' MRS. IRSHAD QAISER, J.---Appellant Mst. Parveen widow of late Zaman Khan filed present appeal under section 417(2-A), Cr.P.C. Against the judgment and order' dated 12-5-2008 passed by learned Sessions Judge Haripur in Criminal Revision No.1/10 of 2007 filed by respondent Bakhsheesh against the judgment dated 11-11-2006 passed by Judicial Magistrate Ghazi in case F.I.R. No.23 dated 28-1-2005 under sections 337-F(v)/34, P.P.C. Police Station Ghazi wherein respondent Bakhsheesh was convicted and sentenced to pay Rs.10,000 to injured Zaman Khan as Daman, has been set aside and respondent was acquitted.
2. The brief and relevant facts of the case are that complainant Zaman Khan reported the matter to the police to the effect that accused/respondent gave him beating with axe, stone and kicks/fists blows, due to which he got injured. The movie was shown to be a quarrel which took place between the parties on grazing of cattle.
3. After the completion of investigation complete challan was put in the competent Court of Judicial Magistrate Ghazi. On the completion of legal formalities and conclusion of trial accused/respondent was convicted and sentenced with Daman of Rs.10,000 with the direction to be paid to the victim while the other accused Abdul Aziz and Ashiq Hussain had been acquitted on the ground that prosecution failed to prove its case against them vide judgment and order dated 11-11-2006. Feeling aggrieved convicted accused Bakhsheesh filed criminal revision before the learned Sessions Judge Haripur which was accepted vide judgment and order dated 12-5-2008. He was acquitted of the charge and the judgment and order dated 11-11-2006 of the Judicial Magistrate was set aside and the conviction and sentence/fine was discarded. Hence the present appeal against the acquittal under section 417(A-2), Cr.P.C.
4. I have heard learned counsel for the parties and perused. The record with their assistance.
5. At the very outset learned counsel for the respondent raised a preliminary objection with regard to the maintainability of the present appeal on the ground that since the appeal has not been filed by the injured person himself and his widow is neither competent nor has right to file appeal on his behalf, therefore, this appeal is not maintainable. He has also discussed the merit of the case and contended that prosecution has not been able to connect accused/respondent with the crime.
These arguments were rebutted by learned counsel for the respondent assisted by learned State Counsel and contended that accused is directly charged along with other acquitted accused. It was a daylight occurrence and parties are known to each other, therefore, question of non- identification does not arise. That prosecution has been able to prove its case through ocular account as well as through circumstantial evidence in the shape of medico-legal evidence and recoveries etc. That since the victim died before the filing of appeal, therefore, his widow had the right to file appeal.
6. It is admitted fact that at the time of passing the order of acquittal by the appellate Court on 12- 5-2008, the victim was alive and during his life time he had not filed any appeal. However, after his death, his widow, present appellant filed the appeal. Now it is to be seen whether she is competent to file appeal or not? And that who can file appeal? It is settled law that acquittal can be challenged by State, complainant or any aggrieved person. In this respect guidance is sought from the judgment of august Supreme Court reported in case Muhammad Shafi v. Muhammad Asghar (PLD 2004 SC 875) wherein it has unanimously been held by the larger Bench "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 a 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 herein below;-- `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 337-0, 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 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 status, 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 '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."
' Reference is also made to 2003 PCr.LJ Quetta 1935 wherein it is held "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 the Code of Criminal Procedure 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, grandfather or a paternal grand father howsoever high he may be and if he died for any other reason before final decision of the hurt case, then appeal would be competent by his legal heirs."
7. In the present case since the victim died after the final decision of the case, therefore, his legal heirs including his widow have no right to file appeal against the acquittal of respondent. In such view of the B mater I while agreeing myself with the learned counsel for respondent held that appellant has no right to file present appeal.
8. On merit also this appeal has no force. It is settled law that the obvious approach for dealing with the appeal against acquittal would be different and should be distinguished from appeal against conviction because presumption of double innocence of accused is attached to the C order of acquittal. However, the appellate Court can interfere in the finding of acquittal if the finding and reasons are of speculative or artificial in nature or based on no evidence or misrepresentation of evidence or the conclusion drawn as to guilt or innocence perverse resulting in to miscarriage of justice. In the present case prosecution has not been able to point out any illegality, irregularity as well as non-reading and misreading of evidence of the appellate Court. In the present case three persons have been charged. But during trial two accused Abdul Aziz and Ashiq Hussain had been acquitted while present respondent was fined for Rs. 10,000 as Daman. It is admitted fact that there is delay of six hours in the lodging of report. The delay has not been explained. Nothing was recovered from the possession of accused. The appellate Court has pointed out the contradiction and discrepancies in the statement of P. Ws. And had given detailed reasons for acquittal of accused by observing; "Perusal of all these contradictory depositions would develop doubt in one's mind regarding the occurrence. There are clear-cut improvements in the statements of P. Ws. And those recorded by the police. No recovery could be associated with the accused. There is quite much delay of 6 hours in lodging of report and its further development into the registration of case, of 6 days. X-Ray was conducted after sufficient time of about 3 days and non-availability of Radiologist in RHC Ghazi was also not proved through cogent evidence. Similarly, medical evidence also does not support the case of prosecution. Moreover, although both the co-accused of applicant were specifically attributed roles of injuring the complainant, but were acquitted in the light of same evidence, under which, the present applicant was convicted."
9. Accordingly, for the reasons stated hereinabove, the present appeal being without force is hereby dismissed.