GHULAM QADIR Versus STATE
KH. MUHAMMAD SHARIF, J .‑‑ We intend to dispose of Murder Reference. No.2 of 1996, Criminal Appeal No. 136 of 1996 and Criminal Appeal No. 143‑J of 1996 filed by Ghulam Qadir, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Bahawalnagar on 4‑12‑1996 for the murder of Muhammad Ramzan, deceased to undergo death sentence under section 302(b), P.P.C. with the further direction to pay Rs.10,000 as compensation to the legal heirs of the deceased, under section 544‑A, Cr.P.C, in default six months' R. I.
2. It may be noted here, that Criminal Appeal No. 136 of 1996 was filed by the appellant through his counsel, later on, learned counsel for the appellant withdrew his power of attorney. Another Criminal Appeal No. 143 of 1996 was also filed .by the appellant through Jail. We may also mention here, that son of the appellant namely Niaz Ahmad alias Nazi was also tried by the learned Additional Sessions Judge, Bahawalnagar but he was acquitted.
3. The occurrence in this case took place on 15‑12‑1992 at evening time within the area of Mauza Fatani, near the house of the appellant, 16 K.Ms. away from Police Station, Saddar, Chishtian while the matter was reported to the police through F.I.R. Exh.P.F. on the same day at 9‑30 p.m. by Mukhtar Ahmad P.W. complainant, the real brother of the deceased examined as P.W. 9 and the same was recorded by Abid Akhtar, Inspector/S.H.O. P.W.11.
4. Briefly stated, the facts of the prosecution case as mentioned by Mukhtar Ahmad complainant (P.W. 9) in his statement are that his brother Muhammad Ramzan was married with Mst. Shamim Akhtar daughter of Ghulam Qadir three years earlier and for a period of about one year she remained living with him amicably and thereafter, their relations became strained. Thereafter, Ghulam Qadir took his daughter alongwith him. Muhammad Ramzan had been trying through Punchayats for the restoration of his wife but Ghulam Qadir not only disagreed but also got instituted a suit for dissolution of marriage from his daughter Shamim Akhtar in the Court of Family Judge at Chishtian which is pending adjudication. On 6‑12‑1992 the complainant and Abdullah their maternal uncle came to Civil Court, Chishtian alongwith Muhammad Ramzan. It is alleged that in their presence Ghulam Qadir asked Muhammad Ramzan to divorce his daughter otherwise he will not be spared. Thereafter, an altercation took place between Muhammad Ramzan and Ghulam Qadir and the matter was got patched‑up by them. It is alleged that on 15‑12‑1992 at about evening time the complainant alongwith his brother Muhammad Ramzan and maternal uncle Abdullah was going to the house of Lal Khan, his ailing maternal uncle, to see him, when reached in front of the house of Ghulam Qadir on the road and saw Ghulam Qadir arid Niaz alias Nazi present in the courtyard of house of Ghulam Qadir while warming themselves by fire. It is alleged that on seeing them Niaz alias Nazi raised Lalkara that Ramzan should not be spared today whereupon Ghulam Qadir who was already having a gun made two fire shots with it upon them which hit Muhammad Ramzan who fell injured on the ground by left side and succumbed to the injuries there and then. The complainant and Abdullah saved themselves by lying on the ground. Thereafter, Ghulam Qadir made firing in the air and decamped from there alongwith Niaz Ahmad alias Nazi. Mukhtar Ahmad complainant leaving Abdullah and Muhammad Hanif, his maternal uncles, near the dead body to keep guard, himself proceeded to the police station and made the aforesaid statement before Abid Akhtar Inspector, who read over and explained the same to complainant and obtained his thumb‑impressions upon it in token of its correctness.
