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Official Citation: 2024 LHC 4610
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-10-01
Parties: Shahid Ali alias Makhi vs The State
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-10-01, officially reported as 2024 LHC 4610. In this matter between Shahid Ali alias Makhi and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC4610
Court Name: Lahore High Court Judge(s): Muhammad Tariq Nadeem Title: Shahid Ali alias Makhi vs The State Case No.: Crl. Appeal No. 234893-J of 2018 Date of Judgment:2024-10-01 Reported As: 2024 LHC 4501, 2024 LHC 4610, 2025 PCRLJ 555 Result: Appeal Dismissed
JUDGMENT
JUDGMENT Muhammad Tariq Nadeem. J:- Shahid Ali alias Makhi appellant was tried by the court of Additional Sessions Judge, Lahore, in case FIR No.336 dated 31.07.2015, offence under sections 302, 34 PPC, registered at Police Station Hair, Lahore and after conclusion of trial, vide judgment dated 30.06.2018, he was convicted under section 302(b) PPC and sentenced to Imprisonment for Life with the direction to pay compensation for an amount of Rs.2,00,000/- to the legal heirs of Muhammad Ijaz (deceased) as provided under section 544-A Cr.P.C. The amount of compensation was ordered to be recovered from the appellant as arrears of land revenue and if recovered, the same shall be distributed amongst the legal heirs of deceased according to their Shari shares and in case of default thereof, the appellant shall further undergo simple imprisonment for six months. However, he was given the benefit of section 382-B Cr.P.C. Feeling aggrieved from the judgment of the trial court, the appellant has assailed his conviction and sentence through the captioned criminal appeal. 2. Brief facts of the case as narrated by Abdul Majeed complainant (PW.3) in complaint (Exh.PA) on the basis of which FIR (Exh.PA/1) was registered are that on 31.07.2015, he was away from his house in connection with some work. At about 06:00 p.m. Muhammad Saddique telephonically informed that Shahid alias Makhi (appellant), by giving kicks and fists blows to his son Muhammad Ijaz in front of house of Abdul Rehman, made him unconscious and asked the complainant to reach at the clinic of Doctor Kamran where Muhammad Saddique and Basit were going to shift the injured for medical treatment. When he (complainant) reached the clinic, his son Muhammad Ijaz had
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breathed his lost. Shahid Ali alias Makhi and three unknown accused persons took to their heels while raising lalkaras. Hence, the above-mentioned crime report. 3. After completion of investigation, report under section 173 Cr.P.C. was submitted against the appellant. On indictment, the appellant pleaded not guilty and claimed trial. In order to bring home the guilt of the appellant, the prosecution got examined as many as ten witnesses amongst whom Muhammad Saddique (PW.1) and Basit Ali (PW.2) have furnished the ocular account. Abdul Majeed complainant (PW.3) reiterated the contents of complaint (Exh.PA). Syed Muhammad Younus Bukhari, draftsman (PW.6) prepared scaled site plan of the place of occurrence (Exh.PD and Exh.PD/1). Asghar Ali S.I (PW.8) being investigating officer stated about various steps taken by him during investigation of the case. Medical evidence was furnished by Doctor Muhammad Akmal Karim (PW.9), who while posted as Demonstrator, KEMU, Lahore, conducted autopsy on the dead body of Muhammad Ijaz (deceased) and issued his postmortem report (Exh.PK). The remaining prosecution witnesses, more or less, are formal in nature. The prosecution gave up Gulzar Ahmad S.I (being dead), Ahmad Namdar 13486/C and Muhammad Nadeem, PWs being unnecessary and after tendering in evidence the Forensic Toxicology Analysis Report (Exh.PL) and Forensic Histopathology Report (Exh.PM), closed its evidence. 4. After completion of prosecution evidence, statement under section 342 Cr. P.C. of the appellant was recorded wherein he denied the allegations levelled against him and claimed his innocence. While answering to a question, "why this case against you and why the PWs have deposed against you? appellant replied as under:- "I am innocent. Son of the complainant was done to death by beating of three unknown persons but complainant did not nominate said three unknown persons because the complainant taken huge money from them. The name of three unknown persons who beaten the complainant's son Ijaz i.e Sakhi son of Allah Rakha, Majid son of Rafique Ali and Mudassar alias Jassy son of Yousaf Ali. Complainant and other PWs have previous enmity with me. Complainant and other PWs conceal the real facts and due to previous enmity involve me falsely in this case. Complainant, Basat Ali and Saddique they were not eye witnesses of the occurrence. Due to strong relation and conspiracy with each other involved me in this case. During the investigation nothing was recovered by me. I have no link with this occurrence... " He neither opted to appear as his own witness within the scope of section 340(2) Cr.P.C. nor produced any evidence in his defence. 