ROZI KHAN BARRECH, J.---This criminal acquittal appeal was filed to question the validity of judgment dated 14th December 2019 (hereinafter "the impugned judgment ") passed by learned Judicial Magistrate, Dasht (hereinafter "the trial Court "), whereby the respondents Nos. 1 to 3 were acquitted of the charge.
2. Relevant facts for disposal of the instant appeal are that on 6th November 2018 at 2:45 pm, the complainant Abdul Khaliq lodged FIR No. 33 of 2018 at Levies Station Dasht District Mastung under sections 337-A(i), 337-F(i), 337-L(2), 427, 147, 148, 149, P.P.C. with the averments that he has a civil dispu te with the accused and in this regard he along with one Bashir Ahmed went to the Assistant Commissioner Office Dasht; that at about 02:25 p.m. when they were coming back, the accused Sher Ali, Muhammad Ali, Javed and Humayun along with three unknown muffled face persons, equipped with iron rods and Kalashnikovs, came in a green cruising car with minister number plate and attacked upon him and Bashir Ahmed and caused them serious injuries; that at the same time Muhammad Azeem and Ghtg am Mustafa came there who are the eye-witnesses of the occurrence.
Hence, the crime report.
3. After completion of usual investigation challan of the case was submitted before the trial Court. The charge was framed against the accused/respondents Nos. 1 to 3 to which. they pleaded not guilty and claimed trial.
During the trial the prosecution produced eight witnesses, whereafter the accused/respondents Nos. 1 to 3 were examined under section 342, Cr.P.C. whereby they categorically disowned the prosecution case and claimed innocence, the accused neither opt to recorded their statement on oath under section 340(2), Cr.P.C., nor produced any witness in their defense.
4. The learned trial court after hearing arguments of learned counsel for the parties acquitted the accused/ respondents Nos. 1 to 3 from the charge. Hence, this appeal.
5. The instant appeal is lingering on at Katcha Peshi stage since 13th January 2020. Notices for each date have been served on learned counsel for the appellant but he is reluctant to argue the matter , as such, we have left no option but to decide the same after going through the record.
6. A variety of reasons weighed with the learned trial Judge to acquit the accused from the charge, which include; contradictions in the statements of witnesses and medical certificate as well as base of a case against accused with no evidence. None of the reasons cited by the learned trial Judge has been found by us as artificial or unrealistic. Even otherwise on independent analysis, genesis of prosecution case does not appear to be free from doubt. The record transpires that PW-2 Bashir Ahmed stated in his statement before the trial court that his both hands fractured due to beating but on the other hand medical certificate (Ex.P/7-A) produced by PW-7 Dr. Aisha Faiz, is silent to this effect. There are major contradictions in the statements of witnesses which have been mentioned by the learned trial Judge in detail in his judgment. The complainant/ appellant Abdul Khaliq stated in his report (Ex.P/1-A) that he received deep injuries due to beating but on the other hand PW-7 Dr. Aisha Faiz admitted during cross-examination that she did not find any injury on the body of complainant Abdul Khaliq. The victim/injured Bashir Ahmed has not challenged the acquittal of respondents Nos. 1 to 3 before this court as the instant appeal has been filed by the complainant/ appellant, who has not received any injury in the incident as provided under section 417(2-A), Cr .P.C.
7. Before proceedings any further it would be advantageous to reproduce the section 417(2-A), Cr .P.C. here under: "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 ."
It is an admitted fact that the complaina nt Abdul Khaliq, who appeared before the trial court as PW-1, has not received any injury in the alleged incident. According to the report of the complainant one PW-2 Bashir Ahmed received injuries, which shows that the victim is not minor rather he is having sense and is alive.
8. The definition of "a person aggrieved" for the purpose of appeal against acquitta l 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, in which following were observed: "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 acco rding 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. "
9. In view of the judgment supra, the complainant, who is not an injured, cannot file the instant appeal. It is the injured alone, who is competent to file appeal being an aggrieved person. In the instant case, the injured person being the aggrieved is neither insane nor minor , did not come forward to challenge the judgment impugned. Under such circumstances, the appeal filed by the complainant is incompetent.
Even otherwise, while judging the evidence of the prosecution on the criteria laid down in the case of Jallan v.
Muhammad Riaz (PLD 2003 SC 644), we are of firm opinion that the appellant/complainant has failed to prove that any evidence is misread or received such evidence illegally . However , the accused/respondent is able to create a shadow of doubt in the prosecution case, therefore, he was entitled to its benefit not as a matter of grace but as a matter of right.
10. It is by now well settled that acquittal carries with it double presumption of innocence; it is reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage, of justice. It cannot be set aside merely on the possibility of a contra view .
11. In our humble view, the trial Court has considered all the material present on record properly and arrived to the conclusion which is based on proper appreciation of the facts and law, thus does not need interference by this Court.
The appellant has failed to point out any defect in the impugned judgment, therefore, the appeal being devoid of merits is accordingly dismissed in limine.