MUHAMMAD RAMZAN Versus State

ZAFAR IQBAL CHAUDHRY, J.--- Muhammad Ramzan and Mst. Razia Bibi appellants were set up to face trial in case F.I.R. No.73 dated 11-5-2006 (Exh.P.A./1) registered under section 302/34, P.P.C. at Police Station Sarai Mohajir District Bhakkar and on conclusion of the trial, vide judgment, dated 28-2-2007, handed down by the learned Additional Sessions Judge-II, Bhakkar, they were convicted and sentenced as under:---

Muhammad Ramzan appellant

Under section 302(b)/34, P.P.C. Death sentence for committing Qatl-i-Amd of Muhammad Ramzan deceased with direction to pay Rs.1,00,000 to heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. and in default of payment thereof to further undergo R.I. for two years.

Mst. Razia Bibi appellant

Under section 302(b)/34, P.P.C. imprisonment for life for committing Qatl-i-Amd of Muhammad Ramzan deceased with direction to pay Rs.50,000 to the heirs of the above said deceased by way of compensation under section 544-A, Cr.P.C. and in default of payment thereof to further undergo R.I. for one years. Benefit of section 382-B, Cr.P.C. was also extended to her.

Both Muhammad Ramzan and Mst. Razia Bibi appellants have challenged their conviction and sentence before this Court through the instant Criminal Appeal No.113/J of 2007 which has been heard by us along with Murder Reference No.55 of 2007 sent by the learned trial Court under section 374, Cr.P.C. seeking confirmation of the sentence of death passed by the learned trial Court against Muhammad Ramzan appellant. We propose to decide both these matters together through the present consolidated judgment.

2. Concisely the facts of the prosecution case set up in the F.I.R. (Exh.P.A./1) got lodged by Sarfraz complainant (P.W.11) are that he was a labourer and had gone to village Thalla Galkala Tehsil Bhakkar while his wife who was ailing had also gone to her brother at Dera Ismail Khan. His son-in-law Ihsan Ullah and daughter Mst. Hameeda Bibi (given up P.W.) had already come to his house for the last three days while his son Muhammad Ramzan deceased and his wife Mst. Razia Bibi accused-appellant were residing in their adjacent house. On that day, he was telephonically informed that his son Muhammad Ramzan deceased had died. Thereupon, he reached home at 9-00 a.m. and Mst. Harhdeda Bibi (given up P.W.) daughter of the complainant told him that during the night Muhammad Ramzan deceased and his wife Mst. Razia Bibi accused appellant slept on a cot in front of their residential room. In the morning at 5-45 a.m. Mst. Razia Bibi accused-appellant raised hue and cry that Muhammad Ramzan deceased was lying unconscious, Mst. Hameeda Bibi (given up P.W.) and her husband Ihsan Ullah (not produced) reached the spot and found that there was bleeding from the ear of Muhammad Ramzan deceased and he was lying dead. They inquired from Mst. Razia Bibi accused-appellant who expressed her ignorance. The complainant on arrival also noticed that there was bleeding from the ear of his son Muhammad Ramzan deceased with black spot and he was lying dead. The complainant suspected that someone had caused murder of his son Muhammad Ramzan deceased with fire-arm. Then the complainant proceeded to report the matter to the police who met with Muhammad Aslam S.-I./S.H.O. (P.W.14) at Chak No.51/TDA Morr at 10-00 a.m. on 11-5-2006 and made statement (Exh.P.A.) before him in respect of the present incident, on the basis of which formal F.I.R. (Exh.P.A./1) was subsequently drafted by Alam Khan S.-I. (P.W.1) on 11-5-2006 at 10-30 a.m. under section 302, P.P.C.

3. The investigation of this case was conducted by Malik Muhammad Aslam, Inspector/S.H.O. (P.W.14) and during the investigation, the dead body of the deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under section 161, Cr.P.C. were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy the last-worn clothes of the deceased were received, formal site plan of the place of occurrence was got prepared, Muhammad Ramzan appellant was arrested on 17-5-2006 while Mst. Razia Bibi accused-appellant was arrested on 18-5-2006 and after completion of the investigation a challan was submitted in the Court.

4. At the commencement of the trial the learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. to both the appellants framed a charge under section 302/34, P.P.C. against them on 15-12-2006, to which they pleaded not guilty and claimed a trial.

