SALAHUDDIN PANHWAR, J.---Through instant appeal, the appellant has assailed judgment dated 5th August, 2010, passed by Sessions Judge, Jacobabad, in Sessions case No.874/2008, (St. v.
Sikander Teghani), emanating from FIR No.54/2007 of Police Station City, Jacobabad.
2. Precisely relevant facts are that, appellant and absconding accused Asghar in furtherance of their common intention committed qatl-e-amd of Ali Nawaz a clerk in post office, Jacobabad, by causing fire shot injuries, while he was discharging his duty there, the present accused was apprehended soon after the incident by police party on duty and from him secured a crime weapon while co-accused Asghar Ali made his escape good, for that they were booked and challaned.
3. After framing of charge against appellant; the prosecution in order to prove its case examined H.0 Arbab Ali, who produced attested copy of mashirnama of arrest and recovery, mashirnama whereby the T.T pistol secured from appellant was sealed. The corpse bearer PC Muhammad Sharif, Mashir Mehboob Ali, who produced mashirnama of examination of dead body of deceased Ali Nawaz, mashirnama of place of incident and inquest report on the dead body of deceased. SIP Mansoor Ali, who produced attested copy of FIR of this case. P.W Rasool Bux, P.W Noor Muhammad, Dr. Bashir Ahmed, who produced attested photocopy of postmortem report on the dead body of deceased Ali Nawaz. Complainant Muhammad Ameen, P.W Faiz Muhammad, P.W Illahi Bux were given up, thereafter PW Ghulam Akbar, SIP Abdul Ghaffar, SIP Sultan Ahmed were examined. SIP Sultan Ahmed produced attested copy of FIR No.55/2007, relating to police encounter, attested copy of FIR No.56/2007 relating to recovery, of T.T pistol from appellant. Thereafter side of prosecution was closed.
4. The statement of appellant was recorded under Section 342, Cr.P.C., in which he has denied the allegations leveled against him and claimed to be innocent. He neither re-examined himself on oath nor examined any witness in defence.
5. Learned counsel for the appellant, inter alia, contended that appellant is innocent; ocular account is in conflict with medical evidence; case is without motive; manner of incident is not free from doubt; prosecution story is not believable to a prudent mind; it is settled principle of law that slightest benefit of doubt must be extended in favour of appellant; one passerby received firearm injuries in alleged incident, that witness was not examined, this aspect is sufficient to create doubt in prosecution story.
6. Learned A.P.G. Contends that instant case is based on ocular, medical and circumstantial evidence. All are in conformity; defence counsel failed to cause any dent in prosecution case, hence instant appeal is liable to be dismissed.
7. Heard parties and perused the record coupled with impugned judgment.
8. It is surfaced that, complainant Muhammad Ameen and PW Khair Muhammad during course of their examination before the trial Court have inter alia have given reasons of their presence at the place of occurrence at relevant time and details of offence committed by appellant and that of absconding accused whereby proving their stand of 'witnesses'. The defence has attacked the presence of the witnesses at the relevant time which plea does not appear to be having much weight because it is well settled principle of law, as held in the case of Anwar Shamim v. State (2010 SCM R 1791) that:-- 'Even if a chance witness reasonably explains his presence at the post and his narration of occurrence inspires confidence then he is not a chance witness and his testimony can be considered along with other evidence'.
' In the instant matter these witnesses claimed that they had gone to have a meeting with Ali Nawaz (deceased) at post office, Jacobabad which is undisputed a place of working of the deceased. The act of going to meet some one at his place of working cannot be termed to be illogical particularly when claim of relationship or acquaintance of such witnesses with deceased is not challenged. At this place, it is necessary to mention that it is not the claim of one to be present at one place which dresses him/her with status of 'witness' but it is the claim of that person that he/she witnessed the incident. Since, in the instant matter these witnesses did claim so and gave the details of the incident which resulted into arrest of the appellant, soon after the incident by police officials, available on patrolling hence such claim of these witnesses appear to be confidence inspiring and natural when such claim is also shouldered by the evidence of P.W. HC Arbab (who came there on hearing fire shot reports), P.W Rasool Bux, P.W Noor Muhammad and P.W Ghulam Akbar, co-employees with deceased Ali Nawaz at post office Jacobabad. Further, the arrest of the appellant by police official witnesses; reaffirming of the arrested person as culprit by the eye-witnesses in promptly lodged FIR always excludes or least lessens the chances of deliberation and consultation with others to wrongly involve the accused, A particularly where these witnesses had no enmity or any grudge against the appellant to falsely involve him in the case on a capital charge and to let off the real culprits. I am strengthened in my such view with the case laws reported as:-- 'Qamar-uz-Zaman alias Kala v. State (2011 SCM R 856)
' Therefore, the presence of complainant and the ocular witnesses in their own house and having come out through the shop on hearing loud commotion coming from the shop and having witnessed the occurrence cannot be doubted for being quite natural in the circumstances of the case. They obviously had no enmity or any grudge against the petitioner to falsely involve him in the case on a capital charge and to let off the real culprit, who committed the murder of the husband of the complainant and the father of the other ocular witnesses. FIR was promptly lodged by the complainant at Police Station, situated at a distance of 12 miles from plate of occurrence by the widow of the deceased and therefore, the possibility of any deliberation or consultation on the part of the complainant before lodging the FIR also stands completely excluded.
