IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 150 of 2021
Appellant: Muhammad
Zahir through Mr. Naeem Akhtar Tanoli advocate
The State: Through
Mr. Faheem Hussain, Deputy Prosecutor General Sindh
Date of hearing: 14.11.2022
Date of judgment: 14.11.2022
J U D G M E N T
IRSHAD ALI SHAH, J- It is alleged that the appellant has
committed murder of his wife Mst. Parveen, by strangulating her throat, for
that he was booked and reported upon. On conclusion of trial, he was convicted
under Section 302(b) PPC and was sentenced to undergo rigorous imprisonment for
life and to pay compensation of Rs.10,00,000/- to the legal heirs of the
deceased with benefit of section 382(b) Cr.P.C by learned V-Additional Sessions
Judge, Karachi East vide judgment dated 24.02.2021, 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 appellant being innocent has been involved in this case
falsely by the police; the FIR of the incident has been lodged with delay of
about 05 hours and the appellant has been convicted and sentenced by learned
trial Court virtually on the basis of no evidence, therefore, he is entitled to
be acquitted. In support of his contentions, he relied upon case of Hayatullah vs. The State (2018 SCMR 2092).
3. Learned D.P.G for the state by supporting
the impugned judgment has sought for dismissal of the instant appeal by
contending that the prosecution has fully established its case against the
appellant beyond shadow of reasonable doubt.
4. Heard arguments and perused the record.
5. It was stated by P.W HC Masood Illahi
that when he was passing by the side of the house of the appellant, noticed
digging of earth therein, he went inside and found the appellant digging the
earth by the side of the dead body of his wife Mst. Parveen and then made his
escape good, he intimated the incident to I.O/SIP Muhammad Siddique of P.S Gulistan-e-Johar,
who came at the place of incident and then they took the dead body of the
deceased to the hospital and then lodged report of the incident, it was with
delay of about 05 hours. Whatever is stated by P.W/H.C Masood Illahi takes
support from the evidence of I.O/SIP Muhammad Siddique. If their evidence is
believed to be true, even then, it prima facie suggests that they are not eye
witnesses to the actual death of the deceased allegedly at the hands of the
appellant. Evidence of P.W/mashir Nabi Bux is not lending any support to the
case of prosecution for the reason that as per him his signatures were obtained
by the police on certain papers without reading the contents whereof. It was
stated by I.O/Inspector Abdul Ghani that he apprehended the appellant and secured
from him string etc. which he allegedly used in commission of incident. It was
further stated by him that the appellant during course of investigation,
confessed his guilt before him by stating that he has committed murder of his
wife Mst. Parveen by causing her ‘danda’ blow and strangulating her throat as
she was disobedient. On medical examination, no ‘danda’ blow as per Medical
Officer Dr. Nasreen Qamar was found on person of the deceased. If for the sake
of arguments, it is believed that the appellant actually has confessed his
guilt before I.O/Inspector Abdul Ghani, even then such confession being
inadmissible in terms of Article 39 of the Qanun-e-Shahadat Order, 1984 could
not be used against him as evidence. The recovery so made from the appellant is
alleged to have been foisted upon him by the said I.O/Inspector being easily
available in market. The appellant in his statement recorded under Section 342
Cr.P.C has denied the prosecution’s allegation by pleading innocence by stating
that he came back his house found his wife Mst. Parveen dead and in order to
such plea, he has also examined D.Ws Sajjad Khan and Ikhtekhar in his defence. Whatever
is stated by the appellant and his witnesses is considered with the evidence of
prosecution in juxtaposition, then it appears to be somewhat weighty. In these
circumstances, it would be safe to conclude that the prosecution has not been
able to prove its case against the appellant beyond shadow of doubt.
6. In
the 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".
7. In
view of the facts and reasons discussed above, the conviction and sentence
awarded to the appellant by way of impugned judgment are set aside,
consequently, he is acquitted of the offence with which he was charged, tried,
convicted and sentenced by learned trial Court; he is in custody to be released
forthwith if not required to be detained in any other custody case.
8. The
instant appeal is disposed of accordingly.
JUDGE