2025 Y L R 1227
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
KHUDA BAKHSH alias Baboo ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 384 and Criminal Revision Petition No. 33 of 2023, decided on 30th
August, 2024.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337 -D & 337 -F---Qatl-i-amd, attempt to commit qatl -i-amd, jaifah,
ghayr -jaifah ---Appreciation of evidence ---Ocular account proved ---Accused was charged
for making firing upon the complainant party, due to which one brother of the complainant died whereas other sustained firearm injuries ---Complainant reiterated what
he had narrated in his application ---Complainant was cross -examined at length, but no
favorable reply could be extracted in favour of the accused, thus his statement went unshaken ---Similarly, other eye -witness and injured, while corroborating the testimony of
complainant came up with similar narration of the occurrence ---Accused was
categorically nominated to have made fire shots with his pistol, whereby deceased succumbed on the spot, whereas injured sustained several bullet injuries, whereafter the culprits fled away--- Eye-witness and injured, were subjected to cross - examination, but
they remained firm and consistent to their examination- in-chief ---Testimony of the
injured and said eye -witness had been found to be confidence inspiring and trustworthy
by the trial Court as well as by the High Court as it went un -shattered ---Thus, there
appeared no reason for falsely implicating the accused for committing murder of deceased ---Circumstances established that the prosecution had successfully proved the
charge against the accused ---Appeal against conviction was accordingly dismissed.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337 -D & 337 -F---Qatl-i-amd, attempt to commit qatl -i-amd, jaifah,
ghayr -jaifah ---Appreciation of evidence ---Medical evidence corroborating prosecution
case---Accused was charged for making firing upon the complainant party, due to which
one brother of the complainant died whereas other sustained firearm injuries ---Medical
Officer issued Medico -Legal Certificate of deceased, whereby he confirmed the unnatural
death of the deceased caused by firearm ---In order to establish unnatural death of the
deceased by fire arm, the prosecution produced the bloodstained cloths of deceased, secured through recovery memo, whereof positive Forensic Science Laboratory Report was obtained ---Besides the above, even otherwise, the defence had also not disputed the
unnatural death of deceased caused by firearm and injuries sustained by injured ---
Defence had not challenged the veracity and genuineness of the Medico -Legal
Certificates issued by Medical Officer, which was evident from that fact that said Medical Officer was not cross -examined at all ---Circumstances established that the
prosecution had successfully proved the charge against the accused--- Appeal against
conviction was accordingly dismissed.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337 -D & 337 -F---Qatl-i-amd, attempt to commit qatl -i-amd, jaifah,
ghayr -jaifah ---Appreciation of evidence ---Recovery of crime empties and weapon of
offence ---Crime empties and weapon sent for forensics together ---Effect ---Accused was
charged for making firing upon the complainant party, due to which one brother of the complainant died whereas other sustained firearm injuries ---In the present case, five
empties shells of 9mm pistol were secured from the place of occurrence through recove ry
memo, whereas the recovery of crime weapon was made on 17.12.2021 from a flood
ravine in consequence of disclosure of accused, whereof positive Forensic Science
Laboratory Report was issued ---However, reliance could not be placed upon such
recovery because the empties and crime weapon were sent together to Forensic Science Laboratory, which practice had been deprecated ---Thus, no reliance could be placed on
such recovery and Forensic Science Laboratory Report ---However, circumstances
established that the prosecution had otherwise successfully proved the charge against the
accused ---Appeal against conviction was accordingly dismissed.
(d) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337 -D & 337 -F---Qatl-i-amd, attempt to commit qatl -i-amd, jaifah,
ghayr -jaifah ---Appreciation of evidence ---Quantum of sentence ---Mitigating
circumstances ---Motive not proved ---Accused was charged for making firing upon the
complainant party, due to which one brother of the complainant died whereas other
sustained firearm injuries ---Admittedly, the prosecution had not alleged the motive,
which made death of the deceased mysterious, inferring that the prosecution witnesses had deliberately suppressed the motive ---Thus, the sentence of life imprisonment awarded
to the accused was sufficient enough to serve the purpose ---Circumstances established
that the prosecution had successfully proved the charge against the accused ---Appeal
against conviction was accordingly dismissed.
