1. ' AMANULLAH KHAN YASINZAI, J.--- This appeal under section 417(2), Cr.P.C. Is directed against the judgment, dated 28-9-1998, passed by learned Sessions Judge (Ad hoc), Quetta, whereby the respondent has been acquittpd of the charge under section 302, P.P.0 .
2. ' Facts relevant for disposal of this appeal are that, complainant, Ayaz Ahmad lodged report on 24- 5-1997, vide Fard-e-Biyan Exh.P.8-A on the basis of which F.I.R. No,78 of 1997 was lodged with Sariab Police Station, Quetta. It was alleged that Dr. Musa Baloch was working as Director-II, Family Health Project, Quetta. On 19-5-1997, accused-respondent Dr. Nazir Ahmad, visited the office of Dr. Musa, where he inflicted injuries on his face, head and body, due to which, he started bleeding profusely.
3. The deceased was separated by the staff working in his office and lie was shifted to hospital, but on the way, he died. It was further alleged that since deceased belonged to Mekran, therefore, his dead body was shifted there and the report could not be lodged in time. However, after Fatiah complainant came to know that the deceased was done to death by the respondent and thus, report is being lodged.
4. ' After registration of case, investigation was initiated by P.W.9 Sher Nawaz, S.-I. He recorded statements of witnesses, took into possession 16 T.A./D.A. Bills lying in the office of deceased, obtained medical certificate and thereafter submitted challan Exh.P.9-A.
5. ' The case came up for trial on the file of Sessions Judge (Ad hoc), Quetta. Charge was framed on 28-8-1997, to which appellant did not plead guilty and claimed trial. Thus, to prove the accusation, prosecution led evidence of following witnesses:--
(1) P.W.1 Muhammad Shoiab deposed that on the day of incident, he was sitting in the Computer Room and heard that something had happened to Project Director. He came out of the room and saw that, Dr. Musa was being taken down. He also helped and Dr. Musa was taken in the car to hospital, who died on the way to the hospital.
(2) P.W.2 Muhammad Rashid, A.S.-I., deposed that on-30-5-1997, he alongwith A.S.-I. Bashir Ahmad, Investigating Officer and EAC-II, Hamidullah Sherani, during course of investigation, came to the office of Health Project at Arbab Karam Khan Road. The peon was asked to open the room and in his presence the Investigating Officer took into possession 16 TA/DA Bills vide memo. Exh.P.2/A.
(3) P.W.3 -Dr. Masood Nausherwani, deposed that incident is of 19-5-1997 and Dr. Musa was Project Director. At about 10-45 a.m. While he was sitting and having tea with Dr. Munir Kasi, the peon hurriedly came down and stated that Dr. Musa had a quarrel with accused-respondent. He immediately rushed to the room of Dr. Musa and with the help of other colleagues he brought down Dr. Musa to take him to the hospital,, but Dr. Musa died on the way to the hospital.
(4) P.W.4 Muhammad Rafiq, deposed that he is employed in the Family Health Project. On the day of incident at .About 11-00 ,a.m. Respondent Dr. Nazir Ahmad came to the room of Project Director and after a while he heard noise coming from the room of P.D. It seemed that as both of them were shouting at each other. He opened the door and saw that both of them were standing in the room and Dr. Musa asked him to take out Dr. Nazir Ahmad from the room. Thereafter Dr. Nazir Ahmad left the room. He came down and informed Dr. Munir about the said incident and saw that Dr. Musa has fallen in the bath room and thereafter he was taken to hospital, but he died on the way to the hospital.
(5) P.W.5 Muhammad Anwar, Driver, deposed that on the day of incident at about 11-00 a.m. He, Muhammad Rafique and Dr. Roohullah were sitting outside when they heard noise coming from the room of Dr. Musa and Dr. Roohullah opened the door and he alongwith Muhammad Rafique followed him. He saw that both Dr. Musa and respondent were standing inside the room and Dr. Musa asked Dr. Roohullah to take out respondent from the room. Thereafter respondent left the room and Dr. Musa went inside the bath room. There he fell down and received scratches on his face. Dr. Musa was taken to hospital, but he died on the way.
