MUHAMMAD RAMZAN Versus STATE

This judgment shall also dispose of Crl. Revision No. 532 of 1984, both arising out of the judgment, dated 20-5-1984, by which an Addl. Sessions Judge at Faisalabad, convicting Muhammad Ramzan appellant under section 302, P.P.C., sentenced him to imprisonment for life and a fine of Rs.5,000 or in default to further undergo one year' R.I. The fine, if realised, was directed to be paid as compensation to the heirs of the deceased or in default to further undergo six months' R.I. He was also extended the benefits of section 382-B, Cr.P.C.

2. The prosecution story in brief was that Muhammad Siddique complainant was running a bangles shop alongwith his brother Muhammad Nazir in Gole Bhowana Bazar, Faisalabad, while his father Haji Abdul Hayee, maternal-uncle Umer Din and his brothers Muhammad Habib (deceased) and Muhammad Rafique alias Bhola had their shops of bangles in Schoolwali Street, Bhawana Bazar. On 27-1-1982 Muhammad Siddique complainant had come to the shop of his father as usual because the latter had gone to Hyderabad for the last 6/7 days in connection with the business. At about mid-day Muhammad Ramzan appellant, who was his step-brother' from the mother side, came there armed with a `chhuri' and inflicted a blow with it on Muhammad Habib (deceased). He tried to ward off the attack as a result of which his hand was injured. Muhammad Ramzan inflicted second `chhuri' blow which hit Muhammad Habib on his left flank, as a result of which he became unconscious. Muhammad Siddique complainant with the help of his uncle Umer Din and Muhammad Rafique P.W. tried to catch-hold of Muhammad Ramzan but terrified by his threats of dire consequence they could not overpower him.

3. The motive for the crime was that on 26-1-1982 Rana Muhammad Azam and Nisar Ahmad had come to the house of Muhammad Habib (deceased) and Muhammad Ramzan had objected to their visit land warned them not to come again. This incident had annoyed Muhammad Habib (deceased) and Muhammad Rafique P.W. who had slapped Muhammad Ramzan and had also abused him. Feeling disgraced, he took revenge.

4. Muhammad Habib was removed to the hospital in an injured condition where he later died. Muhammad Siddique complainant proceeded towards the Police Station for lodging the report but he came across S.I. Abdul Ali on the way and he reported the matter to him. After the registration of the case under section 307, P.P.C., he commenced its investigation. The injured died in the hospital on 3-2-1982 and it was converted into section 302, P.P.C. On the completion of the investigation the appellant was sent up to the Court of Session for trial.

5. On the commencement of the trial the appellant was charged for the murder of Muhammad Habib and, on his pleading not guilty, the prosecution produced as many as 12 witnesses.

6. Dr. Muhammad Ajmal Mian (P.W. 1) had proved the medico-legal report (Exh. PA.) of Muhammad Habib. According to him, the injured had suffered a stab wound 6 cm x 1-1/2 cm, depth not probed, on the left upper front part of abdomen through which a part of omentum was coming out. The doctor noticed a stab would 4 cm x 3/4 cm depth not probed on the back of left chest, besides-an incised would 3-1/2 cm x 1/2 cm x muscle deep, almost horizontally on the palm of right hand. In his opinion, injuries Nos. 1 and 2 were grievous freshly caused by a sharp-edged weapon. Third injury was kept under observation. A.S.I. Mukhtar Ahmad (P.W. 5) deposed that on 7-2-1982 he alongwith S.I. Abdul Ali and other police officials arrested the appellant who later led to the recovery of blood-stained `chhuri' (P.1) from the upper storey of his house.

7. Muhammad Azam (P.W. 7) testified that on 26-1-1982 he alongwith Nisar had gone to see the mother of Muhammad Habib, who was present on the upper storey of the house and Muhammad Ramzan appellant, who was also present nearby, started abusing them, and when they came down from the house they complained to Muhammad Habib and Bhola about the misbehaviour of Muhammad Ramzan and they insulted him (appellant).

8. Muhammad Siddique (P.W. 8) and Umer Din (P.W. 9) both gave the eye-witness account. Dr. Muhammad Siddique (P.W. 13) deposed that he had conducted post-mortem examination on the dead body of Muhammad Habib on 3-2-1982 and, besides the abovementioned three operation wounds, he had found four operation wounds. According to him, he had found under injury No. 1 a penetrating wound through the left 5th inter-costal space and under injury No. 2 the 7th left rib posterially cut through and through. Besides lower lobe of left lung which was also found cut through and through, resulting in the collapse of the lung on its base. In his opinion, the cause of death was shock, haemorrhage and septicemia as a result of injuries Nos. 1 and 2 which were sufficient in the ordinary course of nature to cause death individually as well as these injuries were caused by a sharp-edged pointed weapon and were ante mortem. He had proved post-mortem report (Exh. PS).

