2025 Y L R 295
[Balochistan]
Before Muhammad Hashim Khan Kakar, C.J and Shaukat Ali Rakhshani, J
HOTAK alias Sapak ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 330 and Murder Reference No. 8 of 2023, decided on 11th September,
2024.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Circumstantial evidence
confidence inspiring---Scope ---Accused was charged for committing murder of the cousin
of complainant by firing---Star witness deposed that on 19.12.2014, while he was talking to the deceased at 9 O' clock in front of her house, suddenly she received a fire shot from nowhere, and succumbed there and then, whereafter people gathered---Said witness also stated that a couple of days back, the accused called him and stated that he would kidnap or murder the deceased ---During cross -examination, said witness stated that there was no
boundary wall and only a room was there, where the deceased was residing with her
family ---Another witness stated that on the fateful day, he was logging the woods nearby
the place of occurrence, where he had seen the accused with a gun in his hand, who proceeded towards the house of deceased, whereafter at about 9:00 am, he heard fire shots, which were fired by the accused, culminating into the death of deceased ---Said
witness further stated that when he went to the house of the deceased, he had seen other witness present there at the crime scene, where the deceased was lying in a pool of blood -
--Despite lengthy cross -examination, the testimony of both the said witnesses could not
be shaken as no favorable answer could be extracted to exonerate the accused from the incident ---Natural account given by both of the said witnesses inspired confidence and
was worth credence, whereof no inference could be drawn that they had falsely implicated the accused, because neither there was any enmity of star witness and other witness with the accused nor there was any reason for them to falsely implicate the accused ---Circumstances established that the prosecution had proved the indictment
against the accused, however the capital sentence was modified by reducing the same to that of life imprisonment ---Appeal was dismissed with said modification in sentence, in
circumstances.
(b) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Medical evidence corroborating
unnatural death of deceased---Accused was charged for committing murder of the cousin of complainant by firing--- Medical evidence produced by Medical Officer confirmed the
unnatural death of the deceased caused by firearm ---Defence had also not controverted the
cause of death of the deceased by fire shot ---Bloodstained clothes and blood stained earth of
the deceased vide recovery memos., further confirmed the unnatural death of the deceased ---
Circumstances established that the prosecution had proved the indictment against the accused, however the capital sentence was modified by reducing the same to that of life imprisonment--- Appeal was dismissed with said modification in sentence, in circumstances.
(c) Penal Code (XLV of 1860)---
----S. 302(b) ---Criminal Procedure Code (V of 1898), Ss. 164 & 364---Qatl -i-amd---
Appreciation of evidence ---Confessional statement of accused recorded after complying with
all could formalities ---Accused was charged for committing murder of the cousin of
complainant by firing--- Motive of incident was refusal of deceased to marry the accused ---
Confessional statement of the accused had been recorded by Judicial Magistrate on 04.08.2022--- Judicial Magistrate produced forwarding letter, performa of the questionnaire,
confessional statement of accused under S.164, Cr.P.C and certificate---Judicial Magistrate
had adhered to the requisites for recording confessional statement as contemplated under S.364 of Cr.P.C and had followed the directions as enunciated in the High Court (Lahore) Rules and Orders ---After critical analysis of the testimony of Judicial Magistrate, it was
found that the confessional statement of the accused was recorded voluntarily without any
promise, duress and coercion--- After due scrutiny of the confessional statement of the
accused, the same was found to be recorded not only voluntarily, but was true as well, which
co-incided with the testimony of star witness and others, revealing murder of the deceased
due to firearm on refusal to marry the accused in front of her house ---Circumstances
established that the prosecution had proved the indictment against the accused, however the capital sentence was modified by reducing the same to that of life imprisonment ---Appeal
was dismissed with said modification in sentence, in circumstances.
(d) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Recovery of crime weapon on the
disclosure of accused ---Recovery witness not produced---Accused was charged for
committing murder of the cousin of complainant by firing---Investigating Officer testified that on 26.07.2022, during interrogation, the accused made disclosure, whereof memo. of disclosure was prepared ---Recovery witness of recovery memo,whereby copy of the
statement of witnesses recorded under S.161, Cr.P.C, pertaining to the recovery of crime weapon i.e., Rifle 303 bore, was made on the pointation of accused from his house on 27.07.2022--- Prosecution in order to establish the recovery had not produced the recovery
witnesses---Moreso, neither statement of recovery witnesses had been produced in the present case nor they were produced before the Court to testify with regard to the recovery
made by the accused from his house, thus the entire exercise by producing the copies of the said recovery was worthless, which could not be read as evidence, more particularly, when the crime weapon had not been produced in the present case ---Circumstances established that
the prosecution had proved the indictment against the accused, however the capital sentence was modified by reducing the same to that of life imprisonment ---Appeal was dismissed with
said modification in sentence, in circumstances.
