PLJ 2023 Cr.C. (Note) 115
[Lahore High Court, Lahore]
Present: Shehram Sarwar Ch. and Ali Zia Bajwa,
JJ.
MUHAMMAD
RAMZAN--Appellant
versus
STATE--Respondent
Crl. A.
No. 40313-J & M.R No. 98 of 2019, heard on 21.11.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34--Murder reference--Conviction and
sentence--Challenge to--Ocular account--Medical evidence--Recovery of crime
weapon--Motive--Quantum of sentence--Testimony of witness--Re-appraisal of
prosecution evidence leads us to inescapable conclusion that prosecution has
proved its charges against appellant qua committing murders of deceased
302(b), PPC as well as causing damage to vehicle in which deceased were
travelling, punishable u/S. 427, PPC--Appellant suspected that, brother of
complainant developed illicit relations with his (appellant’s) mother and due
to this reason two years prior to occurrence he committed matricide--However, not
an iota of material/evidence could be produced either during course of
investigation or during course of trial to substantiate motive part--Even
otherwise according to prosecution own version motive was not alleged against
any of deceased--Trial Court didn’t render any definite findings on this aspect
of case--Though pistol was alleged recovered on pointing out of appellant,
however, it was not transmitted to Punjab Forensic Science Agency, therefore,
alleged recovery remained inconsequential--In these circumstances, it is a fit
case of mitigation keeping in view number of judgments of prestigious Supreme
Court of Pakistan on subject with modification appeal was dismissed. [Para 14 & 15] C & D
Testimony of witness--
----Catena of judgments has settled principle of law that
testimony of closely related witness cannot be discarded merely on basis of
such relationship with deceased. [Para
11] A
2021 SCMR 325.
Medical evidence--
----It is settled law by now that when medical evidence is in
line with ocular account, same lends and is sufficient to convict strong
corroboration to prosecution case accused. [Para
12] B
2006 SCMR 1857
2020 SCMR 287, 2021 SCMR
289, 2020 SCMR 1250, 2017 SCMR 2034 & 2017 SCMR 2024.
M/s. Sikandar Zulqarnain Saleem and Naila Mushtaq, Advocates
for Appellant.
Mr. Sultan Akbar Chatha, Deputy Prosecutor General for
State.
Barrister Lamia Niazi, Advocate for Complainant.
Date of hearing 21.11.2022.
Judgment
Ali Zia Bajwa, J.--Through this single judgment, we intend
to decide Crl. Appeal No. 40313-J/2019 titled ‘Muhammad Ramzan vs. The
State’ filed by Muhammad Ramzan appellant against his conviction and
sentence and Murder Reference No. 98/2019 titled ‘The State vs. Muhamnkad
Ramzan’ forwarded by the learned trial Court under Section 374, Cr.P.C. for
confirmation or otherwise of death sentence awarded to the convict, as these
are arising out of one and the same judgment of the learned trial Court.
2. Muhammad Ramzan son of Sana Ullah, caste Awan, resident of
Muhammandi Colony Kundian, Tehsil Piplan, District Mianwali (hereinafter the
appellant) along with Faiz Muhammad and Sana Ullah (both since acquitted) was
implicated in case F.I.R. No. 289/2013, dated 12.08.2013, offences under
Sections 302, 324, 427, 109 & 34, PPC registered with Police Station Saddar
Mianwali. Being dissatisfied with the investigation carried out by the local
police, the complaniaht filed direct complaint titled ‘Muhammad Ramzan vs.
Muhammad Ramzan etc.’ under Sections 302, 324, 427, 109 & 34 PPC. On
filing of the complaint, the learned trial Court recorded preliminary/cursory
statements of the prosecution witnesses and issued process against the
accused/respondents. After recording of evidence and taking into consideration
the material available on the record, the learned trial Court, vide judgment dated 10.04.2019
(hereinafter ‘the impugned judgment’), concluded that charge against the
appellant was proved beyond shadow of reasonable doubt, thus, convicted and
sentenced him as infra:
Ø Under Section
302(b)/34, PPC, sentenced to death as Ta’zir on two counts with direction to
pay
Rs. 3,00,000/- on each count as compensation to the legal heirs of the deceased
in terms of Section 544-A Cr.P.C. to be recovered as arrears of land revenue
and in case of default in payment thereof to undergo imprisonment for six
months.
Ø Under
Section 427/34, PPC sentenced to undergo rigorous imprisonment for two years.
3. The prosecution accusations, in brief, as per content of
the private complaint (Exh.PR) lodged by
Muhammad Ramzan complainant/PW-13, are that on 12.8.2013 at 9:30 a.m. the
appellant armed with pistol .30-bore along with his co-accused made firing upon
the complainant party. The appellant has been ascribed the role of causing
injuries on the right flank and chest of Noor Khan deceased. During the
occurrence Muhammad Ramzan son of Siddique also received injuries who
subsequently died, Motive behind the occurrence was that the appellant
suspected that Zubair brother of the appellant developed illicit relations with
his mother and two years prior to the occurrence he had committed matricide.
