MUMTAZ AHMAD Versus THE STATE Aitzaz Ahsan , Abdul Jabbar for A.-G.,S. Sajjad Raza Jaffari
This is an appeal by Mumtaz Ahmad against his conviction and sentence under section 302, P.P.C. by the learned Additional Sessions Judge, Gujrat vide judgment dated 11‑2‑1981. He was sentenced for the murder of Ghulam Qadir to suffer imprisonment for life and a fine of Rs.5,000 or in default six months R.I. Rehmat complainant filed Criminal Revision No. 672 of 1982 for enhancement of sentence which was ordered to be heard alongwith Criminal Appeal No. 529 of 1982. Both these matters being directed against one judgment will be disposed of together.
The occurrence in this case took place at 6 p.m. on 23‑3‑1976 in village Kirlianwala, District Gujrat about eight miles from police Station, Phalia where Rehmat P.W.5 lodged the F.I.R. at 9.30 p.m. On 23‑3‑1976. It is alleged therein that on that very day he was present in the house of his relative Ghulam Ahmad Lambardar (P.W.3). After sitting there for some time he started for his house at about deegarwela. A short while thereafter, when he was on his way back to his house he heard noise of quarrel between Ijaz (acquitted accused) and Ghulam Ahmad Lambardar. Some womenfolk separated them. A short while thereafter Ijaz (acquitted accused) brother of Mumtaz Ahmad (appellant) and his father Ghulam Hyder (acquitted accused) went to the Behak of Ali Bahadur and sat there. At that very time Khushi Muhammad son of T aja, Ghulam Hyder and Rana sons of Khushi Muhammad assembled in the house of Ghulam Ahmad Lambardar. Rehmat P.W. was also present there. Ghulam Ahmad Lambardar and others challenged Ghulam Hyder accused by saying that they are coming to take revenge. On hearing this lalkara Mumtaz Ahmad appellant and the two acquitted accused towards their house. Mumtaz Ahmad appellant armed with 12 bore gun while Ijaz accused armed with carbine alongwith Ghulam Hyder accused empty handed climbed the Chaubara of their relative Muhammad Roshan and on the exhortation of Ghulam Hyder accused, the appellant Mumtaz opened fire from the Western window of the Chaubara while Ijaz accused started firing from the Eastern window. Ghulam Ahmad etc. took shelter behind a wall. On hearing the gun fires, Ghulam Hyder and Ghulam Qadir deceased, two sons of Rehmat complainant came near the Haveli of Ghulam Ahmad. At this Mumtaz Ahmad accused fired which hit Ghulam Qadir deceased on front of his shoulder. He fell down and died. The motive was that Ghulam Hyder etc. were complainant in a 307 P. P. C. case. Ghulam Ahmad Lambardar had appeared as a defence witness in that case to the disliking of Ghulam Hyder etc. accused, who murdered Ghulam Qadir for that enmity.
2. After registration of the case the police under took investigation. The police during spot inspection recovered crime empty P.4 on 24‑3‑1976 vide memo. Exh. P.B. prepared by S.I., Muhammad Sharif P.W.7 in the presence of Ghulam Ahmad P.W.3 and Muhammad Anar (given up P.W.). The three accused were arrested on 25‑3‑1976. On that very day carbine P.5 was recovered at the instance of Ijaz acquitted accused vide memo Exh. P.C. prepared by S.I., Muhammad Sharif P. W .7 and attested by Ghulam Ahmad P.W.3 and Ghulam Hyder P.W.6. The crime empty P.4 was found to have been fired from carbine P.5 vide report Exh. F.G. ‑The police did not find blood‑stained earth at the place of occurrence. The dead body of Ghulam Qadir decease was sent for post‑mortem examination which was conducted by Dr. Muhammad Nazir Anwar P.W.4 on 24‑3‑1976 at 7‑30 a.m. He found the following injury on the dead body of Ghulam Qadir aged 36 years:‑
"A fire arm wound of inlet 2/5" x 1/5" going into the chest, over the upper part of front of left side of chest. On dissection an upper lobe of left lung was found perforated through and through. About three pints of blood was present in the left pleural cavity. A large sized pellet was recovered from the said cavity.
All other organs were healthy. This injury was found sufficient to cause death in the ordinary course of nature. The accused were challaned after completion of investigation.
3. The prosecution during the trial examined eight witnesses in all. Ghulam Ahmad P.W.3, Rehmat P.W.5 and Ghulam Hyder P.W.6 were examined as eye‑witnesses. Khushi Muhammad, an eye‑witness died before the commencement of trial. His two sons Muhammad Anar and Ghulam Hyder both eye witnesses were given up as having been won over. Ghulam Ahmad P.W.3 and Ghulam Hyder P.W.6 also witnessed the recovery given in detail above. The medical evidence was furnished by Dr. Muhammad Nazir Anwar P.W.4. The investigation was done by S.I., Muhammad Sharif P.W.7.
The accused when examined under section 342, Cr.P.C. denied the charge and pleaded innocence. They did not produce any evidence in defence and attributed this case against them due to enmity. Mumtaz appellant pleaded alibi. It was further stated by him that Ghulam Qadir seems to have been killed by the stray fire of Muhammad Nawaz and Ghulam Ahmad etc.
The learned trial Judge placed reliance on the evidence of motive and the three eye‑witnesses. He did not rely on the report of the Fire- Arms Expert Exh. P.G. He acquitted the two accused because no specific injury to the deceased was attributed to them. He convicted the 'appellant as stated above.
