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Petitioner: The State VS Respondent: Shakeel Shah
Court Name: Lahore High Court Judge(s): Sardar Muhammad Sarfraz Dogar, Sadiq Mahmud Khurram Title: The State vs Shakeel Shah Case No.: Murder Reference No.207 of 2019, Criminal Appeal No. 53076 -J of 2019 Date of Judgment:2022-05-19 Reported As: 2022 LHC 5220 Result: Appeal Dismissed
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf (convicts) were tried by the learned Additional Sessions Judge, Gujranwala in case FIR No. 190 of 2018 dated 08.06.2018 registered at Police Station Eminabad District Gujranw ala in respect of offences under sections 302, 324, 394, 337-F(i), 337-F(iii ) and 34 P.P.C. for committing the Qatl-i-Amd of Muhammad Aslam son of Muhammad Sadiq (deceased) during robbery . The learned trial court vide judgment dated 29.06.2019 convicted Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf (convicts) and sentenced them as under: Shakeel Shah son of Bashir Shah: i) Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Aslam son of Muhammad Sadiq (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased. (It had been mentioned in Paragraph 22 of the judgment by the learned trial court that the convict was being convicted under section 302(b) P .P.C.); The convict was ordered to be hanged by his neck till dead; ii) Imprisonment for life under section 394 PPC and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was directed to undergo further four months of simple imprisonment; iii) Rigorous Imprisonment for ten years under section 324 PPC and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was directed to undergo further four months of simple imprisonment; iv) Rigorous Imprisonment for one year under section 337-F(i) P.P.C. for the injuries caused to Irshad Bibi (PW-14) and directed to pay Daman of Rs.20,000/- to the injured Irshad Bibi (PW -14) ; v) Rigorous Imprisonment for three years under section 337-F(iii) P.P.C. for the injuries caused to Irshad Bibi (PW- 14) and directed to pay Daman of Rs.20,000/- to the injured Irshad Bibi (PW -14);
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Muhammad Rafaqat alias Gola son of Muhammad Ashraf: i) Imprisonment for life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Aslam son of Muhammad Sadiq (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased(It had been mentioned in Paragraph 22 of the judgment by the learned trial court that the convict was being convicted under section 302(b) P .P.C.); ii) Imprisonment for life under section 394 PPC and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was directed to undergo further four months of simple imprisonment ; iii) Rigorous Imprisonment for ten years under section 324 PPC and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was directed to undergo further four months of simple imprisonment; iv) Rigorous Imprisonment for one year under section 337-F(i) P.P.C. for the injuries caused to Irshad Bibi (PW-14) and directed to pay Daman of Rs.20,000/- to the injured Irshad Bibi (PW -14) ; v) Rigorous Imprisonment for three years under section 337-F(iii) P.P.C. for the injuries caused to Irshad Bibi (PW- 14) and directed to pay Daman of Rs.20,000/- to the injured Irshad Bibi (PW -14); The convict namely Muhammad Rafaqat alias Gola son of Muhammad Ashraf was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898. 2. Feeling aggrieved, Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf (convicts) lodged Criminal Appeal No. 53076-J of 2019 through jail, assailing their convictions and sentences. The learned trial court submit ted Murder Reference No.207 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Shakeel Shah son of Bashir Shah. We intend to dispose of the Crim inal Appeal No.53076-J of 2019 and Murder Reference No.207 of 2019 through this single judgment. 3. Precisely the facts necessary , as stated by Shamshad Aslam Bhinder (PW-13), the complainant of the case, are as under:- "My father was ASI in police. On 08.06.2018, I alongwith my mother Irshad Bibi, deceased Muhammad Aslam, my uncle Muhammad Ashraf and his Saifullah had gone to village Nagray Dadan for condolence. On our return, my father and my mother were on one moto rcycle, whereas my uncle Muhammad Ashraf and his son Saifullah were on another motorcycle were going to our village. At about 11:30 AM, when we reached near peter engine of Buttaran in the area of Bhaloowali, two unknown accused persons on motorcycle Honda 125 red colour without registration number came there from our back side. They on gun point intercepted us and threatened to give everything to them which ever was in our possession. On which, my father Muhammad Aslam resisted. Due to resistance, accused persons present before the court made straight firing at us. One of their fires hit under left armpit of my father , whereas second fire hit at the right knee of my father . My mother sustained firearm injuries on her right hand and right thigh. Due to the firing, my mother as well as father injured at the spot. Accused persons fled away after making firing towards Dewan Road. I took