2006 PLP 1652 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

This appeal is directed against the judgment, dated 30-7-2001, passed by the learned Additional Sessions Judge, Depalpur, whereby after having tried the appellant, he was convicted under section 311, P.P.C. and sentenced to imprisonment for fourteen years with a further direction to pay a compensation of Rs.1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. in default whereof to further undergo S.I. for two years. Benefit of section 382-B, Cr.P.C. was also extended to the appellant.

2. Brief facts of the case, as given by the complainant Muhammad Yaseen in the F.I.R. are that they are cultivators; that on 30-5-1999 at midnight the complainant along with brother Zubair Mansha (deceased) and Anwar (appellant) were present in the field; that there was exchange of hot words amongst deceased Mansha and appellant Anwar whereupon appellant picked up loaded licensed gun of Mansha deceased and fired a shot at him who died at the spot; that the appellant decamped from the spot and that the motive was that the appellant used to demand property from the deceased Mansha who undertook to give the same to the appellant after the marriage of his sisters which resulted into the present occurrence.

3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where the prosecution, in order to prove its case against the accused, produced eight witnesses during the trial.

4. Learned counsel for the appellant in support of this appeal submits that it is a dark night occurrence; that the F.I.R. was registered after due deliberations and consultations; that though the complainant is the real brother of the deceased and the appellant, yet he had falsely implicated the appellant in this case; that the father of the deceased has already waived his right of Qisas; that the prosecution has failed to prove ,its case against the appellant and that the appellant is entitled to acquittal by this Court.

5. On the other hand, learned counsel for the State submits that the appellant is the single accused in this case; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that this appeal is liable to be dismissed.

6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.

7. The occurrence in this case had taken place on 30-5-1999 at midnight, the matter was reported to the Police at 6.05 a.m. at Pul Mandi Road Hujra Shah Muqeem while the F.I.R. was recorded in the Police Station at 6.25 a.m. and the distance between the place of occurrence and the Police Station is nine kilometers.

8. It is pertinent to mention here that the appellant is the real brother of the complainant as also of the deceased. The appellant, in the presence of the eye-witnesses fired a shot at the deceased Mansha which led to his instantaneous death at the spot.

9. The prosecution to prove its case produced Muhammad Yasin as P.W.1. Although he is closely related to the deceased i.e. real brother yet he has no enmity or strong motive to falsely implicate the appellant in this case coupled with the fact that the said P.W. is also the real brother of the appellant as well and it is repellent to common sense that a real brother would falsely depose against his real brother. He has reasonably explained his presence at the place of occurrence and I see no reason not to accept his statement. Notwithstanding the fact that he was subjected to cross-examination but nothing could be shaken from his testimony.

10. There is yet another eye-witness of the case, namely, Barkat Ali son of Dona (P.W.2), Caste Bathru who appeared before the learned trial in support of the prosecution case. He also remained consistent on all material particulars of the case and nothing could be shaken from his testimony despite his cross-examination to which he was subjected during the trial. He corroborated the statement of the above eye-witness on the main points. He is not related either to the deceased or the appellant, so, he appeared as an independent witness. He has also reasonably proved his presence at the spot to have witnessed the occurrence. This Court seems his testimony to be worthy of credence.

11. Apart from above the ocular account in this case was corroborated by the medical evidence coupled with the factum of recovery of gun in the working order and the positive report of the Forensic Science Laboratory Exh. P.M.

12. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt to sustain conviction against the appellant. The learned Trial Court has already taken a lenient view. Resultantly, this appeal has no merit which is accordingly dismissed after having maintained the conviction and sentence awarded to the appellant by the learned Trial Court vide the impugned judgment, in toto. H.B.T.IM-394/L Appeal dismissed.