IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 346 of 2019

Appellant: Muhammad Shahid through Khawaja Muhammad Azeem advocate

The State: Through Mr. Khadim Hussain Additional Prosecutor General Sindh

Date of hearing: 23.08.2022

Date of judgment: 23.08.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed death of his wife Mst. Nazia, by way of torture and strangulating her throat, for that he was booked and reported upon. After due trial, he for the said offence was convicted under Section 302 PPC and was sentenced to undergo rigorous imprisonment for life, which obviously could only be awarded under clause (b) of Section 302 PPC with fine of Rs.300,000/- to be paid to the legal heirs of the deceased as compensation and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382-B Cr.P.C by learned Sessions Judge, Karachi West vide judgment dated 21.05.2019 which is impugned by the appellant before this Court by preferring the instant Appeal.

2. It is contended by learned counsel for the appellant that the FIR of the incident has been lodged with delay of about 02 days; none has seen the appellant committing the death of the deceased; the postmortem over the dead body of the deceased was conducted by an authorized medical officer; the deceased has died on account of her fall from staircase and it has been given a cover of murder by the complainant party only to avenge its grudge against the appellant, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant, however, learned Addl. P.G for the state by supporting the impugned judgment has sought for dismissal of the instant appeal by contending that on arrest from the appellant has been secured the dupatta, whereby he committed death of the deceased by strangulating her throat and evidence so produced by the prosecution has rightly been believed by learned trial Court.

4. Heard arguments and perused the record.

5. The FIR of the incident has been lodged with delay of about 02 days, such delay having not been explained plausibly could not be overlooked. It was stated by complainant Mst. Zareena and her daughter Mst. Shazia Kanwal that on the date of incident they were called by the appellant in stress through cell phone to visit his house. On such information, they went to PW Majid and together with him then went at the house of appellant, there they found the dead body of the deceased lying on the cot, having injuries on her right side of forehead, eyes and red mark on neck, then they took the dead body of the deceased to Jinnah Hospital for postmortem to know the actual cause of the death. This piece of evidence prima facie suggests that none from the complainant party has actually seen the appellant committing the death of the deceased. At Jinnah Hospital, the postmortem on the dead body of the deceased was conducted by Dr. Rohina Hassan. She was fair enough to admit that on the date of incident she was posted at Abbasi Shaheed Hospital and was called there from to conduct postmortem on the dead body of the deceased at Jinnah Hospital at Karachi. Nothing has been brought on record in writing which may indicate that Dr. Rohina Hassan was actually called by the Authorities at Jinnah Hospital to conduct postmortem on the dead body of the deceased at Jinnah Hospital. In that context, it is contended by learned counsel for the appellant that all this was done at the instance of PW Majid who once happened to be an active worker of a political party to influence the postmortem report. As per SIP/SIP Muhammad Zahid he arrested the appellant who admitted his guilt before him and then produced the dupatta which he allegedly used in commission of incident, it was secured by him under mashirnama prepared in presence of PWs/mashirs Fakharuddin and Shabbir Hassan. Both of said P.Ws/mashirs, on account of their failure to support the case of prosecution were declared hostile. Not only this but, they had gone to the extent of saying that as heard by them the deceased has died on account of her fall from the staircase. The statement made by the appellant allegedly before the police official admitting his guilt being inadmissible could not be used as evidence against him in terms of Article 39 of the Qanun-e-Shahadat Order, 1984. PW Qasim Ali who is mashir to the place of incident and inquest report on the dead body of the deceased on account of his failure to support the case of prosecution was also declared hostile. In these circumstances, it could be concluded safely that the prosecution has not been able to prove the involvement of appellant in present case beyond shadow of doubt.

6. In case of Muhammad Asif vs the State (2008 SCMR 1001), it has been held by Hon’ble apex Court that;

“…..yet there is a delay of about two hours which has not been explained. Similarly P.W.7 stated during cross-examination that the police reached the spot at twelve noon and about half an hour was consumed in conducting inquest proceedings and thereafter the dead body was sent to the hospital. He further stated that he accompanied the dead body which was taken in a wagon to the hospital and that it took only 15 or 20 minutes in reaching the hospital. In that case the dead body would have been received at the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent witness, stated that he immediately started post mortem examination after the receipt of body and the time of post-mortem given by him was 4-50 p.m. that means that the body remained at the spot for quite some time. The F.I.Rs. which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations…...”

7. In case of Muhammad Mansha vs The State (2018 SCMR 772), it has been held by the Hon’ble Apex Court that;

“4….Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".

8. In view of above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside, consequently, he is acquitted of the offence, for which he was charged, tried and convicted by learned trial Court, he is in custody and to be released forthwith, if not required to be detained in any other custody case.

9. The instant appeal is disposed of accordingly.

JUDGE