(6) P.W.6 Dr. Roohullah deposed that he came to the office and met Dr. Musa. At that time Dr. Masood, Dr. Munir and Dr. Saddique were also present and after discussing office work, he came to his room. In the meanwhile, Dr. Nazir also came. He asked Dr. Nazir, as to why he had come, who replied that, he had come for the approval of his TA/DA Bills. Then on the request of Dr. Musa he left his office, leaving both of them. After a while, he heard noise, as if two people were talking loudly and shouting at each other. He asked the peon, as to what is going on, who replied that probably both of them are talking with each other loudly in Brahui language. Thereafter accused- respondent came out and Di'. Musa was made to sit on his chair, he was sweating and then Dr. Musa went to the bath room and there he fell down. On opening the door, he was lying' on the floor.
6. He was brought down stairs and taken in the car, .But he died on the way to the hospital.
(7) P.W.8 Dr. Abdul Sattar on 19-5-1997, externally examined the dead body of deceased and issued medical certificate Exh.P.7/A. He found the following injuries on the person of deceased;- "(1) An abrasion about 3 x 1/2 c.m. Just about the glabella.
(2) An abrasion 4 x 1/2 c.m. Lateral to injury No, 1.
(3) An abrasion on right side of forehead 3 x 1/2 c.m. Just above the right eye-brow.
(4) An abrasion 2 x 1/4 c.m. Below right cheek with swelling.
(5) An abrasion 1 x 1/2 c.m. On left cheek 2 c.m. Away from left nostril.
(6) An abraded bruise on left cheek 4 x 1/4 c.m. Obliq placed, interrupted in its upper past with swelling.
(7) An abraded bruise on left cheek 2 x 1/2 c.m. Looked with injury No,16.
(8) Cyanosis of the lips.
(9) Bruises on both lips inner side.
(10) An abraded bruise on upper gum just above the 4 incisor teeth.
(11) An abraded bruise on low gum extended below the all 4 incisor teeth.
(12) A bruise in 3 x 1/2 c.m. On dorsal aspect of right ankle joint, in front, just below and medial to right malealus.
(13) Nails are blue, face is blue.
(14) Conjuctival haemorrhage in right eye 1/2 x 1/2 c.m. Lateral side of corneas just near the lumbus.
(15) Eyes congested vessels prominent.
(16) Bleeding from the abraded bruises under both lips.
(17) A small blood-stained 2 c.m. On the Qamiz near the front pocket.
(18) Two other blood-stained spots on the under surface of Qamiz lower part."
(8) P.W.8 Ayaz Ahmad is the complainant of the case, who deposed that accused-respondent on the day of incident, came to the office of deceased and assaulted him and beaten' him, due to which started bleeding profusely and he received injuries. As Dr. Musa was heart patient, therefore, he could not resist the respondent. The respondent had come to get approved his TA/DA Bills which were objected by Dr. Musa, respondent became furious and started beating him. He further deposed that incident took place on 19-5-1997 and after Fatiah he came to know that Dr. Musa was beaten by respondent, therefore, he lodged report on 23-5-1997.
7. (9 P.W.9 Sher Nawaz, S.-I. Conducted investigation of the case and submitted challan Exh.P.9/A.
8. ' Respondent was examined under section 342, Cr.P.C. Wherein he denied the prosecution case and pleaded innocence. However, he did not opt to give his statement on oath nor produced any defence, ' Learned trial Court after assessing the evidence, acquitted the accused-respondent of the charge vide judgment, dated 28-9L1998. Hence this appeal.
9. ' We have heard Mr. Ali Ahmad Kurd, learned counsel for the ' complainant and Mr. Shakeel Ahmad, learned Advocate for the accused-respondent.
10. ' It may be pointed out that a preliminary objection was raised by the learned counsel for respondent that, appeal has been filed by appellant Ayaz Ahmad, who is not the legal heir of deceased, therefore, same is not maintainable. On such objection, an application was filed by Dr. Abadi son of Dr. Musa that, he be impleaded as appellant in the case, which was resisted by the respondent. However, an application under section 5 of the Limitation Act was also filed for condoning the delay.
11. ' Mr. Ali Ahmad Kurd, learned counsel contended, that trial Court has misread and misappreciated the evidence on record, causing grave miscarriage of justice to appellant. He further argued that deceased was beaten up by respondent, due to which, he received injuries and medical certificate was also produced, which was not considered by the trial Court.
