2010 SCMR 1791 (PLP)

CH IJAZ AHMED J.

We intend to decide captioned petitions by one consolidated order having similar facts arising out of the same impugned judgment.

2. Detailed facts have already been mentioned in the memorandum of petitions and para 2 of the judgment of the trial Court. However, necessary facts out of which the present petitions arise are that petitioners are involved in a case F.I.R. No.94 which was registered at Police Station Kotli Loharan under sections 302, 109, 148/149, P.P.C. on the complaint of Muhammad Ilyas son of Muhammad Yousif deceased. Contents of the F.I.R. reveal that petitioners and 4 others had murdered Muhammad Yousif and Muhammad Shafique by causing fire arm injuries from their respective weapons. The investigating agency, investigated the matter and submitted challan before the competent Court. The trial Court, after completing the legal formalities such as recording of evidence and statements of accused persons, vide its judgment dated 28-2-2003 convicted the petitioners under section 302(b), P.P.C. and sentenced them to death on two counts each. They were also directed to pay compensation of Rs.1,00,000 each on two counts to the legal heirs of the deceased and in default of payment, they were' ordered to suffer six months. Their co-accused, namely, Inayat Ullah, Rehmat Ullah, Munawar Sultana and Ghulam Abbas were acquitted by the trial Court, after giving them benefit of doubt. Petitioners being aggrieved filed appeal in the Lahore High Court, Lahore. Murder Reference was also sent by the trial Court to the High Court for confirmation of sentence. The learned High Court dismissed the appeal of the petitioners vide impugned judgment. Hence, the present petitions.

3. Learned counsel for the petitioners submit as under: (i) That there is no eye-witness of the incident in question. The prosecution has produced chance witnesses. Their statements cannot be provided credibility of believing their statements as they failed to offer any explanation of their presence at the time of incident at the spot. (ii) A long-standing enmity exist between the parties as the witnesses are closely related to the deceased, therefore, their statements cannot be believed without any independent corroboration which is not available on record in the case in hand. (iii) P.W. Ilyas is son of Yousif deceased whereas Liaqiat P.W.2 is brother of Yousif deceased. (iv) Occurrence as alleged had taken place at a public place but the prosecution had failed to produce any independent witness. (v) The crime empties at the spot were also not recovered, therefore, recovery in the case in hand could not furnish any corroboration. (vi) The statements of five witnesses arc contradictory in nature and have improved their statements before the court, therefore, their statements cannot be given due weight. (vii) Shahid Nadoem petitioner has left the native village since long in view of litigation between the parties. He has settled in Lahore and had furnished sufficient material to prove that he was not present at the spot. This fact was not considered by the court below in its true perspective. (viii) Shahid Nadeem petitioner was declared innocent by the police.

4. The learned Additional Prosecutor-General has supported the impugned judgment.

5. We have given our anxious consideration to the contentions of learned counsel of the parties and have perused the record. All the contentions which are raised before us are exactly the same which were raised before the trial Court. The trial Court had rejected all the contentions with cogent reasons. Thereafter the said contentions were raised before the High Court. Learned High Court had re-considered the same and rejected after independent application of mind. P.W.1 Muhammad Ilyas and P.W.2 Liaqat Ali in the circumstances of the case in hand could not be termed as chance witnesses in view of relationship between the deceased and the witnesses as they have furnished sufficient explanation to be present at the spot at the time of commission of offence by the petitioners. It is admitted fact that Ilyas P.W. is son of Yousif deceased who had a shop at the place of incident, therefore, his presence at the spot cannot be doubted. Both the eye-witnesses would be natural witnesses and cannot be termed as chance witnesses, therefore, their evidence would deserve full credence being genuine and legitimate particularly when there was no material discrepancy or contradiction of a potential nature in their evidence. Even if a chance witness reasonably explains his presence at the spot and his narration of occurrence inspires confidence then he is not a chance witness and his testimony can be considered along with other evidence. It is pertinent to mention here that statement of eye-witnesses arc also corroborated by medical evidence.

6. It is settled principle of law that minor contradictions or improvements in the statement of witnesses are to be overlooked. However, only material contradictions are to be considered. The learned counsel for the petitioners have failed to point out any material contradictions, omissions and improvements. See Ranjha v. The State (2007 SCMR 455). It is a settled principle of law that mere relationship between the witnesses and the. deceased is not enough to discard their evidence. It is duty and obligation of the court for requiring corroboration of interested witnesses then it must first ascertain whether he saw the occurrence and was in a position to identify the accused and whether he should be believed without corroboration. The witnesses have faced lengthy cross-examination but their veracity cannot be shaken by the defence counsel. Both the courts below have come to the conclusion that their statements are of such a nature that their testimony must be given due weight and were believed. It is also settled law that if court is satisfied about the truthfulness of direct evidence then the requirement of corroborative evidence is not of much significance. Corroboration is not a rule of law but is that of prudence. As mentioned above, the statement of eye-witnesses was not only corroborative by medical evidence but also motive as set up in the F.I.R. had been proved against the petitioners. In such a situation, prosecution had successfully established the guilt of accused. The petitioners were not convicted and sentenced by the courts below by observing that statement of eye-witnesses was corroborated by recovery, therefore, this contention of learned counsel for petitioners that no crime empty was recovered, has no force. It is settled law that it is the duty and obligation of the accused to prove the plea taken by him in his defence in terms of Article 121 of Qunan-e-Shahadat Order, 1984. Petitioner Shahid Nadeem has failed to prove the plea of alibi by producing any defence witness before the Court. It is also a settled law that finding of police is not binding on the Court. It is pertinent to mention here that investigating agency has only duty under the law to collect evidence and has no authority whatsoever to give finding of guilt or innocence qua the accused persons under the provisions of Criminal Procedure Code, Police Act or Police Order/Rules framed thereunder. It is only prerogative of the Court to give finding after recording evidence and statements of accused qua guilt or innocence of the accused. In case the contention of the learned counsel is accepted, then it tentamounts to delegate powers of the Court to the investigating agency which is not permissible under the law, Constitution and conventions.

7. This Court, generally, does not interfere in the concurrent conclusions arrived at by the courts below while exercising power under Article 185 (3) of the Constitution. However, in the interest of justice and fairplay, we have reexamined the evidence on record with the assistance of learned counsel for the parties, we do not find any error of law or any principle which was violated by the courts below while appreciating the evidence on record. Learned counsel for the petitioners have failed to make out any justification for interference by us while exercising constitutional jurisdiction. Even otherwise, learned counsel for the petitioners have failed to raise any question of law of public importance. It is also settled law that constitutional jurisdiction is discretionary in character. Keeping in view the circumstances in which two persons were murdered by the petitioners in a very cruel manner as evident from the injuries inflicted on the bodies of the deceased, we are not inclined to exercise our discretion in favour of the petitioners.

8. For what has been discussed above, we find no merit in these petitions which are dismissed. Leave refused. M.H./A-60/SC Petition dismissed.