Ghulam Qasim appellant (34-35 years) was convicted by the learned Sessions Judge, Layyah vide his judgment dated 10-6-1989 for the murder of Amir Ahmad deceased and sentenced to imprisonment for life and a fine of Rs.30,000 or in default thereof 2 years' R.I. He was also directed to pay a compensation of Rs.25,000 to the heirs of the deceased or to undergo 6 months R.I. Feeling dissatisfied he has come up in appeal. His brother Raza Muhammad co-accused was, however, acquitted.
2. The occurrence took place at the house of the appellant at chowk Azam at a distance of 16 miles from Police Station Sadar Layyah at Sehri Wela on 22-5-1986. Allah Dad complainant (P.W.4) made statement (Exh.P.C.) to Malik Muhammad Yar S.I. (C.W.1) on the same date at 9-45 a.m. When he was on patrol duty at chowk Azam, it was sent to the Police Station where formal F.I.R. (Exh.P.C./1) was registered by Zahoor Ahmed A.S.I. (P.W.2) at 6-50 a.m.
3. Malik Allah Dad complainant (P.W.4) is resident of Mianwali and is a practising Advocate over there. He was married to a sister of Amir Ahmad deceased.
4. Amir Ahmad deceased, according to the F.I.R., was living with Ghulam Qasim appellant and his brother at Chowk Azam for the last about 14/15 years. Since about 1-1/2 years Ghulam Qasim appellant etc. Had promised him (the deceased) the hand of their sister but since few days before the occurrence had gone back upon the same. On this the deceased sent a message and so Allah Dad complainant alongwith his relatives Mushtaq Ahmad (P.W.5) and Zaman (given up P.W.) reached the appellant in the evening preceding the night of occurrence. They talked over the matter with Ghulam Qasim appellant and his brother Raza but they refused point blank. They (the P.Ws.) slept at the house of the appellant for the night and at Sehri time prepared to leave for their house. While leaving the deceased told Ghulam Qasim appellant and his brother Raza that they had not done well by refusing the hand of their sister and if he could, he would certainly obtain her hand. On this the appellant and his brother were infuriated, the appellant went inside the house, brought out his 12-bore gun and on the Lalkara of Raza fired and hit the deceased in front who fell down and died at the spot. When Ghulam Qasim appellant was about to fire again the complainant and the P.Ws. Beseeched him and saved their lives.
5. Malik Muhammad Yar S.I. (C.W.1) after recording the statement of the complainant went to the spot and prepared inquest report (Exh.P.B./1). A crime empty lying at the spot was also taken into possession vide memo. (Exh.C.W.l/A). He got prepared site plan (Exh.P.M./1) from Abdul Khaliq Draftsman (P.W.6) and gave his red notes thereon. He arrested Ghulam Qasim appellant and Raza accused who pleaded innocence. Ghulam Abbas Chairman (C.W.7) produced Muhammad Din and Ahmad Nawaz before him and he arrested them as accused in the case and placed the appellant and his brother Raza accused in column No.2 of the challan.
6. Allah Dad complainant did not feel satisfied with then investigation, sent applications to the President of Pakistan, Prime Minister, Governor Punjab, Chief Minister Punjab, D.I.-G. And I-G. Police and thereafter directly filed the complaint (Exh.P.K.) on 6-10-1986. In the complaint the version given in the F.I.R. As re-produced above, was reiterated.
7. The appellant and his co-accused Raza faced trial on the basis of this complaint.
8. Dr. Zafar Iqbal (P.W.1) performed the post-mortem examination on the dead body of the deceased on 23-5-1986 at 9-00 a.m. It was having the following injuries:-
(1) A gun-shot wound measuring 2 c.m. x 2 c.m. Going deep into the abdomen, situated 9 c.m.
Below the left nipple and 1-1/2 c.m. Lateral to the midline. The edges were inverted. Skin around the wound was blackish. Omentum was protuding out of the wound.
(2)An abrasion 2 c.m. x 1 c.m. On back of right elbow joint.
The shirt and vest of the deceased had a hole corresponding to injury No.1 with blackish margin.
The injuries in the opinion of the doctor were ante--mortem, No.1 by a fire-arm fatal and dangerous to life which had actually resulted in death while injury No.2 was by a blunt weapon and simple. The pellets and three pieces of cartridges were taken out of the body, sealed and handed over to the police. The death was immediate and time between death and post-mortem was stated to be 24/30 hours. The doctor observed sma ll intestines containing digested food and bladder having 1- 1/2 ounces of urine.
