1992 PLP 983 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑This appeal by leave arises in the following circumstances.

1. Respondent Tariq son of Ghulam Muhammad was tried alongwith his father Ghulam Muhammad and one Muhammad Ali for the murder of Allah Ditta under section 302/307/34, P.P.C. by the learned Additional Sessions Judge, Gujranwala who vide his judgment dated 10‑9‑1983 convicted the respondent No.l and sentenced him to death plus fine. Ghulam Muhammad and Muhammad Ali co‑accused were acquitted The convict's appeal along with Murder Reference and Criminal Revision filed by the complainant /appellant against the two acquitted accused were heard by a learned Division Bench of the Lahore High Court. The appeal of the respondent was accepted and he was acquitted. Sentence of death was naturally not confirmed. The revision petition filed by the appellant against the acquittal of Ghulam Muhammad and Muhammad Ali was dismissed. This is vide order dated 23‑12‑1986.

2. A petition for leave to appeal was filed against all the three acquitted accused. It was not pressed as against Ghulam Muhammad and Muhammad Ali. It was, therefore, dismissed. As regards the respondent Tariq it was argued that "so far as the injury caused to the deceased was concerned this fact had been admitted by the respondent although he had raised the plea of self defence, but the High Court did not consider this aspect of the case at all as to whether the case for self‑defence was made out or not. The learned Division Bench of the High Court disbelieved the ocular testimony as well as recovery evidence particularly of human blood‑stained Chhuri recovered at the instance of Tariq respondent only for the reason that the two public attesting witnesses were not produced by the prosecution and they were given up as having been won over. In other words it is submitted that the prosecution version was not put in juxtaposition with the defence version in order to arrive at a proper conclusion. Thus the acquittal of Tariq respondent who had admitted causing injury to the deceased led to miscarriage of justice especially when he could not prove that he had acted in the exercise of his right of self‑defence. Leave to appeal was granted against Tariq to consider whether "his acquittal in the circumstances of the case was justified and was in accordance with the well established principles of safe administration of criminal justice".

3. At the trial three witnesses were produced namely complainant Muhammad Nazir P.W.6, first cousin and Ghulam Murtaza P.W. 8, real brother of the deceased and Muhammad Arif P.W.7 though not related to the deceased yet a servant of the complainant Muhammad Nazir P.W.

6. They implicated three persons. They were not believed against the two accused persons who were acquitted by the learned trial Court which acquittal has been upheld uptil this Court. Their testimony against the respondent was relied upon in view of the recovery of Chhuri from the respondent by the learned Trial Court. But it was not relied upon by the learned High Court in view of the fact that private recovery witnesses were not produced. As regards the contention that the. prosecution version was not put in juxtaposition with the defence version the learned Judges of the High Court observed that "in view of the failure of the prosecution to prove its case we need not go into the truthfulness or otherwise of the defence plea raised by Tariq appellant because onus always lies on the prosecution to prove its case". Prosecution evidence is put in juxtaposition with the defence plea when the prosecution evidence is acceptable or reliable to examine its efficacy or strength with reference to the defence plea. But if the prosecution evidence is unreliable or untrustworthy, the prosecution fails and one need not go to the defence plea because it has to be accepted in its entirety and given effect to and not a part accepted and a part rejected. Unless the plea in defence amounts to confession, when the prosecution evidence fails to prove the case against an accused, the latter is entitled to acquittal. So the learned High Court having disbelieved or not believed the prosecution evidence it did not make any mistake in not putting the defence plea in juxtaposition with the prosecution evidence. The learned High Court examined the entire evidence on record and formed the view that the prosecution had failed to prove its case beyond reasonable doubt. Even if another view was possible that would not furnish a good ground for interference in an order of acquittal. Reliance may be placed on "Ghulam` Sikandar and another v. Mamaraz Khan and others" (PLD 1985 SC 11). 4.In view of what has been stated above, the appeal fails and is dismissed. M.B.A./M‑1601/S Appeal dismissed.