' This appeal is directed against the judgment, dated 17-5-1999 passed by the learned Additional Sessions Judge, Lahore, whereby the .Appellant has been convicted under section 302(b); P.P.C.
And sentenced to life imprisonment. He is also directed to make payment of Rs,20,000 as compensation to the legal heirs of the deceased. In default of payment of fine he shall have to further undergo simple imprisonment for two years. Benefit of section 382-B, Cr.P.C. Has been given to the appellant. However, the appellant has been acquitted under section 324, P.P.C.
2. The brief facts of the case are that the appellant was an accused person in case F.I.R. No,273 of 1995 registered under section 302/34, P.P.C. At Police Station Qila Gujar Singh registered on the statement of Siddique Butt P.W.7 for the murder of his son Suleman alias Gogi. FI.R. Exh.P.E. Was registered at 1-05 a.m. For an occurrence which took place on 26-5-1995 at 10-15 p.m. The complainant has stated that Suleman aged about 27/28 years was married on 7-4-1995. Before the marriage Sabir Saeed who is a Goldsmith and is running a shop at Suhaw Bazar was approached and Rs,60,000 was paid to the appellant as advance. According to the complainant the appellant failed to prepare the golden ornaments and also did not pay the amount. The complainant stated that whenever he demanded the payment of money the appellant threatened him with dire consequences. On the date and time of occurrence the complainant, his son Suleman alias Gogi and Sohail Butt were present at their shop and were talking to each other as Gogi was sick and the sickness was jondous. In the meanwhile the appellant came at the spot. The complainant told him that he was a poor person and the advance amount paid to him was needed and asked him to make payment on which the appellant took out mauser from his Shalwar and raised a Lalkara to kill Suleman alias Gogi and fired at him which hit him on his left jaw. Second shot was fired which did not hit anybody. The complainant tried to apprehend the appellant. The third shot was fired by the appellant which hit the complainant-at his right cheek.
The appellant ran away from the spot. Both the injured were taken to the hospital. Suleman alias Gogi died due to the injuries.
3. After the registration of the case the Investigating Officer came to the spot, sent the dead body to the mortuaiy and collected three empties from the spot which were sent to the Forensic Science Laboratory subsequently. The appellant was also arrested and on his pointation mauser was recovered. After the completion of the investigation the challan was submitted. The learned trial Court framed the charges which were denied and prosecution in order to prove the guilt of the appellant produced nine witnesses. The prosecution produced evidence consisting of the statement of P.W.7 Muhammad Siddique Butt and P.W.8 Muhammad Sohail Butt to prove the ocular account. Medical evidence has been produced through the statement of Dr. Azhar Masood P.W.3 and Dr. Waseem Butt P.W.4 Abdur Rehman P.W.9 is the Investigating Officer of the case. The other evidence is of formal nature. The appellant in his statement under section 342, Cr.P.C. Denied certain facts but has not denied his presence at the spot and has given a different version of the occurrence. When he was asked that "why this case is against you" he made the following reply:-- "Siddique Butt had to pay me a balance amount of Rs,13,000 on account of gold ornaments supplied by me to Siddique. An altercation and grappling took place. The deceased died due to accidental fire shot either of his own or his younger brother Shahbaz. Since the elder son of complainant died at his own hand (Suleman) or his younger brother Shahbaz thus, in order to save the skin of his son Shahbaz and to usurp the balance payment of Rs,13,000 I have been falsely involved, having a hand in gloves with the Investigating Officer. The complainant and Sohail Butt have deposed against me for the reasons stated above."
' However, the appellant produced Dr. Asif Nazir Qureshi as D.W.1, who medically examined him on 3-6-1995 while he was serving as -Surgeon Medico-legal Punjab, Lahore and found the following four injuries:--
(1) Scabbed wound 2 x 1 c.m. On right parittal region of head.
(2) Scabbed wound 1.5 x 0.4 c.m. On left upper occipital region of head. There was complain of pain on right cheek.
(3) Scabbed abrasion 6 x 1.5 c.m. On back of left shoulder.
(4) Scabbed abrasion 9 x 1 c.m. On lower back neck.
' The doctor stated that the duration of the injuries was about one week and were caused by blunt weapon. After hearing both the parties the learned Additional Sessions Judge passed the abovesaid judgment which is impugned in this appeal.
4. Learned counsel for the appellant has contended that the appellant also received four injuries during the occurrence which have not been explained by the eye-witnesses hence the ocular account can be disbelieved on this score alone that they had suppressed the injuries on the person of the accused/appellant. He has also contended that the complainant claimed that he received a fire-arm injury but the doctor found the injury on the person of the complainant as caused with blunt weapon. Thus, there is contradiction in the medical evidence and the ocular account, hence doubt is created. It is further contended by the learned counsel for the appellant that both the eye-witnesses, namely, Muhammad Siddique Butt and his son Muhammad Sohail Butt are closely related inter se with the deceased and are interested witnesses and their statements cannot be accepted without independent corroboration which is lacking in this case hence it is a case of acquittal. He further contends that the version of the complainant has not been proved and there are material contradictions in the statements of both the witnesses and they are not worthy of reliance. He further contends that the prosecution version is also found incorrect due to the reason that no marks of firing were found on the wall. The grappling is not admitted by the complainant then how the injuries have been received by the appellant. The prosecution evidence is silent on this question. He further contends that the defence version is more plausible and is supported by the medical evidence hence that may be accepted and the appellant be acquitted by setting aside the judgment in hand.
