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.
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