Bakhmal Badshah Vs The State & others

Judgment Sheet l (Jndicial Department)

Cr. A No.131-B/2025 with Murder Reference No.04-B/2025.

Bakhmal Badshah Vs The State & others.

For Appellant:

For Respondents

For State:

counsel.

Date ofhearing: 09.12.2025

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ABDUL FAYAZ, l.- Appellant, Bakhmal Badshah, was tried by the leamed Additional Sessions Judge-I, Karak for the offences under sections 3021324 PPC in case FIR No.362 dated 24.07.2021 registered with police station Karak, District Karak and vide judgment dated 31.05.2025, the appellant was convicted under section 302 (b) PPC and sentenced him to death as Qisas along with payment of Rs. 5,00,000/- (Rupees Five Lacs) as compensation under section 544-A Cr.P.C to the legal heirs of deceased or in default

thereof the accused shall further undergo 06 months S.I. The appellant was also convicted under section 324 PPC and sentenced to 07 years simple imprisonment. The sentences were ordered to run concurrently and benefit under section 382-8 Cr'P'C was also extended to the appellant.

2.Through the instant appeal, the appellant has questioned the legality of the impugned judgment and the awarded sentence, whereas, the leamed trial Court has sent the connected Murder Reference No'04- 9/2025 under section 374 C:.P.C for confirmation of the death sentence or otlerwise, therefore, we intend to decide both the appeal and murder reference through this single judgment'

3.Brief facts as per FIR are that on 24'07 '202l,the complainant Mir Wali Khan along with dead body of his brother Kholgi Shah reported the incident to the local police in emergency room KDA Hospital Karak, to the effect that on the eventful day he along with his brother deceased lftolgi Sha?r went to check their pressure pump. At about 15:30 hours, as soon as they reached the pressure pump, he saw accused Bakhmal Badshah duly armed with Kalashnikov, who on seeing

the complainant party opened firing at them with his Kalashnikov with intention to commit their murder' As a result of which his brother Kholgi Shah got hit and died on the spot while the complainant remained unhurt luckily. The complainant being empty handed could do nothing. The accused after commission of the offence decamped fiom the spot. Motive for the occurence was stated to be dispute over landed properly. Hence, the FIR was registered.

4.After registration of the FIR, Rashid Ullah I'O (PW-14) on receipt of murasila report and copy of FIR for investigation, he along with police Nafri proceeded to the spot. He prepared site plan Ex.PB as per instance and pointation of complainant which is correct with all its foot notes. During spot inspection he secured some blood stained sand from the place of deceased and sealed the same in parcel No.01 Ex'Pl through recovery memo Ex.PW8/I. He also secured and took into his possession 09 crime empties near the place of accused shown at point A of the site plan and sealed the same in parcel No.02 Ex.P2 througlr the above memo. He has also taken into possession post mortem documents and blood stained gaments of the

deceased, produced by constable Noor Islam at KDA Hospital Karak where he sealed the garments of deceased in parcel No.03 Ex.P3. He recorded statements of PWs tmder section 16l Cr.P'C' He conducted search of the house of accused but neither accused was found nor anything incriminating was found therefrom. He has sent parcels No.l to 3 containing blood stained items to FSL Peshawar vide his application Ex.PWl4/l and route certificate Ex.PWl4/2 for chemical analysis and the report received whereof is Ex.PK. He has sent parcel No.02 containing 09 empties vide his application Ex.PWl4/3 and route certificate ExPWl4/4 to FSL Peshawar for report and the report received is Ex.PZ' He has applied for obtaining warrant uls 204 Cr.P.C and proclamation notice u/s 87 Cr'P.C against the accused vide his application ex.PWl4/5 and Ex.PWl4/6 respectively.

5.Having found the accused involved during investigation, the Investigating Officer prepared report under section 173, CI.P,C and sent the same to the Court of competent jurisdiction. After arrest of accused, he was produced before the tial Court in custody. Copies uls 265-C Cr.P.C were given to the

accused and charge was framed against him, to which he pleaded not guilty and claimed trial. The prosecution to substantiate its charge against the appellant examined fifteen (15) witnesses.

6.Ocular account of occurrence in this case has come out from the statement of complainant, Mir Wali lJran (PW-11) and Dr. Raheem Badhsah (PW-9), conducted autopsy on the dead body ofthe deceased- Kholgi Shah on 27.07.2021 at 04:45 p.m. and found the following:

Symptoms observed before death: Nil.

Information furnished by police: Fire Arms Injuries (FAr)

Extemal appearance:

Mark of Ligature on neck: Nil.

Condition of subject Stout.

Injuries.

An en@ wound on medial aspect of left thigh lxl c.m about .30 c.m below the iliac crest.

Exit wound: 5x5 c.m on lateral aspect of left thigh.

Cranium and spinal card.

Scalp, skull and vertebrae: No injury.

