IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Jail Appeal No. 291 of 2020

Appellant: Rizwan Ayaz Khan through Mr. Akhtar Hakeem Kalwar and Ms. Humaira Nadeem Rana advocates

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

Date of hearing: 09.12.2022

Date of judgment: 09.12.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant and his wife Mst. Sonia, in furtherance of their common intention, committed murder of Mst. Halima, for that they were booked and reported upon. On conclusion of trial, Mst. Sonia was acquitted, while the appellant was convicted under Section 302(b) PPC and sentenced to undergo imprisonment for life 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 Ist-Additional Sessions Judge /MCTC Karachi South vide judgment dated 18.01.2020, which is impugned by the appellant before this Court by preferring the instant appeal from jail.

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 at the instance of the complainant party and he has been convicted and sentenced by learned trial Court virtually on the basis of no evidence, therefore, he is entitled to his acquittal by extending him benefit of doubt, which is opposed by learned Addl. P.G for the State by contending that the prosecution has proved its case against the appellant on the basis of circumstantial evidence.

3. Heard arguments and perused the record.

4. It was stated by complainant Muhammad Umar that deceased was his sister and was residing in neighbourhood of the appellant, on the date of incident her cell phone was found powered off, therefore, he made contact with the appellant, he too turned off his cell phone; he came to know through ARY news channel that a boy has been lodged at Edhi Centre who was identified by him to be his nephew Abdullah son of the deceased. On that, he came at Karachi and found his sister to be untraceable and then he identified her dead body at Edhi mortuary, thereafter, he lodged FIR of the incident with PS Sohrab Goth suspecting the appellant and his wife Mst. Sonia for her murder. On investigation, the appellant and his wife Mst. Sonia were apprehended by the police; it was stated by I.O/SIP Nasarullah that the appellant during course of investigation, admitted before him to have committed the death of the deceased. If for the sake of arguments, it is believed that such admission was actually made before the said I.O/SIP, even then same in terms of Article 39 of the Qanun-e-Shahadat Order, 1984 could not be used against him as evidence. Subsequently, the appellant was produced by the said I.O/SIP before Ms. Dur-e-Shahwar, the Magistrate having jurisdiction, for recording his judicial confession, which he by indulging in long narration refused to make. It was stated by Medical Officer Dr. Nasreen Qamar that the actual cause of the death of the deceased could be ascertained. On asking I.O/SIP Hameed Khan was fair enough to admit that there was no eye witness to the incident. Obviously, the appellant has been involved in commission of incident, only for the reason that he arranged a residence for the deceased on rent and after her death lodged her son Abdullah with Edhi Centre, which the appellant has denied. If for the sake of arguments, it is believed that such exercise was actually undertaken by the appellant; even then same could not be made enough to be relied upon to base conviction in case like present one. On the basis of same evidence co-accused Mst. Sonia has been acquitted by learned trial Court. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant too beyond shadow of doubt and to such benefit he is also found entitled.

5. In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR 344), it has been held by the Hon’ble Apex Court that;

“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.

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. Above are the reasons for the short order dated 09.12.2022, whereby the instant jail appeal was allowed.

JUDGE