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