MUHAMMAD RAMZAN Versus State

MUHAMMAD FARRUKH MAHMUD, J .--- This judgment will dispose of Criminal Appeal No.284 of 2002 filed by Muhammad Ramzan, who along with Yousaf Jahan and Gul Jahan faced trial in case F.LR. No.401, registered at Police Station Joharabad, on 7-10-2000, for offences under section 302/34, P.P.C. before learned Sessions Judge, Khushab, who after conclusion of trial, vide his judgment, dated 16-2-2002, while acquitting Yousaf Jahan and Gul Jahan convicted the appellant under section 302(b), P.P.C. and sentenced him to Death with compensation of Rs.50,000.

2. Murder Reference No.124 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.

3. Brief facts of the case as mentioned in F.I.R. Exh.P.A. recorded on the statement of Muhammad Ramzan/P.W.1 (complainant) are that he was resident of Mouza Bola and was cultivator by profession. On the fateful day at about 9-00 a.m. the complainant along with his brother Noor Muhammad deceased, Muhammad Shafi and Muhammad Feroze were going to Joharabad in order to inquire about the date of hearing of .the civil suit. Noor Muhammad was on his cycle while the others were behind him. At about 10-00 a.m. when they reached near the Dera of one Ali Muhammad Bhood, on the bank of drain, Noor Muhammad was about 50 yards ahead of them, all of sudden Muhammad Ramzan, Gul Jahan and Yousaf Jahan armed with .12 bore guns emerged out of the sand dune. They raised Lalkara that Noor Muhammad would be taught a lesson for ploughing the disputed land and Muhammad Ramzan fired upon Noor Muhammad, which hit him on his back. Yousaf Jahan fired, which landed on the left flank of Noor Muhammad; Gul Jahan fired which did not hit. Noor Muhammad fell on the ground. Thereafter the accused Yousaf Jahan rode his motorcycle while Muhammad Ramzan and Gul Jahan rode on the tractor, which they have already hidden behind the sand dune, and fled away from the spot.

4. The motive behind the occurrence was the civil suit regarding the land in dispute which was ploughed by Noor Muhammad deceased and the accused were offended as such, so they in furtherance of common intention killed Noor Muhammad.

5. After registration of formal F.I.R., the investigation of the case was taken over by Atta Muhammad, S.-I./P.W.10. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.K. and inquest report Exh.P.L. He secured blood-stained earth from the spot vide memo. Exh.P.C. He also taken into possession two empty cartridges P.1/1-2 vide memo. Exh.P.D. He took into possession from the spot a cycle P.2 and one pair of chappal P.3/1-2 belonging to Noor Muhammad vide memo. Exh.P.F. On 14-10-2000 he arrested Muhammad Ramzan and on 17-10-2000 he also arrested Yousaf Jahan and Gul Jahan. Muhammad Ramzan, while in custody, led to the recovery of .12 bore gun (repeater) P.9, two live cartridges P.10/1-2, licence. P.11, which were taken into possession vide memo. Exh.P.M. On the same day Muhammad Ramzan led to the recovery of tractor P.12 along with its registration book, which was taken into possession vide memo. Exh.P.N. After completion of investigation, while placing Yousaf Jahan and Gul Jahan in column No.2 of the Challan the accused were sent up to face trial.

6. At the trial the prosecution in order to prove its case produced 10 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.S., Serologist Exh.P.T. and that of Forensic Science Laboratory Exh.P.U. Closed its case. The appellant in his statement recorded under section 342, Cr.P.C. has taken a specific plea in his defence, which is being reproduced below:--

"I have been falsely implicated by the P.Ws. as they have twisted the real facts of the occurrence. As a matter of fact Noor Muhammad deceased was the aggressor. At the time of occurrence, he gave me taunting and abusive remarks and also fired at me with his pistol but I was luckily saved. When he was going to repeat the fire, I fired at him with my repeater in exercise of my right of self-defence and under provocation. During the investigation I also adopted the same, plea which was accepted by D.S.P./S.D.P.O. In my absence my licensed gun and the licence book were procured by the police. Similarly my tractor was also taker' into possession by the police in my absence from my house."

He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court while acquitting Yousaf Jahan and Gul Jahan convicted and sentenced the appellant as stated above.