9. S.I. Abdul Ali (P.W. 12) gave the details of the investigation. The rest of the witnesses were formal.

10. The appellant, in his statement recorded under section 342, Cr.P.C., denied all the incriminating circumstances figuring against him in the prosecution evidence and alleged his false implication. He explained that he had six step brothers and he was the only son of his parents. According to him, the shop, on which Muhammad Habib (deceased) used to work, belonged to their father in which he owned four annas share in its working capital. He alleged that his father had virtually disinherited his other five sons, including the complainant, as they were bad characters and for that reason Muhammad Siddique and Rafique had been quarrelling with their brother Muhammad Habib (deceased) for obtaining their share in the business. He stated that he had been working as a peon in the Punjab Agricultural Laboratory and on the day of occurrence when he returned to his house at 1-00 p.m. for taking meals, he came to know that a fight had taken place in the shop and the injured had been removed to the hospital. He further stated that his sister Mst. Razia was married at Lahore and 2/3 months after the occurrence Sharif, Siddique and Muhammad Rafique had fired at Sohail Afzal, his brother-in-law. He brought on the file the copy of the report lodged by Sohail Afzal (Exh. DB) and copy of the `daily diary' (Exh.DC). He produced no defence.

11. On the conclusion of ' the trial, vide judgment dated 20-5-19,84, the appellant was convicted and sentenced in the manner aforesaid. Aggrieved by it where he came up in appeal to this Court, Muhammad Siddique complainant brought revision for the enhancement of his sentence.

12. It was argued on behalf of the appellant that Muhammad Siddique complainant was the step-brother of the appellant while Umer Din P.W. was his step maternal-uncle and both of them were on inimical terms with him.

According to the learned counsel, Muhammad Siddique complainant was so much annoyed with the appellant that he even did not attend his marriage and had also filed a suit against the brother-in-law of the appellant. He contended that the complainant had previously been residing at Sheikhupura and had fallen out with his father. He urged that the complainant was in fact a chance witness and had he been present alongwith other P.Ws, he would have tried to rescue Muhammad Habib (deceased) or at least in the process of removing him to the hospital, his clothes must have been stained with blood but the same were not produced before the police though he made a claim in that regard. He submitted that Umar Din P.W. often resided with his in-law at Lahore and on the day of occurrence i.e. 27-1-1982 he had executed a pronote in favour of Mst. Rehana Kausar for a sum of Rs.20,000 and a suit for the recovery of this amount was still pending in a civil Court at Lahore and as such there was no possibility of his being present at the shop, in which the occurrence took place, on that day.

13. His next contention was that there was material variation between the ocular account and the medical evidence inasmuch as in the F.I.R., the appellant was attributed two `Chhuri' blows to the deceased while, according to the medico-legal report there were three stabs on the person of the victim. This variation, according to the learned counsel, also indicated that the eye-witnesses were not present at the time of occurrence and they had made false statements.

14. The learned counsel also criticised the evidence of recovery. He contended that certain recovery memoranda were fictitiously prepared after the death of the injured and were pre-dated. In this connection he particularly referred to the memo. (Exh.P.F.) regarding the collection of blood-stained earth from the spot when the injured was still alive but on it `Section 302 P.P.C.' was mentioned as the offence.. Besides, he contended that, excepting two police officers, no witness from the public. was produced to prove this recovery and the evidence of police officials, who were naturally interested in the success of their case, could not be relied upon.

15. Finally, it was urged that the motive remained shrouded in mystery as the one alleged by the prosecution was not believed by the learned trial Judge.

16. On the contrary, it was canvassed on behalf of the State that the guilt of the appellant stood amply proved beyond any shadow of doubt by the ocular account of the two eye-witnesses, coupled with the medical evidence as further corroborated by the evidence of recovery and motive, but the latter was not properly appreciated by the learned trial Court 'despite the fact the incident of quarrel in a way stood admitted even by the appellant himself though in somewhat different manner.

17. So far as the first contention of the learned counsel for the appellant regarding the interestedness of the eye-witnesses is concerned, to the extent of Muhammad Siddique complainant (P.W-8) I am inclined to agree with his views. He had admittedly filed a suit against the brother-in-law of the appellant and due to some annoyance he even did not join the marriage ceremony of the appellant. These facts indicate that he was on inimical terms with him (appellant). Besides, his involvement as a suspect in a' murder case of a small girl at Sheikhupura where he had been residing for some time after his estrangement with his father and the fact of his quarrel with his father on account of some property dispute, also eroded confidence in him. Therefore, it is not possible to place implicit reliance on his testimony. However, I have not been able to find any material infirmity in the deposition of Umar Din (P.W.9), another eye-witness in the case. He was no doubt the maternal-uncle of the deceased but nothing tangible was brought on the record to show any sort of animosity between him and the appellant who was his step maternal-nephew. He admittedly had his in-laws as also of his daughter at Lahore and for sometime he had been residing there but, as it appears from his statement, his permanent place of residence was in Faisalabad where he worked for gain at the shop of his brother-in-law, i.e. deceased's father. The defence was not able to suggest any other place of his business in Faisalabad Town and the only objection that was taken against his presence at the time of occurrence was that on that very day he had executed a pronote at Lahore in favour of a lady known as Mst. Rehana Kausar who for the recovery of this amount had brought a suit against him. He had categorically denied this fact and had asserted that she was not even known to him though she had filed a suit against him on the basis of a pronote at Lahore and the matter was pending in the Court of learned Additional District Judge. To my mind, Mst. Rehana Kausar was set up by the defence for filing a suit on the basis of a pronote bearing the same date on which the occurrence had taken place in order to show that he was not present at the time of occurrence at Faisalabad, rather, on that date he was present at Lahore. Had there been any substance in this matter, the defence could bring something more positive on the record to assure the Courts that it was really a genuine transaction but nothing further was done in that regard. He was, therefore; a truthful and reliable witness who was definitely present at the time of occurrence in the shop in which the incident took place and the mere fact that he could not rescue his nephew is not enough to discredit his testimony as everyone is not made of the same courageous stuff to face a situation risking his own life.