7. The appellant in his statement, at the close of the trial, admitted that the deceased was living in their house for more than 13/14 years but denied that they had promised the hand of their sister to him. He claimed that Police had not done any favour to them, both of them were arrested and when their innocence was established they were placed in column No.2 of the challan. He further informed the Court that it was a blind murder and when the relatives of the deceased reached on being summoned by the Police and they asked him about the murderers he showed ignorance and even after their insistance when he could not tell about the actual culprits they falsely involved him in the case. The complainant wanted to blackmail him and to extract undue benefit from him,
8. At the trial, the prosecution examined Dr. War Iqbal (P.W.1) to provide medical evidence, Zahoor Ahmad A.S.I. (P.W.2) who recorded the F.I.R., Muhammad Sadiq Constable (P.W.3) who escorted the dead body of the deceased from the spot to the hospital and got the post-mortem done, Malik Allah Dad and Mushtaq Ahmad (P.Ws.4 and 5) to give the ocular account of the occurrence and Abdul Khaliq Draftsman (P.W.6) who prepared the site plan at the instance of the Police during investigation. The Court also examined Malik Muhammad Yar S.-I., Muhammad Hussain, Riaz Ali alias Bhola, Rab Nawaz, Iqbal Hussain, Manzoor Ahmad, Ghulam Abbas Chairman, Mehar Muhammad Yar Councillor as Court witnesses (C.Ws.l to 8).
9. Learned counsel for the appellant contended that it was a blind murder, Allah Dad, Mushtaq Ahmad the eye-witnesses and Zaman (given up P.W.), the relatives of the deceased, had been called from Mianwali by the Police, case cooked up and this got support from the late post- mortem examination of the dead body which, as indicated above, was done on the next day i.e. On 23-5-1986. The learned Assistant Advocate-General, however, defended the judgment delivered by the learned trial Judge.
10. After hearing them at length and going through the record, the contention must be rejected. It is established on the record that it was the appellant who fired the fatal shot at the deceased. Allah Dad complainant is a practising Advocate at Mianwali and, as per his statement, had never been to the appellant or visited Chowk Azam before the night of occurrence. Mushtaq Ahmad (P.W.5) is the relative of his wife, the sister of the deceased, and he too had not been to Chowk Azam before.
It is clear from the statement of the former that when he was examined at the trial, by that time he had already divorced the sister of the deceased. It was suggested to him that his marriage with the sister of the deceased was a love-affair and not with the consent of her family members. In both the eventualities he was an independent and disinterested witness. Both the eye-witnesses are independent and disinterested and no emity or ill-will of any sort has been suggested to them in cross--examination. It is an admitted fact that the deceased was living with the appellant as family member since more than 15 years. The complainant was rather cross-examined to the effect that the deceased had come over to the appellant's family when he was just studying in 3rd class which would indicate that the deceased lived with the appellant's family since his childhood.
The two eye-witnesses have clearly deposed in line with the version of the F.I.R. That on receipt of the message from the deceased as to the refusal of the hand of the sister by the appellant to him, they reached the house of the appellant in the evening and talked over the matter but met with a point blank refusal. They, as per their statements, stayed at the house for the night and when at Sehriwela they prepared up to leave for their house alongwith the deceased, the latter told the appellant and his brother Raza accused that they had not done well to him by refusing the hand of their sister and that he would obtain her hand, any case, whereupon the appellant brought out the gun and fired the fatal shot on the Lalkara of Raza.
11. The post-mortem was done at 9-00 a.m. On 23-5-1986. The reason for the delay is not far to seek. The deceased was the only person of his family residing at Layya who met his final end when the appellant's family refused the hand of their daughter to him while the three eye-witnesses had come from Mianwali, a sufficiently far away place from Chowk Azam and there being no evidence that they had any other connection at Chowk Azam must have felt the difficulty in arranging the transport and escorting the dead body to the mortuary. In this respect the statement of Muhammad Sadiq Constable (P.W.3) is very illustrative. According to him, they reached the hospital in the evening. He also informed the Court that the dead body was transported on the tractor-trolly in the morning. It was not available and when it became available, they started for Layyah, it went out of order on the way. There is no reason not to accept his version as correct.
Thus, the delayed post-mortem is of no avail to the defence.