Abdul Zahir Kakar and Juma Khan Mandokhail for Appellant (in Criminal Appeal
No. 384 of 2023).
Ghulam Abbas Zehri and Nisar Ahmed Alizai for the Complainant (in Criminal
Appeal No. 384 of 2023).
Muhammad Yunus, Additional Prosecutor General ("APG") for the State (in Criminal
Appeal No. 384 of 2023).
Ghulam Abbas Zehri and Nisar Ahmed Alizai for Petitioner (in Criminal Revision
Petition No. 33 of 2023).
Abdul Zahir Kakar and Juma Khan Mandokhail for Respondent No. 1 (in Criminal
Revision Petition No. 33 of 2023).
Muhammad Yunus, APG for the State (in Criminal Revision Petition No. 33 of 2023).
Date of hearing: 22nd August, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI , J.--- This consolidated judgment of ours aim to
decide the captioned Criminal Appeal and Criminal Revision Petition brought before us pursuant to the judgment dated 23.08.2023 ("impugned judgment") penned by learned Additional Sessions Judge, Mastung ("Trial Court"), whereby the appellant has been convicted and sentenced under Section 302(b) of the Pakistan Penal Code, 1860 ("P.P.C.") to suffer imprisonment for life R.I with a fine of Rs.300,000/ - (Three hundred thousand)
payable to the legal heirs of the deceased as contemplated under section 544 -A of the
Criminal Procedure Code, 1898 ("Cr.P.C"), and in default thereof, to further undergo six (06) months S.I. The appellant has also been convicted and sentenced under section 324 of P.P.C. to suffer imprisonment for seven (07) years R.I with a fine of Rs.50,000/ - (Fifty thousand),
and in case of default to further undergo three (03) months S.I. He has further been convicted and punished under section 337- D of P.P.C. to pay Arsh and convicted and punished under
section 337 -F of P.P.C. to pay Daman, amounting to Rs.20,000/ - (Twenty thousand) to
injured/victim Sarfaraz Ahmed with the benefit of section 382- B of Cr.P.C, emanating from
FIR bearing No.76 of 2021 (Ex.P/7- A) registered with Police Station City, Mastung, whereas
through the Criminal Revision Petition, petitioner Javed Ahmed seeks enhancement of sentence awarded to respondent No.1 by the Trial Court vide judgment impugned herein from that of life imprisonment to death.
2. Concise but relevant facts essential for disposal of the case at hand are that
complainant Javed Ahmed (PW -1) got registered the FIR ibid on the basis of application
(Ex.P/1 -A) with the averments that on 14.12.2021, he along with his brothers deceased
Abdul Qayum, Sarfaraz Ahmed (PW -3), and relative Amir Khan (PW -2) were digging a pit
for a water connection in the street, where appellant Khuda Bakhsh alias Babu came, and
after asking about FC personnel, returned to his house, and then after a while at about 1:30
am came back, having a pistol along with his brother namely Muhammad Asif and his sons
Aziz and Abdur Rehman, and that the appellant made firing upon them due to which
deceased Abdul Qayum succumbed on the spot and Sarfaraz Ahmed (PW -3) sustained
firearm injuries, whereas he and Amir Khan (PW -2) luckily remained safe.
After registration of the FIR ibid, Abdul Rahim SI Investigation Officer ("IO") (PW -
07) went to the crime scene, took into possession bloodstained earth vide recovery memo. (Ex.P/2 -A), five empties shells of pistol through recovery memo. (Ex.P/2- B). He (PW -07)
prepared site plan (Ex.P/7 -B), and inquest report of deceased (Ex.P/7- C).
On 14.12.2021, the appellant was arrested and from his personal search, a magazine
and four live rounds were recovered vide recovery memo. (Ex.P/5- A). On 15.12.2021, IO
(PW -07) secured bloodstained clothes of deceased Abdul Qayum vide recovery memo.
