P L D 2011 Supreme Court (AJ&K) 1 (PLP)

KHAWAJA SHAHAD AHMED, C.J.

Arguments in this case were heard by the full bench including Mr. Justice Muhammad Azam Khan. Subsequently the learned Judge expressed his inability to sit in the bench, therefore, this full bench proceeds to decide this case after re-hearing arguments of some of the learned counsel afresh. In the above titled appeal's, a common question of law, that after coming into force the "Qisas" and "Diyyat" Act (Act XII of 1995), whether the father of an injured person can validly file appeal against the judgment of the District Criminal Court or the Shariat Court or not and who can file an appeal in a murder case against an order of acquittal or for enhancement of sentence and who falls in the definition of aggrieved persons, is involved. The counsel for the parties and some of the senior counsel were heard at length on the legal propositions.

2. Raja Fazal Hussain Rabbani, Advocate-General, argued that in case of murder, the legal heirs of the deceased can competently file appeal against the order of acquittal or for enhancement of sentence. In absence of the legal heirs of the deceased, an aggrieved person can file an appeal and in absence of any aggrieved person, the State has a right to file an appeal. If the persons falling in the aforementioned categories are not available, then the complainant who is a witness can file an appeal.

3. Ch. Muhammad Taj, the Senior Counsel, argued that any person aggrieved by the judgment of the District Criminal Court or the Shariat Court in a criminal case can competently file appeal against acquittal or conviction, as the case may be. For the purpose the Court has to determine who is an aggrieved person in the eye of law. In cases of hurt, the victim himself can file appeal. He can compromise and receive `Diyyat' amount for the injury. Apart from the victim, no one else can file an appeal against the accused in case of acquittal or for enhancement of the sentence. He argued that in murder cases, the legal heirs of the deceased are directly aggrieved persons. Under law they are competent to file an appeal in both the eventualities. If there are no legal heirs, then the State is liable to file the appeal. He referred to the judgment of this Court delivered in the case titled Abdul Khaliq Khan v. Muhammad Afsar Khan and 4 others 1995 PCr.LJ 391 and Abdul Karim v. Tahir ur-Rehman (1990 PSC 735).

4. Ch. Muhammad Riaz Alam, while representing the complainant in case titled Muhammad Younis v. Daood and Karam Ellahi v. Muhammad Malik, argued that any person aggrieved from the judgment of the District Criminal Court or the Shariat Court can file an appeal in 'Qisas' and Diyyar cases. The complainant can competently file an appeal. An eye-witness can also file'an appeal from the acquittal order or enhancement of the sentence.

5. Ch. Muhammad Sharif Tariq argued that in case of hurt if a victim was minor at the time of occurrence and subsequently by passage of time becomes major, only he can file an appeal and complainant, whether his father or any near relative cannot file an appeal under section 337-0, A.P.C. An appeal by the complainant/father of the victim who has become major is not competent. He referred to section 25 of the Azad Jammu and Kashmir (Penal) Laws Enforcement Act, 1974 and subsection (2) section 417, Cr.P.C., and argued that appeal filed by Muhammad Siddique merits dismissal. He referred to cases titled Muhammad Farooq v. Muhammad Afzal and another [2000 PCr.LJ 1680], Mir Gul v. Abdul Karim and 5 others [1999 PCr.LJ 1507] and Abdul Qayyum v. Aziz-ur-Rehman Shah and another [2004 PCr.LJ 422]. He further argued that if the legal heirs of the victim are not available, then the State is the authority which can file an appeal against the accused.

6. Ch. Muhammad Aziz, Advocate, while representing the accused in case Muhammad Siddique v. Muhammad Mansha argued that appeal before the Supreme Court is not governed under section 417, Cr.P.C. A complainant or any other person may competently file an appeal before the Shariat Court or the Supreme Court as well. He referred to cases titled Muhammad Shall v. Muhammad Asghar and others PLD 2004 SC 875, Abdul Khaliq Khan v. Muhammad Afsar Khan and 4 others 1995 PCr.LJ 391 Haji Muhammad Sharif Khan and another v. Zahir Hussain Shah [1999 PCr.LJ 903], Talib Hussain and 5 others v. Daweed and 5 others [2003 YLR 2891] and Habib-ur-Rehman and 9 others v. Muhammad Aziz and 2 others [1997 SCR 253].

