P L D 2004 Supreme Court 875 (PLP)

IFTIKHAR MUHAMMAD CHAUDHARY, J.

This petition for leave to appeal has been filed against the judgment dated 16th April, 2001 passed by Lahore High Court, Lahore whereby appeal filed by respondents was allowed and conviction/sentence awarded to them by tile trial Court has been set aside.

2. Precisely stating the facts of the case are that an F.I.R. (Exh.PL) was lodged with Police, Station, Pail Kalan on the complaint of petitioner Muhammad Shafi with regard to an occurrence which took place on the same day i.e. 16th April. 1988 at about 6-15 p.m. According to F.I.R. Muhammad Shafi, Councilor, along with Sardar Zafar, Ali, Chairman Union Council, Mandi Usmanwala and another Zafar son of Sultan secured a permission for installation of petrol pump within the revenue limits of village Pail Kalan, the construction of which was being carried out at the site on 16th April, 1988 under the supervision of deceased Muhammad Shafi Complainant-petitioner, who is a close relative of deceased Muhammad Shafi was also present there. At about 6-15 p.m. all the four left this site, for village Pail Kalan, where Shafi deceased Councilor was ahead of them by some paces and they had covered a distance of 4-5 acres towards the village, when all of a sudden, accused Rashid Farooq, Zafar Ali, Rashid and Asghar armed with .12 bore guns, emerged at the spot from a nali and accused Rashid Farooq exhorted his co-accused to kill Shafi, Councilor, as he had got murdered his father Hamid Ahmad and also then opened the attack, so fired an effective shot hitting at the left thigh of Shafi, who ran for safety but was chased and so encircled by accused Zafar. Rashid and Asghar and then all the three fired an effective shot each hitting Shafi at his back, left thigh, left knee and under the 'Naaf, Shafi. thereafter ran up to a distance of one acre and so then fell down in the lands with his back towards the ground when Zafar accused fired another shot hitting at near the chest of Shafi, who succumbed to the injuries at the spot and the accused persons ran away with their weapons.

3. The motive behind the occurrence was that about 10-1/2 months before the present occurrence, Hamid Ahmad father of Rashid Farooq was murdered by one Liaquat son of Ibrahim along with others including Habib son of Siraj Din, a relative of Shafi deceased Councilor of this case who was siding Habib to the annoyance of the accused side and the same had resulted into a party faction between the two tribes of Arains and Kambows residents of village Pail Kalan and it is alleged that because of the same all the four accused persons, Rashid Rafooq Zafar Ali, Asghar and Abdur Rashid in furtherance of their common intention, intentionally committed murder of Muhammad Shafi by firing at him.

4. On completion of usual investigation, including the recoveries of incriminating articles, respondents along with co-accused were sent up to face trial. They also got recorded their statements under section 342, Cr.P.C. As they did not plead guilty to the charge therefore, prosecution led evidence to substantiate accusation against them. Learned Trial Court after having gone through the evidence produced by both the sides and taking into consideration the material available on record convicted the respondents along with co-accused under section 302/34, P.P.C. for the commission of offence and sentenced to undergo imprisonment for life with a fine of Rs.5,000 each and in default thereof to undergo one year S.I. each. Feeling dissatisfied from the judgment of the trial Court, respondents along with co-accused preferred appeal before the High Court which has been accepted only to tile extent of respondents and they were acquitted for the charge whereas appeal to the extent of co-accused (not before this Court) has been dismissed. Hence this petition has been filed by the complainant against acquittal of the respondents.