12. The statement of the complainant was recorded soon after the occurrence at Chowk Azam and thereafter the F.I.R. Was registered at the police station. Zahoor Ahmad A.S.I. Has not been cross- examined that he had in any way manipulated the time of the F.1.R. Malik Muhammad Yar S.I. The investigator, as would be discussed hereunder, was out and out to save the appellant by spoiling the case and substituting Ahmad Nawaz and Muhammad Din as the culprits, also did not dare to say in the witness-box that he did not record the statement of Allah Dad complainant at 5-45 a.m.
Had the complainant not been at Chowk Azam at the time of occurrence, it would have been rather not possible for him to reach there by 5-45 a.m. From Mianwali. The F.I.R. Was, therefore, promptly lodged. It is a good piece of corroborative evidence. Ahmad Nawaz and Muhammad Din were challaned in the case by Malik Muhammad Yar C.W. And this seems to be a clear misuse of authority by the Sub-Inspector. He was out to exonerate the appellant and his co-accused (Raza) and manipulated the casier method of taking hold of Ahmad Nawaz and Muhammad Din who seem to have been challaned to the Court. A crime empty was recovered from the spot. Later on a gun was recovered from Ahmad Nawaz and as per the statement of Zahoor Ahmad A.S.I. And Muhammad Din Constable P.Ws. Was sent to the Forensic Expert in due course. The dishonesty of Malik Muhammad Yar Sub-Inspector (C.W.1) is very much apparent on the record. In addition to what the learned Sessions Judge has observed I may also make a few remarks.
13. Muhammad Hussain (C.W.2) is the witness as to the recovery of crime empty from the spot. He clearly told that the dead body was lying in the Haveli and Ghulam Qasim appellant was with the police. He had reached the spot on 22-5-1986. He also deposed that he had seen the deceased one with the appellant and also informed that Ahmad Naw-az and Amir deceased were Hawkers (at the bus-stand). Raza Ali and Rab Nawaz (C.Ws.3 and 4) had been examined by the investigator in the challan case against Ahmad Nawaz and Muhammad Din. Their version in the witness-box was that at about 2/3 a.m. As pre-arranged they were about to leave for Gujranwala when they heard the report of a fire shot and saw Ahmad Nawaz running away. Raza Ali deposed that Ahmad Nawaz was a Hawker while Ghulam Qasim appellant was a Transporter Rab Nawaz stated that Ahmad Nawaz used to live at the house of Ghulam Qasim appellant and was a Hawker of the bus.
He (Rab Nawaz C.W.) was living in the same street in which Ghulam Qasim appellant was living.
Iqbal Hussain (C.W.5) was a witness to the recovery of gun (Exh.P.7) at the instance of Ahmad Nawaz. He also admitted that Ghulam Qasim appellant had one or two buses and Ahmad Nawaz was his hawker. He, however, showed ignorance whether the said Ahmad Nawaz was living with the appellant. Manzoor Ahmad (C.W.6) is also a wintess to the recovery of gun at the instance of Ahmad Nawaz. He firstly stated that Ahmad Nawaz did not live at the house of the appellant and again said that he had not seen him at his house. Ghulam Abbas, Chairman and Mehar Muhammad Yar Councillor (C.Ws.7 and 8) were examined by Malik Muhammad Yar S.I. As to the extra judicial confession made to them by Ahmad Nawaz and Muhammad Din. The former in the witness-box stated that Ahmad Nawaz and Muhammad Din came to them in the office of the Union Council and informed that they had murdered Amir. Ghulam Abbas further stated that Ahmad Nawaz was known to him since about a year but Muhammad Din was not known to him. He also told that Ghulam Qasim appellant was known to him since about 1-1/2 years who was a Transporter. It also appears from his statement that Ahmad Nawaz was a Hawker of the appellant but also seems to contradict this version. In cross--examination he told that they had not asked the two who the deceased was and why he had been murdered. Mehr Muhammad Yar stated that the deceased was known to him and contradicted Ghulam Abbas C.W. By saying that he (Ghulam Abbas) had asked the reason for the murder and were informed that one Atta Muhammad had abducted a woman and the deceased was his helper and the promise of marriage was the cause for murder. Malik Muhammad Yar S.I. Claimed that on the basis of the extra-judicial confession made to Ghulam Abbas and Mehar Muhammad Yar by Ahmad Nawaz and Muhammad Din he had challaned them. This in a manner seems to be the ground for his holding the appellant and his brother Raza as innocent. The conduct of the S.I. Is extremely doubtful. He thoroughly seems to be a dishonest man. While in the witness-box he admitted that in the inquest report it was clearly recorded by him that the dead body was lying in the courtyard near the door but claimed that this was due to inadvertence. He also told that the appellant and his brother Raza appeared before him for the first time on 5-6-1986. He has made an incorrect statement because, as observed above, Muhammad Hussain (C.W.2) had informed the Court that he had seen Ghulam Qasim appellant with the