7. Ch. Jahandad Khan, counsel for the complainant in the case titled Muhammad Sabir v. Mumtaz Hussain and Mumtaz Hussain v. The State argued that the complainant in the case is cousin of the victim and eye-witness too. Under law he can competently file an appeal. He referred to the cases titled Abrar Hussain Shah and another v. The State and another [PLD 1987 SC (AJ&K) 65] and Muhammad Farooq v. Muhammad Afzal and another [2000 PCr.LJ 1680].

8. Ch. Muhammad Anwar, counsel for the accused in the case titled Zafar Iqbal v. The State and another argued that the right to file an appeal vests in the legal heirs of a deceased and if the complainant is not one of the legal heirs, he cannot file an appeal against an order of acquittal because he does not fall in the category of an aggrieved person. A person, if aggrieved by the order, can file an appeal. He contended that under law, a person falls in the category of an aggrieved person if a right has accrued to him under any law. In murder cases only the legal heirs can competently file an appeal.

9. Mr. Khalid Yousaf, the counsel for the complainant in the case titled Zafar Iqbal v. The State and another argued that under subsection (2) of section 417, Cr.P.C., any aggrieved person may file an appeal in this Court. He referred to cases titled Abdul Jalil v. Zulfiqar Ali and another [1998 PCr.LJ 697], Sardar Muhammad Khan v. Muhammad Afsar Khan [1991 PCr.LJ 508], Ms. Rachel Joseph v. Aftabuddin Qureshi and 2 others [2000 PCr.LJ 1715] and Moulvi Muhammad Mushtaq v. The State [1998 PCr.LJ 679].

10. Mr. Muhammad Siddique Chaudhry, counsel for the appellant in the case titled Muhammad Boota v. Muhammad Ishaque, argued that the complainant in this case is real maternal uncle as well as father-in-law of the victim. He is directly aggrieved from the order passed by the lower Court. He maintained that any close relative who is interested with the deceased or the victim can competently file an appeal under section 25 of the Azad Jammu and Kashmir Islamic (Penal) Laws Enforcement Act, 1974 (hereinafter shall be called I.P.L.) and section 417(2), Cr.P.C. He also argued that the complainant also falls in the category of an aggrieved person if he has reported the matter to the Police that a crime has been committed and ultimately the Court acquits an accused, the complainant as of right can file an appeal. He assigned broader meanings to the definition of 'aggrieved person' and contended that the Government represents the State as well as pubic. Any citizen of the State may be termed as an aggrieved person and if a crime is committed and the accused is ultimately acquitted, any one from general public can file an appeal. He argued that in case of habeas corpus any person is competent to file a writ for release or production of a person who is detained in illegal custody. He further argued that the I.P.L. is a special law while Code of Criminal Procedure is general and it is settled principle of law that a special law usually ousts .the application of a general law. No restriction in section 25 of the I.P.L. is placed for filing of appeal by any citizen. He referred to the cases titled Muhammad Shafi v. Muhammad Asghar and others [PLD 2004 SC 875] and Sardar Muhammad Khan v. Muhammad Afsar Khan [1991 PCr.LJ 508].

11. Sardar Muhammad Azam Khan, Advocate representing the accused in case titled Muhammad Boota v. Muhammad Ishaque argued that in murder cases only legal heirs of a deceased person have the right to file an appeal because only the legal heirs are aggrieved limn his death while in case of hurt the victim is himself 'wall' of his own person, can file an appeal in case of order of acquittal. He referred to section 305, A.P.C. for definition of `wall' and section 310, A.P.C., with regard to an aggrieved person. A stranger has no right to file an appeal. The persons falling in blood relations also fall in the category of an aggrieve person. They can competently file an appeal.

12. Mr. Khalid Rasheed Chaudhry, counsel for the complainant in the cases titled Muhammad Malik v. Karam Ellahi and Karam Ellahi v. Muhammad Malik argued that no hard and fast rule can be laid down with regard to the definition of an aggrieved person in all the criminal cases. He argued that there are different categories of complainants. It varies from case to case whether the complainant is an aggrieved person or not and he can file an appeal or not. In case of murder, the legal heirs of the deceased person may file an appeal and in their absence the State is responsible on behalf of the deceased. He contended that in the case of hurt, the victim himself can file an appeal and no one else. In the murder cases, the legal heirs of the deceased have the right to file an appeal. An injured eye-witness can, competently file an appeal. Other eye-witnesses who have seen the occurrence also have the right to file an appeal and if there are no legal heirs of the deceased person, then the State has the right to file appeal. He referred to cases titled Muhammad Tufail v. Faqir Muhammad and 3 others [2009 PCr.LJ 127] and Mir Gul v. Abdul Karim and 5 others [1999 PCr.LJ 1507].

