IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 701 of 2021

Criminal Jail Appeal No. 697 of 2021

Criminal Jail Appeal No. 20 of 2022

Appellants: Javed Shah, Suleman and Mst. Aaliya Begum through M/s Dilawar Hussain, K.D.Sangi and Habib-ur-Rehman Jiskani advocates

The State: Through Ms. Rubina Qadir Deputy Prosecutor General Sindh

Date of hearing: 01.12.2022

Date of judgment: 01.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of the prosecution that the appellants allegedly in furtherance of their common intention, committed murder of Muhammad Aslam by strangulating his throat after administering some intoxicant substance to him and then gave it cover of robbery, for that they were booked and reported upon. On conclusion of trial, they were convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life and to pay compensation of Rs.100,000/- each to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 01 year with benefit of section 382(b) Cr.P.C by learned VII-Additional Sessions Judge/MCTC-II Karachi, Central vide judgment dated 29.11.2021, which is impugned by the appellants before this Court by preferring three separate appeals.

2. It is contended by learned counsel for the appellants Suleman and Javed Shah that they being innocent have been involved in this case falsely by the police at the instance of the complainant on the basis of judicial confession of appellant Mst. Aliya, which could not be used against them. By contending so, they sought for their acquittal by extending them benefit of doubts.

3. It is contended by learned counsel for appellant Mst. Aliya that she being innocent has been involved in this case falsely by the police at the instance of the complainant party on the basis of judicial confession which has been obtained by the police after putting her under pressure. By contending so, he sought for her acquittal by extending her benefit of doubt.

4. 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 appeals by contending that the confessional statement made by appellant Mst. Aliya is true and voluntarily and it has rightly been believed by learned trial Court.

5. Heard arguments and perused the record.

6. It was inter-alia stated by the complainant that the deceased was his brother, appellant Mst. Aliya was wife of the deceased; they were having eight children and were residing at Buffer Zone, Karachi. On 13.03.2018, he was intimated by P.W Asif that the deceased has lost his life during course of dacoity at his house and is taken to Abbasi Shaheed Hospital; on such information he went at Abbasi Shaheed Hospital, there he was intimated by his nephew P.W Arsalan that the deceased came back home at night, was given glass of milk by his wife appellant Mst. Aliya, which he took and then went to sleep. It was further stated by the complainant that there came I.O/ASI Javed of P.S Tehmoria, who recorded his 154 Cr.P.C statement, whereby he suspected appellant Mst. Aliya to have committed death of the deceased in collusion with someone else by administering some intoxicant substance to him. Evidence of P.W Asif is only to the extent that he was intimated about the death of the deceased by P.W Farhan, who happened to be son of the deceased. Evidence of the complainant and P.W Asif, prima facie, suggest that they are not eye witnesses to the incident; as such, their evidence could hardly lend support to the case of prosecution. It was stated by I.O/SIP Rasheed Ahmed that on 14.03.2018, he apprehended appellant Mst. Aliya. He in that respect is believed by P.W/mashir/ PC Mst. Rubina as per her, appellant Mst. Aliya was apprehended on 13.03.2018. What happened in between? God knows better. However, inconsistency in between evidence of I.O/SIP Rasheed Ahmed and P.W/mashir/PC Rubina with regard to the arrest of appellant Mst. Aliya could not be lost sight of. It was further stated by the said I.O/SIP that during course of inquiry, it was disclosed to him by appellant Mst. Aliya that she, appellants Sulleman and Javed Shah have committed the death of the deceased by strangulating his throat after administering some intoxicant substance to him as she was intending to marry appellant Suleman. Surprisingly, on chemical examination, no intoxicant substance was found in viscera’s of deceased. If for the sake of arguments, it is believed that such disclosure was actually made by appellant Mst. Aliya before the said I.O/SIP, even then same being inadmissible in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used as evidence. It was further stated by the said I.O/SIP that on 24.03.2018, he produced appellant Mst. Aliya before the Magistrate having jurisdiction for recording her judicial confession, which she made; it was with delay of about 10 days to her actual arrest. Such delay having not been explained plausibly could not be overlooked. Evidence of Mr. Khaliq-u-Zaman, the Magistrate, who recorded the judicial confession of appellant Mst. Aliya is silent with regard to the actual narration made by her before him. However, as per her judicial confession, it was allegedly stated by her that she was in love with appellant Suleman; once upon a time, she left her house with him and was taken back by the deceased to his house, she was intending to marry appellant Suleman, therefore, she, Suleman and Javed Shah committed death of the deceased by strangulating his throat after administering some intoxicant substance to him and then gave it cover of dacoity. There is nothing in the certificate attached to the judicial confession of appellant Mst. Aliya, which may suggest that it was true and was voluntarily made by her. In that situation, as such the judicial confession, which has also been retracted, could hardly be used against appellant Mst. Aliya or someone else, who have been implicated by her by such judicial confession. On asking the said I.O/SIP was fair enough to admit that there is no eye witness to the incident; excepting appellant Mst. Aliya none else was produced by him before Magistrate for recording their confessional statements. Why those were not got recorded? No explanation to such omission is offered. It was further admitted by the said I.O/SIP that no finger print marks on cloth piece and pillow cover which allegedly were secured by him during course of investigation were obtained; such omission too could not be lost sight of. It was further admitted by the said I.O/SIP that no SIM card was found registered in name of appellant Mst. Aliya. If it was so, then she could not be connected with the CDR reports allegedly obtained and produced in evidence. Be that as it may, during course of her examination u/s 342 Cr.P.C, when asked about her judicial confession, it was stated by appellant Mst. Aliya that it was not read over to her and was obtained by putting her under pressure at the instance of the complainant, who was intending to establish an illicit relationship with her and to grab the property of the deceased being his brother. She also examined Muhammad Farhan in her defence, who happened to be son of the deceased, who impliedly declared her to be innocent. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove the involvement of the appellants in commission of incident beyond shadow of doubt.

7. In the case of Ghulam Qadir and others vs. The State (2007 SCMR 782), it has been held by the Hon’ble Apex Court that;

“7. The confessional statements of the appellants were, recorded by the Magistrate on 22-8-1998, seven days after their arrest. Undoubtedly some delay was caused in recording these statements. Delay in recording judicial confession becomes relevant to determine its voluntariness.”

8. 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".

9. In view of the facts and reasons discussed above, the conviction and sentence awarded to the appellants by way of impugned judgment are set aside, consequently, they are acquitted of the offence with which they were charged, tried, convicted and sentenced by learned trial Court; they are in custody to be released forthwith if not required to be detained in any other custody case.

10. Above are the reasons of short order dated 01.12.2022, whereby all the three appeals were allowed.

JUDGE