4. In order to report the matter to the police, the complainant
reached the police station where on the basis of his statement, FIR was chalked
out by Asmat Ullah, S.I (PW-15). Thereafter, the Investigating Officer visited
DHQ Hospital Mianwali, inspected the dead body of Noor Khan, prepared injury
statement (Exh.PO), drafted inquest report (Exh.PN) and handed over the dead
body to Mehr Khan 1014/C (PW-12) for autopsy which was conducted by Dr.
Mudassir Ahmad Khan (PW-9) He moved application to record statement of Muhammad
Ramzan, which was not allowed. Thereafter, Investigating Officer visited the
place of occurrence and prepared rough site-plan (Exh.PY). He secured blood-stained
soil where the deceased received injuries (Exh. PS and Exh.PT) and took into
possession Suzuki car bearing Registration No. L-9524 (P-8) vide recovery
memo Exh.PU. After the post-mortem examination of Noor Khan deceased his last
worn clothes were taken into possession vide recovery memo Exh.PP. On
the direction of the Investigating Officer and pointing out of the PWs, on
16.08.2013, Muhammad Shafique (PW-1) took rough notes of the place of
occurrence and thereafter prepared scaled site-plan Exh.PA and Exh.PA/1. On
02.08.2013, Investigating Officer recorded statement of Muhammad Ramzan
(deceased) in an injured condition. After his death, Dr. Muhammad Umair Malik
(PW-7) conducted the post-mortem examination and thereafter his last worn
clothes were secured by the Investigating Officer vide recovery memo
Exh.PZ. Subsequently, investigation was entrusted to Abdul Razzaq (PW-17), who
on 31.12.2015, arrested the appellant. During the course of interrogation on
06.01.2016, appellant got recovered motorcycle (P-9) which was secured vide recovery
member Exh PCC. Subsequently on 10.01.2016 the appellant led to the recovery of
pistol .30-bore (P-8), which was taken into possession vide recovery
memo Exh PW. During the course of investigation, the appellant was found
involved in the crime in question, consequently, report under Section 173,
Cr.P.C. was prepared while placing his name in Column No. 3. However, the
complainant filed private complaint.
5. After adopting all codal/legal formalities, the appellant was
summoned along with other
co-accused and they were indicted vide order dated 05.11.2018, to
which they pleaded not guilty and claimed trial. Prosecution, in order to
establish its case, produced as many as seventeen (17) prosecution witnesses
while statements of two (2) Court witnesses were also recorded by the learned
trial Court.
6. After completion of the prosecution evidence, statement of
the appellant under Section 342, Cr.P.C. was recorded by the learned trial
Court. The appellant professed his innocence and pleaded false implication in
this case. Upon completion of the trial, the learned trial Court found the
prosecution case having been proved to the hilt, thus, convicted and sentenced
the appellant as mentioned and detailed above. However, Faiz Muhammad and Sana
Ullah co-accused were acquitted of the charge.
7. Arguments heard, record perused.
8. In order to substantiate its case, prosecution adduced
evidence on following four counts:--
(i) Ocular account
(ii) Medical evidence
(iii) Recovery of crime
Weapon
(iv) Motive
9. According to the prosecution version occurrence in the
instant base took place on 12.08.2013 at 9:30 a.m. while the FIR was lodged
within the timespan of forty five minutes at 10:15 a.m. Hence, in all
eventualities, it is a promptly lodged FIR wherein the name of the appellant
duly figures with the allegation of making firing during the occurrence in
which two persons were done to death while the car was severely damaged. He has
been assigned; the role of inflicting fire shot injuries on the right flank and
chest of Noor Khan deceased.
10. Ocular account in this case has been furnished through the
statements of Muhammad Ramzan (PW-13)/complainant and Sajid Pehlwan (PW-14)/As
per claim of the prosecution witnesses, both of them were going to take
articles for their grocery shop from Mianwali while both the deceased were heading at some distance
towards Mianwali riding on a car bearing Registration No. L-9524 when
the assailants opened firing. It was a daylight occurrence while both the
parties were previously known to each other, which itself rules out the
possibility of any mis-identification. While making their statements during the
course of trial, both the prosecution witnesses fully supported the prosecution
case. They remained coherent on salient features of the prosecution case and
corroborated each other on minute details qua date, time, place, locale
of injuries on the persons of both the deceased, mode and manner of occurrence
as well as damage caused to the car. They were subjected to lengthy
cross-examination, however, nothing adverse to the prosecution version could be
brought on record from where it could be gathered that they were not present at
the place of occurrence at the relevant time or their statements are devoid of
credence. Haying scrutinized the statements of the prosecution witnesses of the
ocular account, we have arrived at an irresistible conclusion that these are
confidence inspiring, convincing and straightway appeal to reason.
11. During the course of arguments learned counsel for the
appellant vehemently contended that the complainant is son of Moor Khan
deceased while PW-14 is cousin/chachazad
of the complainant, thus, they made statements being interested and related
witnesses but catena of judgments has settled the principle of law that
testimony of closely related witness cannot be discarded merely on the basis of
such relationship with the deceased. In Abdul Khaliq,[1]
august Supreme Court of Pakistan expounded this principle in following terms:
“... mere
relationship of a witness with the deceased does not undermine the value of his
testimony, if otherwise found with a ring of truth.”