13. The question for determination is that after coming into force the Qisas and Diyyat Act (Act XII of 1995), whether the complainant and father of the injured person can validly file appeal against the judgment of the Shariat Court or not and who can be termed as aggrieved. For resolving the controversy, we have to trace the history and background of the relevant law.

14. Before the promulgation of the Azad Jammu and Kashmir Islamic (Penal) Laws Enforcement Act, 1974 (Act XI of 1974), the appeals were governed by the provisions of Code of Criminal Procedure, 1898. The Tehsil and District Criminal Courts are creation of the I.P.L., 1974, for the trial of offences of murder and hurt. The procedure and right of appeal in cases falling in the ambit of this Act was provided in section 25 of the I.P.L. For convenience, section 25 is reproduced as under:-- Initially there were District Criminal Courts and subsequently Tehsil Criminal Courts were also created. Section 5 of the Azad Jammu and Kashmir Islamic (Penal) Laws Enforcement, 1974 was amended. The amended provisions is as under:-- Initially the High Court was Court of appeal but after the creation of the Azad Jammu and Kashmir Shariat Court, the Powers to hear appeals were transferred to it by an amendment in section 25 of the Islamic (Penal) Laws Enforcement Act, 1974. It is necessary to reproduce amended section 25 which is as under: In 1995 Azad Penal Code and Code of Criminal Procedure were amended vide Act XII of 1995. Amendment was also brought in the Islamic (Penal) Laws Enforcement Act, 1974 and sections 5 to 15 were deleted and these offences were incorporated in the Azad Penal Code vide Act XII of 1995. The offences falling under sections 16 to 19 had already been deleted in 1979. Vide Cr.P.C. amendment Act of 1995 (Act XIII of 1995), section 6-A was incorporated whereby the Courts as provided in the I.P.L., i.e., (i) District Criminal Court's, (ii) Additional District Criminal Courts, (iii) Tehsil Criminal Courts and (iv) Additional Tehsil Criminal Courts were created in addition to the Courts provided in section 6, Cr.P.C.

15. A perusal of amended provisions of I.P.L., A.P.C. and Cr.P.C., amended vide Acts XII, XIII and XIV of 1995, reveals that these amendments do not affect the provisions of section 25 of the I.P.L. Section 25 was not amended and it remains intact. We have to analyse the proposition in the light of the said provision. We have noted that through an amendment brought in the Cr.P.C. in sections 417(2)(a), right to file an appeal from the acquittal order vests in any aggrieved person. Since in cases relating to Hadood, Qisas and Tazeer, the appeals are filed under section 25 of the I.P.L., therefore, no useful purpose will be served by dilating upon section 417(2)(a), Cr.P.C. This Court in earlier cases has already declared that the appeals from the orders of Tehsil Criminal Court, District Criminal Court and the Shariat Court are governed by the provisions of I.P.L., 1974.