5. When petition came up for hearing, learned counsel was called upon to clarify as to whether in presence of WALI(s) of the deceased Muhammad Shafi son of Qaim Din, petition is competent on behalf of Muhammad Shafi son of Muhammad Jan, stated to be maternal nephew of the deceased,, who lodged F.I.R. No.119/88 dated 16th April, 1988 (Exh.PL) because we are, prima facie, of the opinion that law i.e. section 417(2-A) of Cr.P.C. concedes a right of appeal in case of acquittal to a person aggrieved i.e. heirs (Walis) of the deceased in a murder case and to a victim in hurt cases and in their presence no one else including the informer can exercise this right. Admittedly in instant case deceased: Muhammad Shafi son of Qaim Din is survived by such legal heirs i.e. WALIS who are entitled to claim Qisas. At this very juncture, it is noteworthy that under Islamic dispensation of justice in criminal cases. primarily WALI(s) is to be considered in the case of Qatl-e-Amad etc. to be a persons) interested in the prosecution of the case along with a right to compound the offence according to law. As far as strangers are concerned; including informer, they neither can claim Qisas nor can compound the office. Similarly in the cases of hurt, only injured being the victim is recognized for the purpose! of receiving Arsh, Daman or to compound the offence and any other interested person neither can compound the offence nor can claim Qisas or recover Arsh or Daman and nor he can be represented by the WALI at the time of execution of Qisas for hurt, etc. This discussion does not mean that the informer is excluded from the definition of a person aggrieved under section 417(2-A), Cr.P.C. but in the presence of WALI(s) or the victim himself in the case of murder or hurt respectively have right to invoke the jurisdiction of the Court in acquittal appeals however subject to the condition of non-availability of the WALI(s) in cases pertaining to the murder and hurt in case of injured person informer can institute such proceedings along with the person who primarily interested with the prosecution of the accused. According to Qur'anic injunction in Verse 33 of Suraah 'Bani Israel relevant para. therefrom is reproduced hereinbelow, a right to take Qisas has only been conferred a on WALI-- "You shall not kill anyone whom Allah has forbidden except for just cause under the law. If anyone is killed unjustly. We have granted the right of retribution to his heirs, but let him not carry leis vengeance too for in killing the culprit through taking the law in his own hands as he is supported by the law." Ibn-e-Kaseer in his book 'Tafseer-Ibn-e-Kaseer' (page 43) has explained the above verse in the following words:--

6. Learned counsel appearing for appellant while relying upon the judgment in the case of Zahid Ali v. Abdul Hameed and another 1996 PCr.LJ 586 contended that any person who feels himself an aggrieved from the acquittal order cats prefer appeal. A perusal of the judgment relied upon by the learned counsel has not advanced the case of petitioner because in the said judgment brother of the deceased filed appeal. Question before the learned High Court was whether the appeal filed against acquittal of an accused is maintainable as at the time of commission of the offence section 417(2-A) was not inserted in Cr.P.C.?' Learned Division Bench after taking into consideration the effect of statute operating retrospectively or prospectively held that as during the pendency of the trial of accused, section 417(2-A) was inserted in Cr.P.C. therefore it had conferred a substantive right on the brother of the deceased therefore, it can prefer appeal. But the difference of both the cases is that appellant Zahid Ali was the brother of the deceased but the proposition under discussion was not before the Court namely whether in presence of WALI(s) any other relative or informer can prefer acquittal appeal or otherwise.

7. It is pertinent to point out that Shariat Appellate Bench of this Court in the case of Federation of Pakistan through Secretary Ministry of Law and others v. Gul Hassan PLD 1989 SC 633 in the following terms recommended for amendment in the original section 302 P.P.C. for the pin pose to bringing, it in accordance with the Injunctions of Qur'an:-- In view of above recommendations ultimately section

302. P.P.C. has been amended along with other sections providing a right only to WALI(s) for the purpose of claiming Qisas or receiving Arsh. Diyat or to compound the offence. From the above recommendations it can safely be quoted that WALI(s) of deceased in case of murder and injured in case of hurt are the persons who shall be deemed to be primarily interested in the prosecution of the case. At this juncture reference to another judgment in the case of Mir Gul v. Abdul Karim 1999 PCr.LJ 1507 authored by one of us (Mr. Justice Iftikhar Muhammad Chaudhary) may not be out of context wherein a larger Bench of the High Court of Balochistan while examining the identical proposition opined that in the case of a hurt a victim being person aggrieved would have a right to file appeal and as far as informer and anyone else even being heirs of the victim are concerned they would not be competent to file appeal. Relevant para. therefrom is reproduced hereinbelow:-- "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 the 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 hips 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(0). P.P.C. We are inclined to hold that under section 417(2-A). Cr.P.C. the victim being person aggrieved' would have a right to file appeal as far as the informer and any one else even being the heir of victim would not be competent to file appeal in the cases of hurt."