5. The Investigating Officer after the registration of case came to the spot, took into possession blood‑stained earth vide memo. Exh.P.G. He also collected three empty cartridges P.1 to P.3 vide memo. Exh.P.E. from the courtyard of Ghulam Qadir, appellant. Two bowls P.4 and P.5 alongwith one stainless steel plate P.6 having marks of firing were also taken into possession from the house of Ghulam Qadir, appellant vide memo. Exh.P.D. On 19‑12‑1992 Mumtaz Ahmad P.W. produced .12 bore pistol/carbine P.4 alongwith three live cartridges P.5/1‑3, which were given to him by the deceased's mother herself and the same were taken into possession vide memo. Exh.P.C. On 17‑2‑1993, Ahmad Bakhsh Zamindar, produced licence P.3 belonging to Ghulam Qadir appellant, which was taken into possession vide memo. Exh.P.B/1. On 3‑1‑1993. Ghulam Qadir appellant was produced by Ahmad Bakhsh Zamindar before the Investigating Officer alongwith .12 bore gun single‑barrel P.1, four live cartridges P.2/1‑4, which were taken into possession vide memo. Exh.P.B. The report of Chemical Examiner regarding the blood‑stained earth and clothes of the deceased is Exh.P.J and that of Serologist is Exh.P.K, which are positive in nature, then there is a report of Fire‑arm Expert Exh. P. L and according to the said report, three crime empties of .12 bore gun taken from the spot marked as C‑1 to C‑3 were examined and compared with the test empties of .12 bore prepared from the SBBL shotgun of .12 bore and shot pistol of .12 bore butt and according to the result, crime empties of .12 bore gun marked as C‑2 was fired from the single‑barrel shot‑gun of .12 bore while crime empties of .12 bore marked as C‑l and C‑2 were not fired from the single barrel gun and shot pistol of .12 bore.
6. Prosecution in order to prove its case produced 11 witnesses in all. Thereafter, the statements of the appellant and his co‑accused were recorded. The defence of the appellant while replying to question No.8 in his statement recorded under section 342, Cr.P.C was that:
"The deceased duly armed with .12 bore pistol attacked at my house and made firing with the said pistol in order to forcibly abduct my daughter Mst. Shamim Akhtar. The firing made by deceased also hit inside the residential Kotha of my house as a result of which some of my utensils were also hit by the fire shots made by the deceased."
7. Appellant further stated in reply to question No.9 that he was innocent and has been falsely implicated in instant case as explained by him in reply to question No.8. Son of the appellant, namely Niaz Ahmad also claimed false implication and he was acquitted by the learned trial Court. Ghulam Qadir appellant produced certified copies of order dated 25‑1‑1993 and 27‑3‑1993 passed by the learned Judge Family Court, Chishtian in case titled as Mst. Shamim Akhtar v. Muhammad Ramzan, suit for dissolution of marriage as Exh.D.l and Exh.D.2., respectively.
8. Learned counsel for the appellant, appointed at State expense, after reading the prosecution evidence and other material present on the record submits that appellant has been falsely implicated in this case, that both the eye‑witnesses were not present at the spot, they are related and chance witnesses, that the occurrence has taken place just near to the house of the appellant, that deceased had come to the house of the appellant and fired at the appellant in order to abduct Mst. Shamim Akhtar his wife and daughter of the appellant, who had filed a suit for dissolution of marriage against the deceased Muhammad Ramzan. He submits that although the plea of right of self‑defence and property has not been taken by the appellant, but the same is spelt out from the record because the circumstances of the case prove the same. He also submits that Mumtaz Ahmad P.W. had also produced the carbine/pistol .12 bore before the Investigating Officer, who took the same into possession during the course of investigation. He also submits that no offence whatsoever has been committed by the appellant and he is entitled to acquittal.
9. On the other hand, learned counsel for the State supports the judgment of learned trial Court.
10. We have heard the learned counsel for the parties and have also gone through the evidence of two eye‑witnesses and that of Investigating Officer alongwith evidence of Dr. Muhammad Afzal Saqib, M.O. P.W. 1, who has conducted the post‑mortem examination on the dead body of the deceased. First of all, we would like to reproduce the statement of abovesaid doctor, as under:
"On 16‑12‑1992 at 9‑30 a.m. I conducted post‑mortem examination on the dead body of Muhammad Ramzan son of Yar Muhammad, caste Dadpotra resident of Qabool Fatani, Chishtian, who was brought by Pir Muhammad 444/C of Police Station, Saddar, Chishtian. The body was identified by Mumtaz Ahmad son of Allah Ditta and Mukhtar Ahmad son of Yar Muhammad, both residents of Qabool Fatani, Chishtian.
EXTERNAL APPEARANCE.
A young male of about 26 years of age with good built, lying spine over mortuary table, wearing blood‑stained black Kameez and white Chadar also blood‑stained. A metallic bangle wearing in right hand. A Taveez like locket wearing around the neck, eyes open, mouth closed, deceased had bled from both nostrils and mouth. Post‑mortem staining present over back. Rigor mortis fully developed. Corresponding holes present in Qameez and Chadar.
