RAJA SHAHID MEHMOOD ABBASI, J.----This appeal under section 410 Cr.P.C. is directed against the judgment dated 26.04.2019 passed by learned Sessions Judge, Attock, in Private Complaint No.18 dated 15.09.2017 connected with FIR No.102 dated 12.05.2017, registered under section 302, P.P.C., at Police Station Saddar, Attock, whereby Zulfiqar Ahmad (hereinafter referred to as the appellant) was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with a direction to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Muhammad Azam deceased or in default thereof to further undergo simple imprisonment for six months.
However, benefit of section 382-B, Cr.P.C. was extended in his favour.
2. On 12.05.2017, Muhammad Afzal Khan complainant lodged FIR (Ex.PB/1), wherein it was narrated that on the same day at about 10:00 a.m. he along with Zabta Khan, Shahid Khan and Muhammad Azam was present in the sand mine, when the appellant came there on his Car No.FDJ-7, Model 1986 and while sitting in the car, he raised lalkara that he has suffered a loss of Rs.5,00,000/- due to complainant party, for which he would teach them a lesson. While sitting in the car, the appellant picked his Kalashnikov which was lying therein and when Muhammad Azam stepped forward to stop him, the appellant made burst of Kalashnikov targeting right leg of Muhammad Azam, who fell on the ground after receiving the injuries. On the hue and cry of complainant party, the appellant fled away in his car. Motive behind the occurrence was that the appellant was apprehending the complainant party to have closed his sand mine and he was facing financial loss due to them and due to this grudge, he committed the occurrence.
3. Initially FIR (Ex.PB/1) was lodged at Police Station Saddar Attock on the basis of complaint (Ex.PB), upon which investigation was commenced, but afterwards Muhammad Afzal Khan complainant filed complaint (Ex.PA) with similar narrations of incident, while maintaining therein that his complaint (Ex.PB) was recorded at THQ Hazro where they had shifted the deceased, in an injured condition, after the incident and from there dead body of deceased was shifted to DHQ Hospital Attock, but, Azmat Hayat S.I. (CW7) with mala fide intention and ulterior motive of extending benefit to the appellant had mentioned in the police proceedings that he had recorded statement of complainant at the spot and had dispatched the dead body of deceased to mortuary from the place of occurrence.
4. After observing legal formalities as provided in the Criminal Procedure Code, 1898, learned trial court summoned the appellant to face trial. On being indicted, the appellant pleaded not guilty and claimed trial, hence, the complainant was asked to produce his evidence, in response, the complainant examined four witnesses before the trial court in order to prove his case and the trial court also recorded statement of eight court witnesses, detail of which finds an elaborate mention in the judgment passed by trial court, therefore, same may not be reproduced here to avoid duplication and unnecessary repetition. Thereafter, the appellant was examined under section 342, Cr.P.C. whereby he adopted the plea of innocence. While answering the relevant question that why this case was registered against him and why the prosecution witnesses had deposed against him, he stated as under:- "I am innocent. In fact, I am owner of a land of sand mines. Complainant Afzal Bangish etc. had obtained lease for extracting sand from the said land including adjacent and there was a dispute with them over non-payment of proper Malkana and on the day of unfortunate incident as 1 stated above, 1 went in the area where complainant along with Zabita Khan, Shahid Khan and Muhammad Azam who was and conversation started over the proper payment of Malkana which converted into quarrelling, due which complainant and particularly of complainant i.e. Muhammad Azam deceased etc. with the intention to screen me out from the scene forcibly tried to snatch my Kalashnikov which was kept by me for my own safety and was lying at the front seat of my car in which I was sitting being paralyzed, and in the event of snatching of the said Kalashnikov as its barrel was towards the deceased triggered accidentally and . its bullets hit the leg of deceased, who subsequently due to negligence of complainant as well as CW-5, died Complainant and PWs in order to avoid payment of Malkana and my sand mine having in league with Azmat Hayat CW-7 and other police officials falsely implicated me by way of cooking a false story whereas I have not committed murder of deceased."
However, he neither opted to make statement on oath as provided under section 340(2), Cr.P.C. nor produced any witness in his defence.
5. On completion of trial, learned trial court proceeded to convict and sentence the appellant as mentioned and detailed above, hence, this appeal.