my father as well as mother in injured condition RHC Eminabad from where doctor preferred my mother to DHQ hospital Gujranwala, whereas my father succumbed to the injuries. The occurrence was witnessed by me, Muhammad Ashraf, Saifullah and my mother Mst. Irshad Bibi. I moved an application Ex.PCC for registration of case, which bears my thumb impression and signatures. On the same day, I got recorded my supplementary statement and got recorded features of the accused persons, which could not be recorded in FIR due to grief because of death of my father and injuries of my mother . In that statement, I got recorded that one accused had blackish complexion, middle height having age 27 to 28 years, whereas the other accused having weatis h complexion, tall in height having age 25 to 26 years. The first accused of middle height had fired at my father which hit at left armpit which went through and through. Said accused fired at hand of my mother , which injured her right hand and went through and through. Whereas the other accused fired which hit at right knee of my father . He made second fire which hit at right thigh of my mother . From the place of occurrence, 1.O collected blood stained earth, made its parcel and took it into possession through recovery memo. Police also collected crime empties from the place of occurrence and took into possession through recovery memo. The I.O also prepared un-scaled site plan of place of occurrence on our information and
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pointation. Draftsman came at the place of occurrence on 10.06.2018 and took rough notes on our pointation. I.O also recorded our statements under Sec.161 Cr .P.C. On 21.06.2018, I produced blood stained last worn clothes i.e. Qameez P 7, Shalwar P-8 and Chaddar P-9 to the I.O, who took them into possession through recovery memo Ex.PS, attested by me and Sikandar Ali 305/HC. On 25.06.2018, 1 alongwith Saifullah s/o Ashraf and Irshad Bibi, my mother participated in identification parade held in Central Jail Gujranwala where 1 identified accused Shakeel Shah. I got recorded my statement before Presiding Officer of identification parade and pointed out that accused Shakeel Shah present before the court fired by pistol 30-bore at the left armpit of my father and also fired at right hand of my mother . Both these fires went through and through. I.O. recorded my statement. On 02.07.2018, I alongwith Saifullah and my mother Irshad Bibi participated in the identification parade held in Central Jail Gujranwala where I identified accused Rafaqat standing at the serial No.6 of the row. I got recorded my statement before Presiding Officer of identification parade and pointed out that accused Rafaqat present before the court fired by pistol 30-bore at the right knee of my father and also fired from his pistol at right thigh of my mother . I.O recorded our statement. On 08.07.2018, I alongwith Saifullah PW joined the investigation where accused Shakeel Shah, during investigation disclosed that he could get recovered pistol 30-bore from the dera of Ehsan Gujjar lying in pigeon cage at the roof of the dera. The accused led to the recovery and got recovered pistol P-11. When it was unloaded then three live bullets P-12/1-3 were also recovered. The recovered articles were secured in parcel and taken into possession through recovery memo Ex.PY , attested by me and Saifullah. I.O recorded my statement. On the same day, said accused also disclosed possession of the motorcycle which he could get recovered from his house. In light of his disclosure, the accused led to his house Kashmir Colony Chanda Qila from where he got recovered motorcycle red colour bearing registration No.SGK/2459, chassis No.R002918 & engine No.EA685130 P-10 which was taken into possession through recovery memo Ex.PU, attested by me and Saifullah. I.O recorded our statement in this regard. On the same day, accused Rafaqat during interrogation in our presence disclosed possession of pistol 30-bore. He led us as well as police party to the dera of Ehsan Gujjar and got recovered pistol 30-bare P-13 from cage of rabbits lying in courtyard of the dera. When it was unloaded then four live bullets P-14/1- 4 were also recovered. These articles were taken into possession through recovery memo Ex.PZ, which was signed by me and Saifullah PW . 1.O recorded our statements in this regard." 