2014 P Cr (PLP)

MUHAMMAD KAMRAN KHAN MULAKHAIL, J.

This appeal filed by Nazeer Ahmed son of Muhammad Umar, brother of injured Mst. Khalida Bibi under section 417, Criminal Procedure Code, 1898 ("Cr.P.C") to challenge the judgment dated 25-10-2013 passed by the Judicial Magistrate-III, Quetta, whereby respondent has been acquitted of the charge under sections 337-A(i) and 337-F(i) read with section 34 of Pakistan Penal Code ("P.P.C.").

2. Precisely stating the facts giving rise to instant appeal are that on 11th February, 2011 an F.I.R. No. 198 of 2012 was registered with Police Station, Brewery Quetta on written report of the appellant/complainant. It is alleged that he was on his official duty when he received a mobile call from her sister Mst. Bibi Khalida, who told him that she after having been severely beaten and pronouncing a Talaq upon her, has been turned out from her matrimonial home by her husband Abid Ahmed. On such information the complainant rushed to his sister's house and took her to the hospital and thereafter, the aforesaid F.I.R. was lodged against the accused/respondent.

3. After investigation, the challan was submitted before the learned Judicial Magistrate-III, Quetta. After denial of charge the respondent decided to face the trial. The prosecution examined six witnesses and on conclusion of trial the learned trial Court while extending the benefit of doubt in favour of the accused/respondent, acquitted him of the charge vide impugned judgment.

4. A query was posed to the learned counsel for the appellant, firstly, whether the appellant qualifies the test of an aggrieved person and secondly, how the appeal is competent when filed beyond the prescribed time limit as provided under section 417(2-A), Cr.P.C. The learned counsel for the appellant stated that the appeal is delayed by four days, however, he referred to a Criminal Miscellaneous Application No.324 of 2013 filed under section 5 of the Limitation Act, 1908 for condonation of delay, which is also filed with the appeal. The learned counsel submitted that delay was occasioned due to miscalculation of dates and requested for condonation of the same. While in response to the question as to how the appellant qualified as an aggrieved person and to file an appeal against acquittal, he stated that since the victim of the case is a 'Pardah Nasheen' lady and the appellant being her real brother and the complainant of the case, fulfils the requirement of law as 'a person aggrieved'. Besides that, there is no impediment under the law, and the complainant can file an appeal against acquittal. The learned counsel argued that the appeal is filed correctly, and the delay is also satisfactorily explained, thus, this court can look into the veracity of the judgment impugned herein.

5. Before adverting to the merits of the case, we are in unison to consider the legal dimension of the case. Since the appeal against acquittal is governed by section 417(2-A), Cr.P.C. and the provision being relevant is reproduced 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." The provision quoted supra provides a special limitation of thirty days for filing of appeal and if an appeal against acquittal has not been filed within prescribed period of 30 days then the accused person acquires a valuable right of liberty, which cannot be withheld on the basis of ignorance of law, as it will amount to keep a lis alive. We are afraid that if this reason is accepted as plausible explanation for condonation of delay, then, not only this provision of the statute but the whole scheme of the law and the law of limitation will become redundant. Even otherwise, applicability of section 5 of the Limitation Act is subject to provision of section 29(2)(a)(b), which reads as under:-- "

29. Saving. (1)... ..... (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed thereto by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law: (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only insofar as , and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply." Thus, irrespective of the reasons mentioned in the application for condonation of delay for filing an appeal against acquittal is not to be condoned unless it can be shown that the person seeking condonation was actually kept out of knowledge of the acquittal, and/or prevented by some act of the respondent/accused from coming in time. This view is based on the principle enunciated by the Hon'ble apex Court in the case of Abdul Qayyum v. Ghulam Yasin PLD 1963 SC

151. In this case Hon'ble Supreme Court has refused to condone delay with the observation that in case of condoning the delay the respondent might be placed once again in peril of his liberty by a petition of this kind, and it is for this reason that the technical requirement of limitation assumes importance. It is not too much to ask that he who seeks to place his fallow-citizens' liberty in peril, by legal process, should satisfy all the technical requirement of the process. Delay would scarcely ever be condoned and certainly not only the grounds here advanced, namely, that the petitioner has miscalculated the period of limitation and therefore he was delayed for doing the needful within time. In this manner the special limitation prescribed by the statute itself is not subject to the application of section 5 of the Limitation Act due to bar contained in section 29(2)(a)(b) of the Limitation Act 1908 thus, it is held that section 5 of the Limitation Act is not applicable to the appeal under section 417(2-A), Cr.P.C. for the obvious reason that the special limitation of thirty days is provided in the statute itself. For rendering this view, we are supported by the reported judgment in Mst. Zeenat Sultana's case, in PLD 2004 SC 667 and another case titled Noor Hussain v. Muhammad Salim 1985 SCMR

893. However, if an aggrieved person brings an appeal against acquittal after the expiry of time limit, the courts are bound to look into the sustainability of verdict of acquittal and if, reasonable justification is available which manifests interference by this Court, when the verdict of the trial Court is suffering from inherent legal defects and being perverse, shocking and verdict rendered is not supported by the record or having been passed in utter violation of dictum laid down by the Hon'ble Apex Court then the court is bound to look into the matter at the touchstone of the administration of criminal justice for reappraisal of evidence.

6. Before considering the second contention of the learned counsel for the appellant, reference is made to the Black's Law Dictionary 4th-Edition at page 87 which defines the term aggrieved as under:-- "AGGRIEVED: having suffered loss or injury: damnified: injured. While aggrieved party is defined as:-- AGGRIEVED PARTY. one whose legal right is invaded by an act, complained of or whose pecuniary interest is directly affected by a decree or judgment. The word aggrieved refers to a substantial grievance, a denial of some personal or property right; or the imposition upon a party of a burden or obligation." 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 and following question was framed. "Whether in presence of injured/victim the complainant/informer could be termed as the person aggrieved within the provision of section 417(2-A), Cr.P.C." While dealing with the proposition the law was laid down "a person aggrieved" is defined with following observations:-- "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(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 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 judgment supra the contention of the learned counsel for the appellant does not carry any weight that the victim/injured witness being a 'Pardah Nasheen' lady cannot come to the court. Perusal of record reveals that the victim lady not only appeared before the trial Court but had also faced the cross-examination conducted by the defence. For filing appeal against acquittal the victim or the aggrieved person is required once only, to swear the affidavit appended with memo of the appeal before the Commissioner for taking Oath in the presentation branch of this court. Thereafter, he/she is not required to remain present on each and every date. Therefore, in view of the dictum laid down in the judgments referred hereinabove the complainant being informer alone does not qualify the test of an aggrieved person. In the instant case injured Mst. Bibi Khalida is admittedly neither a minor nor insane and she is also alive, therefore, appeal by her brother viz Nazeer Ahmed is incompetent. Thus, for the aforesaid reasons the appeal is dismissed in limine. HBT/24/Bal. Appeal dismissed.