IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 09 of 2021

Appellant: Idrees Ali through Mr. Habib-ur-Rehman Jiskani advocate

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

Date of hearing: 28.11.2022

Date of judgment: 28.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of prosecution that the appellant allegedly committed murder of Muhammad Ilyas by inflicting him knife injuries, for that he was booked and reported upon by police. On conclusion of trial, he was convicted under Section 302(b) PPC and sentenced to undergo rigorous imprisonment for life as tazir and to pay compensation of Rs.200,000/- 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 15.11.2019, which is impugned by the appellant before this Court by preferring the instant jail appeal.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case by the complainant, there is no eye witness of the incident and knife has been foisted upon the appellant by police at the instance of the complainant party. By contending so, he 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 Addl. P.G for the state by supporting the impugned judgment has sought for dismissal of instant appeal by contending that the appellant has confessed his guilt before the complainant and police.

4. Heard arguments and perused the record.

5. It is stated by complainant Mst. Shamim Akhtar that she was married with the appellant, after seeking divorce from him, she married with the deceased, for that reason the appellant developed grudge; on the date of incident, when she was available at her house, there came the appellant with a knife in his hand and told her that he has committed the death of the deceased and his dead body to be collected from corner of the street and by stating so, he also caused knife injury to her at her abdomen and then fled away by threatening the Mohalla people. Evidence of the complainant takes support from evidence of P.W Daniyal to the extent that the appellant came at their house, intimated the complainant about the incident and then fled away by inflicting knife blows to the complainant by threatening the Mohalla people. P.W Fayyaz on asking was fair enough to admit that he was not intimated by anyone as to who has committed murder of his brother the deceased. Their evidence prima facie suggests that they have not actually seen the appellant committing the death of the deceased. Nothing has been brought on record, which may prove that the complainant was also inflicted knife injury at her abdomen by the appellant in a manner as is alleged by the complainant and P.W Daniyal. No person from Mohallah has been examined by the prosecution to prove that the appellant made his escape good from the place of incident after threatening them. In that situation, the evidence of the complainant and his witnesses being doubtful in its character could hardly be relied upon to maintain conviction. It was stated by I.O/SIP Abdul Rasheed that he apprehended the appellant and during course of inquiry, he by admitting his guilt became ready to incriminating knife. If for the sake of arguments, it is believed that the appellant has actually admitted his guilt before the said I.O/SIP, even then such admission on his part being inadmissible in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against him. It was further stated by the said I.O/SIP that he secured the knife at the pointation of the appellant and prepared such memo in presence of P.Ws/mashirs Daniyal and Muhammad Ayaz. On asking P.W /mashir Daniyal was fair enough to say that his signature was obtained on such memo by police at PS Landhi. 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 jail appeal is disposed of accordingly.

JUDGE