2013 P Cr (PLP)

MEHMOOD MAQBOOL BAJWA, J.

Conclusion of trial in case F.I.R. No. 1027 of 2006 registered under section 302 read with section 34 of The Pakistan Penal Code, 1860 at Police Station Jhang Bazar, Faisalabad, resulted in recording judgment of conviction against Muhammad Ramzan, appellant, on 30-10-2007, whereby learned Additional Sessions Judge, Faisalabad, while holding the appellant guilty under section 302(b) read with section 34 of The Pakistan Penal Code, 1860 awarded him sentence of death besides payment of compensation to the tune of Rs.100,000 to be reimbursed among the legal heirs of Haq Nawaz deceased.

2. Feeling aggrieved by the said judgment, the appellant has preferred Appeal No. 315-J of 2007 titled "MUHAMMAD RAMZAN v. THE STATE" which is being disposed of by this judgment in addition to disposal of Reference under section 374 of The Code of Criminal Procedure, 1898 (M.R. No. 559 of 2007) sent by trial Court for confirmation or otherwise of death sentence.

3. Prosecution version in brief contained in the crime Report (Exh.PG/1) recorded on the written application (Exh.PG) of Muhammad Waris complainant (P.W.6) is that he along with his brother Haq Nawaz (deceased) used to sell milk. On 28-12-2006 at about 4-45 p.m., he along with Shahadat Ali (P.W.5) and Matta Khan (P.W.9) were going to their houses while passing from Mohalla Kousarabad, when Haq Nawaz (deceased) riding on motorcycle while taking milk passed in front of them and went in nearby blind street, intercepted by Muhammad Ramzan (appellant) and his brother Muhammad Akbar (declared proclaimed offender). The complainant and the witnesses followed the deceased and in their view the appellant gave chhuri blow on the abdomen of Haq Nawaz followed by chhuri blow by Muhammad Akbar causing injuries on the left side of his chest. After that appellant again gave chhuri blow causing injuries on his left arm followed by another chhuri blow by proclaimed offender. After sustaining injuries Haq Nawaz fell down who again was victim of three chhuri blows, each given by the appellant as well as proclaimed offender, who succumbed to the injuries at the spot. Motive behind the occurrence is demand of payment by the deceased from the appellant and proclaimed offender regarding sale of milk, who made demand of said amount at morning on the day of occurrence due to which there was exchange of hot words.

4. The appellant was arrested on 23-4-2007 by Muhammad Riaz SI (P.W.15), who was declared proclaimed offender. He led to the recovery of weapon of offence i.e. chhuri on 30-4-2007 from his house taken into custody vide memo (Exh.PD).

5. Muhammad Akbar, associate of appellant was declared proclaimed offender.

6. After observing codal and legal formalities, Report under section 173 of the Code of Criminal Procedure, 1898 was submitted in the Court.

7. On 29-12-2006 at about 10-35 a.m. Doctor Javed Iqbal (P.W.3) conducted autopsy on the dead body of deceased and noted following injuries:-- INJURIES. (1) An incised wound 5 cm x 1-1/2 cm, it was 9 cm from elbow on outer part of left forearm. (2) An incised wound 1 x 1/2. It was 5 cm from elbow joint on inner side of left forearm. (3) An incised wound 3 x .25 cm at the root of back of right thumb of right hand. (4) An incised wound 4 x 1-1/2 cm. It started from left nostril to just above the right part of upper lip underneath gum was also injured. (5) A complex of five incised wound, (a) 3 x 1 cm (b) 3 x 1/2 cm (c) 9 x 1-1/2 cm (d) 1 x 1-1/2 cm and (e) 5 x 1-1/2 cm in an area 8 x 10 cm in front of neck. C and E were penetrating the trachea at thyroid and supra sternal notch respectively. (6) An incised wound 2 x 1 cm. It was 2 cm deep just in front of outer 1/3 of left clavicle. (7) An incised wound 4-1/2 x 2 cm. It was 8 cm from left nipple and 2 cm from midline on front of left chest. (8) An incised wound 6 x 3 cm. It was 3 cm from midline and 2 cm above and left to umbilicus on left side of the abdomen. A large loop of large intestine was bulging out (perforated). Injuries on neck, chest and abdomen were fatal but in the opinion of medical officer, death was caused by injury No.7, which was sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was few minutes whereas between death and postmortem was within 12 to 24 hours. Carbon copy of postmortem report is (Exh.PA) while pictorial diagram is (Exh.PA/1).