8. Learned counsel appearing for petitioner also relied upon another judgment in the case of The State through Deputy Director (FIA) of Pakistan at Quetta v. Zahid Nadeem and others 1996 MLD 506 and contended that in the cases where an information has been collected and legal action has been taken by a person he can institute an acquittal appeal under section 417(2-A) Cr:P.C. As far as proposition of law being advanced by him is concerned there is no cavil with it but the facts and circumstances of the case are not applicable on the case in hand to resolve the controversy 'under consideration. It may be noted that in the judgment relied upon by the learned counsel a Deputy Director of F.I.A. Department at Quetta instituted an acquittal appeal therefore proposition under consideration was whether he falls within the definition of a person aggrieved. In that context the learned Division Bench of the High Court held that he falls in this category and appeal filed by him on behalf of F.I.A. was maintained.

9. Petitioner's counsel by making reference to the case of Sardar Muhammad v. Muhammad Israr 1995 SCMR 1356 contended that the complainant can file appeal against the judgment of acquittal. It may be noted that in this report Shariat Appellate Bench of this Court while examining the case pertaining to section 12 of the Zina (Enforcement of Hudood) Ordinance. 1979 gave a verdict that "in Challan cases with direction of the Provincial Government, except the Public prosecutor under section 417 of the Code, none else can file appeal from original or appellate order of acquittal passed by any Court other than the Federal Shariat Court" and on the same analogy it was further held that in a Zina case a complainant can file an appeal against the judgment of the Federal Shariat Court before the Supreme Court. First distinction in this reported judgment and the case in hand is that instant petition for leave to appeal has not arisen out of the judgment of the Federal Shariat Court and; secondly in the Zina (Enforcement of Hudood) Ordinance 1979, there is no question of claiming Qisas, Diyat or compounding the offence, therefore on facts and law the judgment being distinguishable is not attracted.

10. After having considered the proposition under discussion and keeping in view the Qur'anic injunction and substantive law on the subject relating to the filing of appeal against acquittal i.e. under section 417(2-A), Cr.P.C., we are inclined to hold that in a case pertaining to murder, if his WALI(s) arc alive and in case of hurt victim (himself), both falls within the definition of-person aggrieved" and they can challenge an acquittal order and in their presence no one else, including the informer or any other one who is not primarily interested in the prosecution of the case can legitimately prefer acquittal appeal. Thus for the above discussion, we are of the opinion that appeal filed by petitioner before the High Court was not competent, as such instant petition for leave to appeal is also not maintainable, therefore, same is dismissed. (Sd.) Iftikhar Muhammad Chaudhary, J RANA BHAGWANDASS. J.

I have appended my separate dissenting note. (Sd.) Rana Bhagwandas, J SARDAR MUHAMMAD RAZA KHAN, J.

My separate note appended. (Sd.) Sardar Muhammad Raza Khan, J ORDER OF THE COURT By majority of two to one leave to appeal is granted. RANA BHAGWANDAS. J.

I have had the privilege of going through the proposed judgment authored by my learned brother Iftikhar Muhammad Chaudhary J. with due deference. I have some reservations about the view taken in the proposed judgment on the question of maintainability of an appeal against acquittal of a convicted person in terms of section 417(2-A), Cr.P.C. No doubt this provision of law, as' inserted in the Code through Act XX of 1994, confers a right of appeal before the High Court against acquittal on a person aggrieved, the fact remains that such provisions would not be strictly applicable to the proceedings before Supreme Court.