INJURIES
(1) A lacerated rounded wound with inverted margins over anterior axillary fold towards chest. Size 3/4 c.m. x 3/4 c.m. x deep going. It punctured chest wall, right lung, left lung, left chest wall and was present in left axilla.
(2) A lacerated wound over back of right hand behind 5th metacorple size c.m. x 3.4 c.m. Margins inverted. It was continuous with the wound of same dimension over ventral side of right hand (exit wound).
(3) A lacerated wound (abbraded wound) over outer aspect of right forearm in the middle, size 5 x 1 c.m. x skin deep.
(4) A lacerated wound with inverted margins over right aspect of abdomen at the level of amblicus size 3/4 c.m. x 3/4 c.m. x deep going. It punctured the abdomen wall. Lower lobe liver and small intestines.
(5) A lacerated rounded wound with inverted margins over outer aspects of right upper thigh size 3/4 c.m. x 3/4 c.m. x deep going.
(6) A lacerated wound with inverted margins over back of chest at the level of second lumber vertebras, size 1‑1/2 c.m. x 3/4 c.m. x deep going. Another lacerated wound over left to this one with everted margins. Wound No. l is continues with second one (entry and exit, size 2‑1/2 x 3/4 x skin deep, horizontally lying.
(7) An abrasion mark over outer aspect of left forearm size 11 c.m. x 5 c. m.
The diameter in which all the injuries lie is 35 c.ms.
CRANIUM AND SPINAL CORD
All healthy
THORAX
Wall punctures over right axilla. Chest cavity full of blood. Pleura punctured over both sides. Right and left lung punctured through and through. Larynx, trachae blood vessels and heart healthy. Right Hear full of blood.
ABDOMEN
Wall punctured over right aspect. Peritoneum punctured,. Cavity full of blood. Small and large intestines punctured at different places and faecal matter amixed with cavity blood. Lower lobe of liver punctured. All other viscera in abdomen healthy. Stomach contained about 100 ML semi -digested food material. Bladder contained about 50 ML urine.
REMARKS BY THE MEDICAL OFFICER
On external and internal examination of the body I am of the opinion that cause of death was cardio respiratory failure due to severe shock and haemorrhage caused mainly by injuries Nos. 1 and 4 which were sufficient in the ordinary course of nature, to cause death. Injury No.7 was with blunt weapon. All other injuries were fire‑arm injuries and were ante‑mortem in nature. Probable time between injuries and death was between 5 to 8 minutes and between death and post‑mortem was 12 to 6 hours.
I handed over the dead body, post- mortem report, last‑worn clothes, police papers and two pellets to Faqir Muhammad 444/C.
Exhibit P.A is the correct carbon copy of my post‑mortem report which is in my hand and bears my signatures. Exh.P.A/1 is the diagram showing the seat of injuries which also bears my signatures. Exh.P.A/2 is the inquest report which bears my signatures and seal. Exh.P.A/3 is the injury statement /police request for post‑mortem examination of the deceased. x x x x By Mr. Muhammad lqbal Suhail, learned defence counsel.
All the abovementioned injuries may be caused by a single fire. The fire was made on the deceased from his right side within 30 to 40 feet. The position of arm was that it was not alongwith the right flank. The post‑mortem is not conducted after sunset and before sunrise. It is incorrect to suggest that I had prepared the post- mortem in connivance with the complainant -party.
11. The bare perusal of the statement of doctor shows that the injuries which were caused on the person of the deceased could be result of one fire shot and the distance of firing was within 30 to 40 feet and the report of Fire‑arm Expert also proves that only one empty cartridge of .12 bore gun which was taken into possession from the courtyard of the house of Ghulam Qadir, appellant matched with his shot‑gun.