(e) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Sentence, reduction in--- No direct
evidence of firing at the deceased ---Scope ---Accused was charged for committing murder
of the cousin of complainant by firing--- There was no direct evidence of witnessing the
accused to have had fired at the deceased ---Requisite evidence for awarding capital
punishment was not fulfilled--- Thus, the quantum of punishment awarded by the Trial
Court to the accused seemed unwarranted ---Circumstances established that the prosecution
had proved the indictment against the accused, however the capital sentence was modified by reducing the same to that of life imprisonment ---Appeal was dismissed with said
modification in sentence, in circumstances.
Muhammad Riaz v. The State 2007 SCMR 1413; Mir Muhammad alias Miro v. The
State 2009 SCMR 1188 and Ghulam Mohy- ud-Din alias Haji Babu v. The State 2014 SCMR
1034 rel.
Ashraf Dad Kakar for Appellant (in Criminal Appeal No. 330 of 2023).
Abdul Latif Kakar, Additional Prosecutor General ("APG") for the State (in Criminal
Appeal No. 330 of 2023).
Abdul Latif Kakar, APG for the State (in Murder Reference No. 08 of 2023).
Ashraf Dad Kakar for Respondent (in Murder Reference No. 08 of 2023).
Date of hearing: 8th August, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J.---The captioned Criminal Appeal and Murder
Reference emanates from the judgment dated 27.07.2023 ("impugned judgment") rendered
by learned Sessions Judge, Killa Saifullah ("Trial Court"), whereby the appellant was convicted and sentenced under section 302(b) of Pakistan Penal Code, 1860 ("P.P.C.") to death as 'Tazir', with the direction to pay Rs.500,000/ - (Five hundred thousand) to legal heirs
of deceased Gul Baghcha as compensation as contemplated under section 544 -A of the
Criminal Procedure Code, 1898 ("Cr.P.C."), and in default thereof, to further suffer six (06)
months S.I with the premium of section 382- B of Cr.P.C., pursuant to FIR No.25 of 2014
(Ex.P/10- A), registered with Levies Station Killa, Saifullah for committing murder of Gul
Baghcha daughter of Nazak (PW -5).
The murder reference has been sent by the Trial Court for confirmation or otherwise
to this Court as contemplated under section 374 of Cr.P.C.
2. Unfurled facts of the case at hand are that complainant Sultan Muhammad (PW -1) got
lodge the FIR ibid on 19.12.2014 with Levies Station, Killa Saifullah, averring therein that
on 19.12.2014 at about 09:00 am accused Hotak alias Spak reached near the house of his cousin namely Nazak located at Sohi Mountain, Killa Saifullah and fired upon the daughter of Nazak namely Gul Baghcha due to which she succumbed to injuries. The motive of incident was refusal of Gul Baghcha (deceased) to marry the appellant.
3. After registration of the case, the investigation was entrusted to Muhammad Asad
Ullah Tehsildar, (PW- 10), who arrived at the Civil Hospital and secured bloodstained
Kameez (Ex.P/6 -A) and prepared inquest report (Ex.P/10- B). On 20.12.2014, he went to
crime scene, prepared site plan (Ex.P/10 -C), took into possession blood stained earth vide
recovery memo. (Ex.P/6- B), recorded statements of witnesses under section 161 of Cr.P.C.
He also procured Medico Legal Certificate ("MLC") and prepared incomplete challan (Ex.P/10- D). The accused remained absconder for a period of about eight years and during
raid of levies, the appellant was arrested on 20.07.2022 after exchange of fire, culminating
into the murder of Habib Ullah, Naib Risaldar and causing firearm injuries to two levies
personnel.On 26.07.2022, the appellant made disclosure (Ex.P/7- A), and on 27.07.2022 got
recovered the crime weapon i.e., .303 bore Rifle vide recovery memo. (Ex.P/8- A) from his
house and produced the same as Art.P/8 -1 to Art. P/8- 4.
The appellant failed to produce valid license, therefore, a separate FIR No.25 of 2022
was registered against the appellant under section 13 (d) of the Arms Ordinance, 1965. On
04.08.2022, the appellant got recorded his confessional statement (Ex.P/9- C). before
Muhammad Rehman Judicial Magistrate ("JM"), Killa Saifullah.
4. After conclusion of the investigation, the appellant was sent up to the Trial Court to
face the deeds of his crimes, where the appellant entered the plea of denial, thus, the prosecution in order to bring home the charge produced as many as eleven (11) witnesses. After close of the prosecution side, the appellant was examined under section 342 of Cr.P.C, who neither recorded his statement on oath nor produced any defence, henceforth, the Trial Court vide impugned judgment dated 27.07.2023 convicted and sentenced the appellant in the terms mentioned in para supra.
