1999 PLP 1357 (MLD)

3. It was alleged in the F.I.R. that Akbar, now deceased, was the son of the complainant and was working as mason with the appellant in his lifetime, so they were friendly inter se and had visting terms with each other. Akbar deceased desired to go abroad a month before the occurrence and paid a sum of Rs.20,000 to the appellant for providing him a visa. The appellant failed to do so whereupon Akbar deceased demanded for return of the amount. Akbar deceased brought the matter to the notice of his father who then contacted his brother Saeed. Abdul Rehman son of Haji Imam Din, Saeed and Akbar deceased went to the house of the appellant for demanding the aforesaid amount at about 3-30 p.m. The appellant made them to sit in the Baithak and started conversating over the money in dispute. They exchanged abuses, whereafter Liaqat appellant went in his house, brought a mauser and then fired an effective shot hitting at the chest close to the neck of Akbar deceased. Thereafter, the appellant proclaimed that he had avenged his insult and ran away from the spot.

4. The occurrence was witnessed by Abdul Hameed, complainant himself, by Abdur Rehman and Saeed. Akbar was lifted by the complainant and his brother Saeed from the spot to Civil Hospital, Kasur but on the way he succumbed to the injuries.

5. Noor ul Hassan, S.I. then sent the complainant to the police station for formal registration of the case. He started investigation, found the dead body of Akbar lying in the verandah of the hospital. He prepared injury statement Exh.P.H. and inquest report Exh.P.J. and despatched the dead body to mortuary at Kasur for post-mortem examination. On the same evening the Investigating Officer went to the spot and inspected Baithak of the appellant and took into possession a blood-stained piece of cloth of the sofa vide memo. Exh.P.F. which was sealed into parcel. He also took into possession the empty lying at the spot vide memo. Exh.P.E. which was also sealed into a parcel. He recorded statements of the witnesses, prepared rough site plan of the place of recovery, Exh.P.K./1. Next day he deposited the sealed parcels intact with the Moharrar of the police station. On this day, he also took into possession the last worn clothes of the deceased, P.1 to P:4 vide memo. Exh.P.C. and thereafter, continued with the investigation of the case.

6. On 16-12-1991, he arrested the appellant who during the interrogation disclosed about the licensed pistol, P.5 which was taken into possession vide memo. Exh.P.D. The Investigating Officer prepared site plans of the place of occurrence Exh.P.A and Exh.P.A/l and after completion of the investigation submitted challan against the accused.

7. The learned trial Judge after recording evidence, statement of the accused and hearing learned counsel for the parties, convicted the accused vide the impugned. judgment.

8. Learned counsel for the appellant contends that the prosecution evidence does not inspire confidence and the occurrence in fact had taken place in the street, outside the house of the appellant. The deceased was killed by someone else and the appellant has been falsely roped in,

9. Learned State Counsel, on the other hand, submits that there was no enmity between the complainant and the accused. The prosecution evidence which consists of impartial and disinterested witnesses, inspires confidence. Learned Sessions Judge has rightly convicted him on the basis of evidence.

10. I have heard the learned counsel for the parties at length and perused the record with their assistance.

11. In his statement under section 342, Cr.P.C. the appellant in answer to question No.7, claimed that he was falsely implicated in this case. He stated that he was present in his house when he heard a noise in the lane passing in front of the same. He rushed to the spot and saw Akbar deceased lying injured in the lane. He lifted him to the hospital on a motorcycle of his neighbourer, Sardar Muhammad Ahmad. Akbar died of the injuries in the hospital and he sent this information to his father in his house. He brought the police to the spot and shows the lane to the police but has been falsely implicated in this case at the instance of the complainant in collusion with the police as the real culprit was not traceable. He was taken to the police station the same evening by the Investigating Officer and his arrest was shown on 16-12-1991. He further stated under question No.9 that he will produce defence evidence but under question No. 10 he stated that he will not make his own statement on oath under section 340(2). Cr.P.C. The statement of the accused-appellant cannot be believed in view of reliable evidence of the prosecution produced during the trial. He has not made statement on oath nor he produced his defence evidence. There was no previous enmity between the complainant and the appellant. The evidence of eye-witnesses, Abdur Rehman (P.W.5) and Abdul Hameed (P.W.6) is consistent without any discrepancy. Abdur Rehman is the Mohalladar of the complainant whereas Abdul Hameed is the father of the deceased. They have no ill-will against the appellant. The motive pare of the F.I.R. has also been supported by Abdul Hameed and Abdur Rehman P.Ws. Abdur Rehman P.W.5 is an independent witness and he has no motive to falsely implicate the appellant. The F.I.R. was lodged by Abdul Hameed promptly, therefore, there is no possibility of consultation and premeditation. Moreover, the occurrence took place in the house of the appellant and the weapon used ill the occurrence is his licensed mauser which has not been disowned by him. So, the question of substitution of the appellant with the real culprit cannot arise. The complainant's statement that Rs.20,000 were paid to the appellant for procuring a visa to send the deceased abroad, has been established on record. He instead of returning the amount to Akbar caused his death with his mauser. The statements of both the eye-witnesses do not suffer from any inherent defect and the same cannot be discarded in any manner. They both are natural witnesses and their evidence had rightly been relied upon by the learned trial Judge.

13. The recovery of mauser (P.5) from the appellant is not disputed by him. It is a licensed weapon of the appellant and according to him he had produced it before the police himself during the investigation. The empty found at the spot during the spot inspection by the Investigating Officer was sent to laboratory one day before the arrest of the appellant. The mauser (P.5) was recovered from the appellant on 16-12-1991 whereas the empty was sent to laboratory on 15-12-1991. The report of the Expert is positive as the empty wedded with the mauser (P 5) recovered from the appellant vide memo. Exh.P.D. The ocular account is supported by recovery of the mauser which shows that this very weapon was used during the occurrence and the empty found at the spot matched with the mauser.

14. The motive part has also been proved by the prosecution beyond any shadow of doubt. The evidence of the complainant that he took Panchayat to the house of the appellant, asking him to return amount of Rs.20,000 has gone unrebutted. During the cross-examination the appellant has failed to create any dent in the prosecution version. There was no previous enmity between the appellant and the complainant. The appellant as well as the deceased were masons and known to each other. The appellant had promised with the deceased to send him abroad and charged from him Rs.20,000 for getting a visa for him. The appellant failed to procure the visa, whereafter, the deceased demanded the money which was not returned. Thereafter, a Panchayat was convened to get back the money advanced to the appellant through a peaceful manner but instead of returning the amount, the appellant made them sit in his Baithak, took a mauser from his house and fired at the deceased who succumbed to the injuries on way to the hospital The upshot of the above discussion is that the prosecution case is based on cogent, reliable and sound evidence which does not call for any interference by this Court. The impugned judgment has been passed after proper appreciation of the evidence on record. The appellant has not produced any defence evidence, nor he has made statement on oath under section 340(2), Cr.P.C. His conviction is fully justified on facts and circumstances of the case. This appeal is accordingly dismissed. However, the appellant is given benefit of section 382-B of Cr.P.C. H.B.T./L-25/L Appeal dismissed.