16. Who can file an appeal from an order passed by the Tehsil Criminal Court or the District Criminal Court came under consideration of this Court in the case titled Abdul Karim v. Tahir-ur-Rehman [1990 P.S.C. 735]. After detailed analysis, the Court resolved that the plaintiff or an aggrieved person can competently file an appeal in the Supreme Court, a difference of opinion arose between the members of the Bench for filing an acquittal appeal in the Shariat Court. In this case the legal heirs of the deceased had filed appeal from the acquittal order in the Supreme Court. A preliminary objection was raised that acquittal appeal can only be filed by the State. It was observed at page 740 as under: "The scheme of the Criminal Procedure Code is different from that of Islamic Penal Laws Act. Section 404 of the Cr.P.C. says that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force. The aforesaid provision restricts the right of appeal. Thus, an appeal against the order of conviction or acquittal is only competent as provided in Chapter XXXI of the Cr.P.C. The provisions contained in sections 404 to 416, Cr.P.C. stipulate appeal against orders of conviction; only section 417, Cr.P.C, envisages appeal against an order of acquittal by the State, Thus the scope of right of appeal under Cr.P.C. is restricted as compared with the said right under the corresponding provisions contained in Islamic Penal Laws Act, 1971. The provisions contained in section 25 of the Islamic Penal Laws Act, 1974, postulate an unrestricted right of appeal irrespective of the fact whether the order is that of conviction or acquittal. The word (Fasila) used in subsections (1) and (2) of section 25 of the Islamic Penal Laws Act cannot be interpreted to mean that the right of appeal is available only against the order of conviction and not acquittal; the word (Fasila) is comprehensive enough to include the case of acquittal and conviction and scope of the right of appeal cannot be narrowed down by resorting to the scheme of the Criminal Procedure Code. Moreover, in cases of 'Qisas' falling within the ambit of Islamic Penal Laws Act, 1974. the Government under section 27 is not empowered to pardon or remit the sentence awarded under the provisions of the said Act. Needless to say in case of punishment of 'Diyyat' the same is to be paid to the heirs of the deceased or the persons injured, as the case may be. Thus, in view of the scheme of the Islamic Penal Laws Act, it cannot be said that the right of appeal in case for acquittal is available to the State and not to the complainant or any other aggrieved person. Therefore, I am not impressed by the argument that there being no specific provision regarding the right of appeal in ease of an acquittal, one has to fall back on the provisions contained in section 417, Cr.P.C. The distinction between the right of appeal against an order of acquittal and conviction envisaged in the Criminal Procedure Code is not recognised by the provisions contained in the Islamic Penal Laws Act, 1974. Thus, repel the contention that the complainant or an aggrieved person is debarred from preferring an appeal against an order of acquittal." The proposition again came under consideration of this Court in the case titled Sardar Muhammad Khan v. Muhammad Afsar Khan [1991 PCr.LJ 805]. While interpreting the provisions of section 25 of the I.P.L., 1974, it was held that the complainant or any aggrieved person is not debarred from filing an appeal against the order of acquittal. It was observed as under:-- " ..In other words the appeal against an order of District Criminal Court could be preferred not only by the State but also by a private person irrespective of the fact whether the order was that of conviction or acquittal." Again the proposition came under consideration of this Court in the case titled Abdul Khaliq Khan v. Muhammad Afsar Khan and 4 others [1995 PCr.LJ 391]. Justice Ch. Muhammad Taj (as he then was) reiterated the view expressed in the previous cases that under section 25 of the I.P.L., 1974, the complainant or any other aggrieved person can competently file an appeal in this Court. The part of the judgment titled Abdul Karim v. Tahir-ur-Rehman [1990 P.S.C.735] to the effect that acquittal appeal by the complainant or any aggrieved person is not competent was overruled. The relevant observation is at page 395 of the report which is reproduced below:-- The right of appeal is provided under the provisions of Islamic Penal Laws Act and is exercisable by complainant or any other aggrieved person. The proposition came under consideration before this Court in a case titled Abdul Karim v. Tahir-ur-Rehman [1990 P.S.C. 735]. After surveying the whole case law this Court arrived at the conclusion that the complainant or any other aggrieved person can competently tile an appeal against the acquittal order of the Shariat Court in a case registered under Islamic Penal Laws Act. This point was also urged in the instant case in the earlier round by the same respondents before this Court and while disposing the appeal it was observed at page 9 of the judgment in the following words: "The distinction between the right of appeal against an order of acquittal and conviction envisaged in the Code of Criminal Procedure is not recognised by the provisions contained in the Islamic Penal Laws (Enforcement) Act, 1974. Thus, we hold that a complainant or an aggrieved person is not debarred from preferring an appeal against an order of acquittal. The Shariat Court should have disposed of the appeal as such instead of treating the same as revision. The view taken in case reported as Abdul Karim v. Tahir-ur-Rehman [1990 P.S.C. 735] so far as it conflicts with the view taken in the case in hand stands overruled."

17. The view expressed by this Court in the above referred cases is consistently being followed that the complainant or an aggrieved person may competently file an appeal from the order, of Tehsil Criminal Court or the District Criminal Court The controversy we are faced with is confined to the point that who falls in the definition of an 'aggrieved person' or every complainant has a right to file an appeal. For the purpose we have to analyse the provisions incorporated in the I.P.L., A.P.C. and Cr.P.C.