4. I have gone through the record of this case with the assistance of the learned counsel for the appellant, learned counsel for the State and learned counsel for complainant.
5. The three eye‑witnesses are closely related to the deceased. Ghulam Ahmad P.W.3 is the grand son of the paternal aunt of the deceased. Rehmat P.W.5 is the father of deceased and Ghulam Hyder P.W.6 is a brother of the deceased. The two eye‑witnesses namely A Rehmat and Ghulam Hyder are not residents of the locality where the occurrence took place. These three eye‑witnesses were on inimical terms with the accused. Ghulam Hyder accused had filed a suit to pre‑empt a sale of land in favour of one Pir Bakhah. In the said suit, Ghulam Ahmad Lambardar had appeared as a witness on behalf of Pir Bakhsh defendant. Secondly Muhammad Nawaz, a son of the aforesaid Pir Bakhah had fired at Zafar, a brother of Mumtaz appellant. He was prosecuted under section 307, P.P.C. in which case Ghulam Ahmad had appeared as a defence witness on behalf of Muhammad Nawaz accused. On the day of occurrence Ghulam Ahmad P.W. had a quarrel with Ijaz appellant. Many persons assembled in his house after the said incident. The three accused were sitting at the Behak of Ali Bahadur. At the time, they were empty handed. It is stated by Ghulam Ahmad P.W.3 that they had gone to avenge themselves on account of insult which had been given to him by Ijaz Ahmad accused. According to prosecution evidence, the accused ran inside the house, climbed the Chaubara of Roshan and opened fire from that place. This story cannot be accepted because 'it is admitted by Ghulam Ahmad Lambardar that prior to the present occurrence Salhoon, a real uncle of Mumtaz appellant was murdered for which Farid son of Roshan and others were prosecuted. It was, therefore, most unlikely that the accused would dare to climb the Chaubara of their enemy (Roshan) to launch an attack on Ghulam Ahmad P.W. etc. This view is further supported by the medical evidence. The Medical Officer in cross‑examination stated that he cannot say with certainty if the assailant who fired at the deceased was at higher level 13 or at the same level but from a perusal of ‑the description of the injury, it is clear that the assailant and Ghulam Qadir deceased were at the same level at the time of occurrence. The fire hit the deceased on the upper part of the left side of chest. The pellet did not travel downward but injured the upper lobe of the left lung through and through. If the fire had been shot from higher level the pellet must have entered the middle of lung or lower lobe of the lung. This would further show that the firing did not come from the Chaubara of Roshan. Another fact in this behalf is the recovery of one crime empty from the said Chaubara. According to the prosecution evidence Mumtaz and Ijaz accused fired many shots before the arrival of Ghulam Qadir deceased at the place of occurrence. The police did not collect any other crime empty except P.4 from the spot. No wad or card board pieces were recovered from the place of occurrence. No pellet marks were noticed by the Investigating Officer during the spot inspection. Even no blood stained earth was recovered from the place where Ghulam Qadir deceased is said to have received fire‑arm injury. The prosecution story appears to be improbable and doubtful. It is stated that on hearing the fire arms report Ghulam Hyder P.W. alongwith his brother Ghulam Qadir deceased reached the place of occurrence. I am not prepared to accept this version of Ghulam Hyder P.W. because if the firing was on them instead of going in the range of fire they should have kept aside like Ghulam Ahmad P.W. etc. The complainant party themselves initiated the trouble and seems to have concealed the real facts from Court. No crime weapon was recovered from Mumtaz appellant. Thus, it would be clear that the eye‑witnesses who are related to the deceased and were on inimical terms with the accused, have not been corroborated by any independent corroborating evidence.
6. It was urged by the learned counsel for the complainant that Rehmat Khan and Ghulam Ahmad P.Ws. have also received injuries during the occurrence; that the occurrence took place during day time and Mumtaz accused was specifically attributed the fatal shot and as such the prosecution case stood fully proved against him. It was finally argued by him that the sentence awarded to Mumtaz appellant was inadequate. The learned counsel for the State took up another plea. He argued that according to the prosecution case the complainant party had a motive to launch an attack on the accused party; that they wanted to take revenge, as admitted by Ghulam Ahmad P.W.3 and that the accused exceeded in their right of private defence. According to the learned counsel for the State, seven years punishment to Mumtaz appellant would meet the ends of justice.
7. I have considered the arguments of the learned counsel for the complainant and the State. I have checked the record and find that Rehmat and Ghulam Ahmad P.Ws did not receive any injury during the alleged occurrence. I am not prepared to believe that the accused were present at the spot or that they acted in the right of their private defence or that they exceeded the right of their private defence. As is clear from the prosecution evidence there were no pellet marks on any wall at the place of occurrence. No blood‑stained earth was collected from the spot. The presence of accused in the Chaubara of Roshan is not only improbable but also belied by the medical evidence and that the eye‑witnesses are interested and not corroborated by any other evidence. I am, therefore, of the view that the prosecution case against the appellant is not free from doubt.
8. In view of the above discussion, I accept this appeal. The conviction and sentence of Mumtaz Ahmad appellant is set aside and he F is acquitted. He be released from prison if not required in any other case.
9. In view of the above, the Criminal Revision No.672 of 1882 is dismissed in limine.
M.Y.H. Appeal accepted.