12. As the facts leading to the instant petition have been succinctly narrated in para.2 of the proposed judgment, the same need not be reiterated. Undoubtedly, complainant petitioner Muhammad Shaffi, being present at the scene of occurrence and having witnessed the same, was naturally interested in lodging the report with police for the purpose of investigation and taking the culprits `to task. Indeed it was the petitioner, who set the law into motion. While the respondents were convicted on finding of guilt and sentenced for commission of murder, in appeal their conviction and sentence was set aside and they were acquitted of the charge by the High Court, leading to the institution of present petition for leave to appeal.

13. Strictly speaking, the provisions of Code of Criminal Procedure 1898 would not apply to the proceedings before this Court and proceedings of criminal nature before this Court are not governed by the Code. For reference sake see Siraj Din v. Kala PLD 1964 SC 26 and Rashid Ahmad v. State PLD 1969. SC

362. It is, therefore, hard to say that an appeal under Article 185(3) of the Constitution before this Court would be subject to the limitations placed, by section 417, Cr.P.C. for filing an appeal against acquittal before the High Court. Supreme Court has never recognized such limitations as binding upon it and has consistently entertained appeals under Article 185(3) of the Constitution at the instance of a person not otherwise competent to file an appeal under section 417, Cr.P.C. Such appeals were entertained by this Court at the instance of private parties even when under section 417 Cr.P.C. only the State had the right and privilege to file an appeal against acquittal in the High Court of course, this right was extended by way of grant of special leave to private complainant and it was only by Act XX of 1994 that sub-section (2-A) was added to section 417, Cr.P.C. providing a right of appeal to private' person. In case of Siraj Din v. Kala (supra), leave to appeal was granted on the application of one Ghulam Qadir a relation of slain men though he was not party to proceedings either as complainant or as a witness The paramount consideration for the exercise of jurisdiction, in terms of Article 185(3) of the Constitution, has been to foster the dictates of justice and not to look at the person invoking the jurisdiction of this Court. In my view, in a murder, it would neither be just nor proper to restrict the meaning and scope of the expression "person aggrieved" only to the legal heirs" of the deceased. It would be difficult to hold that brothers and sisters of a slain person would not be the "persons aggrieved" simple because they do not fall within the category of his legal heirs. Similarly it can hardly be held that parents of a deceased would not be the "persons aggrieved" on the murder of their child simply because they do not happen to be his legal heirs on' account of difference of religion. The term "person aggrieved" cannot by any stretch of reasoning, be confined to "persons competent to compound" as in that case there will be no "aggrieved person" in non-cognizable offences. Ordinarily in criminal cases, any citizen can bring the machinery of law into motion and initiate proceedings but every person is not competent to terminate them as crime is regarded as "wrong against the whole society". With the exception of offences recognized by law as compoundable one, proceedings cannot bet terminated at the behest of a private person. Similarly, it would not be necessary that criminal proceedings may be initiated or continued only at the instance of person competent to terminate them. In the cases of Qatl-i -Amd, waiver or compounding of right of Qisas will not necessarily bring an end to the proceedings, which may be continued at the discretion of the Court for the purpose of imposing the punishment of Ta'zir within the contemplation of section 311 Pakistan Penal Code.

14. Although no authority may be needed for the above said proposition yet reference may be had to Mammooty v. Food Inspector AIR 1987 Kerala