5. The trial court vide judgment dated 30.06.2018 held the appellant guilty, convicted and sentenced him as mentioned above, hence, this criminal appeal. 6. Learned counsel for the appellant contended that the appellant is absolutely innocent and has been involved in this case by the complainant and other prosecution witnesses on the basis of their mala fide intentions and ulterior motives; that in fact the occurrence was committed by three accused namely Sakhi, Majid and Mudassar alias Jassy, but they were never nominated by the complainant party, however, the appellant has been made a scapegoat because of his previous enmity with the complainant party. He further contended that Abdul Majeed complainant (PW.3) was not an eye witness of the occurrence and his evidence was based on hearsay whereas remaining two private witnesses of the prosecution namely Muhammad Saddique (PW.1) and Basit Ali (PW.2) were also not present at the time and place of occurrence. He added that postmortem examination on the dead body of deceased was conducted with the delay of seventeen hours, which strongly indicates that time was consumed in arranging eye witness account and then a story qua the occurrence was fabricated by complainant party just to falsely implicate the appellant. He further maintained that the prosecution has miserably failed to substantiate the factum of accusation by producing worthy of credence evidence which aspect of the matter went unnoticed, causing serious prejudice against the appellant. It is also argued that the medical
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evidence also goes against the stance of the appellant and it does not prove that the deceased in this case met with an unnatural death. Lastly prayed that the appeal be accepted and the appellant may be acquitted of the charge. 7. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant and inter alia argued that the appellant is named in a promptly lodged FIR with specific role which is fully established by the medical evidence. Further argued that the complainant and the eye witnesses had no earthly reason whatsoever to falsely implicate the appellant in this case and although appellant has alleged about existence of his previous enmity with the complainant party, but he has not brought on record a single iota of evidence to establish this fact. Next argued that the complainant and the eye witnesses were blood relatives of the deceased and being so, they cannot be expected to falsely implicate the appellant that too by letting off the actual perpetrator of offence. It is strenuously argued that the eye witnesses have successfully proved their presence at the spot as well as having seen the tragedy with their own eyes with the role played by appellant during the occurrence is proved and it is also established that the deceased had met with an unnatural death due to the injuries caused by the appellant. Finally, they argued that since the prosecution has proved its case against the appellant beyond any shadow of reasonable doubt, therefore, the appeal filed by him merits dismissal. 8. I have given anxious hearing to the arguments of learned counsel for the appellant as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant and perused the record with their able assistance. 9. It is a matter of record as mentioned in FIR (Exh.PA/1) that on 31.07.2015 at about 06:00 p.m. Abdul Majeed complainant (PW.3) received a telephonic call from Muhammad Saddique (PW.1) to the effect that his son Muhammad Ijaz had become unconscious as a result of kicks and fists blows given by Shahid Ali alias Makhi appellant. In this way, occurrence in the present case had taken place just prior to 06:00 p.m. on 31.07.2015 and on the same evening, the matter was reported to the police by Abdul Majeed complainant (PW.3) at 06:15 p.m. through written application (Exh.PA) and thereafter FIR (Exh.PA/1) was chalked out at 06:30 p.m. at Police Station Hair, Lahore, which was located at a distance of seven kilometers from the place of occurrence. In FIR (Exh.PA/1), the name of Shahid Ali alias Makhi appellant with his role of giving kicks and fists blows to the deceased has been specifically mentioned. I am, therefore, of the view that the matter in this case was reported to the police within reasonable time which hardly left any chance of consultation or deliberation in the intervening period. Reliance is placed upon the case-laws titled as "Muhammad Bashir and another vs. The State and others" (2023 SCMR 190) and "Abdul Wahid vs. The State" (2023 SCMR 1278). 10. According to the narration of FIR (Exh.PA/1) itself, it can be seen that Abdul Majeed complainant (PW.3) had not himself witnessed the tragedy rather he was informed by Muhammad Saddique (PW.1) about the incident, however, he (PW.3) has specifically mentioned therein the names of Muhammad Saddique (PW.1) and Basit Ali (PW.2) as the witnesses, who were present at the place of occurrence at relevant time and had seen the appellant while giving kicks and fists blows to the deceased on the backdrop of a grudge of their previous altercation and even while appearing in the witness box before the trial court, he did not back-away even an inch from his stance. In this way, Abdul Majeed complainant (PW.3) has shown his bona fide by not standing up as an eye witness of the occurrence regarding the murder of his real son Muhammad Ijaz. 11. As noted above, Abdul Majeed complainant (PW.3) was not an eye witness of the occurrence, therefore, the prosecution has mainly relied upon the statements of two eye witnesses namely Muhammad Saddique (PW.1) and Basit Ali (PW.2), who happened to be the close relatives of Muhammad Ijaz (deceased) inasmuch as PW.1 was his paternal uncle whereas PW.2 was his
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paternal cousin. While appearing in the witness box before the trial court, they remained in comfortable unison with each other on all aspects of the case. They vigorously pointed their accusing fingers towards the appellant with specific attribution of giving kicks and fists blows to the deceased and despite lengthy cross-examination by the defence counsel, nothing favourable to the appellant could be extracted from their mouths. So far as the contention of learned counsel for the appellant that none of the eye witnesses produced by the prosecution before the trial court were present at the time and place of occurrence is concerned, I have observed that both Muhammad Saddique (PW.1) and Basit Ali (PW.2) have given specific reasoning qua their presence at the time and place of occurrence, which even otherwise could not be shattered by the defence while conducting cross-examination on them. Furthermore, it was a daylight occurrence and the parties being the residents of same locality were also previously known to each other, therefore, there was no chance of misidentification of the appellant. Muhammad Saddique (PW.1) has stated in his examination-in- chief as under:- "On 31.07.2015 at about 06:00 p.m. I alongwith Basit Ali son of Muhammad Latif were present at my shop situated at Natha Sigh Wala. We heard voice. We attracted towards the place of noise and saw accused Shahid alias Makhi was present near the gate of Abdul Rehman and he was giving kicks and fists to Muhammad Ijaz." During the cross-examination, he (PW.1) stated about his abode and shop as infra: - "Distance between the place of occurrence and my house is 50/60 feet. .............................................................................................. ............................................................................................... Distance between my shop and place of occurrence is 16/17 karams." I have noted that almost same is the statement of Basit Ali (PW.2). Relevant lines of his examination-in-chief read as under:- "On 31.07.2015 (Friday) at about 06:00 p.m. I alongwith Saddique son of Ahmad Din were present at the shop of Saddique situated at Natha Singh. We heard noise and upon listening ran towards the place of noise. We saw Shahid Ali Makhi was giving physical torture to Ijaz with kicks and fists near the gate of Abdul Rehman Lambardar......" More so, upon the cross-examination by defence counsel, he (PW.2) further explained the distance of his house and place of his presence from where he reached at the place of occurrence. Relevant lines of his replies in cross-examination are mentioned below: - "My house is situated at a distance of 10 karams from place of occurrence and there are two streets in between. It is incorrect that my house is at a distance 3/4 acres from the place of occurrence. I also work as electrician. ............................................................................................. ............................................................................................. It is incorrect to suggest that distance between Saddique shop and my house is 1500/2000 feet. There is distance of 15/16 karams between shop of Muhammad Saddique and place of occurrence. The shop of Saddique remains open during week days however, it is closed in case of any acute need." In the light of above mentioned circumstances, I am quite confident to hold that Muhammad Saddique (PW.1) and Basit Ali (PW.2) are truthful witnesses and their presence at the spot at the time of occurrence is natural. Reliance is placed upon the case-laws titled as "Muhammad Akram alias Akrai vs. The State" (2019 SCMR 610), "Ghaffar Mahesar vs. The State through P.G Sindh and others" (2022 SCMR 1280) and "Muhammad Yasin and another vs. The State and others" (2024 SCMR 128). Learned counsel for the appellant has also brought the depositions of eye witnesses under attack on account of their close relationship with the deceased as well as existence of their previous
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enmity with the appellant. With regard to the objection qua close relationship, it is settled proposition of law that mere relationship of eye witnesses with the deceased by itself is no ground to disbelieve their evidence. Similarly the contention of learned counsel for the appellant about existence of previous enmity between the appellant and the complainant party is merely an oral assertion which could not be established by the defence during the trial. Not a single piece of convincing evidence has been brought on the record by the defence to substantiate that the complainant or the eye witnesses had deposed falsely due to their close relationship with the deceased or existence of their previous enmity with the appellant rather I am convinced that their evidence is consistent, straightforward, trustworthy, confidence inspiring and reliable and as such, their evidence against the appellant cannot be discarded merely on the basis of aforementioned oral assertions of learned counsel for the appellant. Guidance in this respect has been sought from the case-laws titled as "Ali Asghar alias Aksar vs. The State" (2023 SCMR 596), "Aman Ullah and another vs. The State and others" (2023 SCMR 723), "Imran Mehmood vs. The State and another" (2023 SCMR 795) and "Khalid vs. The State through PG Sindh" (2024 SCMR 1474). More so, I am of the view that in the absence of any previous ill-will, malice, animosity or grudge against the appellant, it was highly unlikely for the complainant or the eye witnesses to make the appellant a scapegoat by letting off the actual perpetrators of the offence. It is by now well settled law that substitution of real culprits especially in cases where the eye witnesses lost their kith and kin before their own eyes is rare phenomenon. Reliance is placed on the cases titled as "Aqil vs. The State" (2023 SCMR 831), "Muhammad Ijaz vs. The State" (2023 SCMR 1375) and "Muhammad Shafique vs. The State Muhammad Imran and another" (2024 SCMR 814). 12. Although, the appellant has seriously criticized in his statement under section 342 Cr.P.C. that instead of him, three other accused had committed the murder of deceased. In this regard, I may observe here that the eye witnesses remained consistent throughout that the appellant was principal accused who gave kicks and fists blows to the deceased and subsequently medical evidence proved that one of those kicks and fists blows proved fatal and left no room for the survival of deceased. The defence miserably failed to shatter the evidence of above-said witnesses. The above version adopted by the appellant appears to be an afterthought story fabricated by him in order to save his skin. I may also observe here that when an accused takes particular stance, onus to prove such stance shifts upon him but in this case, the defence did not produce any evidence in support of the plea of the appellant. Hence, I am of the view that defence has failed to substantiate its version. 13. Apart from the unblemished depositions of eye witnesses namely Muhammad Saddique (PW.1) and Basit Ali (PW.2), I have observed that medical evidence is in complete harmony with the ocular testimonies and no conflict could be pointed out to create dent in the prosecution case. The injuries attributed by the eye witnesses to the appellant were duly observed by the doctor on the person of Muhammad Ijaz (deceased) at the time of conducting autopsy on his dead body and issuing postmortem report (Exh.PK). Furthermore, ocular evidence about the time of incident as well as the nature of injuries as narrated by the eye witnesses has also fully tallied with medical evidence. It may be observed here that Doctor Muhammad Akmal Karim (PW.9) was also subjected to grueling cross-examination but nothing beneficial to the appellant could be extracted from him. 14. Much emphasis has been laid by learned defence counsel upon the delay in conducting autopsy on the dead body of deceased. Although, it is an undisputed fact that the autopsy in this case was conducted about seventeen hours after the occurrence but the question of paramount consideration still remains that whether intervening time was consumed by the prosecution in fabricating any story or arranging eye witness account of the case. To resolve this controversy, I have observed that the FIR (Exh.PA/1) had been chalked out by Muhammad Kamran ASI (PW.4) on
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the basis of written application (Exh.PA) of Abdul Majeed complainant (PW.3) within about half an hour after the occurrence. In his examinationin-chief, Muhammad Kamran ASI (PW.4) has stated as under:- "On 31.07.2015, I was posted at Police Station hair. On the same day, complaint Ex-PA was received by me through Niaz Ahmad 21116/C to the police station for registration of FIR on the basis of which I drafted the FIR No. 336/15 Ex-PA/1 for the offence under section 302/34 PPC at Police Station Hair. I registered the same without any omission or deletion." During cross-examination upon Muhammad Kamran ASI (PW.4) not a single question has been put to him that the FIR (Exh.PA/1) was not chalked out on the date and time mentioned in the relevant column. The whole cross-examination conducted by the defence on Muhammad Kamran ASI (PW.4) is also reproduced hereunder:- "Niaz Ahmad constable brought complaint before me for registration of FIR. He came to me at 06:30 p.m. I immediately lodged FIR. Niaz Ahmad constable submitted a single application." The above fact emphatically explains that the FIR (Exh.PA/1) had been registered prior to escorting the dead body of deceased to mortuary and in FIR (Exh.PA/1), all the details regarding the occurrence particularly the time, place and mode of occurrence as well as the names of assailant, deceased and eye witnesses have been sufficiently explained in a natural manner. However, if relying on the contention of learned counsel for the appellant, it is still presumed for the time being that the intervening time of occurrence and autopsy was used in fabricating a story and maneuvering the eye witness account, then it must have been for Abdul Majeed complainant (PW.3) himself to step forward as an eye witness of the tragedy and implicate maximum persons from appellant's family after noticing as many as nine injuries on the body of his deceased son, however, Abdul Majeed complainant (PW.3) simply stated that he was away from the place of occurrence and was telephonically informed by one of the eye witnesses namely Muhammad Saddique (PW.1) that the appellant, alone, had caused all the injuries by giving kicks and fists blows on the body of deceased and on seeing the eye witnesses namely Muhammad Saddique (PW.1) and Basit Ali (PW.2), he took to his heels while leaving the deceased unconscious. Besides, it is also a circumstance that the dead body of deceased was shifted in the mortuary of King Edward Medical University, Lahore, on 31.07.2015 at 08:20 p.m. where senior doctors usually do not remain available during night-time and on the next morning i.e. 01.08.2015 at 11:00 a.m. autopsy was conducted by Doctor Muhammad Akmal Karim (PW.9), who was a Demonstrator in Department of Forensic Medicine and Toxicology at King Edward Medical University, Lahore. It seems that conducting of autopsy on the dead body of deceased was deferred for following day to wait the concerned doctor. Keeping in view the above highlighted facts of the case, I am satisfied that the time between the happening of occurrence and conducting autopsy was not consumed by the prosecution in fabricating any story or arranging eye witness account of the case. Even otherwise, I am not inclined to discard the overwhelming eye witness account which is evenly supported by the medical evidence, merely because of a single circumstance that autopsy in this case was conducted about seventeen hours after the occurrence without there being any element of concoction or fabrication of prosecution's case against the appellant. While dealing with almost identical proposition, learned Division Bench of this Court in the case titled as "Zaheer Ahmad vs. The State" (2014 YLR 967) has held as under:- "It has been observed by us that the matter was reported to the police on the application submitted by Muhammad Latif complainant without any delay as the occurrence took place in this case on 4-4-2006 at 1-20 pm and the F.I.R. had been chalked out al the same day at 1-50 p.m. within a span of thirty minutes whereas the Police Station is 2 kilometers away towards North from the place of occurrence. So the matter has been reported in this case with sufficient promptitude and there is no unconscionable or inexcusable delay in registration of the F.I.R. While referring the
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Post-mortem Examination Report the learned counsel for the appellant seriously contend that the Dr. Rafaqat Ali (P.W.7) had conducted the post-mortem of the deceased on 5-4-2006 at 12-15 p.m. with one day delay which shows that first the matter was consulted and thereafter with active connivance of the police the F.I.R. was lodged. In this context we have minutely perused the Post- mortem Examination Report of the deceased wherein it has specifically been mentioned that the deadbody was lodged in hospital on 4-4-2006 at 4-15 p.m. If there is any delay that is on the part of doctor and delay alone cannot destroy the prosecution case in presence of the confidence inspiring evidence. Thus, we have not seen any element of consultations or deliberations over the matter on the part of the prosecution" I am also fortified from the wisdom laid down by the Supreme Court of Pakistan in the cases titled as "Muhammad Saleem vs. The State" [PLJ 2019 SC (Cr.C.) 425], "Muhammad Asif and others vs. Mehboob Alam and others" (2020 SCMR 837) and "Maskeen Ullah and another vs. The State and another" (2023 SCMR 1568). 15. Learned counsel for the appellant has argued with vehemence that if for the sake of arguments the prosecution is believed to have proved its case whereby the prosecution has saddled the appellant merely with the responsibility of giving kicks and fists blows to the deceased, even then the appellant cannot be held responsible for his murder, because, it was a case of natural death caused by heart attack in the light of prosecution's own medical evidence. In this…
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