police when the dead body was lying in the Haveli on 22-5-1986. He (Malik Muhammad Yar S.I.) denied that in the inquest report he had firstly shown the dead body in the courtyard but then had erased and shown it in the street. He was confronted with the carbon copy of the inquest report from the police record (Exh.C.W.l/C) and it is apparent from a close examination o this copy that the dead body was shown inside the courtyard near the door appears in the descriptive part of the inquest report. Thus, the interference with the record is also clear on the part of the S.I. The way the relevant case diaries have been tampered with and substituted by him has been brought out by the learned Sessions Judge in his judgment. Abdul Khaliq Draftsman deposed that he had prepared the site plan on the instructions of the police and on pointation of Ahmad Nawaz and Muhammad Din (accused of the challan case). This is for the first time that I am coming across the preparation of the site plan in a murder case being got prepared by the Investigator at the instance of the accused (and not the eye-witnesses). The Draftsman admitted in cross- examination that he had prepared innumerable site plans and invariably these were prepared on the basis of the instructions of the police and on the pointation of the P.Ws. He was frank enough to say that it was the only case in which he had prepared the site plan on the pointation of the accused and on the instructions of the police. He clearly told that he was instructed that it was a blind murder and there was no witness of the occurrence. The red notes given by the investigator on the site plan (Exh.P.M./1) have the note respecting point No.2 and it clearly refers to the place from where the appellant had reportedly fired and it is also added that Ahmad Nawaz accused had stated to have fired from this place. This later portion relating to Ahmad Nawaz does not find any mention at all in note No.2 recorded by the Draftsman where only Ghulam Qasim is mentioned.
The Sub-Inspector was clearly manipulating and fabricating the record. No doubt is there that his effort was to exonerate the appellant and Raza co-accused and to substitute therefor Ahmad Nawaz and Muhammad Din. His intention seems to be even to save them as well as he did not get their extra-judicial confessions recorded or even the statements of the necessary witnesses recorded under section 164, Cr.P.C. It is apparent on the record as discussed above that Ahmad Nawaz at (cast was a Hawker of the appellant and perhaps even living with him. He was resident of and a Hawker at Chowk Azam but Malik Muhammad Yar S.I. Had the tongue in his cheeks to say that both Ahmad Nawaz and Muhammad Din belonged to District Bhakkar and were not from Chowk Azam.
14. The upshot of the above discussion and conclusions is that it was the appellant who fired the fatal shot at the deceased. However, the contention raised is that in view of the motive part of the story, it could well be visualised that the deceased used some such nasty language while leaving the house of the appellant that the appellant felt enraged, lost control and fired the gun. There seems to be force in the contention. Even according to the F.I.R. And the complaint lodged by the complainant as well as per statements made by the two eye-witnesses at the trial, the deceased had told the appellant that they had not done well in refusing the hand of his sister and that he would in any case obtain the same as and when he had the necessary force. The deceased had been living with the appellant's family if not since his childhood at least for the last fifteen years and he having been refused the hand of the promised girl must have felt extremely dejected and might be even violent while leaving the house and if in that situation he behaved in a manner enraging the appellant to fire at him, the possibility cannot be easily ruled out. The conviction of the appellant is, therefore, set aside under section 302, P.P.C. And he is convicted for an offence under section 304, Part-II, P.P.C. He is sentenced to 10 years' R.I. And a fine of Rs.20,000 or in default thereof 2 years further R.I. The whole of the fine, if realised, shall be paid to the heirs of the deceased as compensation. He would not have the benefit of the provisions of section 382-B, Cr.P.C.
15. The learned Additional Advocate-General is directed to take up the matter as to the conduct of Malik Muhammad Yar Sub-Inspector with the relevant authorities for proper action against him. He is also directed to be in touch with the learned Sessions Judge, Layyah who had initiated the proceedings against Malik Muhammad Yar Sub-Inspector as per the judgment under appeal but it is not apparent what sort of proceedings have been initiated. If case for destroying evidence and fabricating documents has not been registered or action taken against the Sub-Inspector by the learned Sessions Judge, in respect thereof the learned Additional Advocate-General in consultation with the learned Sessions Judge, would take steps in this behalf.