PLJ 2022 Cr.C. (Note) 33
Criminal jurisprudence--
----Burden of proof--Principle--It is settled principle of criminal jurisprudence that burden of proof lies upon prosecution and it has to prove charge beyond reasonable doubt. [Para 3] A
Presumption of innocence--
----Principle--It is also settled principle of law that accused after acquittal from criminal charge accused enjoys double presumption of innocence i.e. first, before trial and case and second after his acquittal--Thus, Courts while dealing with an acquittal appeal are bound to examine whether Court(s) below has ignored any evidence on record or had discarded evidence for reasons not recognized by law. [Para 3] B
2004 SCMR 249.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 417(2A)--Pakistan Penal Code, (XLV of 1860), Ss. 324, 504 &
506--Appeal against acquittal--A person aggrieved--Presumption of innocence--Burden of proof--It was a case of free fight between parties in form of melee wherein complainant/appellant, PW-2
PW-7 and PW-8 also received fire-arm injuries--It would be rather paradoxical to infer that injuries on person of each of participants could be determined or ascertained--It is extremely doubtful to believe complainant’s version against accused/ respondents and at least he was entitled to benefit of doubt--Accused/respondent has earned acquittal in his favour, hence he enjoys double presumption of innocence and Courts while examining case of such accused must be very careful and conscious in interfering with acquittal order and normally shall not set aside same merely on reason that some other view was also possible--Inference, however could be made under Section 417, Cr.P.C. if it was proved that Court whose judgment was under scrutiny has misread such evidence--At very outset a query was posed to appellant/ complainant, whether he qualifies test of an aggrieved person and as to how this appeal is competent as, instant appeal has been filed by complainant/ appellant, who has not received any injury in incident as provided under Section 417(2-A), Cr.P.C--In reply, appellant/complainant stated that he is competent to file instant appeal because he is complainant of case and he himself had lodged FIR--He further added that he is brother of injured namely Abbas--Complainant, who is not an injured, cannot file instant appeal--It is injured alone, who is competent to file appeal being an aggrieved person--In instant case, injured persons being aggrieved are neither insane nor minors, did not come forward to challenge judgment impugned--Under such circumstances, appeal filed by complainant is incompetent. [Para 6, 7, 8, 10 & 11] C, D, E & H
PLD 2003 SC 644.
"A person aggrieved"--
----Under Section 417(2A), Cr.P.C. victim being “a person aggrieved” would have a right to file appeal as far as informer and anyone else even being heir of victim would not be competent to file appeal in cases of hurt. [Para 10] F
1999 PCr.LJ 1507
Criminal Procedure Code, 1898 (V of 1898)--
----S. 417(2-A)--Appeal against acquittal--Appeal under Section 417(2-A), Cr.P.C. in a hurt case defined by the, P.P.C. and tried by 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 hurt case then appeal would be competent by his legal heirs.
[Para 10] G
Mr. Behlol Khan Kasi, Advocate in person for Appellant.
Mr. Azmatullah Khan Kasi, Advocate in person.
Mr. Ameer Hamza Mengal, DPG for State.
Date on Hearing: 19.6.2019.
PLJ 2022 Cr.C. (Note) 33
[Balochistan High Court, Quetta]
Present: Jamal Khan Mandokhail and Rozi Khan Barrech, JJ.
BAHLOL KHAN--Appellant
versus
AZMATULLAH and another--Respondents
Crl. Acq. A. No. 82 of 2016, decided on 17.3.2019.
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 brother 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 to 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 same 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 framing 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 trial 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 enjoys 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 discarded 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/respondent. 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 consists 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 witnesses 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 presumed 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 medical 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 accused/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 the instant case) and Asfand Yar (PW-8 in the instant case) received fire-arm 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 Abbas Sadiq, PW-7 and PW-8 also received fire-arm 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 the 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 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 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(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 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, 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 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.
(A.A.K.) Appeal dismissed
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