7. The learned counsel for the appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record in support of this appeal has contended that both the witnesses were not only related to the deceased but were chance witnesses; that the explanation given by them for there presence at the time of occurrence was not plausible; that according to the P.Ws. they were on foot while the deceased was on bicycle, so they could not be with the deceased; that the appellant could not possibly know that the deceased in the company of the witnesses would go to the place of occurrence on the fateful day, as no date of hearing was fixed on that day; that in case the P.Ws. would have been present at the spot then they should have been his victims as litigation was between Muhammad Ramzan and Gul Jahan and Yousaf Jahan acquitted accused; that one fire each was attributed to all the three accused, therefore, no empty could be recovered from the spot as none of the accused reloaded his weapon; that the defence that the appellant was provoked by the deceased and, therefore, he caused both shots, is supported by the recovery of empties and its tallying with his gun; that Yousaf Jahan, who according to prosecution had also fired at the deceased was acquitted but no appeal has been filed against his acquittal; and that in any case it was not a case of capital sentence in view of admitted motive by the prosecution itself that in fact it was the deceased who passed taunting remarks.

8. The learned counsel for the complainant has argued the defence plea was totally false; that the deceased and the P.Ws. had no reason to launch attack upon the appellant; that the defence plea was also not supported by any oral evidence or circumstances of the case; that the appellant miserably failed to prove that it was the deceased or any of his companion, who opened attack; that the story put forward by the appellant that the deceased fired `upon him was not supported by any circumstantial evidence like recovery of empty or mark of fire on the tractor or anywhere; that after taking specific plea the burden of proof under Article 121 of the Qanun-e-Shahadat shifted to the appellant, who miserably failed in proving his defence and learned counsel relies upon PLD 2004 SC 34; that no specific remarks was mentioned by the appellant in his defence plea; that it was a callous daylight murder; that the appellant caused repeated fires and deserves no leniency; that the seat of injuries indicate the intention of the assailant; that the injuries show that in fact the deceased in order to save his life was running while he was fired upon which landed on his back; and that no mitigating circumstance exists in favour of the appellant. He relies upon 2005 SCMR 427 and 429.

9. The learned counsel appearing on behalf of the State has adopted the line of arguments advanced by the learned counsel for the complainant.

10. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. It is a case of two versions, as the appellant took a specific plea of provocation and self-defence for causing murder of Noor Muhammad. For appreciation as to which of the two versions was true or near to the truth both the versions are to be put to juxtaposition.

11. The prosecution case rests on the statement of Muhammad Ramzan/P.W.1, brother of the deceased and Muhammad Feroze/P.W.2, cousin of the deceased. Muhammad' Shafi the third witness was not produced. As per F.I.R. on the fateful day the deceased, complainant and P.Ws. started from their house at 9-00 a.m. towards Court premises Joharabad in order to know about the date of hearing. Noor Muhammad deceased was having a cycle with him. At about 10-00 a.m. when the complainant party was on the bank of Saimnala near Dera of one Ali Muhammad, Noor Muhammad rode on the cycle and the P.Ws. followed him on foot. While Noor Muhammad was ahead by 50 yards of the P.Ws., the accused who were three in number and armed with .12 bore guns came out of the hiding and raised Lalkara that they would teach Noor Muhammad a lesson for ploughing the disputed land last night and within the view of P.Ws. Muhammad Ramzan fired at the deceased, which hit on the back. The second fire caused by Yousaf Jahan (acquitted co-accused) landed on the left flank of the deceased. Gul Jahan (acquitted co-accused) also fired but the same did not, hit the deceased. The deceased fell down and lost his life. Thereafter Yousaf Jahan on his motorcycle, while Muhammad Ramzan and Gul Jahan accused on their tractor, left the scene of occurrence. It was also stated in the F.I.R. that the accused had hidden their tractor and motorcycle behind a sand dune. The motive behind the occurrence was that civil litigation over agricultural land between the complainant party and the accused was pending. On the previous night Noor Muhammad had ploughed the disputed land. Both the witnesses are undeniably related to the deceased and civil litigation was pending between the parties. The occurrence did not take place near the house of the deceased and the reason for the presence of P.Ws. at the time of occurrence was their going together to inquire about the date of hearing of the civil suit. In other words both the P.Ws. were chance witnesses and it is to be looked into whether their presence was plausible?