8. Prosecution in order to prove its case produced Abdul Haq constable (P.W.1), Liaqat Ali constable (P.W.2), Dr. Javed Iqbal (P.W.3), Ijaz Ahmad Khan (P.W.4), Shahadat Ali, an eye-witness (P.W.5), Muhammad Waris, complainant (P.W.6), Sanaullah SI (P.W.7), Aurangzeb Draftsman (P.W.8), Matta Khan, another eye-witness (P.W.9), Ghulam Abbas H.C. (P.W.10), Habibullah constable (P.W.11), Safdar Ali constable (P.W.12), Zafarullah Cheema SI (P.W.13), Muhammad Riaz, SI (P.W.14), Muhammad Riaz SI (P.W.15) and Muhammad Abbas ASI (P.W.16).

9. The appellant in his statement recorded under section 342 of the Code of Criminal Procedure, 1898 denied the whole incriminating material put to him and maintained that he was falsely implicated. Disclosing the alleged background of his false implication and denying his participation in the crime, the appellant submitted that deceased used to take milk from some persons on credit base who did not pay the amount and as such said sellers nourished grudge resulting in commission of his murder.

10. Learned counsel for the appellant while making reference to the evidence of eye-witnesses, Shahadat Ali and Matta Khan (P.Ws. 5 and 9) as well as complainant Muhammad Waris (P.W.6) submitted that neither the witnesses nor the complainant witnessed the occurrence which was unseen and story was coined by the complainant in order to implicate the appellant falsely. Making reference to the contents of Crime Report as well as statements of witnesses named above, it was submitted that statedly appellant and his associate were armed with chhuri, who gave successive blows to the deceased but neither the complainant (P.W.6) nor the eye-witnesses (P.Ws.5 and 9) made any attempt to rescue the deceased, sufficient to suggest that neither the complainant nor the witnesses were present at the spot. Making reference to the statement of Shahadat Ali, eye-witness (P.W.5), it was submitted that statement of said witness is full of contradictions who also made conscious improvements and as such no implicit reliance can be placed upon his testimony. Referring to the evidence of another eye-witness Matta Khan (P.W.9) as well as complainant Muhammad Waris (P.W.6), it was submitted that evidence of both the witnesses also suffers from inherent defects and as such same cannot be acted upon. Argued that in the circumstances ocular account is not worthy of credit. Continuing the arguments, learned counsel for the appellant submitted that ocular account attributing injuries to the appellant does not find support from medical evidence, sufficient to suggest failure of prosecution to prove the case entitling the appellant to have judgment of acquittal in his favour. Further submitted that evidence led by prosecution with reference to motive is neither convincing nor corroborative and as such cannot be relied upon. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant maintained that the appellant is nominated in the crime report lodged without any delay on the part of complainant, whereby specific role of causing injuries was attributed to the appellant. Referring to the evidence of complainant, Muhammad Waris (P.W.6) and eye-witnesses, Shahadat Ali as well as Matta Khan (P.Ws. 5 and 9), it was submitted that evidence of all the three witnesses is sufficient to prove the guilt of appellant beyond shadow of doubt as credibility of the witnesses could not be shaken in cross-examination. Referring to the evidence of witnesses with reference to locale of injuries and drawing our attention to the postmortem report (Exh.PA), it was submitted that ocular account finds full corroboration from the seat and locale of injuries attributed to the appellant. Making reference to the factum of recovery witnessed by recovery memo (Exh.PD) it was submitted that the appellant got recovered weapon of offence on 30-4-2007, which is another corroborative piece of evidence to prove the guilt of appellant. Referring to the date of occurrence i.e. 28-12-2006 and date of arrest of the appellant, it was argued that he was arrested on 23-4-2007 by Muhammad Riaz SI (P.W.15), who remained absconder for a period of four months and failed to justify his abscondance while making statement under section 342 of the Code of Criminal Procedure, 1898. Adverting to the motive and evidence led, submitted, that evidence of complainant as well as eye-witnesses, is sufficient to prove motive.

11. According to contents of crime Report (Exh.PG/1) occurrence took place at about 4-45 p.m. on 28-12-2006 and the matter was reported to the police at 6-30 p.m., at Babar Cinema Chowk. In the circumstances factum of occurrence which is daylight was reported to the police without any delay implicating the appellant with specific role of causing injuries to the deceased more than three in numbers.

12. In order to prove the factum of motive, the prosecution banked upon the evidence of Shahadat Ali (P.W.5), Muhammad Waris (P.W.6) and Matta Khan (P.W.9), who with one voice categorically maintained that deceased used to supply milk to the appellant Muhammad Ramzan as well as his brother who did not pay the price resulting in exchange of hot words and extension of threats by appellant etc. on the morning of day of occurrence resulting in occurrence.