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf were sent to face trial. The learned trial court framed the charge against the accused on 21.01.2019 to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got statements of as many as fifteen witnesses recorded. The ocular account of the case was furnished by Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW- 15). Muhammad Afzal 1075/C (PW-2) stated that on 08.06.2018, he escorted the dead body of the deceased to the hospital for post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the Investigating Officer of the case after post mortem examination. Sikandar Ali 305/HC (PW-3) stated that on 08.06.2018, he recorded the formal F.I.R (Exh.PC). Shahid Ali 2846/HC (PW-6) stated that on 08.06.2018, the Investigating Officer of the case handed over to him two sealed parcels containing the empties and the blood stained earth recovered from the place of occurrence and on 13.06.2018, he handed over the said parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Basharat Ali 2321/HC (PW-7) stated that on 08.07.2018, the Investigating Officer of the case handed over to him two sealed parcels said to contain weapons recovered from the appellant and on 11.07.2018, he handed over the said parcel to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Bilal Ahmad Bhatti, draftsman (PW-9) prepared the scaled site plan of the place of occurrence (Exh.PH). Shoukat Ali (PW-10) identified the dead body of the deceased at the time of post mortem examination. Imtiaz Ali Baig, Sub Registrar (PW-5) got conducted the test ident ification parade proceedings on 25.06.2018, related to the identification of the appellant namely Shakeel Shah by the witnesses and prepared his
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report (Exh.PF/1-10) and got conducted the test identification parade proceedings on 02.07.2018 related to the identification of the appellant namely Muhammad Rafaqat alias Gola by the witnesses and prepared his report (Exh.PE/1-7). Aftab Haider , SI (PW-11) investigated the case from 08.06.2018 till 31.08.2018, arrested the appellant Shakeel Shah on 11.06.2018 and arrested the appellant namely Muhammad Rafaqat alias Gola on 23.06.2018 and detailed the facts of his investigation in his statement before the learned trial court. 6. The prosecution also got Dr. Rashid Hussain (PW-4) examined, who on 08.06.2018 was posted as Medical Officer at T.H.Q. hospital Kamoke and on the same day conducted the postmortem examination of the dead body of Muhammad Aslam son of Muhammad Sadiq (deceased). Dr.Rashid Hussain (PW-4)), on examining the dead body of Muhammad Aslam son of Muhammad Sadiq (deceased) observed as under:- "INJURIES No.1. Lacerated wound 2 cm x 1/4 cm x scalp deep on the posterior aspect of head No.2 A firearm lacerated wound of entry 0.5 x 0.5 cm on the lateral aspect of left chest. Middle part at the level of nipple mid axillary line. No.3. A firearm lacerated wound of exit 1 cm x 1 cm on the back of chest, on left side just lateral to vertebral column. No.4. Lacerated wound 1 cm x 1 cm into skin deep on the back of chest, middle part, 2 cm from injury No.3. No.5. A firearm lacerated wound of entry 1.5 cm x 1 cm x going deep (oval shaped) on the medial aspect of right knee with clinical fracture of night proximal Tibia. No.6 A firearm lacerated wound of exit 1.5 cm x 1 cm on the antero- lateral aspect of right knee. OPINION After careful external as well as internal postmortem examination of the dead body , I was of the opinion that death in this case occurred due to injury no.1 and 2 consequent upon firearm injury resulting in the damage of left lung and heart, leading to severe hemorrhage and extravasation of blood, resulting in a shock like condition and ultimately to the cardio-pulmonary arrest. All the injuries mentioned are ante-mor tem and injury No 1 and 2 can immediately cause death in ordinary course of nature." The prosecution also got Dr.Zaryab Ali (PW-12) examined, who on 08.06.2018 was posted as House Officer at D.H.Q. hospital Gujranwala and on the same day, examined the prosecution witness namely Irshad Bibi (PW-14) and noted the presence of firearm injuries on the wrist of her right hand and her right thigh. The prosecution also got Dr.Abdul Shakoor (PW-8) examined, who on 23.06.2018, was posted as Radiologist at D.H.Q hospital Gujranwala and on the same day examined the prosecution witness namely Irshad Bibi (PW-14) and prepared his report (Exh.PG) and exposed the Radiographs (P-4/1-4). The prosecution also got Dr. Fatima Sikandar (PW-1) examined, who on 21.06.2018 was posted as Woman Medical Officer at T.H.Q. hospital Eminabad and on the same day examined the prosecution witness namely Irshad Bibi (PW-14) and noted the presence of firearm injuries on the wrist of her right hand and her right thigh and prepared the Medico Legal Examination Certificate (Exh.P A). 7. On 24.06.2019, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Muhammad Ashraf, Yasir Mahmood and Dr. Tanvir as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of the Punjab Forensic Science Agency , Lahore (Exh.PDD and Exh.PEE). 8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, the appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf replied that they were innocent and had been falsely involved in the case due to suspicion. The appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf further stated that they had not committed any offence and were not involved in the occurrence in any manner . The appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf opted not to get themselves examined under section 340(2) Cr .P.C. and did not adduce any evidence in their defence. 9. At the conclusion of the trial, the learned Additional Sessions Judge, Gujranwala, convicted and sentenced the appellants as referred to above.