6. Learned counsel for the appellant contended that it was proved on record that crime report was not promptly lodged and matter was reported after due deliberation and consultation; that facts of the case have deliberately been suppressed by the prosecution and even the investigating officer has not thrashed out the evidence in its true perspective and plea of accused was also not brought on record. Further maintained that it was proved on record that it was an accidental incident and the appellant had no intention to commit the murder of Muhammad Azam deceased; that in fact it was complainant party who in order to snatch his gun available in the car attacked upon the appellant and during scuffle of snatching of the weapon of offence i.e. Kalashnikov, suddenly burst triggered out the bullets which landed on non-vital part of body of the deceased, who was not timely taken to the hospital and lost his life due to excessive bleeding; that the appellant could not have held responsible for the death of the deceased, but the police officer in league with the complainant has falsely implicated the appellant; that even the trial court could not appreciate the evidence produced by the prosecution in its true perspective; that the prosecution has miserably failed to prove the motive part of the case, which itself makes the case highly doubtful; that the prosecution has failed to prove the case against the appellant beyond the shadow of doubt, which is primary requirement of law to record conviction. Bottom-line of arguments advanced by learned counsel for the appellant is that the appellant may be acquitted out of the charge.
7. On the other hand, learned Law Officer assisted by learned counsel for the complainant controverted the contentions raised by learned counsel for the appellant by submitting that it was the case of promptly lodged FIR, in which neither the place of occurrence nor presence of complainant as well as other prosecution witnesses was seriously contradicted; that the plea taken by the defence qua the accidental murder could not be proved; that the onus was upon the defence to prove that it was not intentional murder but no serious attempt was made to prove the same; that it is settled principle of law that if a specific plea is raised by the defence, the same has to be proved through substantial evidence; that it is not disputed that the appellant brought fully loaded Kalashnikov at the scene of occurrence with premeditation and intention and fired upon the deceased; that the weapon of offence, which was licensed weapon, was recovered and brought on record; that the trial court has already taken a lenient view, otherwise it was a case of capital punishment. Finally prayed for dismissal of appellant's appeal.
8. After hearing learned counsel, for the parties and going through the record, I have straightaway observed that the date, time and place of occurrence as well as presence of appellant, complainant patty and deceased at the spot at relevant time coupled with happening of incident, all are admitted facts in this case. However, the defence has seriously disputed the mode and manner in which the incident had taken place. According to prosecution's version, the complainant along with eye witnesses and deceased was present at sand mine, where the appellant, equipped with Kalashnikov, came in his car and while sitting inside the car, he raised lalkara to teach a lesson to complainant party for causing financial loss to him and when Muhammad Azam stepped forward to forbid the appellant, he made burst of Kalashnikov hitting right leg of Muhammad Azam which proved fatal, whereas the appellant while admitting the presence of complainant, eye witnesses and the deceased at the sand mind, throughout took the stance that he had come there in his car to settle the dispute regarding non-payment of sand mine and at that time he was having a Kalashnikov, which the complainant party tried to snatch from him, during which, trigger of Kalashnikov was accidently pressed and the bullets hit the deceased.
9. It is basic principle of criminal jurisprudence that prosecution is always under legal obligation to prove its case beyond the shadow of doubt irrespective of defence pleas, either consistent or inconsistent, and only if the prosecution succeeds in doing so, defence version may be taken into consideration. Following this golden principle, I have weighed the prosecution evidence on the touchstones of reappraisal of evidence and while doing so, I have observed that it was a case of promptly lodged FIR in which the appellant was nominated as the sole perpetrator of offence.