13. Though all the three witnesses deposed the factum of motive but neither in the presence of complainant nor in view of witnesses the dispute with reference to demand of money on the day of occurrence was held. Though Shahadat Ali (P.W.5) in his statement disclosed that deceased told the factum of dispute to him on the same day at his residence but his evidence does not inspire confidence because admittedly he is not related to the deceased and is also not resident of same locality. Instead of approaching the witness having no relationship, deceased may have brought the fact to the notice of his brother, complainant (P.W.6). It is further to be noted that factum of visit of the deceased to the house of this witness was not incorporated in his statement under section 161 of the Code of Criminal Procedure, 1898 (Exh.DC) with which he was confronted and as such this part of the statement is result of improvement. In view of the matter, no implicit reliance can be placed upon the statements of all the three witnesses in order to prove the factum of motive.

14. Ocular account led by prosecution consists of statement of Shahadat Ali (P.W.5), Muhammad Waris complainant (P.W.6) and Matta Khan (P.W.9).

15. Credibility of Shahadat Ali (P.W.5) was seriously questioned at the instance of appellant due to material contradictions and improvements made by the witness in cross-examination. Shahadat Ali (P.W.5) disclosed that the complainant as well as Matta Khan (P.Ws. 6 and 9) who were going to their house situated in Sheikh Colony met him in front of the first gate of Ayoub Research Colony and when they reached near the corner of Street No.3, deceased Haq Nawaz passed in front of them upon motorcycle, followed by the appellant as well as his associate. He also gave the detail of the chhuri blows inflicted by the appellant. Though the statement of the witness is in fine with the case of prosecution set up in the complaint (Exh.PG) but in view of replies given in cross-examination we are convinced that the said witness made conscious improvements and as such his statement cannot be believed and acted upon. It is to be noted that the said witness is resident of Liaqatabad. In order to justify his presence at the spot, he in his direct statement maintained that after alighting from bus in front of Ayoub Colony, he met with the complainant as well as Matta Khan (P.W.9) but the same fact does not find mentioned in his statement recorded during investigation, copy of which is (Exh.DC) and with which he was confronted. In view of the matter, there can be no two opinions that dishonest improvement was made by the witness in order to justify his presence at the spot where he statedly met the complainant (P.W.6) and eye-witness Matta Khan (P.W.9). In view of the matter, we are inclined to brush aside the evidence of this witness and as such no implicit reliance can be placed upon him.

16. Muhammad Waris, complainant (P.W.6) is the real brother of the deceased who is resident of Sheikh Colony. Similarly Matta Khan an eye-witness (P.W.9) is also resident of same locality. The occurrence also took place in the same vicinity and as such no exception can be taken to the presence of both the witnesses at the spot though questioned vehemently at the instance of appellant.

17. The complainant Muhammad Waris (P.W.6) and eye-witness Matta Khan (P.W.9) unanimously disclosed the mode and manner of occurrence by adding that while passing from street No.3 Mohalla Kousarabad, Haq Nawaz parked his motorcycle in their view. They further stated that the appellant and his associate was seen while following Haq Nawaz deceased and the appellant Muhammad Ramzan gave chhuri blow to deceased landed upon his abdomen, left elbow and above the upper lip. He also gave the detail of injuries statedly inflicted by the proclaimed offender, need not to be dealt with. Both the witnesses were though subjected to cross-examination but their credibility could not be shaken in cross-examination. Trend of cross-examination is nowhere suggestive any extraneous consideration prompting us to believe that the attempt was made by both the witnesses to implicate the appellant falsely. Despite cross-examination both the witnesses remained firm. Though it was argued that the evidence of both the witnesses also suffers from inherent defect but neither any such discrepancy was pointed out during the course of arguments at the instance of appellant nor we could lay our hands to any such infirmity. Evidence of both the witnesses who remained firm in cross-examination stating the role of appellant as well as the mode and manner of occurrence inspires confidence and as such can be safely believed, relied and acted upon.

18. Injuries attributed to the appellant disclosed by both the witnesses (P.Ws.6 and 9) finds full confirmation from the evidence of Doctor Javed Iqbal (P.W.3) and copy of postmortem report (Exh.PA). Injuries Nos.1 and 2 which are incised wound were caused on the outer part of left forearm and inner side of left arm while injury No. 8 was sustained by the deceased on the left side of abdomen. Similarly injury No.4 is also available on right part of upper lip. The injuries attributed to the appellant as such finds full support from locale of injuries mentioned in the postmortem report (Exh.PA).

