WAQAR AHMED vs SHAUKAT ALI and otherss

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition has been filed for leave to appeal against the judgment of the High Court, dated 5th March, 2002 whereby appeal filed by the respondents has been accepted as a result whereof they have been acquitted of the charge of murder of Ijaz Amir.

2. Precisely stating the facts of the case are that vide F.I.R.No,104 of 1995, Exh.P.L. The respondent along with others namely Faujdar, Fazal Abbas, Sher Ali were booked in the crime. On completion of usual investigation they were sent up to answer the charge before the Sessions Judge, Khushab who after their trial vide judgment, dated 17th July, 1997 concluded that the respondents Nos.1 and 2 are guilty for the offence under section 302(b)/34, P.P.C. As such they were sentenced to death with further direction to them to pay compensation of Rs,50,000 each to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default whereof to further undergo R.I. For 6 months each.

Learned High Court accepted the appeal filed by the respondents Nos.1 and 2 and acquitted them of the charge of murder as such instant petition has been filed.

3. Learned counsel contended that the High Court has misread the material evidence available on record and had failed to apply correctly settled principle of law for safe administration of justice in criminal cases. It has also been contended by him that the accused have themselves taken the plea of self-defence and one of them Asghar Ali in his statement under section 342, Cr.P.C. Had admitted that in self-defence to save his brother Shaukat Ali respondent No,1 he fired which hit to Ijaz Amir, therefore according to him on account of such stand of the accused their presence is established and they were liable for appropriate sentence/conviction but the High Court by ignoring all these material facts had acquitted them of the charge.

4. We have heard the learned counsel for the petitioner and have also gone through the evidence so produced by the prosecution before the trial Court to substantiate accusation against accused.

First of all it is to be noted that in the criminal cases it is always primary duty of the prosecution to establish its own case independently instead of depending upon the weaknesses of the defence.

No doubt, Asghar Ali in his statement under section 342, Cr.P.C. Has stated that he fired in self- defence but his such assertion would not be sufficient to conclude that for this reason the prosecution has succeeded to establish the guilt against the appellant. Of course such statement of the accused can be accepted under section 342, Cr.P.C. In toto, if there is no other prosecution evidence and the case is to be decided only on the statement of the accused as it has been held in the judgment reported in "The State v. Muhammad Hanif and 5 others 1992 SCM R 2047. But in the instant case prosecution had other incriminating evidence therefore, it was its duty to establish the guilt against the accused notwithstanding the fact that what plea was taken by them during the trial of the case. It is equally noteworthy that plea of self-defence of the respondents was denied by the prosecution witnesses itself during their cross-examination, therefore, if examined from this angle as well prosecution case has to be examined independently on the evidence whatever has been produced before the Court. F.I.R. Indicates that firing was made by the accused persons i,e,, Asghar Ali, Shaukat Ali and Masood but surprisingly no incriminating empty was recovered from the place of occurrence by the Investigating Agency. Therefore, for this reason inference can be drawn that the incident had not taken place in the manner as it has been disclosed by the prosecution. Similarly, the alleged eye-witnesses who came forward to substantiate accusation against the respondents failed to furnish trustworthy confidence inspiring evidence. The learned High Court in the impugned judgment had thrashed out the evidence thoroughly and on the basis of the same concluded that the involvement of the respondents is doubtful in the commission of the offence, therefore, we have no reason to interfere with the conclusion drawn by the learned High Court.

' Thus for the foregoing reasons, we are of the opinion that the impugned judgment being just and proper admits no interference by this Court, as such the petition is dismissed.