1991 PLP 162 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑The petitioner seeks leave .to appeal against the acquittal of the respondents Nos.1 to 3.

2. The facts, in brief, are that the complainant Murid Hussain lodged First Information Report on 16‑9‑1982 under section 302 P.P.C. 'etc. against Nazir Ahmad, Tassawar Hussain, Khadim Hussain & two others alleging therein that the accused persons had attacked him and his son Mubarik Ali with 'their respective weapons. The case was tried by the Sessions Judge, Gujrat, who vide judgment dated 20‑6‑1984 convicted Tassawar Hussain and Khadim Hussain under section 302/34 P.P.C. and sentenced them to death and fine of Rs.5000 each or in default to undergo further R.I. for one year. Nazir Ahmad respondent was sentenced to imprisonment for life and fine of Rs.5000. Nazir Ahmad was also convicted under section 325 P.P.C. and sentenced to one year. R.I. and fine of Rs.500. Tassawar Hussain, Khadim Hussain and Nazir Ahmad preferred appeal against their conviction and sentence. A private revision was also filed by the complainant for the enhancement of sentence of Nazir Ahmad. Another private revision was filed by the same complainant against the acquittal of Muhammad Akhtar and Muhammad Aslam. The learned High Court dismissed the appeal of Tassawar Hussain and Khadim Hussain and accepted the appeal of Nazir Ahmad respondent No.1 and maintained the judgment of the trial Court in respect of respondents Nos.2 and

3. Learned counsel for the petitioners has submitted that Nazir Ahmad, respondent No.1, had assaulted Murid Hussain, complainant. He had also attacked the deceased therefore, the judgment of the High Court in acquitting the respondent No.1 is against record. He further submitted that specific role has been attributed to respondents Nos.2 and

3. Akhtar was armed with a Sota and he inflicted injury on the right eye‑lid of the deceased whereas Aslam had given injury with Khanjar on the face of the deceased. The medical evidence supported the ocular testimony therefore it is a case of misreading of evidence. The learned High Court disbelieved the recoveries and then observed "exaggeration made by the witnesses does not defeat the case of the prosecution qua participation of the present appellants/respondents for the testimony given by the witnesses in respect of the specific injuries inflicted by them stands corroborated by the medical evidence. The upshot of the above discussion is that Murid Hussain complainant, P.W.10 and Talib Hussain P.W.11 were present at the spot and they did see the occurrence. However, since they implicated Muhammad Akhtar and Muhammad Aslam acquitted accused who were given the benefit of doubt, we would have to look for corroboration before holding any of the appellants as having participated in the crime". The High Court came to the conclusion that the case against Tassawar Hussain and Khadim Hussain has been established and the corroboration was sought from the medical evidence and their abscondence. Their appeal was dismissed. As regards respondent No. 1 it was observed that there being no corroboration against Nazir Ahmad, he was entitled to the benefit of acquittal. The revision petition filed by the complainant against the acquittal of respondents Nos.2 and 3 by the trial Court, was also dismissed. Learned counsel for the petitioner has submitted that the statements of two eye‑witnesses is corroborated by the medical evidence therefore the finding of the High Court in acquitting the respondent No.1 is not legal. He further submitted that the rejection bf the revision petition filed by the complainant against respondent No. 1 was also improper. The respondents Nos.2 and 3 had been acquitted by the trial Court giving them the benefit of doubt. The same benefit would naturally extend to the respondent No.1. The learned High Court has not accepted any corroboration in respect of respondent No.1. The case of Tassawar Hussain and Khadim Hussain is distinguishable and in their case the abscondence of the accused was considered a piece of evidence against them but in the present case there is no such material. There is no allegation that respondent No.1 had absconded after 'the incident. In the absence of any corroboration he was also entitled to the benefit of doubt. There is no force in this petition. The same is accordingly dismissed and leave to appeal is refused. N.H.Q./M‑1404/S?????????????????????????????????????????????????????????????????? Leave to appeal refused.