18. The term 'person aggrieved' is not defined in the Azad Penal Code, Code of Criminal Procedure or Islamic (Penal) Laws Enforcement Act, 1974. For the purpose ordinary dictionary meaning assigned to the term 'person aggrieved' has to be taken. In Black's Law Dictionary the terms 'aggrieved' and 'aggrieved party' are defined as under: " 'Aggrieved'. Having suffered loss or injury; damnified; injured." 'Aggrieved party'. One whose legal right is involved by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment. One whose right of property may be established or divested. The word 'aggrieved' refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation." In Law Dictionary with words and phrases judicially defined, 1986 edition, the term 'aggrieved' has been defined as follows:-- "'Aggrieved' means suffering from an imprisonment or denial of legal rights or remedy. A person can be said to be aggrieved if apart from the general interest such a person, as a member of the public, Tay have a particular or special interest in the subject-matter supposed to be wrongly decided. Thiruvengadam v. Muthu Chettiar, AIR 1970 Mad. 34: 1969 1 Mad LJ

143. The words 'person aggrieved' do not include a mere busybody who is interfering in things which do not concern him; but they include a person who has a genuine grievance because an order has been made which prejudicially affects his interest A.G. of Gambia v. NFie. (1961)2 All ER

504. Person aggrieved is one who has suffered a legal grievance or a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused something or wrongfully affected his title to something. S.N. Prasad v. Chancellor, Allahabad University 1971 ALJ 274." In Law Laxicon with Legal Maxims 1986 edition, the term 'aggrieved person' has been defined as under:-- "'Aggrieved person'.

A person can be said to be aggrieved, if apart from the general interest such a person, as a member of the public, may have, he has a particular or special interest in the subject-matter supposed to be wrongly decided. In S.M. Transport (Pvt.) Ltd. (1961) 2 M.L.J. 127; AIR 1961 Mad. 180; 1961 Mad. 110 (FB) which arose under the provisions of the Madras Motor Vehicles Act, the Madras High Court after referring to the observations of Earl of Reading, C.J., in Rex v. Richmond Confirming Authority, Ex parte Howitt, (1921) 1 K.B. 248 and also Rex v. Groom, Ex parte Cobbold, (1901) 2 K. B. 157 laid down the true principle in these words: "The true principle is to determine whether the applicant has an interested distinct from the general inconvenience which may be suffered by the law being wrongly administered. AIR 1970 Mad. 34 at p. 37: (1969) 1 M.L.J.

143. The term 'aggrieved' is nowhere in the Criminal Procedure Code nor is there any indication of the kind of grievance which may qualify a man to complain. Any fanciful or sentimental grievance would not suffice; it must be such a grievance as the law can appreciate, it must be what has been termed a legal grievance, and not a scat pro ratione voluntas reasons. It is obviously impossible to lay down any inflexible rule for determining in every case whether complainant is a person aggrieved by the offence alleged; the answer to the question must depend upon the nature of the offence and upon the special circumstances of each case. When the offence charged is bigamy on the part of the wife, the husband is undoubtedly a person 'aggrieve' within the meaning of section 198, Cr.P.C. corresponding to Cl. (c) of Sec. 198 of the Code of 1973. Daem Sardar v. Batu Dhali, 3 PCr.LJ 187 at P. 189." In, Webster's Third New International Dictionary, 1971 edition, the word 'aggrieved' is defined as under:-- "Troubled or distressed in spirit; showing grief, injury, or offense; having a grievance, suffering from an infringement or denial of legal rights."

19. Broadly speaking, in ordinary grammatical meanings, the term 'aggrieved person' or 'aggrieved' can be defined a person whose legal right is involved by and complained of, he is directly and adversely affected by a judgment or decree, his substantial grievance, a denial of some personal pecuniary or property rights, interest and apart from general interest, has to be made, he has particular or special interest in the subject-matter supposed to be wrongly decided. The purpose to determine whether the applicant has an interest distinct from the general inconvenience which may suffer by law being wrongly administered.

20. It is impossible to lay down any inflexible definition of the 'person aggrieved' in respect of cases relating to 'Hadood' and `Qisas' laws. For this purpose we have to resort to the following provisions of Azad Penal Code, Code of Criminal Procedure and Azad Jammu and Kashmir Islamic (Penal) Laws Enforcement Act, 1974:- Section 299; A.P.C.: "Wali" 'wali' means a person entitled to claim 'qisas'. Section 305, A.P.C,: "

305. Wali.

In case of a qatl, the wall shall be- (a) the heirs of the victim, according to his personal law; and (b) the Government, if there is not heir." Section 309, A.P.C. "

