' ALI SAIN DINO METLO, J.---By these appeals, appellant Khalid Hussain has challenged acquittal of Naveed alias Qalb Ali and Zahid alias Bahadur, both sons of Ahmed Khan, from the charge of possessing unlicensed pistols. They were facing trial before the 1st Civil Judge and Judicial Magistrate, Shikarpur (Mr. Mian Aijaz Rabbani), who, acquitted them on 8-6-2006 on the ground that prosecution had failed to produce its witnesses against them.
2. Briefly, the facts are that on 20-12-2003, SIP Ghulam Muhammad Bozdar, while investigating the case regarding murder of appellant's brother Shahid Hussain, recovered an unlicensed T.T. Pistol of .30 bore with four rounds from the possession of respondent Zahid alias Bahadur and on 23-12- 2003 he recovered another unlicensed T.T. Pistol of .30 bore with two rounds from respondent Naveed alias Qalb Ali. Two first information reports (F.I.Rs,), one bearing No,166 against Zahid alias Bahadur and the other bearing No,170 against Naveed alias Qalb Ali, were registered against them at Police Station New Foujdari, Shikarpur, for committing offences punishable under section 13(e) of the Pakistan Arms' Ordinance, 1965. The respondents were already in the custody of police in the murder case, regarding which the appellant had lodged F.I.R. Bearing No,160 on 8-12-2003 at the same police station. On the completion of investigation, charge-sheets were filed before the Magistrate having jurisdiction. The murder case, being exclusively triable by Court of Session was sent up to it, while the cases under the Arms Ordinance were retained by the Magistrate in view of section 14-A of the Arms Ordinance providing for their trial by a Magistrate of the first class. The pistols were allegedly used in the murder of Shahid Hussain.
3. Regarding preliminary objection about appellant's right to file the appeals, learned counsel for the appellant argued that the Magistrate, by acquitting the respondents, had damaged the murder case of his brother and, therefore, in his opinion, he was the 'person aggrieved' entitled to file appeal under section 4 (2-A) of the Code of Criminal Procedure, 1898.
4. Before examining the contention of the learned counsel in detail, it will be useful to look into the background of the provision of law regarding appeal against acquittal. Previously, the right, of appeal against acquittal was available only to the State and not to any private person, though for the purpose of initiating the criminal proceeding, it was every persons' right, and in some cases duty, to inform police about the commission of an offence and thereby set the machinery of law into motion. By the Law Reforms Ordinance, 1972, enforced in 1975, the right was extended to complainants in the cases instituted upon complaints and that too with special leave of the Appellate Court. By Act XX of 1994, subsection (2-A) was inserted in section 417 of the Code and the right was extended to every person aggrieved by the order of acquittal.
5. Keeping in view the conservative policy of the law in extending the right of appeal against acquittal to private persons, the term 'person aggrieved' as used in subsection (2-A) may not be interpreted liberally to the extent of including every person who, as a member of the society, may claim to be interested to make the society free from crime by way of getting the offenders punished.
6. In our system of administration of criminal justice, which is adversarial in nature, a person accused of an offence is presumed to be innocent unless proved guilty in a trial before a competent court. Finding of acquittal given by a court of law strengthens the presumption of innocence in his favour. Therefore, in absence of compelling reasons finding of acquittal is not to be disturbed.
7. There is yet another aspect lending support to the above view. Trial is ordeal, agony and jeopardy. It involves many things including lot of time and expense. According to section 403 of the Code, a person once tried and acquitted by a competent Court for reasons of inadequacy of evidence cannot be tried again for the same offence, even though C evidence sufficient for his conviction may have been subsequently found against him. Similarly, there is consensus of judicial opinion that scope of appeal against acquittal is narrower than the scope of appeal against conviction and acquittal cannot be disturbed simply because other view of evidence was also possible. Therefore, keeping in view such policy of the law, every enemy of an acquitted person cannot be allowed to drag him in appeal on the plea that he was interested to live in a crimes free society.
8. 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.
9. The appellant being brother of the deceased would be an aggrieved person entitled to file appeal against acquittal of the respondents from the charge of his brother's murder. But this is not the case of their acquittal from the murder charge. They have been acquitted only of the charge of possessing unlicensed pistols and that too on the ground of prosecution's failure to produce witnesses and not by disbelieving the evidence. Indeed, the Magistrate had not recorded any evidence and, therefore, the question of expressing any opinion about it did not arise.
10. The contention of the learned counsel for the appellant that the acquittal of the respondents from the charge of possessing unlicensed pistols has damaged the murder case of his brother is wholly unfounded as no opinion has been expressed by the Magistrate regarding the quality of evidence. Even if the Magistrate had acquitted the respondents by appraising evidence, his opinion about the quality of evidence, would not have the binding effect upon the Sessions/Additional Sessions judge trying the murder case. Every case has to be decided on the basis of its own record.
