2025 M L D 139
[Balochistan]
Before Muhammad Hashim Khan Kakar, C.J and Shaukat Ali Rakhshani, J
HOTAK alias Sapak ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 328 and Murder Reference No. 09 of 2023, decided on 11 September,
2024.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 324--- Qatl-i-amd, attempt to commit qatl- i-amd---Appreciation of evidence-
--Ocular account supported by medical evidence---Accused was charged that he along with his co -accused made firing upon the complainant party, due to which one person died
whereas two other sustained fire arm injuries ---Complainant testified that on 27.06.2022 at
9:00 am under the supervision of deceased, he along with ten officials went to the house of accused in order to arrest him, who was an absconder in a murder case; where despite warnings the accused did not surrender and fired at deceased, who received firearm injuries and later succumbed ---Said witness also testified that the accused was accompanied by an
unknown co- accused, who also made firing and that due to his firing, two persons also
received firearm injuries, whereafter the accused and co -accused succeeded to flee away ---
Complainant was cross -examined at length, but he remained firm and consistent to his
examination -in-chief ---Injured witnesses and an eye -witness testified in line with the
deposition of complainant ---Statements of said witnesses had been found to be natural,
confidence inspiring and truthful by the Trial Court as well as by the High Court, which by all means coincided with the prosecution version, and there was also no reason for false implication on their part---Despite lengthy cross -examination, injured and eye -witness
remained consistent to their statements and no favorable answer could be extracted in favor of the accused, thus it could be concluded that their testimony went unshaken--- Said eye-
witnesses had proved their presence on the crime scene, revealing the entire episode of the murder of deceased ---Medico Legal Certificates produced by Medical Officer confirmed the
unnatural death of deceased caused by firearm and injuries sustained by injured persons ---
Even otherwise, the unnatural death of the deceased and firearms injuries sustained by levies personnel had not been disputed by the defence ---Circumstances established that the
prosecution had successfully brought home the charge without any glimpse of doubt against the accused, however, due to mitigating circumstances, death sentence was reduced to imprisonment for life ---Appeal was dismissed with said modification in sentence, in
circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 324--- Criminal Procedure Code (V of 1898), S. 164--- Qatl-i-amd, attempt to
commit qatl- i-amd---Appreciation of evidence ---Confessional statement, recording of ---
Voluntary confession--- Accused was charged that he along with his co- accused made firing
upon the complainant party, due to which one person died whereas two other sustained firearm injuries ---Judicial Magistratehad recorded the confessional statement of the accused
on 04.08.2022, regarding committing murder of deceased "GB" in anot her case---Judicial
Magistrate testified that on 04.08.2022, the accused was produced before him, whose handcuffs were removed and the levies personnel were turned out from the Court and the accused was warned that in case of refusal to record the confessional statement, he would not be handed over to the levies and that he was given half an hour for reflection, whereafter he was asked the questions incorporated in the performa of questionnaire ---Judicial Magistrate
further testified that after recording co nfessional statement of accused, he was sent to judicial
custody---Accused in his confessional statement, besides, confessing the murder of the deceased "GB" also confessed that on 27.06.2022, while he was present in his house, levies force headed by deceased raided at his house at 9:00 am, and in order to save himself, he
fired with TT pistol, whereby three levies personnel received firearm injuries due to his
firing, and when levies officials started firing, he escaped from the spot ---After meticulous
recital of the testimony of Judicial Magistrate, it was found that the confessional statement of the accused had been recorded voluntarily without any promise, duress and coercion and it rang true as well, coinciding with the testimony of eye -witnesses revealing death of deceased
due to the firing of the accused during raid--- Circumstances established that the prosecution
had successfully brought home the charge without any glimpse of doubt against the accused, however, due to mitigating circumstances, death sentence was reduced to imprisonment for life---Appeal was dismissed with said modification in sentence, in circumstances.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 324--- Qatl-i-amd, attempt to commit qatl- i-amd---Appreciation of evidence-