Similarly, it is specifically mentioned therein that the occurrence was witnessed by Muhammad Afzal complainant (PW3), Zabita Khan (PW4) and Shahid Khan (given up being unnecessary). Deep analysis of prosecution evidence revealed that during their statements before learned trial court, Muhammad Afzal complainant (PW3)1 and Zabita Khan (PW4) had fully supported the prosecution case against the appellant by giving graphic details of incident and corroborating each other on all minor as well as material aspects of the case. They reiterated the same facts a3 narrated in private complaint (Ex.PA) as well as FIR (Ex.PB/1) and elaborately stated about the mode and manner in which the appellant had inflicted firearm injuries to- the deceased. Due to absence of any previous enmity or grudge against the appellant, they could not have falsely implicate him in a case involving offence of heinous nature. They were subjected to grueling cross-examination, but they remained on comfortable unison and the defence miserably failed to shatter their credibility. No doubt the appellant was a disabled person due to which he could not alight from his car, but even this fact goes against the appellant as the prosecution witnesses remained consistent that he had made burst of his licensed Kalashnikov while sitting in his car. Another important aspect of the case which goes against the appellant is that the above said eye witnesses had found ample support from the medical evidence, which is in complete harmony with the ocular account of the prosecution's case and in this regard no conflict could be pointed out by the defence. Likewise, weapon of offence i.e. Kalashnikov (P1) was recovered at the instance of appellant and according to defence itself, the deceased had sustained firearm injuries through Kalashnikov (P1), which was a licensed weapon of appellant. It is an admitted position of case that Kalashnikov (P1) used in this case was fully loaded with bullets and was on automatic mode, so it is beyond imagination that its trigger was accidently pressed. I may observe here that though the prosecution has brought on record sufficient incriminating evidence against the appellant in the shape of two eye-witnesses of tragedy, well supported by medical evidence and equally corroborated by recovery of weapon of offence at his instance, but I am of the view that motive is the only weak link of the prosecution case because except oral assertions of eye witnesses, the prosecution has not brought on record any independent proof regarding motive part of its case, so learned trial court has rightly discarded the motive.
10. I have also taken into consideration the defence plea advanced by the appellant during investigation before investigating officer as well as during trial through the trend of cross- examination and recording statement under section 342, Cr.P.C. First portion of defence plea adopted by appellant is that the complainant party tried to snatch Kalashnikov which was triggered accidently, but keeping in view the nature of firearm used during the occurrence, the said plea appears to be absurd and ridiculous. Besides, defence has no satisfactory explanation that if the appellant had no intention to commit this tragic incident, then why he had brought the fully loaded Kalashnikov (P1) with him. Furthermore, Kalashnikov (P1) being on automatic, mode could not have been triggered accidently, therefore, the version of appellant that trigger was accidently pressed does not appeal to mind. The other part of defence plea is that the deceased lost his life due to negligence of complainant and the doctor, but even this plea is not established from the record as it is part of the record that the deceased, in an injured condition, was shifted to THQ Hospital Hazro in order to save his life but firearm injuries inflicted by the appellant on his person did not let him to survive. Even otherwise, keeping in view the provisions of Article 121 of the Qanun- e-Shahadat Order, 1984, the onus to prove his defence plea was squarely shifted upon the appellant but he had utterly failed to discharge that onus inasmuch as he had neither made any statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence to support the version of the incident advanced by him, therefore, the defence plea cannot save the appellant from the consequence of his deliberate and intentional act of committing murder of Muhammad Azam deceased. Guidance in this respect has been sought from the cases of "Abdul Kareem v.
State" (PIA 2010 SC 424), "Muhammad Javed v. The State" (2015 SCMR 864) and "Ali Ahmad v.
State" (PLD 2020 SC 201).
11. Apart from above, learned counsel for appellant also seriously contended that according to police proceedings on complaint (Ex.PB), Azmat Hayat S.I. (CW7) had recorded complaint (Ex.PB) on the statement of Muhammad Afzal complainant (PW3) and dispatched the dead body of deceased from the place of occurrence, but he could not controvert that it was the only reason for which Muhammad Afzal complainant (PW3) had filed private complaint (Ex.PA), It is discernible from record that the complainant (PW3), while recording complaint (Ex.PB), never took the stance that the deceased breathed his last at the spot rather he only stated that the deceased lost his life as a result of firearm injuries inflicted by appellant. Similarly while filing private complaint (Ex.PA), he (PW3) did not change the mode and manner in which the incident had taken place rather he only maintained that Azmat Hayat S.I. (CW7) had written police proceedings on complaint (Ex.PB) against the actual facts. It may be observed here that writing of police proceedings on complaint (Ex.PB) was beyond the domain of complainant (PW3) and when he had well in time disowned the facts mentioned in police proceedings by filing private complaint (Ex.PA), he cannot be held responsible for any malpractice on the part of Azmat Hayat S.I. (CW7) only to extend benefit to the appellant, therefore, the contention of learned counsel for the appellant has no force and is discarded accordingly.
12. After considering all pros and cons of the case, if I take out of consideration the evidence of motive, even then I have sufficient reasons to hold that the prosecution has proved its case against the appellant beyond, the shadow of doubt and as such his conviction and sentence awarded by learned trial court through the judgment under attack is neither unfounded nor it suffers from any legal infirmity. Consequently, Criminal Appeal No.640 of 2019 being devoid of any force and substance is hereby dismissed.