Evidence recorded in one case cannot be used as evidence in any other case. It is quite possible that the same witnesses may give different evidence in different Courts regarding same fact. It is possible that the witnesses of recovery of the pistols from the respondents may give satisfactory evidence before the Magistrate and unsatisfactory evidence before the Sessions Judge. The Sessions Judge cannot rely upon the unsatisfactory evidence given before him simply because the evidence given by them before the Magistrate was satisfactory or held to be satisfactory by the Magistrate.
11. There is yet another circumstance which is that a Sessions/Additional sessions Judge, being a higher Court, is not expected to be influenced by any finding given by a Magistrate, a Court subordinate to him. Thus, the apprehension of the appellant that the Sessions/Additional Sessions Judge conducting trial of the murder case would be influenced by the finding of the Magistrate is not well-founded. On the contrary, chances of trial Court being influenced by the acquittal will increase in case the narrow scope acquittal appeal is dismissed and the acquittal is confirmed by the High Court.
12. The upshot of the above discussion is that the appellant is not an aggrieved person entitled to file the present appeals. But the matter does not end here. On examination, the orders of the learned Magistrate acquitting the respondents are found to be grossly improper and illegal. Even the learned counsel for the respondents could not support them.
13. The perusal of record shows that applications for the acquittal of the respondents were filed on 29-5-2006 and the same were fixed for hearing on the very next day i,e, on 30-5-2006, notwithstanding the fact that the witness(es) had been attending the Court and were returned unexamined or more than a dozen dates of hearing for various reasons including non-availability of the case property i,e, pistols which were also case property in the murder case and had been deposited with the Record Keeper of the Court of Sessions Judge, Shikarpur. On 30-5-2006 also one of the witnesses of recovery, namely, Muhammad Sachal was present before the Magistrate but he was not examined without mentioning any reason and hearing of respondents' application for their acquittal was adjourned for a week i,e, to 8-6-2006, on which date the appellant moved application for excusing absence of the witnesses but it was rejected and the respondents were acquitted on the ground that the prosecution had failed to produce the witnesses.
14. The reports of investigation were filed on 31-12-2003 and the charges were, framed by the Magistrate on 19-10-2004 i,e, after about a year, in spite of the fact that the respondents were produced before him on several dates. Thereafter, the witnesses had also appeared before him on more than a dozen dates of hearing viz. 12-1-2005, 25-1-2005, 10-2-2005, 15-3-2005, 5-4-2005, 19- 4-2005, 2-6-2005, 14-6-2005, 19-7-2005, 22-12-2005, 5-1-2006, 25-1-2006, 15-2-2006 and 30-5- 2006 but they were not examined for one or the other reasons. On 30-5-2006 also when the application for acquittal of the respondents was fixed for hearing just on the very next day of its moving, one witness was present bin he was not examined and the hearing was adjourned to 8-6- 2006 on. Which date also the appellant was present and requested the Magistrate for a date but his request was turned down and the respondents were acquitted. On eight dates of hearing, on which the witnesses were absent, the Court was informed in writing about the causes of their absence. Two of the witnesses of recovery, namely constables Abdul Karim and Ghulam Fareed who had appeared on 15-3-2006 were not examined and were given up, probably because better witnesses were available. In such circumstances, the act of the Magistrate in acquitting the respondents was manifestly hasty, grossly improper and unwarranted by law.
15 Admittedly, the case property was not available before the Magistrate without which the witnesses could not be examined. There I was no sense in conducting the exercise of calling the witnesses on every date and return them unexamined. In the cases of recovery of unlicensed weapons allegedly used in the commission of murder and other heinous offences, the Magistrates face a common problem of non-production of case property as well as the witnesses. The property remains deposited in the Court of Session in the main case and the witnesses also show their reluctance to be examined by the Magistrate before their examination in the main case. In such cases, the proper course for the Magistrates would be to exercise their discretion under section 249 of the Code and stop proceedings of the cases under the Arms Ordinance till the disposal of their corresponding main cases. It will save not only their precious time but will also save all the other concerned persons i,e, the accused, the witnesses, the prosecutor and the defence counsel from unnecessary botheration of attending their Courts on every date without any useful purpose. It will also obviate apprehensions of complainant parties of the main cases seen from all angles, it will be a beneficial course.
16. In view of the above facts, circumstances and reasons, recorded now, the appeals, by a short order passed on 22-11-2006, were converted into revisions and the orders of the learned Magistrate acquitting the respondents were set aside and the cases were remanded to the learned Magistrate for disposal according to law.