5. Learned counsel for the appellant inter alia contended that the accused has falsely
been implicated in the instant case. He added that there are material contradictions in the statement of socalled eye -witnesses, which has made the instant case highly doubtful. He
also argued that story of prosecution is improbable and testimony of the said witness absolutely does not coincide with each other. He repelled recording of confessional statement or making recovery of the crime weapon and urged that the recovery has been foisted to falsely strengthened 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 at naught the impugned judgment dated 27.07.2023, and in consequence thereof appellant be acquitted of the charge.
Conversely, learned APG strenuously opposed and resisted the arguments of the
learned counsel for the appellant and argued that the prosecution has successfully prove the indictment on the basis of evidence coupled with the recovery of crime weapon with positive ballistic report. He also urged that the judgment of the Trial Court is based on well
reasoning, which does not require to be meddled with, and lastly prayed for dismissal of the
appeal.
6. Heard. Record sussed out with the able assistance of learned counsel for the parties.
7. The case of the prosecution mainly hinges upon the evidence of Zain Ullah (PW -2),
circumstantial witnesses Sultan Muhammad (PW -1), Essa Muhammad (PW- 3), Nazuk (PW -
5) and Dr. Abdul Majid Khan (PW -4), who issued Medico Legal Certificate ("MLC") of
deceased (Ex.P/4 -A) as well as Sher Ali (PW -06) Levies Constable ("LC"), Abdul Majeed
LC (PW -7), in whose presence disclosure memo. (Ex.P/7- A) was prepared, confessional
statement of the appellant (Ex.P/9 -C) recorded by Muhammad Rehman JM (PW -9),
Muhammad Essa Naib Risaldar second Investigation Officer ("IO") (PW -11), in whose
presence rifle being crime weapon was recovered.
8. Complainant Sultan Muhammad (PW -1) and Nazuk (PW -5) have not witnessed the
occurrence. Sultan Muhammad (PW- 1) testified that on 19.12.2014, his cousin Gul Baghcha
was done to death at about 9:00 am at her house situated at Sohi Mountains by fire shot of rifle. During cross -examination, he categorically replied that he did not witness the
occurrence. Nazuk (PW -5) is father of the deceased, who stated that a year back, while after
returning back from grazing his cattle, he found out that his daughter was killed by appellant Hotak alias Spak at about 9:00 am. He also testified that before the occurrence, the appellant had threatened him several times to solemnize the marriage of his deceased daughter with him. Zain Ullah (PW -2) is the star witness, who deposed that on 19.12.2014, while he was
talking to the deceased at 9 O' clock in front of her house, suddenly she received a fire shot
from nowhere, and succumbed then and there, whereafter people gathered. He also stated
that a couple of days back, the appellant called him and stated that he would kidnap or
murder Gul Baghcha (deceased). During cross -examination, he stated that there was no
boundary wall and only a room was there, where the deceased was residing with her family.
Essa Muhamamd (PW -3) stated that on the fateful day, he was logging the woods nearby the
place of occurrence, where he saw the appellant having a gun in his hand, who proceeded
towards the house of deceased Gul Baghcha, whereafter at about 9:00 am, he heard fire shots, which were fired by the appellant, culminating into the death of deceased. He further stated that when he went to the house of the deceased, he saw Zain Ullah (PW -2) to be
present there at the crime scene, where the deceased was lying in a pool of blood. Despite lengthy cross -examination, the testimony of the both the aforementioned witnesses could not
be shaken as no favorable answer could be extracted to exonerate the appellant from the incident. The natural account given by both of the said witnesses inspires confidence and worth of credence, whereof no inference can be drawn that they had falsely implicated the appellant, because neither there was any enmity of Zain Ullah (PW- 2), and Essa Muhammad
(PW -3) with the appellant nor there was any reason for falsely implicating the appellant by
them. The motive alleged by the father (PW -5) of the deceased co -inside with the testimonies
of aforesaid witnesses regarding murder of the deceased on the pretext of refusal to marry the appellant.
9. The medical evidence produced by Dr. Abdul Majid Khan (PW -04) confirms the
unnatural death of the deceased caused by firearm. The defence has also not controverted the cause of death of the deceased by fire shot. Dr. Abdul Majid Khan (PW -04) deposed that on
19.12.2014 at about 11:35 pm, the dead body of deceased Gul Baghcha was brought by the levies officials and her relatives, whereafter examining the deceased, he issued MLC (Ex.P/4 -A), which reads as under:
"On examination.