(Ex.P/5 -B) and recorded statement of witnesses. On 17.12.2021 appellant made disclosure
(Ex.P/5 -C), and in consequence thereof got recover 9mm pistol along with an empty
magazine through recovery memo. (Ex.P/4- A). IO (PW -07) on conclusion of investigation
produced incomplete challan (Ex.P/7- G), FSL reports (Ex.P/7 -H), (Ex.P/7 -I) and then
supplementary challan (Ex.P/7 -J).
The appellant was put on trial, whereafter denial of the indictment, the prosecution in
order to drive home the charge produced seven (07) 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 the para supra.
3. Learned counsel for the appellant inter alia contended that the prosecution has
miserably failed to establish the indictment against the appellant as the incident took place in
the midnight, and that there is a probability of misidentification with no specific role, and that there is also delay in lodging the FIR and sending the crime weapon to FSL. Added further that the recovery has been concocted in order to fill the lacunas in the prosecution case, but the Trial Court, while rendering the impugned judgment has failed to appreciate such material facts of the instant case, which requires interference by this Court, thus, requested for acquittal of the appellant in consequence of acceptance of instant appeal.
Adversely, learned APG as well as learned counsel for the complainant rebutted the
assertions made by the learned counsel for the appellant and maintained that the impugned judgment does not suffer from any infirmity, illegality or misreading of evidence, thus, the appeal deserves to be dismissed.
Learned counsel for the petitioner, while arguing the Criminal Revision Petition
No.33 of 2023 for enhancement of sentence of the of the accused urged that the deceased was done to death in a cold blood, hence there was no mitigating circumstance for awarding lesser punishment, thus prayed that the sentence awarded to the appellant be enhanced to that of capital punishment.
4. Heard. Record sussed out with the able assistance of learned counsel for the
adversial parties. The case of the prosecution hinges upon the ocular account of Javed Ahmed complainant (PW -1), who is also eye -witness of the occurrence, Amir Khan (PW -
2), injured Sarfaraz Ahmed (PW -3), coupled with the medical evidence adduced by Dr.
Noor Baloch (PW -6), recovery of .9mm pistol, being the crime weapon recovered on the
pointation of the appellant in consequence of his disclosure (Ex.P/5- C), and positive
Forensic Science Laboratory, Police Crime Branch Balochistan ("FSL") report (Ex.P/7 -H).
5. Complainant Javed Ahmed (PW -1) reiterated what he had narrated in his application
(Ex.P/1 -A). He testified that on 14.12.2021, he along with his brother Abdul Qayum
(deceased), Sarfaraz Ahmed (PW- 3), and relative Amir Khan (PW -2), while were digging a
pit for water connection in the street of his house, appellant Khuda Bakhsh alias Babu came
and asked about FC personnel, and went back, but came later at 1:30 am, having a pistol along with his brother namely Muhammad Asif and his sons Aziz and Abdur Rehman. He also deposed that the appellant made firing upon them due to which his brother Abdul Qayum succumbed on the spot, whereas his brother Sarfaraz Ahmed (PW- 3) sustained
firearm injuries, whereas he and Amir Khan (PW -2) remained safe. He was cross -examined
at length, but no favorable reply could be extracted in favour of the appellant, thus his statement went unshaken. Similarly, Amir Khan (PW -2) and injured Sarfaraz Ahmed (PW -
3), while corroborating the testimony of complainant (PW -1) came up with similar
narration of the occurrence. The appellant was categorically nominated to have had made fire shots with his pistol, whereby deceased Abdul Qayum succumbed on the spot, whereas Sarfaraz Ahmed (PW -3) sustained several bullet injuries, whereafter the culprits fled away.
In order to discredit eye -witness (PW -2) and injured (PW -3), they were subjected to cross -
examination, but they remained firm and consistent to their examination -in-chief. The
testimony of the injured and said eye -witness have been found to be confidence inspiring
and trustworthy by the Trial Court as well as by this Court as it went un- shattered. There
appears no reason for falsely implicating the appellant for committing murder of deceased Abdul Qayum.
6. As far as medical evidence is concerned, Dr. Noor Baloch (PW- 6) issued Medico
Legal Certificate ("MLC") (Ex.P/6 -A) of deceased Abdul Qayum, whereby he confirmed the
unnatural death of the deceased caused by fire arm, the relevant excerpt whereof is reproduced herein below;
"INJURIES.
