1988 P Cr (PLP)

Criminal Petition for Special Le4ve to Appeal No. 50 of 1987, decided on 31st January, 1988.

Ss.406 & 409--Criminal Procedure Code (V of 1898), S.417(2)- Leave to appeal--Accused being Lambardar, allegedly receiving 'Tawan' amount twice from petitioner--Evidence of one witness was hearsay while other witness related having background of enmity--Witness in whose presence first payment was made, not produced--Ingredients of S.406/409, P.P.C. not proved--No mens rea shown on record- Amount received by accused not shown to be misappropriated--Trial Court, held, rightly rejected complaint--Leave to appeal refused in circumstances. A.G. Tariq Chaudhri for Petitioner. This is a petition for Special Leave to Appeal against the judgment whereby a private complaint filed by the petitioner against respondent Mst. Majeedan was dismissed. In brief, the prosecution case is that Mst. Majeedan respondent is a Lumberdar who had to receive 'Tawan' for the use of canal water. It is stated that an amount of Rs.384 was due from Allah Dad and since Allah Dad had defaulted in the payment of 'Tawan', therefore, he was taken into custody and was brought in tehsil. Furthermore, the prosecution case is that one P.W.1. Ghulam Rasool made payment in tehsil and got Allah Dad released. It was further submitted in the complaint that in the first instance, the same amount had been received by Mst. Majeedan and had been misappropriated and the same had not been deposited. In nutshell, the case of the prosecution is that 'Tawan' was received twice by Mst. Majeedan. In support of the prosecution case, only two witnesses have been produced. I have perused their statements. Evidence of Ghulam Rasool P.W.1 as to the payment of Rs.384 is just a hearsay and, therefore, no reliance can be placed. Naveed P.W. who appeared in the witness-box happens to be the grandson of Allah Dad and he states that he had made payment in the first instance. The perusal of the complaint shows that at the time of the first payment, one Tahir was present but he has not been produced. The evidence also reveals that there is a background of enmity between the parties inasmuch as that the respondent Mst. Majeedan and ,Allah Dad are litigating over Lumbardari. Furthermore, no ingredients of offence under section 409/ 406, P. P. C. have been proved by the prosecution. Even if it be assumed that the first payment was made, no evidence as to the mens rea has been brought on the record. The payment of the 'Tawan' amounting to Rs.384 is' not stated to have been misappropriated. The evidence is highly, interested, and, therefore, it was the bounden duty of the prosecution to have brought on the record some corroborative evidence to lend strength to its case. That being not so, trial Court rightly rejected the complaint. I do not find any substance in this petition. Accordingly, this petition seeking leave to appeal is hereby dismissed. S. A./N-105/L Leave refused.