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