309. Waiver-afw of qisas in qatl-e-amd.

(1) In the case of qatl-e-amd and adult sane wali may, at any time and without any compensation, waive his right of qisas. Provided that the right of qisas shall not be waived- (a) where the Government is the wali; or (b) where the right of qisas vests in a minor or insane. (2) Where a victim has more than one wali, any one if them may waive his right of qisas: Provided that the wall who does not waive the right of qisas shall be entitled to his share of diyat. (3) Where there are more than one victim, the waiver of the right of the qisas by the wall of one victim shall not affect the right of qisas of the wali of the other victim. (4) Where there are more than one offenders, the waiver of the right of qisas against one offender shall not affect the right of qisas against the other offender." Section 310, A.P.C.: "

310. Compounding of qisas (sulah) in qatl-e-amd.

(1) In the case of qatl-e-amd, an adult sane wall may, at any time on accepting badal-i-sulh, compound his right of qisas: Provided that only giving a female in marriage shall not be a valid badal-i-Sulh. (2) Where a wall is a minor or an insane, the wall of such minor or insane, wali may compound the right of qisas on behalf of such minor or insane wali: Provided that the value of badal-i-sulh shall not be less than the value of diyat. (3) Where the Government is the wall it may compound the right of qisas: Provided that the value of badal-i-sulh shall not be less than the value of diyat. (4) Where the badal-i-sulh is not determined or is a property or a right the value of which cannot be determined in terms of money under Shariah the right of qisas shall be deemed to have been compounded and the offender shall be liable to diyat. (5) Badal-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wali. Explanation.

In this section Badal-i-sulh means the mutally agreed compensation according to Shariah to be paid or given by the offender to a wall in cash or in kind or in the form of movable or immovable property." Section 313, APC. "

313. Right of qisas in qatl-e-amd.

(1) Where there is only one wali, he alone has the right of qisas in qatl-e-amd but, if there are more than one, the right of qisas vests in each of them. (2) if the victim: (a) has no wali the Government shall have the right of qisas; or (b) has no wali other than a minor or insane or one of the wall is a minor or insane, the father or if he is not alive the paternal grandfather of such wali shall have the right of qisas on his behalf: Provided that, if the minor or insane wall has no father or paternal grandfather, how high-so-ever, alive and no guardian has been appointed by the Court, the Government shall have the right of qisas on his behalf." Section 337-O, APC "337-O. Wali in case of hurt:

In the case of hurt the wall shall be-- (a) 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, how-high-so-ever; (b) the heirs of the victim, /if the latter dies before the execution of qisas; and (c) the Government, in the absence of the victim or the heirs of the victim." Section 338-E, A.P.C. "338-E. Waiver or compounding of offences.

(1) Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure, 1898, all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences: Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or awad ta'zir to the offender according to the nature of the offence. (2) All questions relating to waiver or compounding of an offence or awarding of punishment under section 310, whether before or after the passing of any sentence, shall be determined by trial Court: Provided that where the sentence of qisas or any other sentence waived or compounded during the pendency of an appeal, such questions may be determined by the appellate Court." Section 345(2), Cr.P.C. "345(1) (2) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table: Offences. Sections of the Pakistan Penal Code applicable Person by whom offence may be compounded Qatl-i-amd. 302 By the heirs of the victim Qatl under ikrah-i-tam. 303 Ditto Qatl-i-amd not liable to qisas. 308 Ditto Qatl-i-Khata. 316 Ditto Qatl-i-khata by rash or negligent driving. 319 Ditto Qatl-bis-sabab. 320 Ditto Attempt to commit qatl-e-amd.