--Recovery of weapon of offence on the disclosure of accused ---Reliance ---Scope ---Accused
was charged that he along with his co -accused made firing upon the complainant party, due
to which one person died whereas two other sustained firearm injuries ---Record showed that
on the disclosure of accused, crime weapon i.e., TT pistol, was recovered from a sack of sand, which was secured by witness through recovery memo. ---Prosecution had lodged a
separate case under S.13(e) of the Pakistan Arms Ordinance, 1965 regarding recovery of the crime weapon, which was produced in the instant case, and secured in the presence of two witnesses, but the prosecution had not only failed to produce both of them in the present case, but also did not produce the crime weapon, thus recovery memo. of TT pistol was inconsequential, more particularly, in absence of positive Forensic Science Laboratory Report ---However other circumstances established that the prosecution had successfully
brought home the charge without any glimpse of doubt against the accused, however, due to
mitigating circumstances, death sentence was reduced to imprisonment for life ---Appeal was
dismissed with said modification in sentence, in circumstances.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 324--- Qatl-i-amd, attempt to commit qatl- i-amd---Appreciation of evidence-
--Sentence, quantum of ---Mitigating circumstances ---Accused was charged that he along
with his co -accused made firing upon the complainant party, due to which one person died
whereas two other sustained firearm injuries ---In view of the ocular account and confessional
statement, it could not be ascertained whether the accused or the proclaimed offender caused the fatal injury to the deceased as both of the them made indiscriminate firing, thus when the seat of injury was not known, the case of the accused would squarely fall within the purview of mitigating circumstances, warranting lesser punishment ---Thus, sentence awarded under
S.302 (b) of P.P.C was altered and modified by reducing the sentence of capital punishment to that of life imprisonment--- Appeal was dismissed with said modification in sentence, inc
circumstances.
Ashraf Dad Kakar for Appellant (in Criminal Appeal No. 328 of 2023).
Abdul Latif Kakar, Additional Prosecutor General for the State (APG) (in Criminal
Appeal No. 328 of 2023).
Abdul Latif Kakar, APG for the State (in Murder Reference No. 9 of 2023).
Ashraf Dad kakar for Respondent (in Murder Reference No. 9 of 2023).
Date of hearing 8th August, 2024.
JUDGMENT
SHUAKAT ALI RAKHSHANI, J .---Through this common judgment, we aim to
dispose of the captioned Criminal Appeal and Murder Reference brought before us pursuant
to the judgment dated 27th July, 2023 ("impugned judgment") rendered by learned Sessions
Judge, Killa Saifullah ("Trial Court"), emanating from FIR bearing No.20 of 2022 (Ex.P/14-
A) registered with Levies Station, Killa Saifullah, whereby the appellant was convicted and
sentenced in the following terms;
"In view of what stated above, the accused Hotak alias Spak son of Sher Muhammad, caste Tarakai Alizai Batozai, resident of Qandeel Batozai, Killa Saif Ullah is hereby convicted under section 300 of Pakistan Penal Code for committing murder of
deceased Habib Ullah, Naib Risaldar and is sentenced under section 302 (b) of
Pakistan Penal Code to death as Tazir.
He be hanged by neck till death.
> The accused person is directed to pay Rs.400000/ - (Rupees four hundred thousand)
for deceased, as compensation to legal heirs of the deceased, i.e. Habib Ullah as
provided under section 544- A of Criminal Procedure Code, and in default of which,
the convict shall further undergo for a period of six months.
(xii) Death sentence shall not be executed until its confirmation by the Hon'ble High Court of Balochistan, therefore, the proceedings shall be submitted to the Hon'ble
High Court of Baluchistan under section 374 of Criminal Procedure Code.
(xiii) The accused Hotak alias Spak son of Sher Muhammad, caste Tarakai Alizai Batozai, resident of Qandeel Batozai, Killa Saif Ullah is also convicted and sentenced under section 324 of Pakistan Penal Code, on two counts for attempt to commit Qatl -
e-Amd i.e. causing fire arm injuries to Fazal Kareem (PW- 2) and Hazar Muhammad
(PW -3), to suffer R.L. for 05 years and to pay fine of Rs.1,00,000/ - (Rupees one
hundred thousand only), in default of which he shall further suffer six months simple imprisonment, on each count.
(xiv) In addition to above, the accused is also convicted to pay Daman for the hurts caused to injured Fazal Kareem and Hazar Muhammad, as provided under section 324 of Pakistan Penal Code with following manners.
