appeal with such delay. However learned counsel for the appellant took the
ground that "according to the language of subsection (3) of section 417, Cr.P.C., learned counsel for the appellant intended that the limitation
for filing the instant appeal is 60 days instead of 30 days and therefore application for
condonation under the above provision could not be filed with the main appeal at the initial time. Hence this application."
6. It is worthwhile to mention here that the order passed by the trial Court for acquittal
of the respondents in FIR No. 28/2018, after submission of the challan by the police. According to section 417(2- A), Cr.P.C., if a person aggrieved by order of acquittal passed by
any c ourt other than a High Court may, within thirty days, file an appeal against such order.
It is also worthwhile to mention here that an order of acquittal is passed in any case instituted upon complaint and the High Court after granting special leave to app eal from an order of
acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order. It is stated earlier that the accused were acquitted of the charge from the trial Court in FIR No. 28/2018 and the appeal file d against the acquittal of the respondents by the
appellant under section 417, Cr.P.C. comes within the definition of section 417(2- A), Cr.P.C.
The limitation for filing such appeal is thirty days from the date of order/ judgment.
7. In the case in hand, no plausible explanation was furnished through the application
filed under section 5 of the Act for such inordinate delay. It is a well -settled principle of law
that delay of each day has to be satisfactorily explained, as after expiry of limitation :period a
vested right is created in favour of the other party which could not be easily brushed aside as the law always help the vigilant and not the indolent. It has been maintained by the Hon'ble Supreme Court of Pakistan in case of Lt. Col. Nasir Malik v. Additional District Judge Lahore , reported as 2016 SCMR 1821, that each day of delay had to be explained in an
application seeking condonation of delay and that in the absence of such an explanation the said application was liable to be dismissed.
8. The inst ant appeal is also not maintainable in view of section 417(2- A), Cr.P.C.
because the appellant does not qualify the test of an aggrieved person as he did not receive any injury in the alleged incident as contemplated in the section ibid.
9. Before proceedi ng any further, it would be advantageous to reproduce Section 417(2-
A), Cr.P.C. hereunder: --
"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/appellant Abdul Hadi 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 uncle namely Rehmatullah
allegedly received injuries, which shows that the victim is not a minor; rather he is having sense and is 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 proposition, following were observed:
"In order to further elaborate this proposition reference to the definit ions 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 provide d 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 referen ce 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 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 pat ernal 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 view of the judgment supra, we are of the considered " view that the compla inant,
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, namely Rehmatullah being the aggrieved person is neither insane nor m inor, did not come forward to
challenge the judgment impugned. Under such circumstances, the appeal filed by the complainant is incompetent.
12. In view of the above discussion, the appeal is barred by time and also not
maintainable is accordingly dismissed in limine.
JK/213/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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