1. Entrance wound on the forehead 1x1 c.m.
2. Entrance wound on the parietal bone vault of skull 1x1 c.m.
3. Entrance wound on the left anterior of chest 1x1 c.m.
4. Entrance wound on the left anterior of chest bellow the wound number 3 1x1 c.m.
5. Entrance wound on the left hypochondraim region of chest 1x1 c.m.
Probable cause of death.
Is injury to the brain coma " vital organs of the thoracic cavity and death caused by fire arm Homocidal in nature.
Fresh.
Fire arm.
Note"
Dr. Noor Baloch (PW -6) also examined injured Sarfaraz Ahmed (PW- 3), and issued
MLC (Ex.P/6 -B), wherein he observed and mentioned the following injuries;
"INJURIES:
1. Entrance wound on the right scapular region 1x1 c.m.
2. Exit wound on the right axillary region (posterior folled) ovular in shape 1 ½ x1 c.m.
3. Entrance wound on the right thigh anteriorly 1x1 c.m.
4. Exit wound on the posterior aspect of right thigh 1x1½ c.m. First aid was given and referred to trauma center for further management.
Trauma ward notes: Reveals as under: -
Diagnosis Gunshot + right Haemothorax.
Operation. Chest tube intubation.
Discharged on 19- 12-2021 from trauma center S.P.H. and admitted on 14- 12-2021
Nature. Grievous
Duration. Fresh.
Weapon. Fire arm"
In order to establish unnatural death of the deceased by fire arm, the prosecution
produced the bloodstained cloths of deceased, secured through recovery memo. (Ex.P/5- B),
whereof positive FSL report (Ex.P/7- I) was obtained. Besides above, even otherwise, the
defence has also not disputed the unnatural death of deceased Abdul Qayum caused by
firearm and injuries sustained by Sarfaraz Ahmed (PW- 3) for the defence has not challenged
the veracity and genuineness of the MLCs issued by Dr. Noor Baloch (PW -6), which is
evident from that fact that Dr. Noor Baloch (PW -6) was not cross -examined at all.
7. In the instant case, five empties shells of 9mm pistol were secured from the place of
occurrence through recovery memo. (Ex.P/2- B), whereof parcel No.2 was prepared, whereas
the recovery of crime weapon was made on 17.12.2021 from a flood ravine in consequence of disclosure of appellant (Ex.P/5- C), whereof positive FSL report (Ex.P/7- H) was issued.
Albeit, it has made the said recovery relevant, but is insufficient to place reliance upon such recovery for it has offended the dictum expounded by the apex court in the cases of "Mushtaq v. The State" (PLD 2008 SC 1) and "Ali Sher v. The State" (2008 SCMR 707) because the empties and crime weapon were sent together to FSL, which practice has been deprecated by the Supreme Court and this court time and again, and it has been held that no reliance can be placed on such recovery and FSL report.
8. Admittedly, the prosecution has not alleged the motive, which makes death of the
deceased mysterious, inferring us to believe that the prosecution witnesses have deliberately
suppressed the motive, thus, the sentence of life imprisonment awarded to the appellant is
sufficient enough to serve the purpose.
9. Upshot of the above discussion is that the prosecution has successfully proved the
charge against the appellant through ocular account of Javed Ahmed (PW -1), Amir Khan
(PW -2) and Sarfaraz Ahmed (PW- 3), confirmed by the medical evidence.
10. We have also critically examined the impugned judgment of the Trial Court, which
does not suffer from any error of fact and law, thus, we desist to meddle with the same.
11. For the foregoing reason, the appeal is dismissed, and conviction and sentence
awarded to the appellant by the Trial Court vide impugned judgment dated 23.08.2023 is
hereby maintained.
As the appeal has been dismissed, and conviction and sentence awarded to the
appellant by the Trial Court has been maintained, henceforth, we see no merit in the revision petition filed by the petitioner -complainant, thus, as a natural corollary, Criminal Revision
Petition No.33 of 2023 for enhancement of the sentence is dismissed.
JK/73/Bal. Appeal dismissed.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,
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