IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 330 of 2021

Appellant: Israr Ahmed through Ms. Abida Parveen Channar advocate

The State: Through Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh

Date of hearing: 25.11.2022

Date of judgment: 25.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant committed murder of his wife Mst. Seema by strangulating her throat, for that he was booked and reported upon by the police. On conclusion of trial, he was convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life as Tazir and to pay compensation of Rs.500,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382(b) Cr.P.C by learned I-Additional Sessions Judge/MCTC Karachi West vide judgment dated 14.12.2020, 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 complainant and he was convicted and sentenced by learned trial Court virtually on the basis of no evidence. By contending so, she sought for acquittal of the appellant by extending him benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant. However, 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 been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by Mst. Sanora Begum, the owner of the house where the incident took place, that the deceased was her tenant, on the date of incident, on hearing of cries of her baby, when she went to her room, it was found locked from inside, it was opened, therein was found the deceased lying dead; she then intimated the incident to her mother Mst. Razia Begum. It is stated by Mst. Razia Begum that she on having been called by Mst. Sanora Begum at her house, found her daughter Mst. Seema lying dead, she then first reported the incident to P.W Muhammad Ali and then to police, it was recorded by I.O/ASI Fakhar. Evidence so discussed above, prima facie suggests that none has actually seen the appellant committing the death of the deceased, therefore, it would be hard to maintain conviction against the appellant on the basis of their evidence. I.O/ASI Fakhar, who has conducted the initial investigation of the case, has not been examined by the prosecution, for the reason that he has been dismissed from the service. Dismissal of an employee from the service may not be a sufficient reason for his non-examination in a murder case. In that way, the appellant has been prejudiced in his defence seriously. It was stated by I.O/ Inspector Muhammad Nawaz that he apprehended the appellant and he by admitting his guilt pointed out the place of incident. If for the sake of arguments, it is believed that the appellant has actually admitted his guilt before the said I.O/Inspector, even then such admission on his part being inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order, 1984 could not be used against him. 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 shall be released forthwith if not required to be detained in any other custody case.

8. The instant appeal is disposed of accordingly.

JUDGE