Membranes-Brain, spinal cord: Memebran and brain damaged. No injury.

Thorax: Intact.

Abdomen: Intact.

Muscles, bones, Joints:

Bones: Normal while muscles u{ured.

Dislocation: Nil.

Remarks: Fire arm injury to the teft lower limb, medial aspect of thigh resulting in great vessels injuries leading to huge blood loss which resulted in hypo volemic shock and cardio respiratory failure.

Probable time between injury and death: One hour' Probable time between death and PM: Ilalfhour' The post mortem report Ex.PM consisting upon 06 sheets including pictorial which is conpct and correctly bear his sigtature. He also endorsed the injury sheet already Ex.PW4/1. After PM he handed over the PM documents along with blood stained garments of deceased to police.

The statements of remaining witnesses are formal in nature.

7.After close of prosecution evidence, statement of accused/ appellant Bakhmal Badshah was recorded

under section 342 Cr.P'C. He denied the allegations leveled against him. However, he neither opted to be examined on oath under section 340 (2) Cr.P'C nor wished to produced defence evidence.

8.The leamed triat Court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prcsecution case proved beyond shadow of reasonable doubt resulting into conviction of the above stated appellant in the aforesaid terms. Hence, the instant Criminal Appeal and Murder Reference.

g. We have heard leamed counsel for the parties along with leamed State counsel at length and with their valuable assistance, the record was gone through.

10.In support of its case, the prosecution produced fifteen witnesses. However, according to the prosecution, the material witnesses having a direct bearing on the matter are Dr. Raheem Badshah (PW-9), who conducted the post- mortem examination of the deceased Kholgi Shah, the complainant (PW-ll), and the Investigating Officer (PW- l4).

ll. The complainant, Mir Wali Khan, appeared as PW- ll. He stated that the deceased, IGolgi Shah, was his brother. The accused is their patemal cousin, and one of the complainant's sisters is married to the brother of the accused. to him, on 24-07-2021, he and his deceased brother went to inspect their pressure pump. At about 03:30 p.m., upon reaching the spot, the accused, Bakhmal Badshah son of Khial Badshah, armed with a Kalashnikov, suddenly appeared and opened fire on them with the intention to commit their Qatl-e-Amd. As a result, his brother, Kholgi Shah, sustained firearm injuries and died on the spot, whereas the complainant escaped unhurt. The accused fled away from the scene after tlte occurrence' Being unarmed, the complainant could not retaliate' The stated motive was a dispute over landed properly. The complainant claimed to be an eyewitness of the incident.

12.After the occurrence, the shifted the dead body of his brother to KDA Hospital, Karak, where at 04:25 p.m. he reported the matter to the police in the hospital's emergency room. His statement was recorded in the form of murasila report (already Ex.PA)' The statement was read over to him, and upon finding it correct, he affixed his thumb impression. His nephew, Muhammad Faizan (son

of the deceased), also thumb-impressed the report as a rider.

The complainant identified the dead body before the police as well as the medical offrcer. He joined the investigation and pointed out the place of occurence, whereupon the Investigating Officer prepared the site plan on his pointation. During spot inspection, the Investigating Officer found blood at the place where the deceased had fallen and secured nine empty shells of 7.62 borc- The Investigating Offrcer also recorded the complainant's statement. The complainant charged the accused for committing the x

{ offence.

13.A perusal of the evidence reflects that the complainant promptly reported the matter at KDA Hospital, Karak, narrating that on 24'07-2021 he and his late brother had gone to inspect their pressure pump, and at about 03:30 p.m. the accused suddenly appeared armed with a Kalashnikov and opened fire with the intention to kill them' His brother was hit and died on the spot, while he escaped unharmed. While appearing as PW-ll, the complainant remained firm on the material particulars of the case, and there is no reason to disbelieve his testimony, which stands corroborated by ocular, medical, and circumstantial evidence. The defence has not seriously disputed the

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incident itself and has merely challenged the manner and mode of occurrence. No substantial challenge to the fact of the incident has been brought on record.

14.In cases involving a single accused, substitution is a rare phenomenon in offences under Section 302 PPC. The real culprits are seldom spared while innocent persons are falsely implicated. The complainant has assigned a clear motive of a property dispute, and there is nothing to suggest that the accused has been falsely or maliciously charged or that the actual culprit has been spared. The complainant and the deceased were real brothers residing in a joint household. In District Karak, due to absence of irrigation canals, people commonly irrigate their lands through wells and members ofjoint families work together in their fields.

In these circumstances, the complainant's presence at the time and place ofoccurrence appears natural.