270. A Full Bench of the High Court of Kerala commenting upon the right of an individual to invoke the appellate jurisdiction of the Supreme Court under Article 136(1) of the Constitution of India 1950, which is almost identical to Article 185(3) of our Constitution, observed as under:-- "It is plenary power exercisable outside the purview of ordinary law meant to meet the pressures of demand of justice. It neither confers on anyone the 'right to invoke the jurisdiction of the Supreme Court nor inhibits anyone invoking the jurisdiction of the Supreme Court. Power is vested in the Supreme Court but right to invoke the Court's jurisdiction is vested in no one." In P.S.R. Sadlianantham v. Arunachalam AIR 1980 SC 856 accused acquitted of murder charge by Madras High Court in exercise of its appellate jurisdiction was convicted by the Indian Supreme Court in exercise of its appellate jurisdiction under Article 136(1) of the Constitution at the instance of brother of the deceased, who was not a party to the proceedings. Repelling objection to the competence of a private party to invoke the jurisdiction of the Supreme Court under Article 136(1), it was further observed that the Article, which conferred on the Supreme Court "the widest conceivable range of judicial power making it perhaps among the most powerful Courts in the world". Attempts to ensure that the foundations of, the Indian Republic which have been laid on the bedrock of justice, are not undermined by injustice anywhere in the land and that crime is "an act deemed by law to be harmful to society in general even though its immediate victim is an individual' and "access to justice to every bona fide seeker is a democratic dimension of the remedial jurisprudence even as public interest litigation class action pro bono proceedings are" further that "we cannot dwell in the house of processual obsolescence when our constitution highlights social justice as a goal". The apprehension of blackmailing adversaries through frivolous litigation by "the bogey of busybodies" was held to be chimerical.

15. Under Article 185 of the Constitution, jurisdiction of the Supreme Court which is final Court of the country and ultimate hope of its people to seek justice, is very wide. The Constitution has not placed any limitation on it and this has been done purposely to ensure that in any event no injustice is done to a party. Ideal must always be a system that gives to even person what is his. This Court has never made a fetish of technicalities and indeed has always avoided all sorts of technicalities for doing complete justice. In Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382) it was forcefully observed that all technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. Any system which by giving effect to the form and not to the substance defeats the substantive rights is defective to that extent. In Pakistan Engineering Council v. I.H. Osmani (1991 SCMR 654) it was held that, in the matter of entertainment of petitions and grant of relief in equitable and discretionary jurisdiction, it is necessary not to be guided wholly by the technicalities of the law but also by substance of the controversy when the proceedings did not suffer from mala fides of fact. This view has been reiterated in a large number of cases for instance. State v. Muhammad Nawaz (PLD 1966 SC 481). Manager Jammu and Kashmir State Property v. Khuda Yar (PLD 1975 SC 678). Khushdil v. State (PLD 1981 SC 582), Safia Bibi v. Aisha Bibi (1982 SCMR -19.1), United Bank Limited v. Yousaf Haji Noor Muhammad Dhadhi (1988 SCMR 82), Sultan Mir v. Umar Khan (1992 SCMR 1206). Noorul Amin v. Muhammad Hashim (1992 SCMR 1744). Allah Ditta y. Barkat Ali (1992 SCMR 1970 Province of the Punjab v. S. Muhammad Zafar Bukhari (PLD 1997 SC 351). Gatron (Industries) Ltd. v. Government of Pakistan (1999 SCMR 1072) and Barkat Ali v. Muhammad Ehsan (2000 SCMR 556).

16. There may be no cavil with the proposition that only the Walis or the legal heir's of a deceased would be entitled to claim Qisas and receive compensation or to waive the right of Qisas in the event of composition of an offence before or after the conviction but such proposition cannot possibly be overstretched while non-suiting an appellant, who bona fide and in good faith opts to challenge the acquittal of an accused. It is difficult to subscribe to the view that since maternal nephew of the deceased would not fall within the purview of a legal heir or a wali, he would not be entitled to maintain the proceedings challenging the acquittal of a person earlier convicted. Position would however be altogether different, if upon hearing the appeal the Court forms an opinion that the respondents were arbitrarily acquitted or that their acquittal being unjustified be converted into conviction and a request for permission to compound the offence with the consent of the complainant-non-wali is brought before the Court. So far as the maintainability of an action for challenging the wrongful acquittal of a person is concerned, I am clearly of the view that such an action cannot be struck down simply because such person would not be iii a position to waive the right of Qisas or receive the compensation in the event of composition of an offence. There may be no second opinion with regard to the view taken in Quetta case reported as Mir Gul v. Abdul Karim (1999 PCr.LJ 1507) the fact remains that in the instant petition. There was no appeal against acquittal before the High Court by a non-aggrieved person. It was rather an appeal against conviction which ended in acquittal on reappraisal of evidence. I may refer to the Division Bench of Balochistan High Court judgments reported is Zahid Ali v. Abdul Hameed (1996 PCr.LJ 586) and State v. Zahid Nadeem (1996 MLD 506) where appeals against order of acquittal were entertained at the behest of brother of the deceased and State respectively without being influenced by the technicalities of law. Even otherwise, no other legal heir of the deceased has come forward to disown the act of filing of petition against acquittal by the petitioner or to say that the legal Heirs of tile deceased have compounded the office with the acquitted accused.