12. ' Mr. H. Shakeel Ahmad, learned counsel, appearing on behalf of respondent argued, that since the appeal filed by Dr. Ayaz Ahmad is not maintainable, therefore, the same merits dismissal and further stated that, even the application was filed at a belated stage by the son of deceased, which too is not maintainable, as appeal had already been filed and there is no provision for impleading any person as appellant in criminal case. He further argued that after proper appreciation of evidence on record, appellant has been acquitted and strong grounds are required for interference in an appeal against acquittal, which are lacking in the instant case.
13. ' Mr. Ghulam Mustafa Mengal, Additional Advocate-General, appearing on behalf of the State, vehemently opposed the appeal.
14. ' We have minutely perused the record of case, with, the assistance of the learned counsel for the parties.
15. ' Before dilating upon the preliminary objection, regarding maintainability of appeal, in the interest of justice, we proceed to examine the case on merits also.
16. ' Adverting to the contention of Mr. Ali Ahmad Kurd, learned counsel that the evidence has been misread and misappreciated by the trial Court. It may be pointed out that, prosecution case is that, when respondent and deceased Dr. Musa were alone in the room. The witnesses heard noises coming from inside the room. As per statements of P.W.4 and 5, they heard noises as if both of them were talking loudly with each in Brahui and thereafter when the door was opened by P.W.5, both of them were standing in the middle of the room and there was a distance of two to three feet between them and later on respondent left the room. It is pertinent to observe here that nothing has come on record that Dr. Nazir manhandled or physically assaulted the deceased. The witness Dr. Roohullah stated that, as soon as Dr. Nazir left the room, Dr. Musa was made to sit in the chair and he was sweating. He cleaned his face with a handkerchief and thereafter he went to bath room where he fell down. Even the Investigating Officer stated that he received bruises which could be due to falling on a hard matter. It may be observed that the deceased and respondent had no previous enmity and admittedly the respondent had come to discuss the approval of his pending TA/DA Bills, which resulted in exchange of hot words. Further, nothing has come on record to infer that, deceased was manhandled by the respondent. It has been admitted by the prosecution that, deceased had a history of heart attack also and it has come through medical evidence that he died due to cordial arrest. It may be observed that, principles of appreciation of evidence in an appeal against acquittal and appeal against conviction, are based on different footings. Reference in this behalf is made to Ghulam Sikandar and another v. Mamraz Khan and others. PLD 1985 SC 11 wherein his Lordship Mr. Justice Muhammad Afzal Zullah laid down the following guidelines:--
(1) 'In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused.
17. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appriasement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, till found guilty, the accused is innocent: and two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second assumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below (a) disregarded material evidence (b) misread such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence if it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing search light should be found wholly as artificial, shocking and ridiculous."
18. ' Now considering merits of the case in view of the parameters laid down by Honourable Supreme Court. In view of the aforestated discussion in our considered opinion, the appellant has been rightly acquitted of the charge.
19. ' Mr. Ali Ahmad Kurd, learned counsel could not point out any misreading of evidence by the trial Court, or that the trial Court has disregarded any material evidence, warranting interference by this Court. None of the witnesses present at the place of incident had seen the respondent manhandling/beating the deceased. The injuries found on the person of deceased do not indicate the same because of beating or mandhandling; rather it has come on record that the same could be sustained due to falling on hard matter.
20. ' It may further be pointed out that reasonings given by trial Court, are neither ridiculous nor artificial on re-appraisal of evidence even if a second opinion is possible, the Appellate Court cannot substitute its own findings. Once an accused person is acquitted of a charge by a Court of competent jurisdiction, then very strong and exceptional grounds are required for interference with the acquittal order, which are lacking in the instant case.
21. Coming to the preliminary objection regarding filing of appeal by appellant Ayyaz Ahmad, who does not come within the definition of legal heir of deceased, suffice it to observe that since he is not a legal heir of deceased, therefore, appeal filed by him was not maintainable and further the application filed by Dr. Abadi son of Dr. Musa, for impleading him as party is also not maintainable.
22. The contention of Mr. Shakeel Ahmad, learned counsel has substance, that there is no provision of impleading a person as appellant in a criminal case. In this regard, reference may be made to Mir Gul v. Abdul Karim and 5 others 1999 PCr.LJ 1507, wherein following observations hate been made.
23. "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.
24. ' 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'."
25. ' Thus, in view of the above legal position, the appeal is not maintainable on the aforestated legal plane; therefore, in view of the foregoing discussion, appeal is dismissed.