1988 PLP 1852 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of the Court is directed against the judgment of the Lahore High Court dated 7‑5‑1979 whereby the Criminal Appeal filed by the respondents/ convicts' side against their conviction and sentences was allowed and they were acquitted. Leave to appeal was granted in order to examine the acquittal of Muhammad Ashraf and Muhammad Hussain, respondents on two grounds; (i), that the High Court having treated this case as one interested evidence without corroboration, failed to examine some circumstances which could be treated as corroboration; and (ii), the admissions of the said two respondents regarding their participation in the occurrence together with the recovery of a crime weapon could they be treated as sufficient corroboration? The learned Judge in the High Court after examination of the evidence on record reached the following conclusion‑‑ "As discussed above, the statements of the eye‑witnesses were not corroborated by any independent evidence. Both the parties had not come out with truth. The occurrence had not taken place in the manner as stated by the complainant party and the defence. The entire occurrence is shrouded with mystery. In view of these circumstances, I hold that the prosecution failed to prove the case beyond doubt." Learned counsel relying on the case of Syed Ali Bepari v. Nibaran Mollah P I. D 1962 S C 502 contended that notwithstanding the attempt of both the sides to withhold the truth the High Court should not have been deterred by this circumstance in so far as the discovery of the truth is concerned. We have no cavil with the proposition, prima facie and ordinarily in the circumstances of‑ a case like the present one, the rule would be fully attracted. But after going through the material on record with the help of the learned counsel, we have come to the conclusion that the main plea taken by Muhammad Ashraf respondent (Muhammad Hussain has meanwhile died) with regard to the attack launched from the complainant's side, with the result that both of them suffered injuries, finds sufficient support from the record. The petitioner/complainant side had changed the complexion of the case in such a manner that in the circumstances of this case it was no more possible for the High Court to discover the truth. If it would have been possible for the High Court to discover the truth despite the conduct of the complainant's side, the result might have been different. We have also while making this observation kept the fact in mind that the appeal, before us is one against acquittal. If it would have been one of conviction obviously considerations would have changed. After hearing the learned counsel, in the facts anti circumstances of this case it cannot be said that the benefit of doubt could not have been extended at all, to the accused. Therefore, we find no merit in this appeal and the same accordingly is dismissed. M.I. /A‑285/S Appeal dismissed: