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Official Citation: 2024 YLR 628
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-01-09
Parties: Shazam Ali vs State
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-01-09, officially reported as 2024 YLR 628. In this matter between Shazam Ali and 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 2024 YLR 628
Court Name: Lahore High Court Judge(s): Aalia Neelum, Farooq Haider Title: Shazam Ali vs State Case No.: Crl. A. No. 26723-J & M.R. No. 82 of 2019 Date of Judgment:2023-01-09 Reported As: PLJ 2023 Cr.C. 270, 2024 YLR 628 Result: Appeal dismissed
JUDGMENT
JUDGMENT Miss Aalia Neelum, J. The appellant-Shazam Ali, son of Asghar Ali, caste Malik, resident of Main Bazar, Rana Town, Shandara, Lahore, has assailed his conviction and sentence recorded by the learned Addl. Sessions Judge, District Gujranwala vide judgment dated 29.03.2019 in a private complaint filed under sections 302, 392, PPC P.S. Aroop, District Gujranwala titled "Shahanshah Abdul Rehman vs. Shazam Ali, etc." in case FIR No. 241/2017, whereby the learned trial Court convicted the appellant-Shazam Ali under Section 302(b), PPC as Tazir and sentenced to Death for committing Qatl-e-Amd of Shafique-ur-Rehman (the deceased), with the direction to pay compensation of Rs.10,00,000/- to the legal heirs of the deceased as envisaged under Section 544- A of Cr.P.C. and in case of default thereof, to undergo 06-months S.I further. The appellant-Shazam Ali was also convicted under Section 392, PPC for the commission of robbery of the car of Shafique-ur-Rehrnan (the deceased) and sentenced to 10 years R.I, with the direction to pay compensation of Rs.1,00,000/-and in case of default thereof, to undergo 06-months S.I further. The benefit of Section 382-B of Cr.P.C. was also extended in favor of the appellant. 2. Feeling aggrieved by the judgment of the learned trial Court, Shazam Ali, the appellant, has assailed his conviction by filing the instant jail appeal bearing Criminal Appeal No. 26723-J of 2019. The learned trial Court also referred M.R. No. 82 of 2019 (The State, vs. Shazain Ali) for confirmation of the death sentence awarded to the appellant-Shazam Ali. Both the matters arising out of the same judgment of the learned trial Court are being disposed of through a single judgment, 3. Briefly, the prosecution story as alleged in the private complaint (Ex. PB) of Shahanshah Abdul Rehman (PW-l) the complainant is that on 30.03.2017, at about 09:00 A.M., complainant's brother, namely, Shafique-ur-Rehman along with passengers came at his workshop on his Car XLI bearing
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No. LEE-5777 black colour, situated at G.T Road, Barkat Town Shandara, Lahore, asked the complainant to check the vehicle's oil and water, etc. and told him that he was going to Gujranwala along with passengers. The complainant (PW-1) saw the three passengers sitting in the car. After that, his brother left for Gujranwala. At about 01:00 P.M., Muhammad Zubair (PW-6) informed the complainant through telephone that some unknown persons, during the snatching of a car and dacoity, committed the murder of the complainant's brother near Vanianwala Gujranwala, whereas one accused was arrested in injured condition and was shifted to DHQ Hospital Gujranwala. The complainant reached DHQ Hospital, Gujranwala, and firstly, saw the dead body of his elder brother and then saw the accused in injured condition and immediately identified that the injured accused was one of the said three passengers who, in the morning while taking complainant's brother had come to Gujranwala, whose name was later on known as Shazam Ali son of Asghar Ali, caste Awan, resident -of Main Bazaar, Rana Town and was arrested by the concerned police in injured condition. The accused, Shazam Ali, son of Asghar Ali, and two unknown accused persons murdered the complainant's brother through pistol fire while snatching a car and dacoity. 4. The complainant Shahanshah Abdul Rehman (PW-1), got recorded his statement (Ex. PA) to Raza Rehman T-A.S.I. (PW-7), who, chalked out formal FIR (Ex.PA/1). After the registration of the case, the investigation of this case was conducted by Manzar Saeed S.I (CW-1), who found the accused/appellant guilty and prepared a report under Section 173 of Cr.P.C. Being dissatisfied with the result of the investigation, as the Investigating Officer being in league with the accused did not investigate the matter properly, the complainant was constrained to file a private complaint (Ex. PB). After recording the cursory evidence of the complainant and having perused the record, all the accused persons were found connected with the commission of the offence, so they were summoned to 'face the charge. After that, the learned trial Court formally charged the appellant and his co-accused on 05.11.2018, to which they pleaded not guilty and claimed trial. The complainant, in support of his version produced as many as nine (09) witnesses, whereas the Investigating Officer appeared as C.W-1. 5. Ocular account/last seen evidence, in this case, has come out from the statements of Shahanshah Abdul Rehman (PW-1)-the complainant, Malik Muhammad Raza (PW-2)-the eye witness, and Muhammad Imtiaz (PW-3) the eye-witness. Whereas, Dr. Hassan Ihsan CMO (PW-9), who conducted the postmortem examination of Shafique-ur-Rehman (the deceased), found the following injuries on his person: INJURIES 1) An incised wound of 1.5 x 0.5 cm, scalp deep, was present on right parietal area of the head, 2) A firearm-lacerated glancing wound of 1.5 x 0.75 cm was present on the front middle right thigh, 3) A firearm-lacerated entry wound of 1.5 x 1.0 cm going deed, the inverted margin was present on the outer side middle part of the right thigh, 4) A firearm-lacerated exit wound 1.5 x 1.25 cm, everted, on the lower part of the back of the right thigh, 5) A firearm-lacerated entry wound of 1.0 x 0.75 cm on the right leg's frontal aspect, the middle part. It is going deep with inverted margins, 6) A firearm lacerated exist wound of 1.5 cm x 0.75 cm, everted, on the middle part back of the right leg, 7) A firearm-lacerated entry wound of 1.0 x 0.75 cm, going deep, inverted, with the presence of blackening and burning and abrasion collar, was present on the lateral part of the right clavicular area of the chest, 8) A firearm-lacerated exit wound of 1.25 x 0.75 cm, everted in the right axilla,
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9) A firearm-lacerated entry wound of 1.5 x 0.75 cm, going deeper, inverted, was present on the left scapular area of the back of the chest, 10) A firearm-lacerated entry wound of 1.0 x 1.0 cm, going deep, inverted, was present on the lateral aspect of the lower part of the right forearm, 11) A firearm-lacerated exit wound of 1.5 x 1.0 cm, everted, on the middle part of the Inner side of the right forearm, 12) An abrasion of 3.0 x 2.0 cm on right cheek, 13) An abrasion of 4.0 x 3.0 cm on the outer side of the left elbow. After conducting the postmortem examination, the doctor opined that death, in this case, had occurred due to cardiopulmonary arrest consequent to Injury No. 9, which had damaged the left lung, stomach, left kidney, and intestine. The left hung was a vital organ, and any injury to it was sufficient to cause death under the ordinary course of nature. All these injuries were ante-mortem in nature. The probable time between injuries and death was immediate, and between death and postmortem was approximately 12 to 24 hours. The statements of the remaining prosecution witnesses are formal in nature. 6. The learned Deputy District Public Prosecutor gave up PW-Munawar Hussain as unnecessary and closed the prosecution evidence after tendering the reports of the Punjab Forensic Science Agency (Ex PJ, Ex. PK & Ex. PL). 7. The appellant was also examined under Section 342, Cr.P.C., wherein he neither opted to appear as his witness under Section 340(2), Cr.P.C. nor produced any evidence in his defence. In response to a particular question that why this case was against him and why the PWs deposed against him, the appellant made the following deposition: "The case is false one against me. In fact, the unknown accused stopped the car and attempted to snatch the car by the dint of the deadly weapons. The deceased Shafique-ur-Rehman resisted to the unknown accused and in such situation, the unknown accused injured me and committed murder of Shaftque-ur-Rehman (deceased). The police could not find the unknown real culprits. The police after taking the bribe and in order to conceal inefficiency on their part and to end the investigation proceeding of the case, involved me falsely in this case on the basis of suspicion with the connivance of the complainant. I asked one passerby namely Rana Liaqat at the spot to make phone call to the rescue-1122. Said Rana Liaqat mad hone call and in pursuance of the said phone call, 1122 force arrived at the spot and took me and Shafique-ur-Rehman (deceased) to the DHQ Hospital, Gujranwala. Except myself, no other person witnessed the occurrence. I am innocent in this case. PWs are close friends of the complainant and they have deposed falsely against me with the connivance of the complainant. The PWs have also taken the bribe from the complainant for deposing against me." 8. After recording the statement under Section 342, Cr.P.C., learned counsel for the appellant filed an application for summoning Mubeen Ahmad, Ijaz, and Irfan members of rescue 1122 force as Court witnesses by alleging that they brought the accused/appellant and the deceased to DHQ Hospital, Gujranwala from the place of occurrence and they were important witnesses. The learned trial Court accepted the application, and the PWs above were summoned on 11.03.2019. After recording statements of Ijaz Ahmad (CW-2), Mubeen (CW-3), and Irfan Ali (CW-4), again gist of the evidence was put to the appellant in his subsequent statement under Section 342 of Cr.P.C., which was recorded on 14.03.2019 and while replying to the question that why the CWs had deposed against him, the appellant made the following deposition: "CW-2 Ijaz Ahmad, Emergency Medical Technician of 1122 Force, CW-3 Mubeen Emergency Medical Technician of 1122 Force and CW-4 Irfan Ali Driver of 1122 Force have deposed against me with the connivance of the complainant."
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9. After evaluating the evidence available on record in light of arguments advanced from both sides, the learned trial Court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction in the afore-stated terms. 10. We have given our anxious and most thoughtful consideration to both sides' rival submissions. We have minutely gone through the evidence on record. 11. The prosecution's case in a narrow compass is that the accused, Shazam Ali (the appellant), tried to snatch the car bearing Registration No. LEE-5777 and, while committing robbery, caused firearm injuries to Shafique-ur-Rehman, the deceased. The said incident was alleged to have been committed on 30.03.2017 in Vanianwala, which falls within the jurisdiction of police station Aroop, District Gujranwala. In the case of the prosecution, Shazam Ali (the appellant), his co-accused Ghulam Murtaza (since acquitted). and an unknown accused, in furtherance of their common intention, committed the occurrence and, while doing so, murdered Shafiq-ur-Rehman. It is further the prosecution case that the accused, Shazam Ali, received an injury during the incident and was shifted to Hospital, Gujranwala. There, the police took him into their custody. Shahanshah Abdul Rehman (PW-1)-the complainant stated that on 30.03.2017 at about 09:00 a.m, his elder brother, Shafique-ur-Rehman came to his workshop situated at Barkat Town, Shahadara, Lahore in the car XLI bearing No. LEE-5777 of black colour driven on a rental basis in the company of passengers before departure from Lahore to Gujranwala for checking the oil and water of the car. His brother, Shafique-ur-Rehman, went to Gujranwala along with the passengers. The defence has not disputed this fact during the cross-examination. Shahanshah Abdul Rehman (PW-1) the complainant, received information about the murder of his elder brother Shafique-ur-Rehman and the arrest of one person in an injured condition on 30.03.2017 at 01:00 p.m. The information was given to him by Zubair Butt. The statement made by Shahanshah Abdul Rehman (PW-1) the complainant, gets corroboration from a statement that was brought on the record by the defence from the witness Muhammad Zubair (PW-6). Muhammad Zubair (PW-6) deposed during cross- examination that he provided information about the murder of Shafique-ur-Rehman, the deceased, to Shahanshah Abdul Rehman (PW-1) the complainant. Muhammad Zubair (PW-6) deposed during cross-examination: "I was informed at about 01:00 p.m. about the murder of Shafique-ur-Rehman (deceased). I informed Shahanshah Abdul Rehman, complainant after seeking the information regarding the murder at 01:00 p.m." In this regard, this fact was got reaffirmed by the defence from Shahanshah Abdul Rehman (PW-1) the complainant, who deposed as under: "PW Zubair informed me that he made the phone call from DHQ Hospital, Gujranwala, at about 01:00 p.m. I reached the DHQ Hospital. Gujranwala at about 02:00/02:30 P.M. Zubair and other relatives met me in the hospital.............When I heard the phone call.. I was informed that one accused person was captured in an injured condition. ".......No consultation was made by me with the police with reference to the registration of the case." Besides, Shahanshah Abdul Rehman (PW-1) the complainant, deposed during examination-in- chief that: "One accused, who was in injured condition, was also in the hospital. I saw the injured accused and identified him. He was amongst the three passengers who were sitting in the car of my brother when he came at my workshop. The name of the said accused was known to me as Shazam 41i son of Asghar Ali." The witness was examined by the learned defence counsel, and the defence has not cross- examined these facts. Learned counsel for the appellant has not challenged the date, time, place of occurrence, presence of accused/appellant Shazam Ali in the car on the front seat in injured condition, and receiving of injuries by the deceased in the car and fall outside the vehicle. He has
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challenged the veracity and credibility of the prosecution witnesses, Muhammad Raza (PW-2) and Muhammad Imtiaz (PW-3). We examined the testimony of the prosecution witnesses, namely, Malik Muhammad Raza (PW-2) and Muhammad Imtiaz (PW-3). We found that both these witnesses are not related, and we were not considering their testimonies for deciding the instant appeal. However, Shahanshah Abdul Rehman (PW-1) the complainant, has deposed that accused/appellant Shazam Ali, along with two others (as stated above), committed the incident, were sitting in the car as passengers, driven by his brother on a rental basis, and the defence did not deny this fact. The evidence of Shahanshah Abdul Rehman (PW-1) the complainant to the extent of his last seen evidence and identification of accused Shazam Ali, could not be shaken by the defence. However, he was subjected to lengthy cross-examination. Manzar Saeed S.I. (CW-1) the Investigating Officer also deposed during his examination-in-chief that, after the entrustment of investigation, he (CW-1), along with other police officials reached DHQ Hospital, Gujranwala, inspected the dead body of Shafique-ur-Rehman (deceased), prepared injury statement (Ex.CW- 1/A) and inquest report (Ex.CW-1/C) of the deceased and also prepared the injury statement (Ex.CW-1/D) of Shazam Ali-the appellant, who was admitted in the Emergency Ward of DHQ Hospital. He arrested the appellant-Shazam Ali, on 18.05.2017. The defence put suggestions to Shahanshah Abdul Rehman (PW-1)-the complainant. During cross-examination, the witness (PW- 1) denied the suggestions put by the defence and stated that: "It is incorrect that unknown persons had committed the murder of my brother Shafique-ur- Rehman and in the said occurrence accused Shazam was injured. It is incorrect that the real accused were not found and the accused Shazam was involved in this case falsely. It is incorrect that accused Shazm had not committed the murder of Shafique-ur-Rehman and nothing was recovered from him. It. is incorrect that accused Shazam is innocent in this case." This was the defence put to the prosecution witness i.e., Shahanshah Abdul Rehman (PW-1) the complainant. Whereas, the accused/ appellant took a specific plea while replying to the question of why this case was against you, put before him during his statement under Section 342 of Cr.P.C., as under: "The case is false one against me. In fact, the unknown accused stopped the car and attempted to snatch the car by the dint of the deadly weapons. The deceased Shafique-ur-Rehman resisted to the unknown accused and in such situation, the unknown accused injured me and committed murder of Shafique-ur-Rehman (deceased). The police could not find the unknown real culprits. The police after taking the bribe and in order to conceal inefficiency on their part and to end the investigation proceeding of the case, involved me falsely in this case on the basis of suspicion with the connivance of the complainant. I asked one passerby namely Rana Liaqat at the spot to make phone call to the rescue-1122. Said Rana Liaqat made phone call and in pursuance of the said phone call, 1122 force arrived at the spot and took me and Shafique-ur- Rehman (deceased) to the DHQ Hospital, Gujranwala. Except myself, no other person witnessed the occurrence. I am innocent in this case. PWs are close friends of the complainant and they have deposed falsely against me with the connivance of the complainant. The PWs have also taken the bribe from the complainant for deposing against me." After recording the statement under Section 342 of Cr.P.C., the accused, Shazam, moved the application for summoning of officials of rescue 1122 as Court witnesses, as they re-ached the place of occurrence and they were important witnesses. On the application of the accused, Shazam Ali, on 11.03.2019, the learned trial Court summoned Mubeen Ahmed, Ijaz, and Irfan, members of the rescue 1122 force, as Court witnesses for a just decision of the case. Ijaz Ahmad, Emergency Medical Technician, appeared as. CW-2 and deposed during his examination-in-chief, as follows:
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"Stated that on 30th March 2017 I was posted at Sialkot Bypass as EMT in Rescue-1122 and on the same day, after receiving the phone call as to the incident in the control room of 1122 Force, I along with Mubeen EMT and Irfan LTV left our office for Vanilan village Juma Bazar. We reached at the place of occurrence at 12:23 p.m. I along with Mubeen EMT and Irfan LTV saw the two victims at the spot. One victim was dead and the other victim Shazam was in injured condition. The person namely Shazam was in sitting position on the front seat of the car in injured condition. The dead victim was lying outside the car on the ground. Firstly, I and Mubeen EMT examined the dead person and thereafter, we checked person namely Shazam. We observed injury on the right arm of the dead person and we observed injury on the left thigh of person namely Shazam. Due to injury on the thigh of the person namely Shazam, he was not able to move. On our asking, the person namely Shazam stated that quarrel took place between him and the dead person lying there and due to the said quarrel, they made firing on each other. We made phone call to the control room for calling the police at the spot. We took the dead person and the injured Shazam to DHQ Hospital, Gujranwala. We provided first aid to the person namely Shazam. I saw that one pistol was lying on the front seat where the person namely Shazam was sitting. I authored the response forms and I produce the same in the Court. (This Court has perused the response forms and after perusal and placing the copy of the said documents on the record after comparing them with the original and after getting attested the same by Ijaz Ahmad CW-2/author who brought the same in the Court, the original record is returned to the CW). Ex-CW-2/A is response form of Shazam