12. According to F.I.R., the P.Ws. and the deceased started together from their house, while the deceased had cycle with him. It was after one hour i.e. at 10-00 a.m. when the deceased rode on cycle leaving his companions behind. In ordinary circumstance the deceased would not leave his relatives behind and start moving on cycle. There was hardly any need for it. Most importantly the P.Ws. assigned one single fire to each of the three accused. According to them, the fire caused by Muhammad Ramzan hit on the back of Noor Muhammad while the fire caused by Yousaf Jahan hit on the left flank. Yousaf Jahan, who had effectively fired, and Gul Jahan were acquitted by the learned trial Court and no appeal was filed against their acquittal.

13. Two empties collected from the spot tallied with the gun recovered at the instance of Muhammad Ramzan, which means that both the fires were caused by Muhammad Ramzan. In case the P.Ws. would not have been there, they would not have attributed one fire each to all the accused.

14. Perusal of plaint Exh.P.B. reveals that the case was filed by Atta Muhammad father of the complainant and the deceased against Yousaf Jahan and Gul Jahan (acquitted accused) and others. However, Muhammad Ramzan-appellant was not party in the said civil suit. There is no evidence that the accused knew that the deceased and other P.Ws. would leave their houses at such and such time and proceed towards the Courts in order to have some information about the date of hearing. In the absence of any information the story of hiding of the accused and waiting for the deceased does not appeal to reason. It is also noteworthy that the police station was at a distance of 4 Kms. I.e. 2-1/2 miles yet the matter was reported to the police after one and half hours of the occurrence.

15. The upshot of the whole discussion is that in our considered opinion the P.Ws. were not present at the time of occurrence.

16. Now coming to the defence plea. In his statement recorded under section 342, Cr.P.C. the appellant took a specific plea, which has already been reproduced above. The factum of deceased being armed with a pistol and his firing at the appellant first is not supported by any evidence whatsoever. However, his first version has been brought on record of the case during cross-examination of Atta Muhammad, S.-I./Investigating Officer (P.W.10) it was admitted by the Investigating Officer that Muhammad Ramzan appellant in his first plea stated before him that "on the date of occurrence he was going to Joharabad on his tractor in order to fetch fuel and when he reached near the place of occurrence, a ball of link of the tractor fell down and he stopped there. He further mentioned that in the meanwhile, Noor Muhammad deceased arrived on his bicycle, and challenged him saying that it would be futile to sit on the way when his brother-in-law (one Bigha land was cultivated by them). Urdu version of the sentence is being reproduced hereunder:--- The appellant, who was armed with .12 bore gun (repeater) after hearing the taunt raised Lalkara and fired two shots at the deceased. In his version before the police the appellant did not state that he was firstly fired upon by the deceased by a pistol and he fired in his self-defence to prevent the second fire by the deceased. The plea of self-defence taken by the appellant is not supported either by any evidence or by the circumstances of the case. The same is, therefore, rejected.

17. The murder of the deceased by the appellant stands proved through his own words, corroborated by the recovery evidence and motive. This brings us to the question as to what should be the proper sentence in the circumstances of the case.

18. It is prosecution case itself that the deceased had ploughed the disputed land a night prior to the occurrence. In his first version the appellant has stated that he lost his control after hearing the taunting remarks passed by the deceased, which added the fuel to the fire, as the appellant already felt aggrieved over ploughing of the disputed land. Two sentences have been provided for offence under section 302(b), P.P.C. and the sentence of imprisonment for life as Ta'zir has not become redundant. In the case of Abdul Haque v. The State and another PLD 1996 SC 1 the Honourable Supreme Court thought it fit to award imprisonment for life instead of death when the occurrence was the result of abusive and taunting language. Reliance is also placed on the case of Mujahid Pervaiz v. Mattiullah and others'2006 SCMR 1127.

19. The upshot of the whole discussion is that while maintaining the conviction of the appellant for offence under section 302(b), P.P.C. we reduce his sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. is extended in favour of the appellant. As far as the compensation is concerned, the learned counsel for the appellant was given notice as to why the amount of compensation be not enhanced and the learned counsel accepted it. Thus, the order passed by the learned trial Court under section 544-A, Cr.P.C. is modified and the amount of compensation is enhanced to Rs.2,00,000 (Rupees two Lacs). The same would be recovered as arrears of land revenue and would be paid to the legal heirs of the deceased. In case of non-realization or non- payment thereof the appellant would suffer S.I. for six months.

20. With the above modifications, this appeal is partly allowed. Sentence of death is not confirmed. Murder Reference is answered in the negative.

N.H.Q./M-33/L Sentence reduced.