12. As far as, the two eye‑witnesses are concerned, in our view, they were not present at the spot. Mukhtar Ahmad complainant P.W.9 real brother of the deceased has stated in his examination‑in‑chief that the fired shot hit the deceased on his right flank while Muhammad Abdullah maternal uncle of the deceased examined as P. W . 10 has stated in his examination‑in‑chief that fire shot hit the deceased on his left flank. Both of them are chance witnesses and they are not resident of place of occurrence. They live 5/6 acres away from the house of the appellant, that the reasons given by both these P. Ws. to be present at the place of occurrence was a pretext on their part. According to Mukhtar Ahmad P.W.9, appellant fired from a distance of 8/ 9 Karams at the deceased while according to the statement of Muhammad Abdullah P.W.10 fire was shot by the appellant from a distance of six feet. The occurrence had taken place just in front of the house of the appellant in the instant case. We are happy to see and know that in this case, the Investigating Officer has tried his best to bring on record the actual facts of the case and conducted the investigation in an honest and impartial manner which has helped to reach a just conclusion. We wish, that all the police officers while conducting the investigation in such‑like cases where the matter of life and death of person is involved, they investigate in this manner as the I.O of the instant case has done, who are otherwise also duty bound to do this job. The Investigation Officer also took into possession two bowls and one stainless steel plate, which had firing marks, from the house of the appellant also shows that it was the deceased who first fired at Ghulam Qadir appellant, who was present in his house because there was no boundary wall around the house of the appellant,. if there was any that was only one foot high. The I.O also took into possession the carbine belonging to the deceased alongwith three empty cartridges which were produced by Mumtaz Ahmad Zamindar and the same was given to that Mumtaz Ahmad Zamindar by the mother of the deceased. The version taken by the appellant during the trial and also in his statement recorded under section 342, Cr.P.C verifies this fact that it was the deceased, who had come to the house of the appellant in order to abduct his wife namely Mst. Shamim Akhtar, who had filed a suit for dissolution of marriage against him and was living in the house of her father the appellant after the strained relations between the spouses. The Investigating Officer was honest enough when he had admitted during the cross‑examination that Niaz Ahmad co- accused was found innocent by him and also by Malik Qadir Bakhsh, D.S.P./S.D.P.O. and Safdar Shah, D.S.P. C.I.A. He also submitted that in the investigation conducted by Malik Qadir Bakhsh, D.S.P. on 19‑1‑1993 also came to conclusion that it was Muhammad Ramzan deceased, who had attacked at the house of Ghulam Qadir appellant and fired from his .12 bore pistol/carbine and the fire hit the utensils placed on the metal‑piece of the room of the said house owned by Ghulam Qadir appellant. He also stated that in the Daily diary dated 19‑1‑1993 written by Malik Qadir Bakhsh D.S.P., it was stated by him that Muhammad Ramzan deceased attacked at the house of Ghulam Qadir appellant in order to abduct his wife Mst. Shamim Akhtar daughter of Ghulam Qadir appellant. He also admitted that .12 bore pistol/carbine belonged to Muhammad Ramzan deceased and the same was used by the deceased at the time of occurrence. He also admitted that house of Ghulam Qadir appellant had no boundary wall but there was a boundary wall of one feet and nine inches high on the western side of the house.
13. After going through the statement of the Investigating Officer, we are of the considered opinion, that it was the deceased who had attacked Ghulam Qadir appellant on the day of occurrence and he while using his right of self‑defence and property fired one shot. No offence whatsoever was committed by Ghulam Qadir appellant. Prosecution has miserably failed to prove the case against the appellant.
14. In this view of the matter, we accept the appeal filed by the appellant Ghulam Qadir. Death sentence awarded to the appellant by the learned trial Court is not confirmed. Conviction and sentence awarded to the appellant by the learned trial Court is set aside. He shall be released forthwith if not required in any other case. Murder Reference is replied in negative.
15. Lastly, we must appreciate the efforts made‑ by Mr. Abid Akhtar, Inspector/S.H.O., Police Station, Saddar, Bahawalnagar examined as P.W.12, who was the Investigating Officer in this case and investigated this case in an impartial and honest manner. That it became very easy for us to reach at a just conclusion. We direct the office that copies of this judgment be also sent to Home Secretary, Government of Punjab, I.‑G., Punjab, D.I.‑G. and S.S.P, Bahawalpur, with the direction to all these authorities to communicate. the views of this Court to all the Investigating Agencies/ Investigating Officers in the Punjab, that they should conduct the investigations in such‑like manner as has been done by Mr. Abid Akhtar, Inspector who brought on record all the important evidence before the learned trial Court either produced by the prosecution or by the defence impartially and honestly, so the task of the Court concerned became easy to arrive at a just conclusion. We have observed this all for the reasons that daily the Courts condemn the police agency because of their inefficient and partial investigations but when a police officer makes good efforts to investigate the matter in an impartial and honest manner then he should also be appreciated which may encourage him for even better result in future. With these remarks Murder Reference and Criminal Appeal are disposed of.
Death sentence of the appellant is not confirmed .
Q.M.H./M.A.K./G‑131/L
Appeal allowed.