A small circular wound of entry on back of (left) armpit (above) and a large wound of exit on front of chest slightly on right side of lower chest.
Pupil Dilated
BP Nil
Pulse Nil
Respiration Nil
So dead is certified
Duration: Fresh
Weapon used: Firearm (Hard and Blunt)
Cause of death: Respiration and circulatory failure."
On 19.12.2014, Sher Ali LC (PW -6) secured bloodstained clothes and blood stained
earth of the deceased vide recovery memos. (Ex.P/6 -A) and (Ex.P/6 -B), which further
confirms the unnatural death of the deceased.
10. Confessional statement of the appellant has been recorded by Muhammad Rehman
JM (PW -09) on 04.08.2022. JM (PW -09) produced forwarding letter (Ex.P/9- B), Performa of
the questionnaire (Ex.P/9- C), confessional statement of appellant under section 164 of
Cr.P.C. (Ex.P/9 -A) and certificate (Ex.P/9 -D). JM (PW -09) has adhered to the requisites for
recording confessional statement as contemplated under section 364 of Cr.P.C, and has
followed the directions as enunciated in the High Court Rules and Orders. JM (PW -09) has
asked question Nos.10 and 11 in the Performa of the questionnaire (Ex.P/9- C), relating to the
fact that in case of refusal to record the statement, the appellant would not be handed over to
the levies officials. After critical analysis of the testimony of JM (PW -09), we have found the
confessional statement of the appellant to have been recorded voluntarily without any
promise, duress and coercion. After due scrutiny of the confessional statement of the
appellant, we have found the same to be recorded not only voluntarily, but true as well,
which co- inside with the testimony of Zain Ullah (PW -2) and Sultan Muhammad (PW -1),
Essa Muhammad (PW -3) and Nazuk (PW- 5), revealing murder of the deceased Gul Baghcha
due to firearm on refusal to marry the appellant in front of her house.
11. As far as the disclosure of the appellant is concerned, Abdul Majeed LC (PW- 7)
testified that on 26.07.2022, during interrogation, the appellant made disclosure, whereof memo. of disclosure (Ex.P/7- A) was prepared. Wazir Ahmed LC (PW- 8) is recovery witness
of recovery memo. (Ex.P/8 -A), whereby copy of the statement of witnesses recorded under
section 161 of Cr.P.C., pertaining to the recovery of crime weapon i.e., Rifle .303 bore, made on the pointation of appellant from his house on 27.07.2022, which were produced as Art.P/8 -1 to Art.P/8 -4. The prosecution in order to establish the recovery has not the
produced the recovery witnesses namely LCs Muhammad Ismail and Abdul Qayyum. Moreso, neither their statement have been produced in the instant case nor they were produced before the court to testify with regard to the recovery made by the appellant from his house, thus the entire exercise by producing the copies of the said recovery is worthless, which cannot be read as evidence, more particularly, when the crime weapon has not been produced in the instant case.
12. Irresistibly, we have arrived at the conclusion that the prosecution has proved the
indictment against the appellant on the basis of the evidence of Zain Ullah (PW -2) coupled
with the circumstantial evidence of Sultan Muhammad (PW -1), Essa Muhammad (PW -3) and
Nazuk (PW- 5), confirmed by the medical evidence, and last but not the least the voluntary
and true confessional statement of the appellant, which has rightly been appraised by the Trial Court, while rendering the impugned judgment.
However, we do not concur with the quantum of punishment awarded by the Trial
Court to the appellant, which seems unwarranted, while keeping in view the attending circumstances, there being no direct evidence witnessing the appellant to have had fired, and the requisite evidence for awarding capital punishment. In this regard, we are fortified with the view expounded in the cases of "Muhammad Riaz v. The State" (2007 SCMR 1413), "Mir Muhammad alias Miro v. The State" (2009 SCMR 1188) and "Ghulam Mohy- ud-Din
alias Haji Babu v. The State" (2014 SCMR 1034). For ready reference, the relevant excerpt of Ghulam Mohy- ud-Din alias Haji Babu's case supra is facsimile hereunder;
"21. A single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life
imprisonment. No clear guideline, in this regard can be laid down because facts and
circumstances of one case differ from the other, however, it becomes the essential obligation of the Judge in awarding one or the other sentence to apply his judicial
mind with a deep thought to the facts of a particular case. If the Judge/Judges
entertain some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possible, rather to put it at end, by assessing the evidence, facts and circumstances
of a particular murder case, under which it was committed."
13. For what has been discussed hereinabove, the appeal is dismissed, and the conviction
awarded to the appellant 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.
Corollary, Murder Reference No.08 of 2023 sent by the Trial Court for confirmation
of the capital punishment is answered in negative.
JK/88/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.