17. In view of the conflicting fin tugs of the Courts below and tile grounds taken in the petition and raised at the Bar, I am firmly of the view that it would only be just fair and proper to grant leave to appeal to examine whether the appraisal of evidence done by the High Court is in consonance with the principles of law for appreciation of evidence in criminal cases. It would neither be just nor proper to refuse leave merely because the petitioner does not fall within the purview of legal heirs, particularly, when besides being a nephew of the deceased, he is eye witness to the occurrence and first informant in the case and, thus, undoubtedly an 'aggrieved person'. Order accordingly.

18. SARDAR MUHAMMAD RAZA KHAN, J.

I have the privilege of going through the learned discourse rendered by my honourable brothers Mr. Justice Iftikhar Muhammad Chaudhary and Mr. Justice Rana Bhagwandas. I would take ail opportunity of giving my views about what I happen to comprehend regarding the right of appeal against acquittal.

19. In order to appreciate the point in question we are, apparently confronted with section 417 of the Cr.P.C. which for ready reference is reproduced:-- "

417. Appeal in case of acquittal.

(1) Subject to the provision of subsection (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." (3) No application under subsection (2) for the grant of 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 that order. (4) If in any case, the application under subsection (2) for the grant of special leave to appeal from an order of acquittal is refused no appeal from that order of acquittal shall be under subsection (1)."

20. The perusal of subsection (I) would indicate that in case of acquittal, the right of appeal is given, to the Provincial Government which may direct the Public Prosecutor to present an appeal to the High Court. If an acquittal is recorded in private complaint under section 200, Cr.P.C. the right of appeal under subsection (2) is granted to the complainant provided the High Court grants special leave to appeal. Subsection (2-A) was inserted in section 417 by Act XIX of 1994 which confers a right of appeal upon a person aggrieved by the order of acquittal passed by any Court other than a High Court. The very language of section

417. Cr.P.C. would clearly indicate that it pertains only to those appeals which are preferable before tile High Court Section 417(2-A). Cr.P.C. furnishes no answer as to where the appeal would lie if acquittal is recorded by the High Court. Apparently it seems that the matter of an appeal before the Supreme Court is not dealt with by section 417 Cr.P.C. but by Article 185 of the Constitution.

21. Anyhow even if the analogy is derived from section 417 Cr.P.C. which cannot be at the face of it yet amendment introduced by Act XIX of 1994 i.e. subsection (2-A) only suggests of a person aggrieved' by the order of acquittal. It does not in any manner specifically refer to the 'wali' or that 'a person aggrieved' under all circumstances be a `wali' of the deceased despite the fact that the legislature in the year 1994 whole pissing Act XIX of 1994 and while inserting subsection (2-A). was fully cognizant of tile amendments introduced in the Pakistan Penal Code by way of substituting sections 299 to through Criminal Law (Second Amendment Ordinance 1994) the enforcement whereof remained continued tip to the time of insertion of subsection (2-A) in section 417 of the Cr.P.C. Had the legislature intended to confine the right of appeal to a 'wali' alone it could have mentioned the word 'wali' in the newly added subsection (2-A) instead of using the words 'a person aggrieved'. I am of the view that the words 'a person aggrieved are of wider import than the term 'wali'. I therefore hold that a person who can genuinely prove his grievance by the order of acquittal can file an appeal. In the instant case the complainant Muhammad Shafi is the real nephew of the deceased who happens not only to be the complainant of the F.I.R. but also an eye witness. Though admittedly not a 'wali' he fulfils the requirements of 'a person aggrieved in the circumstances.