(a) The nature of injuries of injured Fazal Kareem are covered by section 337 -C of
Pakistan Penal Code, therefore, accused is sentenced under section 337 -D of Pakistan
Penal Code for five years rigorous imprisonment and to pay Arsh of Rs.14,39,508/ -
(Rupees fourteen lac, thirty nine thousand, five hundred and eighty only) equal to one third of Diyat amount to injured Fazal Kareem.
(b) The nature of injuries of injured Hazar Muhammad are also covered by section 337- C of Pakistan Penal Code, as such accused is sentenced under section 337- D of
Pakistan Penal Code for five years rigorous imprisonment and to pay Arsh of Rs. 14,39,508/ - (Rupees fourteen lac, thirty nine thousand, five hundred and eighty only)
equal to one third of Diyat amount to injured Hazar Muhammad.
(c) All the sentences awarded under sections 324 and 337- D of Pakistan Penal Code,
respectively shall run concurrently.
(xv) Benefit of Section 382- B of Criminal Procedure Code is also awarded to convict,
w.e.f. 20- 07-2022"
2. Condensed but relevant facts necessary for disposal of the case in hand are that
complainant Hotak (PW -1) got lodge crime report (Ex.P/14- A) on the basis of an application
(Ex.P/1 -A), averring therein that on 27.06.2022 at about 09:00 am, he along with officials of
levies personnel under the supervision of deceased Habib Ullah Naib Risaldar ("NR"),
conducted a raid over the house of the appellant, situated near Qandeel Flood Channel, Killa
Saifullah, who was an absconder in a murder case bearing FIR No.25 of 2014, where during
raid, the appellant along with his unknown accomplice made indiscriminate firing upon them
due to which deceased Habib Ullah NR, Fazal Kareem Levies Constable ("LC") (PW- 2) and
Hazar Khan LC (PW- 3) received firearm injuries, whereafter the appellant along with his
unknown culprit make their escape good, however, deceased Habib Ullah succumbed.
3. After registration of FIR (Ex.P/14 -A), Muhammad Essa NR (PW -14), being the first
Investigation Officer ("IO") on arrival at the Civil Hospital, Killa Saifullah, recorded the statements of witnesses under section 161 of the Criminal Procedure Code, 1898 ("Cr.P.C.") and after referring the injured persons to Quetta, he went to the crime scene, where he secured bloodstained earth of deceased Habib Ullah, Fazal Kareem (PW- 2),
fifteen (15) empties shells of TT pistol and thirty (30) shells of kalashnikov through recovery memo. (Ex.P/6 -A), following preparation of site plan (Ex.P/14 -B). He prepared
inquest report of deceased Habib Ullah (Ex.P/14- C). Muhammad Essa IO (PW -14) also
took into possession bloodstained clothes of deceased Habib Ullah, injured Fazal Kareem
(PW -2) and Hazar Khan (PW -3) vide recovery memos. (Ex.P/7 -A), (Ex.P/9 -A) and
(Ex.P/10- A) respectively.
On 20.07.2022, the appellant was arrested, who made disclosure (Ex.P/15- A) before
second I.O Muhammad Zarif Risaldar Major (PW- 15) on 27.07.2022, and on his pointation,
memo. (Ex.P/15- B) was prepared, following the recovery of crime weapon i.e., TT pistol
along with magazine from a sand sack near flood channel, which was secured through
recovery memo. (Ex.P/12- A), which was produced as Art.P/12 -I. The appellant failed to
produce any valid license of the recovered crime weapon, thus a separate case vide FIR No.24 of 2022 was registered under section 13(e) of the Arms Ordinance, 1965 ("Ordinance of 1965"). According to I.O (PW -15), on 04.08.2022, the appellant was brought before
Muhammad Rehman Judicial Magistrate, Killa Saifullah ("JM") (PW -13), who recorded his
confessional statement (Ex.P/9 -C). Muhammad Zarif IO (PW- 15) produced Forensic Science
Laboratory, Crime Branch, Quetta ("FSL, Quetta") report regarding bloodstained articles (Ex.P/15- D), incomplete challan bearing Nos.20- A/2022, 20- B/2022 and 20- C/2022 as
(Ex.P/15- C), (Ex.P/15- F) and (Ex.P/15- H) respectively.
