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