22. Now we revert to Article 185 of the Constitution the relevant portion whereof is reproduced below:-- "185. (1) ........................................ (2) .......................................... (a) .......................................... (b) .......................................... (c) .......................................... (d) .......................................... (e) .......................................... (f) .......................................... (3) An appeal to the Supreme Court from a .judgment decree order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal."

23. The relevant sub-Article (3) of Article 185 of the Constitutions provides for an appeal before the Supreme Court forma any judgment decree order or sentence passed by a High Court, subject of course to the grant of leave to appeal by the Supreme Court. It does not lay down as to who in particular has the right to appeal. To my mind the Article does not restrict the entity of one who goes in appeal provided the Supreme Court is satisfied that he in the circumstances of the case is an aggrieved person and has it locus stands. I believe that while granting leave to appeal the Supreme Court has the authority to look into the matter and to observe as to whether the appellant before it is really a person who should be allowed to agitate tile matter before tile Supreme Court and is lie the right person at whose instance the acquitted accused be called upon to show as to why such acquittal be not set aside. I believe that this situation might vary front case to case. So far its the instant case is concerned. I am of the vices that tile petitioner being the real nephew of the deceased and also being a complainant and an eve-wittiness has a right to file alt appeal even if he be not a 'wali' in the strict sense of the term.

24. It may be reiterated that we are not confronted here with a situation that requires the applicability of sections 309 to 313 of the P.P.C. Those sections and a few others contemplate of situations where tile presence of a 'wali' is of prime importance. I am further of the view that the presence of a 'wali' should be strictly asked for only at the occasions' where it is unavoidable under the law of 'Shariah' as made applicable through the amendments mentioned earlier in the P.P.C. and also in the Cr.P.C.

25. I am not oblivious to the 'Shariah' aspect of the case. It was in furtherance of the verdict of this Court in Federation of Pakistan v. Gul Hassan (PLD 1989 SC 633) that the text law was amended through the substitution of sections 299 to 338-H etc. The Qur'anic injunction in verse 33 of Suraah 'Bani Israel' reproduced once again; "You shall not kill anyone whom Allah has forbidden except for just cause under the law. If anyone is killed unjusth. We have granted the right of retribution to his heirs but let him not carry his vengeance too far in killing; the culprit through taking the law in his own hands as he is support by the law.' is clearly expressive of the fact that a right of retribution is bestowed by Almighty Allah upon the legal heirs. Whereas the right of appeal can by no stretch of imagination be considered analogous to the right of it legal heir or 'wali' quit the demand of 'Qisas' the demand of 'Diyat' on complete waiver of both. According to Ibn-e-Kaseer a 'Wali' can exercise one of the three options mentioned above. I have already mentioned that the right of it 'Wali' given through Quranic injunction quit 'Qisas'. 'Diyat' or waiver of bolls cannot be shared be same and the same is not even disputed before us in the present appeal.

26. Quite distinct from the Qur'anic rights of 'a 'wali' is the right oft' appeal under section 417 of the Cr.P.C. or Article 185 of the Constitution which is it matter of grant by the legislature pertaining to the procedural, law of the land. The present petitioner in my view can neither claim 'Qisas' nor 'Diyat' nor can waive both of them in the presence of the 'walis' of the deceased but in the circumstances of the present case and the peculiar position that lie holds. He has a right to appeal being the real, nephew the complainant of F.I.R. and an eye-witness of the case. Holding this view of the matter. I find myself in agreement with the views recorded by my Honourable brother Rana Baghwandas J. and further hold that it is a fit case where leave should be granted. H.B.T./M-137/SC Order accordingly.