5. During the trial the prosecution produced as many as fourteen witnesses in support of its case. P.W. Alam Khan, S.-I. on the receipt of written complaint (Exh.P.A.) drafted the formal F.I.R. (Exh.P.A./1), while P.W.2 Alam Sher, F.C., had escorted the dead body of the deceased to mortuary for autopsy. P.W.3 Azam Khan, F.C. and P.W.7 Muhammad Ashraf, A.S.-I. deposed about the recovery of pistol .30 bore (P.3) along with three live bullets (P.4/1-3) and National Identity Card from the possession of Muhammad Ramzan appellant while P.W.4 Shafique Ahmed Khan Draftsman on the pointing out of the witnesses and on the instructions of the police prepared scaled site plan. The medical evidence was provided by Dr. Muhammad Nawaz (P.W.5), who on 11-5-2006 at 3-00 p.m. had conducted the post-mortem examination on the dead body of Muhammad Ramzan deceased while P.W.6 Habib Ullah, had identified the dead body of Muhammad Ramzan deceased at the time of post-mortem examination in District Headquarter Hospital Bhakkar. P.W.9 Muhammad Bilal and P.W.10 Abdul Rasheed were the witnesses of Vajtakkar who claimed to have seen Muhammad Ramzan appellant on the night of occurrence at 11-30 p.m. while carrying a .30 bore pistol in his right hand and they also heard a fire shot. However, in the morning they came to know about the murder of Muhammad Ramzan deceased by Muhammad Ramzan appellant. Sarfraz (P.W.11) is the complainant of the case. The ocular account of the incident in question was furnished by Muhammad Ramzan (P.W.12) and Abdul Majeed, (P.W.13) who claimed to have seen both the appellants while making conversation with each other and Muhammad Ramzan appellant made fire shot at Muhammad Ramzan deceased. Malik Muhammad Aslam, Inspector/S.H.O. (P.W.14) deposed about the various steps taken by him during the investigation of this case. The other witnesses are of formal nature.

6. In their statements recorded under section 342, Cr.P.C. both the appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. However, to a question that "have you anything else to say"? Muhammad Ramzan appellant replied in the following terms:---

"I am innocent. God knows better who committed the crime. There are strained relations with the complainant on the exchange of Rishta. I have been falsely implicated in this case. In fact Hameeda Bibi sister of the deceased had wanted to get rid of her husband Ihsan Ullah but her brother deceased Muhammad Ramzan created obstacle in her way. Mst. Hameeda Bibi in order to remove obstacle had murdered her brother and made false implication against me. The complainant involved me in this case to save his honour and daughter."

In reply to aforementioned question, Mst. Razia Bibi accused-appellant replied as infra:---

"I am innocent. God knows better who committed the crime. There are strained relations of Hameeda Bibi with her husband. She wanted to get divorce from her husband. But Ramzan deceased was an obstacle in divorce of Mst. Hameeda Bibi from her husband. On which Mst. Hameeda Bibi murdered Muhammad Ramzan while sleeping."

However, neither both the appellants opted to make statements on oath under section 340(2), Cr.P.C. nor they produced any evidence in their defence.

7. Upon conclusion of the trial the learned trial Court after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, they were convicted and sentenced as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.

8. Learned counsel for the appellants contends that evidence of Vajtakker in the shape of statements of Muhammad Bilal (P.W.9) and Abdul Rasheed (P.W.10) was inadmissible in evidence but the same has been wrongly relied upon by the learned trial Court as both the alleged witnesses of Vajtakker were not residents of the place of occurrence and they also did not immediately inform the complainant about the running of Muhammad Ramzan appellant towards North while carrying .30 bore pistol in his right hand and their statements being not worthy of reliance were not sufficient to connect the appellants with the commission of the crime. It is further maintained that both the eye-witnesses were interested witnesses being related inter se and with the deceased closely; that they being the chance witnesses had not witnessed the incident who on the one hand cannot be relied upon without receiving independent corroboration from the independent source and on the other hand they were bound to give reasonable explanation for being present at the spot at the time of occurrence, which was not their usual place of residence or business; that there are contradictions in the statements of the P.Ws. It is next averred that post-mortem examination on the dead body of the deceased was also conducted with the delay of 14 to 18 hours without any reasonable explanation.

9. On the contrary, the learned Additional Prosecutor-General has vehemently opposed the appeal on the ground that the learned trial Court had rightly relied upon the evidence against the appellants; that the prosecution had succeeded in proving the case against the appellants beyond any shadow of doubt and that the appeal filed by the appellants may be dismissed.

10. We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.

11. The occurrence in the present case according to the complainant had taken place at 5-45 a.m. on 11-5-2006 within the area of Chak No.48/TDA, 5/6 Kms. away towards South from Police Station Sarai Mohajjir District Bhakkar whereas the matter was claimed to be reported by Sarfraz complainant (P.W.11) through statement (Exh.P.A.) recorded by Malik Muhammad Aslam, Inspector/S.H.O. (P.W.14) at Chak No.51/TDA Morr on 11-5-2006 at 10-00 a.m. on the basis of which formal F.I.R. (Exh.P.A./1) was drafted by Alam Khan, S.-I. (P.W.1) on 11-5-2006 at 10-30 a.m. under section 302, P.P.C. On the other hand, the post-mortem examination on the dead body of the deceased had been conducted at 3-00 p.m. on 11-5-2006 and according to the Investigating Officer after recording the F.I.R. (Exh.P.A./1), he immediately visited the spot, sent the dead body of the deceased to mortuary for autopsy. However, the duration between the death and the post-mortem examination had been given as 14 to 18 hours by the doctor and semi-digested food was also found in the stomach of the deceased. It is found that it was a case of delayed post-mortem and we are not satisfied that the F.I.R. was registered on the first hand version, provided by the complainant, but there is every possibility that the same was recorded after the preliminary investigation. Even otherwise, the F.I.R. does not find mention the names of the assailants or the eye-witnesses and as such the same is of no use.