whereas Ex-CW-2B is response form of the dead person which are in my handwriting and bears my signatures." During cross-examination conducted by the learned ADPP for the State, Ijaz Ahmad (CW-2) deposed that,-- "I have not ascertained at the time of receiving the call in the control room that who made the phone call. I observed many injuries on the body of the deceased/dead person lying at the spot. Except the accused Shazam no other person informed me about the facts of the occurrence of this case. I observed only one injury on the left thigh of the accused Shazam. Irfan driver observed one pistol lying on the seat where the injured Shazam was sitting. I and my other companions have not found and observed any other pistol at the spot except the above said pistol." Whereas, during cross-examination conducted by the learned defence counsel, Ijaz Ahmad (CW- 2) deposed as under: "I have not asked the control room about the name of the call maker. We reached at the spot within two minutes at about 12:23 p.m. we do not observe time which was consumed at the spot in our proceedings. -- .........I authored response form while sitting in my own vehicle at the spot. I prepared the said form during shifting of the deceased and the injured while sitting in the vehicle. When we moved from the spot after providing the first aid, I started preparation of the response form while sitting in the vehicle. I have not made phone call to the police; however, the driver, in my presence, contacted with the police and the control room for information of the incident." Similarly, Mubeen, Emergency Medical Technician (CW-3), deposed during his examination in chief as under: "Stated that on 30.03.2017, I was posted at Sialkot Bypass as EMT in Rescue-1122 and on the same day, after receiving the phone call as to the incident in the control room of 1122 force, I along with Ijaz and Irfan left our office for Vanianwala Village at Juma Bazar and when we reached there, I along with my companions observed that one car was standing there. We also saw that one person aged about 40 years, was lying on the ground with the direction of his mouth towards the ground. We checked him and found him expired. Thereafter, we saw that one person/boy was
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sitting in the car. We checked him and observed one firearm injury on thigh of the person. The said person in injured condition was not in position to move due to firearm injury on his thigh. We lifted hi and boarded him in our vehicle. We provided first aid to him and on our asking, he disclosed his name as Shazam. We asked detail of incident from him and he told that the dead person was causing sexual harassment to him and firstly the dead person made fire on him and thereafter he made fire on him. Thereafter, we brought the dead person and the injured person Shazam in the hospital." During cross-examination conducted by the learned ADPP for the State, Mubeen (CW-3) deposed as under: "Only the accused Shazam stated before site that his quarrel took place with the deceased and no other person was present at that time. I observed only one injury on left thigh of the accused Shazam and no other injury on his body was observed by me. I observed the pistol in the hand of the Driver Irfan. Except the pistol observed by me in the hand of the Driver, who informed that he lifted the same from the front seat where the accused Shazam was sitting, no other pistol was observed by me at the spot." Whereas, during cross-examination conducted by the learned defence counsel, Mubeen (CW-3) deposed as under: "From the spot, driver Irfan informed the police through phone call regarding the occurrence. I asked the accused Shazam about the reason of the incident and he informed me that the deceased started sexual harassment to him. I myself asked the accused Shazam while sitting on our emergency vehicle regarding the reason of incident." Irfan Ali, driver Rescue 1122 (CW-4), deposed during his examination in chief that: "I informed the control room through wireless and made phone call to the police regarding the occurrence. Thereafter, the police did not arrive at the spot in our presence and keeping in view the injured person we boarded the other dead person in the vehicle and took the both to DHQ Hospital, Gujranwala." The depositions of the Court witnesses- summoned on the request of the accused revealed that ljaz Ahmad (CW-2), Mubeen (CW-3), and Irfan All (CW-4) were informed about the incident by the control room and they reached the place of occurrence. Ijaz Ahmed (CW-2) and Mubeen (CW-3) deposed that the caller's name was unknown to them. Ijaz Ahmed (CW-2) stated explicitly during cross-examination that he did not know who made the phone call in the control room. The emergency response forms (Ex. CW-2/A & Ex. CW-2/B) were produced in original before the learned trial Court, which was signed by Ijaz Ahmed (CW-2). After placing the copies of the emergency response…
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