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10. The contention of the learned counsels for the appellants precisely is that the whole case is fabricated and false. The learned counsels for the appellants submitted that the prosecution rema ined unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsels for the appellants further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsels for the appellants also submitted that the appellants had no connection with the occurrence. The learned counsels for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake procee dings. The learned counsels for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of a doubt. 11. On the other hand, the learned Deputy Prosecutor General along with the learn ed counsel appearing on behalf of the complainant of the case contended that the prosecution has proved its case beyond the shadow of any uncertainty by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case further argued that the appellants were responsible for the death of Muhammad Aslam (deceased) and for causing injuries to the prosecution witness namely Irshad Bibi (PW-14). The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case further argued that the recoveries from the appellants also corroborated the prosecution account. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case contended that there was no occasion for the prosecution witnesses to substitute the real offenders with the innocent in this case. Lastly , the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case prayed for the rejection of appeals. 12. We have heard the learned counsels for the appellants, the learned Deputy Prosecutor General, the learned counsel appearing on behalf of the complainant of the case and with their assistance, perused the record and evidence recorded during the trial. 13. It was indeed an unfortunate incident which resulted in the death of Muhammad Aslam (deceased) and receiving of injuries by the prosecution witness namely Irshad Bibi (PW-14), during a botched attempt by the appellants to commit robbery . The prosecution, in order to prove the identities of the appellants as being the accused involved in the occurrence, got the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) examined, who all stated that they had identified the appellants during the test identification parade proceedings. Imtiaz Ali Baig, Sub Registrar (PW-5), then acting as Special Magistrate, got conducted the test identification parade proceedings on 25.06.2018 related to the identification of the appellant namely Shakeel Shah by the witnesse s and prepared his report (Exh.PF/1-1 0) and got conducted the test identification parade proceedings on 02.07.2018 related to the identification of the appellant namely Muhammad Rafaqat alias Gola by the witnesses and prepared his report (Exh.PE/1-7). Facts which establish the identity of any person whose identity is relevant are, by virtue of Article 22 of the Qanun-e-Shahadat, 1984, always relevant. The term 'identification' means proving that a person before the Court is the very same that he is alleged, charged or reputed to be. Identification is almost always a matter of opinion or belief. With regard to a criminal offence, identification has a two-fold object: first, to satisfy the investigating authorities, before sending a case for trial to Court, that the person arrested, but not previously known to the witnesses, was the one or those who committed the crime, second, to satisfy the Court that the accused was the real offender concerned with the crime. Identification proceedings are therefore as much in the interest of the prosecution as in the interest of the accused. An identification parade is held in the course of investigation of an offence for the purpose of enabling the witnesses to identify the persons who are concerned with the offence; they are not held merely for the purpose of identifying persons irrespective of their connection with the offence; the witnesse s are explained the purpose of holding these parades and are asked to identify the persons which are concerned in the offence. But it is obvious that if before the Court a witness pointe d to a stranger and stated that he was the offender , there would be no guarantee of the truth of his assertion. Consequently in order to have some assurance of the truth, test identification is held that is to say, the witness at an earlier stage is confronted with the alleged offender , not standing alone but mixed with a number of innocent persons of the same age-group and of similar build and features. It is to give credence to the evidence of a witness who does not know the accused from before,
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subsequent to the commission of the offence, that a test identification is held, since, without it, the evidence of the witness concerned would have little value. Of course, the substantive evidence, i.e., evidence on which alone the Court can base its order of conviction or acquittal, is that given by the witness before the Court, but the value of his deposition there of having identified the accused in the act of the crime is of little consequence. Before the Court can accept such identification as sufficient to establish the identity of the accused, it is very necessary that there be reliable corroborative evidence, and the corroborative evidence which the Court is entitled to accept in such cases is that of a test identification parade conducted with due precautions. In short, a test identification is designed to furnish evidence to corroborate the evidence which the witness concerned tenders before the Court. We have noticed that the test identification parade proceedings were conducted as per the law. Imtiaz Ali Baig, Sub Registrar (PW-5), then acting as Special Magistrate , got conducted the test identification parade proceedings on 25.06.2018 related to the identification of the appellant namely Shakeel Shah by the witnesses and prepared his report (Exh.PF/1-10) and during the said test identification parade proceedings , the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) all duly and correctly identified the appellant namely Shakeel Shah out of the dummies who had been placed in the line for the purpose of identification. Imtiaz Ali Baig, Sub Registr ar (PW-5), then acting as Special Magistrate, adopted all the precautions for ensuring that the appellant namely Shakeel Shah did not stand out due to some particular features from the other prisoners who had been placed with him in the same line for the purpose of identification of the real accused by the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW- 15). During cross-examination, Imtiaz Ali Baig, Sub Registrar (PW-5), then acting as Special Magistrate, explained that at the time of holding of the test identification parade proceedings with regard to the appellant Shakeel Shah on 25.06.2018, he had made sure that the features and ages of dummies being used for the test identification parade proceedings resembled that of the appellant Shakeel Shah. Similarly , Imtiaz Ali Baig, Sub Registrar (PW-5), then acting as Special Magistrate, also got conducted the test identification parade proceedings on 02.07.2018 related to the identification of the appellant namely Muhammad Rafaqat alias Gola by the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) and prepared his report (Exh.PE/1-7) and during the said test identification parade proceedings , the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13),…
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