324. The person against whom the offence was committed. Itlaf-i-udw. 334 The person to whom hurt is caused. Itlaf-i-salahiyyat-I-udw. 336 Ditto Shajjah of any kind. 337-A Ditto Jaifah. 337-D Ditto Hurt by rash or negligent driving. 337-G Ditto Hurt by mistake. 337-I Ditto Hurt by means of a poison. 337-J Ditto Hurt to extort confession or to compel restoration of property. 337-K Ditto Other hurts. 337-L Ditto Hurt not liable to qisas. 337-M Ditto Cases in which qisas for hurt cannot be enforced. 337-N Ditto Isqat-i-haml. 338-A The victim or the heirs of the victim, as the case may be, Isqat-i-janin. 338-C Ditto Wrongfully confining a person 'for three days or more. 343 The person confined. Wrongfully confining a person in secret. 346 Ditto Assault or criminal force in attempting wrongfully to confine a person 357 The person assaulted or to whom the force was used. Dishonest misappropriation of property. 403 The owner of the property misappropriated. Cheating. 417 The person cheated. Cheating a person whose interest the offender was bound, by law or by legal contract, to protect. 418 Ditto Cheating by personation. 419 Ditto Cheating and dishonestly inducting delivery of property or the making, alteration or destruction of a valuable security. 420 Ditto Mischief by injury to work of irrigation by wrongfully driving water when the only loss or damage caused is loss or damage to a private person. 430 The person to whom the loss or damage is cause. House-trespass to commit an offence (other than theft) punishable with imprisonment. 451 The person in possession of the house trespassed upon. Dishonestly issuing a cheque for repayment of loan or fulfillment of an obligation. 489F The person in whose favour cheque issued. Using a false trade or property mark. 482 The person to whom loss or injury is caused by such use. Counterfeiting a trade or property mark used by another. 483 The person whose trade or property mark is counterfeited. Knowingly selling or exposing or possessing for sale or for trade or manufacturing purpose, goods marked with a counterfeit trade or property mark. 486 Ditto Marrying again during the lifetime of a husband or wife. 494 The husband or wife of the person so marrying. Uttering words or sounds or making gestures or exhibiting any object intending to insult the modesty of a woman or intruding upon the privacy of a woman. 509 The woman whom it is intended to insult or whose privacy is intruded upon. (3) (4) (5) (5A) (6) (7) Section 402-C: "402-C. Remission of commutation of certain sentences not to be without consent.

Notwithstanding anything contained in section 401, section 402, section 402-A or section 402-B, the Provincial Government, the Federal Government or the President shall not, without the consent of the victim or, as the case may be, of his heirs, suspend, remit or commute any sentence passed under any of the sections in Chapter XVI of the Pakistan Penal Code."

21. The definition of word 'wall' is clear on the subject that person who is entitled to claim 'Qisas' is a `wall'. Section 305, A.P.C., postulates that in case of murder the heirs of victim, according to his personal law, shall be the 'wali' and if there is no `wali' then Government is termed as legal heir of the deceased who shall be his 'wall'. This is further elaborated in section 309, A.P.C., where right of waiver or Afw' of 'Qisas' in case of 'qatl-e-amd' shall vest in adult sane 'wall' who may at any time can waive his right of 'Qisas' without compensation. The right of legal heir is further strengthen from the provisions of this section, which lays down that if the right of 'Qisas' vests in the Government or in a minor or insane, it cannot be waived. The right of all the legal heirs/'walis' is also recognized under this section. A legal heir/'wali' is also entitled to compound the 'Qisas' of murder and entitled for compounding `Qisas' against compensation. The right of `wall' is further recognized in section 313, A.P.C., where the right of `Qisas' vests in the 'wall' and when there is no 'wan', the Government has the right of `Qisas'. The right of 'wali'/legal heir is recognized in section 345(2), Cr.P.C., where the offence relating to 'Hadood' and `Qisas' can be compounded by him. A person who is complainant or a witness does not fall in the definition of `wall' and cannot be termed as 'aggrieved'.

22. From the above provisions it can safely be held that in case of 'Qisas' a legal heir/'wali' apart from the State is competent to file an appeal from the acquittal or for enhancement of the sentence. 22-A. Who will be `wall' in case of hurt'? Apart from the provisions of A.P.C., cited above, section 337-0 directly deals with the proposition that in case of hurt, the victim is `wall' and if the victim is minor and insane, the right of `Qisas' shall be vested in the father or paternal grandfather and if the victim dies before execution of 'Qisas' his legal heirs may claim `Qisas' and if there is no legal heir, then the Government in absence of victim or heirs of the victim is `wali'. Similarly, the right of waiving or compounding the office under section 338-E vests in a legal heir/'wali' of a victim.