4. On conclusion of the investigation, the appellant was put on trial, whereafter denial of
the indictment, the prosecution in order to drive home the charge produced as many as fifteen (15) witnesses and at the end of the prosecution side, the appellant was examined under section 342 of Cr.P.C. He neither opted to record his statement on oath nor produced any defence, henceforth on conclusion of the trial, the Trial Court vide impugned judgment convicted and sentenced the appellant in the terms mentioned in para supra.
5. Mr. Ashraf Dad Kakar, learned counsel for the appellant inter alia contended that the
accused has falsely been foisted in the instant case. He added that there are material contradictions in the statements of the eye -witnesses, which has made the entire case of the
prosecution highly doubtful. He also argued that story of prosecution is dubious and testimony of the said witness absolutely does not co- inside with each other. He repelled
recording of confessional statement of the appellant or making recovery of the crime weapon and urged that the recovery has only been shown to strengthen the case of the prosecution, while concluding his arguments learned counsel stated that confessional statement is inadmissible, which is contrary to the evidence, making the entire case of the prosecution unworthy of credence, thus, requested for setting aside the impugned judgment dated 27.07.2023, and in consequence thereof appellant be acquitted of the indictment.
On the contrary, Mr. Abdul Latif Kakar, learned APG vehemently opposed the
arguments advanced by the learned counsel for the appellant and urged that the prosecution has successfully prove the indictment on the basis of proper appraisal of evidence coupled with truthful testimony of prosecution witnesses. Added further that the impugned judgment of the Trial Court is well speaking, which does not require interference, thus prayed for dismissal of the appeal.
6. Heard. Record gone through with the able assistance of learned counsel for the
adversarial parties.
7. The entire edifice of the prosecution case is pillared upon the ocular account of Hotak
LC (PW -1), injured Fazal Kareem LC (PW -2) injured Hazar Khan LC (PW- 3) and
Muhammad Ghani LC (PW -5), medical evidence, confessional statement of appellant and
recovery of crime weapon in consequence of disclosure.
8. Complainant Hotak LC (PW -1) testified that on 27.06.2022 at 9:00 am under the
supervision of deceased Habib Ullah NR, he along with LCs Fazal Kareem (PW -2), Hazar
Muhammad (PW -3), Wali Khan, Khudai Meer, Mehrab Khan, Wali Muhammad alias Dad
Muhammad, Hazrat Khan, Fazal -ul-Haq, Abdul Ghani and Rehmatullah went to the house of
the appellant in order to arrest him, who was an absconder in a murder case; where despite
warnings the appellant did not surrender, and fired at Habib Ullah NR, who received firearm injuries and later succumbed. He also testified that the appellant was accompanied by an unknown coaccused, who also made firing and that due to his firing, injured LCs Fazal Kareem (PW- 2) and Hazar Muhammad (PW- 3) also received firearm injuries, whereafter the
appellant and co -accused succeeded to flee away. He was cross -examined at length, but he
remained firm and consistent to his examination- in-chief. Injured Fazal Kareem (PW- 2),
Hazar Khan (PW- 3) and Muhammad Ghani LC (PW -5) testified in line with the deposition of
complainant Hotak (PW- 1). Their statements have been found to be natural, confidence
inspiring and truthful by the Trial Court as well as by this Court, which by all means co-inside with the prosecution version. There is also no reason for false implication on their part. Despite lengthy crossexamination, Fazal Kareem LC (PW- 2), Hazar Khan LC (PW- 3)
and Muhammad Ghani LC (PW -5) remained consistent to their statements and no favorable
answer could be extracted in favor of the appellant, thus it can be concluded with no other
view that their testimony went unshaken. The said eye -witnesses have proved their presence
on the crime scene, revealing the entire episode of the murder of deceased Habib Ullah NR.
9. The Medico Legal Certificates (Ex.P/4 -A), (Ex.P/4 -B) and (Ex.P/4- C) produced by
Dr. Akhtar Muhammad (PW -4) confirms the unnatural death of deceased Habib Ullah NR
caused by firearm and injuries sustained by Fazal Kareem (PW- 2) and Hazar Khan (PW- 3).
Even otherwise, the unnatural death of the deceased and fire arms injuries sustained by levies personnel have not been disputed by the defence, thus, the medical evidence need not to be discussed further in detail.