19. Factum of recovery of chhuri at the instance of appellant on 30-4-2007 witnessed through recovery memo (Exh.PD) was also relied upon by prosecution as corroborative piece of evidence but the same cannot be used as confirmatory evidence for the simple reason that said weapon was not sent to the office of Chemical Examiner as well as Serologist in order to determine the origin of blood.

20. Occurrence took place on 28-12-2006 and the appellant was arrested on 23-4-2007 by Muhammad Riaz SI (P.W.15) He made his escape good despite issuance of non-bailable warrant of arrest as is evident from application (Exh.PQ), copy of non-bailable warrant of arrest (Exh.PK), report (Ex.PK.1) of Habibullah constable (P.W.11) and copy of proclamation (Exh.PM) and report (Exh.PM-1). There is little cavil with the well-expounded proposition of law that abscondance of accused by itself would not be sufficient to suggest his culpability but the same can be taken into consideration as a corroborative factor when the prosecution has been able to establish his case by convincing evidence. Reliance is placed upon "SHAFQAT ABBAS and another v. THE STATE" (2007 SCMR 162). The appellant when asked to explain his absence for a period of four months in his statement under section 342 of the Code of Criminal Procedure, 1898, just maintained that he remained present at his residence which does not appeal to the reason.

21. In view of the matter, abscondance is another factor substantiating the case of prosecution to prove the guilt of the appellant.

22. Pursuant to above discussion, ocular account consisting the statements of complainant Muhammad Waris (P.W.6) and Matta Khan an eye-witness (P.W.9) finds support from the medical evidence and factum of abscondance sufficient to prove the guilt of the appellant beyond shadow of doubt.

23. We have also noted the defence plea taken by the appellant in his statement recorded under section 342 of the Code of Criminal Procedure, 1898. The appellant just maintained that the deceased was murdered by some milk seller from whom he used to purchase milk but substitution as suggested at the instance of appellant does not appeal to the reason as vague defence was put. We are not unmindful that the appellant was not required to prove his innocence but after producing evidence by prosecution establishing the guilt of appellant beyond shadow of doubt, defence can be taken into consideration which as referred earlier is neither convincing nor corroborative.

24. Epitome of above discussion is that prosecution has established its case against the appellant beyond any shadow of doubt and as such judgment of conviction recorded by learned appellate Court under section 302(b) read with section 34 of the Pakistan Penal Code, 1860 does not call for any interference by this Court.

25. Keeping in view the facts and circumstances of the case, factum of sentence was seriously viewed by us. The prosecution failed to prove the motive against the appellant beyond shadow of doubt and as such the motive remained shrouded in mystery. No doubt the prosecution is not obliged to suggest motive in each and every case which admittedly involves the element of assessment but once it is alleged, it has to be proved by the prosecution by producing convincing and corroborative evidence which admittedly could not be produced by the prosecution as discussed earlier. Even otherwise, the motive alleged does not correspond with the mode and manner of occurrence, number of injuries sustained by the deceased which clearly suggests that there were some other circumstances resulting in occurrence but not disclosed.

26. Failure of the prosecution to prove the motive in our view is mitigating circumstance not to endorse the capital punishment awarded to the appellant. Reference may be made to "ANAR GUL v. THE STATE through Advocate-General, N.-W.F.P. and another" (1999 SCMR 2303), "FEROZE KHAN v. THE STATE" (2002 SCMR 99) and "NOOR MUHAMMAD v. THE STATE and another" (2010 SCMR 97).

27. Another factor which persuaded us to alter the death sentence into life imprisonment is the locale of injuries attributed to the appellant.

28. Keeping in view the statement of Doctor laved Iqbal (P.W.3), deceased suffered eight injuries. In his opinion, injury No.7 which is attributed to the proclaimed offender was cause of death in ordinary course of nature. Though it was opined by medical officer that injuries on neck as well as abdomen were fatal but admittedly injury No. 7 was immediate cause of death not attributed to the appellant.

29. In view of the matter, we are inclined to convert the sentence of death into life imprisonment with extension of benefit of section 382-B of the Code of Criminal Procedure, 1898 but maintaining the quantum of compensation and other terms and conditions for payment of same awarded by learned trial Court.

30. Pursuant to above discussion, while maintaining the conviction under section 302(b) read with section 34 of the Pakistan Penal Code, 1860, Criminal Appeal No.315-J of 2007 titled "MUHAMMAD RAMZAN v. THE STATE" is hereby dismissed but with modification of sentence referred in Para (29).

31. Death sentence awarded to the appellant is not confirmed and murder Reference No. 559 of 2007 is answered in negative. HBT/M-217/L Sentence reduced.