5. Mr. A.H. Masud, Advocate, learned counsel for the State has opposed the acceptance of the appeal and has contended that there is no previous enmity between the appellant and the complainant hence the statements of both the witnesses are independent and confidence- inspiring., There is no material contradictions in their statements. The medical evidence is totally in line with the ocular account. The defence version is not at all plausible. On the other hand the prosecution has succeeded in proving the case against the appellant hence the appeal merits dismissal.
6. I have heard the learned counsel for the parties and also perused the record. The place of occurrence and the presence of the appellant at the time of occurrence is admitted. The only difference is the version narrated by both the parties. This Court has to see with due care and caution the evidence of the prosecution whether it has succeeded in proving the case against the appellant without any reasonable doubt. The prosecution in order to prove the guilt of the appellant has produced Muhammad Siddique Butt P.W.7 and Muhammad Sohail Butt P.W.8 who adduced ocular account. Both the eye-witnesses are though related to the deceased but admittedly are not inimical to the appellant. They had no motive to falsely implicate the appellant in the instant case. Mere relationship of the witness inter se and with the deceased is not sufficient to term them as interested witnesses. In the absence of any previous enmity they cannot be termed as interested witnesses. Admittedly the appellant was on visiting terms to them and had gone to receive the amount while the complainant has made a different version of the occurrence.
Both of them are consistent and in agreement that there was a dispute of civil nature between the appellant and the deceased. This dispute cannot be said as sufficient to falsely implicate the appellant in the occurrence that he had not committed the occurrence and had not fired at the deceased. There is no reason to concoct a story to falsely implicate the appellant in this case.
Though he has not admitted the occurrence to have not fired at the deceased but the presence of the witnesses has not been doubted seriously by the appellant. Hence the contention of the learned counsel for the appellant that the injury on the person of the complainant as alleged by him to have been caused by the fire-arm was not found as an injury caused by the fire-arm by the doctor does not affect the prosecution case because the presence of the complainant is not doubted by the defence as well. Both the witnesses are consistent on material points and they denied the factum of grappling and causing of injuries to the appellant at the time of occurrence.
Though the injuries were found to have been received by the appellant through his medical examination at the time of his arrest by the report of Surgeon but the only reason that the duration is the same will not be sufficient to hold that the injuries on the person of the appellant were actually received during the occurrence. The appellant has not tried to prove at the trial the factum of receiving of injuries by him during the occurrence as he has not produced any witness. Even he has not appeared in his defence. The onus to prove the receiving of injuries during the occurrence by him was upon him but he failed to substantiate this point even during the cross-examination on the ocular account. When the witnesses denied the receiving of the injuries by the appellant during the occurrence and the appellant has not made any efforts for proving the factum of receiving of injuries during the occurrence, it cannot be safely said that these injuries were received by the appellant in the incident hence the contention of the learned counsel for the appellant that both the witnesses have suppressed the injuries on the person of the appellant is repelled. The statement of two witnesses i,e, P.Ws.7 and 8 are consistent on material points. The defence has failed to gain anything out of the lengthy cross-examination upon these two witnesses. They are natural witnesses and their presence at the spot cannot be doubted at the time of occurrence hence in the absence of any material discrepancies in their statements there is no reason to disbelieve them merely on conjectures and surmises. Both the witnesses have established that they were present at the spot and have witnessed the occurrence and have consistently stated that the appellant is the real culprit who had fired at the deceased. The defence has failed to shatter the statements against the appellant and they cannot be disbelieved merely on the ground of relationship. Their statements are fully corroborated by the recovery of weapon from the appellant on his pointation and the report of Forensic Science Laboratory (Exh.P.Q.). The ocular account is also supported by the medical evidence regarding the nature of injuries. The defence version of the appellant except admitting his presence at the spot is not probable and believable. If the deceased had died due to the accident fire shot and the appellant who was present at the spot is not sure whether the shot was fired by the deceased or by his younger brother Shahbaz.
There is no reason to involve the appellant in this case merely to save the skin of his son Shahbaz and just for a petty amount of Rs,13,000 which is being allegedly claimed by the appellant as balance amount. A bare perusal of the defence version shows that it is not probable, as the complainant and his witnesses could have pardoned their brother Shahbaz if the shot had been accidentally fired from his fire-arm but there was no need to falsely implicate an innocent person in the incident. The reason mentioned by the accused for involving him in this case does not attract to the mind of a common man. The defence version though was put to the witnesses but is not substantiated from the statement of the eye-witnesses. I have no reason to disagree with the judgment passed by the learned trial Court while convicting the appellant and he has already been given the lesser punishment by the learned trial Court due to the one shot fired by him.
7. For the foregoing reasons this appeal has no merit and is dismissed. The impugned judgment, dated 17-5-1999 passed by the learned Additional Sessions Judge, Lahore, is maintained.