10. JM (PW -13) has recorded the confessional statement (Ex.P/9- C) of the appellant on
04.08.2022, regarding committing murder of deceased Gul Baghcha in case vide FIR bearing No. 25 of 2014 registered with Levies Station, Killa Saifullah. JM (PW -13) testified that on
04.08.2022, the appellant was produced before him, whose hand cuffs were removed, and the levies personnel were turned out from the court, and the appellant was warned that in case of refusal to record the confessional statement, he would not be handed over to the levies and that he was given half an hour for reflection, whereafter he was asked the questions incorporated in the performa of questionnaire. He further testified that the after recording confessional statement of appellant, he was sent to judicial custody. The appellant in his confessional statement (Ex.P/9 -C), besides, confessing the murder of the deceased Gul
Baghcha also confessed that the on 27.06.2022, while he was present in his house situated at Qandeel Batozai, levies force headed by deceased Habib Ullah NR, raided at his house at 9:00 am, and in order to save himself, he fired with TT pistol, whereby three levies personnel received firearm injuries due to his firing, and when levies officials started firing, he made his escape good from the spot.
11. After meticulous recital of the testimony of JM (PW -13), we have found the
confessional statement of the appellant to have been recorded voluntarily without any promise, duress and coercion and have come to the conclusion that the same has been recorded voluntarily and it rings true as well, coinciding with the testimony of eye -witnesses
Hotak LC (PW -1), Fazal Kareem LC (PW- 2) Hazar Khan LC (PW- 3) and Muhammad Ghani
LC (PW -5), revealing death of deceased Habib Ullah NR due to the firing of the appellant
during raid.
12. Now coming to the recovery of crime weapon, it may be observed that appellant made
disclosure (Ex.P/15 -A) on 27.07.2022, and in consequence thereof, got recovered the crime
weapon i.e, TT pistol from a sack of sand, which was secured by Khair Ullah (PW - 12)
through recovery memo. (Ex.P/12- A). He produced the same as Art. P/12- 1. In the instant
case, the prosecution has lodged a separate case vide FIR bearing No.24 of 2022 under
section 13 (e) of the Ordinance of 1965 regarding recovery of the crime weapon, which was produced in the instant case as Art.P/12 -1, secured in the presence of LCs Muhammad Rafiq
and Abdul Qayyum, but the prosecution has not only failed to produced both of them in the
instant case, but also did not produce the crime weapon, thus recovery memo. of TT pistol
Art. P/12- 1 is inconsequential, more particularly, in absence of positive FSL report.
13. Upshot of the above discussion is that the prosecution has successfully proved the
indictment on the basis of ocular account furnished by the eye -witnesses, confirmed by the
medical evidence and corroborated by the confessional statement of the appellant. The appraisal of the above evidence has rightly been done by the Trial Court, which sounds well reasoned, thus there can be no other view that the prosecution has successfully brought home the charge without any glimpse of doubt against the appellant, henceforth the conviction is maintained, however, the quantum of punishment warrants inference by us.
In view of the ocular account and confessional statement, it cannot not be ascertained
that either the appellant or the proclaimed offender caused the fatal injury to the deceased as both of the them made indiscriminate firing, thus where the seat of injury is not known, the case of the appellant would square within the purview of mitigating circumstances, warranting lesser punishment. In this regard, reliance is placed upon the case of "Askar Jan v. Muhammad Daud" (2010 SCMR 1604).
14. For the forgoing reasons, the appeal is dismissed, and the conviction awarded to the
appellant by the Trial Court is upheld, however, the sentence awarded under section 302 (b) of P.P.C. is altered and modified by reducing the sentence of capital punishment to that of life imprisonment with a fine of Rs.200,000/ - (Two hundred thousand), which shall be
payable to the legal heirs of the deceased in terms of section 544- A of Cr.P.C. and in default
thereof, the appellant shall further undergo one (1) year S.I with benefit of section 382- B of
Cr.P.C., whereas the rest of the sentences shall remain intact.
Corollary, Murder Reference No.09 of 2023 sent by the Trial Court for confirmation
of the capital punishment is answered in negative.
JK/86/Bal. Sentence altered.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.