23. The argument that public at large or a complainant who is not legal heir of a deceased or himself is not victim can also file an appeal has no force in the light of above cited provisions of the Azad Penal Code, Code of Criminal Procedure and Azad Jammu and Kashmir Islamic (Penal) Laws Enforcement Act, 1974. No doubt it is the duty of every citizen to inform the Police if it comes in his knowledge that an offence has been committed or is going to be committed under section 44 of the Cr.P.C. but such a person only can be termed as an informant if he has no direct interest in the case. The proposition of term 'aggrieved' came under consideration of the Shariat Court of Azad Jammu and Kashmir in case reported as Muhammad Kabir Khan v. Muhammad Shahalam and 2 others [PLJ 1999 Sh.C. (AJ&,K) 141], wherein it has been observed as under:- "

13. The aforesaid law shows that in case of hurt the victim himself is the `wall' or in case of his insanity or minority, his father, paternal grandfather howhighsoever shall qualify to be the 'wali'. Similarly in case of death of the victim, his legal heir and in case of absence of victim or heirs of the victim, the Government shall be the `wali'. As the victim in this case is, alive, therefore, none else except him is the `wali' in this case.

16. The comparative study of the above referred provision of law shows that the right of compromise and pardon, absolutely vests in victim on 'wali' as the case may be and similarly no one except victim or `wall' has the right to suspend, remit or commute any sentence. Therefore, by analogy, it becomes clear that to challenge an acquittal order is also the right of the victim or `wall' and none else for the reason that a person who does not have the right to tender parden and compromise an offence or who is not entitled to remit, commute or suspend the sentence, how he can have the right to appeal against an acquittal. It means that under Islamic Law the person who does not qualify himself to be the victim or `wall' cannot be the aggrieved person." In a case titled Haji Muhammad Sharaf Khan and another v. Zahir Hussain Shah and another [1999 PCr.LJ 903] it has been held as under: "(7) It also stands resolved by numerous judgments of this Court that any private aggrieved person can file an appeal in the Shariat Court against the order adversely affecting his interests." In the case reported as Talib Hussain and 5 others v. Daweed and 5 others [2003 YLR 2891 it was. observed as under:-- (8) It may also be stated that section 417, Cr.P.C. has been amended by adding subsection 2A whereby it is provided that any person aggrieved by the order of acquittal may file an appeal against the acquittal order. The phraseology used in the amending section shows that any aggrieved person can file and prosecute the matter therefore on the aforesaid analogy after the death of the complainant-petitioner the legal representatives can continue proceedings." In the case titled Muhammad Shafi v. Muhammad Asghar and others [PLD 2004 SC 875] it has been observed as under:-- "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 person(s) interested in 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 offence. 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 is primarily interest with the prosecution of the accused." In the case reported as Mir Gul v. Abdul Karim and 5 others [1999 PCr.LJ 1507], it was held:-- "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 howsoeverhigh he may be, if, 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 a case titled Khalid Hussain v. Naveed alias Qalb Ali and 2 others [PLD 2007 Karachi 442], it has been held as under:-- Thus, for the purpose of filing appeal against an acquittal, the person aggrieved must be the person whose personal and not only general rights are affected. In a case of an offence against a person, the victim and, in case his death has been caused, his legal heirs and blood relations would be the persons aggrieved for the purpose of filing appeal against acquittal. Similarly, in the case of an offence against property, the owner, the possessor of the property or any other person having a right in it would be the aggrieved person." In the case reported as Muhammad Tufail v. Faqir Muhammad and 3 others [2009 PCr.LJ 127], it has been held:-- "

9. Another important aspect of the case is that this is case wherein the appeal against acquittal has been filed by Muhammad Tufail complainant (P.W.1). Neither he is the injured one nor he is eye-witness of the occurrence, even he is not related to injured P.W. Zulfiqar, so he cannot be termed as aggrieved within the meaning of section 417, Cr.P.C. It is settled proposition of law that the appeal against acquittal 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 or by any of the legal heirs within the scheme of law otherwise the appeal against acquittal would be incompetent."

24. From the survey of case-law, it can safely be concluded that 'person aggrieved' can file an appeal from acquittal or for enhancement of the sentence passed by the Tehsil Criminal Court in the District Criminal Court, Shariat Court and this Court. No general definition can be laid down for `person aggrieved' broadly for the purpose of filing acquittal appeal or appeal for enhancement of punishment the person whose legal right is injured, may be treated as aggrieved, but for the purpose of Qisas and Hadood laws, following may be termed as `aggrieved persons' who have right to file of appeal:-- In case of 'qati-e-amd': (a) `wali'/legal heir of the deceased; (b) the Government/State In case of hurt: (a) victim himself, and if he is minor, his 'wali' or upon death of the victim, his legal heirs; (b) the Government/State Copy of the judgment shall be attached, with all the files and appeals shall be heard and disposed of on merits. H.B.T./2/SC(AJ&K) Order accordingl