18. As regards the next contention of the learned counsel regarding the discrepancy between the ocular account and the medical evidence concerning the number of injuries on the person of the deceased, I find no force therein. In the F.I.R. recorded on the basis of the statement of Muhammad Siddique complainant as also in the police statement of Umer Din P.W., two injuries were mentioned while in the medico-legal report tend in the post-mortem report the doctors had specified three injuries. The variation between the two set of documents is obvious but it is not material. Umer Din P.W., whom I consider to be a trustworthy witness, during the trial categorically stated that the appellant had inflicted three blows on the deceased, one on the palm of the hand, which the latter received while warding off the first blow, and two on the left flank. He emphatically denied having stated two injuries in his police statement. I would believe his statement at the trial than the one attributed to him by the police. It is possible that when the police happened to mention two injuries in the F.I.R, either due to some mistake of the complainant or otherwise, then to synchronise with his statement, the Investigating Officer might have written two injuries in the statement of Umer Din P.W. as well.

19. I have always been sceptical as to why a person's statement written without oath under section 161, Cr.P.C. casually by the police, whose performance during investigation is generally far from satisfactory, should be equated for comparison with the statement of a person made on oath before a Court and subjected to cross-examination and on comparison between the two, the witness on the basis of variation should be disbelieved? What is the safeguard that the police officer, who was writing the statement of Umer Din P.W., was exactly writing what he was stating before him? It is possible that he might not have been examined at all and a statement, keeping in view the contents of the F.I.R., might have been attributed to him. It often happens. Therefore, I gave no importance to the variation pointed by the learned counsel for the appellant.

20. Now the recovery. The appellant had allegedly led to the recovery of blood-stained `Chhuri' (P.1) on 28-1-1982 in the presence of S.I. Abdul Ali, A.S.I. Mukhtar Ahmad and two police constables. Since it was not witnessed by any member of public, I do not place any reliance on it.

21. So far as the motive is concerned, the learned trial Judge did not believe this part of the prosecution case but I do not subscribe to his views. The incident of quarrel taking place in the house of the appellant and the deceased, both of whom resided in the same house being the step-brothers though in different apartments, stood admitted in the suggestion given to Muhammad Azam P.W. in the cross-examination and it went a long way to prove the motive. It was suggested to him by the defence that on the day he and Nisar had visited the house of the appellant and of the deceased, he had teased the wife of the former for which he was given beating by Habib (deceased), while his explanation for coming to their house was that he had gone to see the mother of Muhammad Habib (deceased) on the upper storey of the house, a day prior to the occurrence, as she was just like his mother's sister and he alongwith Nisar was abused and insulted by the appellant who was also present in the house and Muhammad Habib (deceased), taking their side, had abused and slapped the appellant. It is obvious that Muhammad Azam P.W. was the friend of Muhammad Habib (deceased) and for that reason he came forward to depose as a witness of motive. If the deceased had slapped him, as suggested by the defence, for having teased the wife of the appellant, he would not have come forward to support the prosecution in a murder case.

22. Since the incident of abusing and beating taking place in the house of the appellant and the deceased, a day earlier to the main occurrence, stood admitted, the motive as alleged by the prosecution stood amply proved and I hold accordingly.

23. In my opinion, the prosecution, by adducing the reliable ocular evidence as embodied in the statement of Umer Din P.W., coupled with the medical evidence and further supported by the evidence of motive, had fairly succeeded in proving the guilt of the appellant beyond any shadow of doubt in causing the death of Muhammad Habib, his step-brother, on the date, time and place as alleged by it and he was rightly convicted under section 302, P.P.C.

24. As regards the adequacy of his sentence, the deceased had brought his two young friends, namely, Muhammad Azam and Nisar to his house to the annoyance of the appellant, who also resided in a portion of the same house alongwith his family members. One of them even teased the wife of the appellant giving rise to a quarrel between them and the deceased in that controversy siding with his friends, slapped and abused the appellant. In these circumstances an element of family honour was obviously involved in this case and the appellant was rightly awarded the lesser sentence of imprisonment for life besides some fine. This being so, the appeal as well as the revision both are dismissed.

M.B:A./M-3167/L Appeal dismissed.