15.The prosecution evidence is consistent and free from doubts. Although the eyewitness was subjected to lengthy cross-examination yet his credibility remained intact, and his testimony on all material particulars could not be shaken. The FIR was lodged promptly, soon after the deceased was shifted to KDA Hospital, Karak, leaving no

rdom for deliberation or false implication' The record is also silent regarding any mala fide, i[ will, or animosity significant enough to falsely implicate the accused'

16.It is an admitted and undisputed fact on the record that at the time of spot inspection, the Investigating Officer recovered nine (09) crime empties from the place of occurence. The said empties were taken into possession through recovery memo Ex'PW-8/I. Thereafter, the same were sent to the Forensic Science Laboratory @SL) for examination. As per the FSL report Ex'PZ, all the nine crime empties, marked C-l to C-9, were found to be of 7 '62 mm bore and it was opined by the expert that all the said empties were fired fiom one and the same7.62 mm bore weapon, which fully supports and corroborates the version of the complainant and establishes that a single assailant was involved in the commission of the offence' This fact further stands confirmed by subsequent events, when the appellant was arrested and the weapon of offence, i'e', a Kalashnikov rifle, was recovered from his possession' Regarding the said rccovery, a separate case bearing FIR No. 400 dated 15.07.2013, under sections 324,353 PPC and 15-AA, Police Station Karak, was registered against the appellant. Although the trial of the said case was conducted

by the leamed Judicial Magistrate, yet it is evident from the record that the appellant was convicted and sentenced therein. The recovery memo and other relevant documents relating to the said recovery have been duly placed on the record of the instant murder case. After recovery' the said weapon along with recovered crime empties were again sent to the FSL for ballistic The FSL report

conclusively proved that the crime empties recovered from the place of Wardat were fired from the same 7'62 mm (SMG) rifle bearing No. 66-56-l-14087892, which was recovered from the possession ofthe appellant. Thus, from all angles, the prosecution has successfully proved its case against the appellant through ocular as well as strong corroborative forensic evidence, leaving no room for doubt' The guilt of the appellant stands established beyond any shadow ofdoubt.

17.According to the post-mortem report Ex'PM, the deceased sustained a single entry wound on the medial aspect of the left thigh, measuring I x I cm, about 0'30 cm below the iliac crest-a non-vital part of the body' This constitutes a mitigating raising the question of why the accused did not target a vital part if his exclusive intention was to commit murder. The fact that only one

e injury was inflicted also supports the presence of mitigating circumstances warranting reduction of sentence' In this regard, reliance is placed upon the judgment of the Honourable Supreme Court in Dilawar Hussain vs' The State (2013 SCMR 1582), wherein it was held:

"It has neither been the mandate of law nor the dictates of this Court as to what quantum of is required for awarding imprisonment for life rather even an iota towards the mitigation is sufficient to justify the lesser sentence. According to our estimation even a single stance providing mitigation or extenuating circumstance would be sufficient to award lesser as an abundant caution. In such circumstances, if the court is satisfied that there are certain reuuions due to which death sentence is not warranted, the court has no other oPtion but to impose second sentence of imprisonment for life while extending benefit of the circumstances to the convict in a just and fair manner.tt

Likewise, in Ghulam Mohy-ud-Din vs. State (2014 SCMR 1034), the aPex Court held:

I'A single circumstance, available in a case, would be sufficient to Put on guard the Judge not to award the Penalty of

death but life 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 aPPIY his judicial mind with a deeP thought to the facts ofa particular case. If the Judge/Judges entertain some doubt, albeit not sufficient for acquittal, judicial caution must be exercised toaward the altemative sentence oflife lest an innocent person might not be sent to the gallows. So it is better to resPect tJre 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 iTI

In Muhammad Sanvar alias Saru vs. The State (2016 SCMR 210), the Honourable Supreme Court reduced the death sentence to life imprisonment on the grounds that the appellant had already served a substantial portion of and that the motive had not been proved.

18.Upon re-appraisal of the entire evidence, it is concluded that the testimony of the complainant @W-11) remained consistent on all material particulars and stands coroborated by the medical and circumstantial evidence' There is nothing on record to suggest that the

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substituted the accused for the real culprit. However, since the deceased received a single injury on a non-vital pan of the body, so we are constrained to hold that a mitigating circumstance does exist. Therefore, the conviction under Section 302-9 PPC and the sentence of death awarded to the appellant as Tazir is not sustainable. The appellant is, however, liable to conviction under Section 302(b) PPC, but the proper sentence in the circumstances is imprisonment for life. consequently, the death sentence is modified to imprisonment for life, and the death reference is declined' Benefit of Section 382-B Cr.P.C. is extended to the appellant-convict. The compensation awarded under Section 544-ACr.P.C. shall remain intact'

lg. With this modification, the appeal is partially allowed, and the Murder Reference for confirmation of the

death sentence is answered in the NEGATM'

Announced 09.12.202s. lll- ?r -Sd- *Ilxan* Judge

-Sd- Judge

t\

Ag0'a

JUDGE

(D.B)

Hon'ble Mr, lustice MuhqmmodToriq Afrldi

Hon'ble Mr. tustice Abdul FoYoz'

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