12. During the course of investigation, the prosecution collected the evidence of Muhammad Bilal (P.W.9) and Abdul Rasheed (P.W.10) who claimed to have seen Muhammad Ramzan appellant with a pistol while coming out of the house of the deceased at 11-30 p.m. and they felt that the said appellant had made aerial fire shot. Muhammad Ramzan (P.W.12) and Abdul Majeed (P.W.13) also stepped forward with the claim that on the night of occurrence at 11-00 p.m. they had seen Muhammad Ramzan appellant armed with pistol while entering in the house of the deceased and within their view both Muhammad Ramzan appellant and Mst. Razia Bibi made conspiracy whereafter Muhammad Ramzan appellant made fire at the deceased. According to P.W.12 and P.W.13 as the deceased was not on good terms with them, so they did not raise any alarm and went to their home. However, they narrated this incident to the police when it arrived at the place of occurrence on the next day. After perusal of statements of P.Ws.9, 10, 12 and 13, the same do not inspire confidence. According to them they were residents of the same locality, but it is strange that they did not inform the complainant (P.W.11) who allegedly arrived at the spot in the morning after receiving information about the incident and then proceeded to the police for reporting the matter.

13. The conduct of P. Ws.12 and 13 was also unnatural that Muhammad Ramzan appellant had been allegedly fired at within their view at night time, but they did not step forward to know the condition of the, deceased or to provide him the first aid to save his life as with naked eye they could imagine about the damage caused to the deceased. It is strange that the P.Ws. preferred to asleep instead of passing on the information to the police or the relatives of the deceased. Even they did not try to know about the condition of the deceased in the morning. So was the position of P.Ws.9 and 10. Even otherwise, P.Ws.9, 10, 12 and 13 failed to give any plausible explanation for their presence at the relevant time at the place of occurrence. Admittedly in the natural course they could not be present at the spot during odd hours of night, who at the most were chance witnesses and we do not find any reasonableness in the version of these P.Ws. for believing them as truthful witnesses.

14. As discussed above, it was a case of delayed post-mortem, which usually leads to an inference that the F.I.R. might be recorded after preliminary investigation and as per prosecution version before conducting of post-mortem examination, P.Ws.9, 10, 12 and 13 had appeared before the police, but the said version of ocular account was not even mentioned in the inquest report. Even otherwise P.Ws.9, 10 or 12 and 13 did not claim that they had met with each other at the relevant time as these witnesses of two sets claimed to be present near the place of occurrence at the relevant time, which also creates doubt in their version.

15. From the above facts and circumstances, we have no hesitation in holding that P.Ws.9, 10, 12 and 13 had narrated cooked up story and same having found no corroboration from any independent source cannot be believed. As such the ocular account or the evidence of Vajtakkar is not found sufficient to connect the appellants with the alleged crime.

16. The other evidence produced by the prosecution was recovery of pistol in the presence of Azam Khan constable (P.W.3) who claimed that one pistol .30 bore (P.3) along with three live bullets (P.4/1-3) and National Identity Card (P.5) fell down which were taken into possession vide memo. (Exh.P.C.). His statement was supported by Muhammad Ashraf, A.S.-I. (P.W.7) who recovered the same and was head of the patrolling party. However, the said recovery was inconsequential as the weapon and the recovered bullet from the spot were not sent to the office of the Forensic Science Laboratory for obtaining the opinion whether the said bullet was fired at from the said pistol or not. Even the weapon was not sent to obtain the opinion whether it was in working condition or not. In such circumstances, the recovery of weapon from Muhammad Ramzan appellant was inconsequential and did not provide corroboration to the ocular account, which even otherwise has been discarded by us in the preceding paragraphs.

17. The defence plea raised by the appellants that they had been involved in the present case falsely and in fact Mst. Hameeda Bibi sister of the deceased had wanted to get rid of her husband Ihsan Ullah but her deceased brother Muhammad Ramzan created obstacle in her way whereupon she in order to remove obstacle had murdered her brother is concerned, we do not feel any necessity of discussing the defence plea as the prosecution has itself failed to prove the case against both the appellants beyond any shadow of doubt.

18. For what has been discussed above, we have come to an irresistible conclusion that the prosecution had not been able to prove its case against both the appellants beyond any shadow of doubt. Hence, Criminal Appeal No.113/J of 2007, is hereby accepted, the impugned judgment of conviction and sentence recorded by the learned trial Court against both the appellants is set aside and both the appellants are acquitted of the charge by extending benefit of doubt to them. Muhammad Ramzan appellant shall be released from jail forthwith, if is not 'required in any other criminal case. However, Mst. Razia Bibi appellant is on bail as her sentence was suspended by this Court vide order, dated 11-10-2007 and she shall be discharged of the liability of the bail bonds.

19. Consequently, the death sentence awarded to Muhammad Ramzan appellant is not confirmed and Murder Reference No.55 of 2007 is replied in the negative.

N.H.Q./M-20/L Appeal accepted.