Similarly, in Zakir Khan,[2]
this principle was elaborated by the Apex Court in the following words:
“...However, the rule
laid down by this Court in respect of the evidence of interested witnesses is
only a rule of caution. No doubt, judicial authorities are replete with
instances where a more cautious approach was preferred by the Courts while
dealing, evidence of a partisan witness but support in such case may be sought
from other independent evidence. The same would nevertheless depend upon the
circumstances of each case. However, mere relationship of a prosecution witness
to the complainant or other prosecution witness cannot render his evidence
unreliable unless it is established that he had motive to implicate the accused
falsely in the case. Nothing can be spelt out from the evidence of the
witnesses to indicate that anyone of them had motive to implicate the accused
falsely...”
12. Medical evidence in this case has been advanced through the
statements of Dr. Muhammad Umair Malik (PW-7) and Dr. Mudassir Ahmad Khan
(PW-9), who conducted the post-mortem examination over the dead bodies of both
the deceased. While making their statements during the course of trial, the
doctors affirmed the locale/seat of injuries on the deceased persons, which are
in line with the ocular account. According to the statements of the doctors,
the injuries on both the deceased were caused by fire-arm weapons. Through
plethora of judgments of the Constitutional Courts, it is settled law by now
that when medical evidence is in line with the ocular account, same lends
strong corroboration to the prosecution case and is sufficient to convict the
accused. Reliance is placed upon the ratio
decidendi of august Supreme Court of Pakistan in Muhammad Ehsan,[3]
where this principle was expounded as infra:-
“6. ... It be noted
that this Court has time and again held that the rule of corroboration is rule
of abundant caution and not a mandatory rule to be applied invariably in each
case rather this is settled principle that if the Court is satisfied about the
truthfulness of direct evidence, the requirement of corroborative evidence
would not be of much significance in that, as it may as in the present case
eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by
medical evidence ...”
13. At the time of spot inspection the Investigating Officer
(PW-15) secured bloodstained soil where both the deceased received injuries and
as per reports of Punjab Forensic Science Agency available on the record as
Exh.PGG and Exh.PHH, its origin was determined to be human blood.
14. In sequel to what has been discussed above and re-appraisal
of the prosecution evidence leads us to the inescapable conclusion that
prosecution has proved its charges against the appellant qua committing
the murders of the deceased 302(b), PPC as well as causing damage to the
vehicle in which the deceased were travelling, punishable under Section 427,
PPC.
15. As far as quantum of sentence under Section 302(b), PPC is
concerned, while going through the record we have observed that in view of
evidence/material available on record the same requires reconsideration.
According to the contents of the crime report it was alleged
that the appellant suspected that, Zubair brother of the complainant developed
illicit relations with his (appellant’s) mother and due to this reason two
years prior to the occurrence he committed matricide. However, not an iota of
material/evidence could be produced either during the course of investigation
or during the course of trial to substantiate the motive part. Even otherwise
according to the prosecution own version the motive was not alleged against any
of the deceased. Moreover, the learned trial Court didn’t render any definite
findings on this aspect of the case. Though pistol was allegedly recovered on
the pointing out of the appellant, however, it was not transmitted to the Punjab
Forensic Science Agency, therefore, the alleged recovery remained
inconsequential. In these circumstances, it is a fit case of mitigation keeping
in view the number of judgments of prestigious Supreme Court of Pakistan on the
subject.[4]
16. For the foregoing reasons while taking into consideration
the facts and circumstances narrated in the preceding paragraph falling within
the ambit of mitigation. Crl. Appeal No. 40313-J/2019 filed by
the appellant is dismissed with modification in his sentence from
death on two counts to imprisonment for life on two counts under
Section 302(b), PPC as Tar ‘zir. The burden of compensation in terms of Section
544-A, Cr.P.C. as imposed by the learned trial Court and consequence for its
non-payment shall remain intact. The conviction and sentence of the appellant
under Section 427, PPC is maintained.
All the sentences awarded to the appellant are directed to run concurrently and
benefit of Section 382-B, Cr.P.C. is also extended in his favour.
17. Murder Reference No.
98/2019 forwarded by the learned trial Court in terms of Section 374,
Cr.P.C. for confirmation of death sentence awarded to the convict fails, which
is answered in the NEGATIVE. Death sentence is NOT
CONFIRMED.
(A.A.K.) Appeal
dismissed
[1]. ABDUL KHALIQ vs. The STATE-2021 SCMR 325.
[2]. ZAKIR KHAN and others vs. THE STATE -
1995 SCMR 1793.
[3]. MUHAMMAD EHSAN vs. THE STATE - 2006 SCMR
1857.
[4]. Imtiaz alias Taji and another vs. The
State and others, 2020 SCMR 287, Muhammad Afzal vs. The State, 2021 SCMR 289, Sarwar
and another vs. The State and others, 2020 SCMR 1250, Rehmat Khan and another
vs. The State and others, 2017 SCMR 2034 and Fayyaz alias Fiazi vs. The State
2017 SCMR 2024.