' Saeed Khan and 5 others v. The State (2008 SCM R 849)
"7. The occurrence took place on 15.8.1978 at 1-15 p.m and the FIR was lodged at 6-00 p.m. With explanation on the same day thus, the FIR was lodged promptly, therefore, chance of deliberation and consultation with others to wrongly involve the appellant is excluded.'
(Underlying has been supplied for empathizes).
' Further, the evidence of the PW H.C. Arbab also supported the evidence of these witnesses who, having received information from said witnesses, had arrested the appellant along with crime weapon. This witness while continuing the chain of facts i.e. Reaching at spot hearing the fire- report and acquiring knowledge of incident from said witnesses, completes the same by chasing the culprits with success of arresting the appellant along with crime weapon. He in doing so was joined by police party of PS City Jacobabad consisting of SIP Sultan Ahmed Mangi and others and after due encounter the appellant was apprehended and from him one unlicensed T.T pistol was secured, while other accused made his escape good. In these premises, there was hardly a need with the prosecution to have the present appellant subjected to identification parade. These police official witnesses prima facie had no motive or grudge to substitute the real culprit with an innocent within such short-span of time. This also eliminates chances of claim of substitution of the culprit particularly when the death of the deceased in claimed manner i.e. At place of incident with fire-arm, is never disputed. I would like to take advantage of the case of Akhter Ali v. State (2011 SCM R 937) wherein it is held that:-- "10. We have considered the arguments put forth by the learned counsel for the parties and perused the record. The appellant was apprehended immediately after the occurrence by the P.Ws who have absolutely no motive to implicate the appellant. The defence plea is unfounded besides being an afterthought. We have found no reason to take any exception to the findings of the trial Court as well as of the appellate Court. Therefore, this appeal fails and is hereby dismissed.'
9. As to the contention regarding non-proving of the motive, it would suffice to say that prosecution had never alleged any motive hence no burden was lying upon it (prosecution) to prove what it never asserted. This plea shall otherwise stand satisfied with reference to the case of Muhammad Latif v. State (2008 SCM R 1106) wherein it is held that:-- "Be that as it may, it is settled law that motive, proved or otherwise, is immaterial in presence of ocular evidence and murder may be committed even for no motive or'on a minor pretext. What to.
Speak of proving motive, in certain cases where the motive was shrouded in mystery or was not alleged, conviction was maintained and absence of motive was not taken, as a mitigating circumstance even.'
10. It is true that, the report of ballistic expert has not been produced on record but the reason for its non production was that the same was set on fire by provoked mob on death of Mohtarma Benazir Bhutto with rest of the record of the Court. This was a genuine reason and even otherwise where the charge is proved by other direct, natural and confidence inspiring evidence then non-recovery of the crime weapon was not held to be fatal even. Reference, if any, can be made to the case of Muhammad Nadeem alias Deemi reported as 2011 SCM R 872.
11. It is true that during course of apprehension of the present appellant by PW SIP Sultan Ahmed Mangi and PW H.C. Arbab Ali, one passerby namely Faiz Muhammad sustained fire shot injury. No doubt he has not been examined by the prosecution in the present case but this omission is not enough to fail the case of prosecution for the reason that he was not a witness of prosecution in the present case, but a witness in a case of the prosecution relating to police encounter, as a result whereof the present appellant was apprehended by the police party.
12. The evidence of PW PC Muhammad Sharif Golo is to the extent that he delivered the dead body of deceased to medical officer for postmortem. Evidence of PW SIP Mansoor Ahmed is to the extent that he recorded FIR of present case, while evidence of SIP Abdul Ghaffar is to the extent of investigation of the present case, which being not material to dislodge the direct evidence, as discussed above, hence needs no further discussion.
13. The plea of innocence which the appellant has taken at the time of trial and in his statement recorded under Section 342, Cr.P.C. Deserve to be ignored as an after thought in the circumstances of the case. Where the prosecution successfully discharges its burden in proving the charge against the accused then the accused cannot take any advantage merely by denying the allegation or pleading innocence in his statement under section 342, Cr.P.C. Rather he is required to do much more in such eventuality because the burden is now upon him to prove his 'stand' if there is any.
14. The over all discussion lasts at a conclusion that the appellant along with absconding accused in furtherance of their common intention has committed qatl-eamd of deceased Ali Nawaz by causing him fire shot injury as is alleged by the prosecution, hence the appellant has failed to substantiate his appeal which, accordingly, was dismissed by short order dated 29.9.2015. These are the detailed reasons.