IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 246 of 2021
Appellant: Khadim
Hussain through M/s Irshad Hussain Dharejo, Muhammad Daud Narejo and Muhammad
Yousif Narejo advocates
The State: Through
Mr. Khadim Hussain, Additional Prosecutor General Sindh duly assisted by Mr.
Niaz Muhammad Ghumro advocate for brothers of the deceased
Date of hearing: 23.12.2022
Date of judgment: 23.12.2022
J U D G M E N T
IRSHAD ALI SHAH, J- The facts in brief necessary for the disposal
of the instant appeal are that the appellant lodged an FIR with P.S Gizri alleging
therein that his wife has been done to death by unknown culprits by causing her
dagger and iron road injuries, during course of robbery at his house. On
investigation, the appellant was found to be involved in the above said
incident and was challaned accordingly by the police; he did not plead guilty
to the charge and the prosecution to prove it, examined in all eight witnesses and
then closed its side. The appellant during course of his examination u/s 342
Cr.P.C denied the prosecution’s allegations by pleading innocence; he did not
examine himself on oath however, examined in his defence Tariq Ali, his
neighbour, who intimated him about the incident and Aqash his son to prove that
he was having good relationship with his wife, the deceased. On conclusion of
trial, the appellant was convicted under Section 302(b) PPC and sentenced to
undergo life imprisonment 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 I-Additional
Sessions Judge/MCTC Karachi South vide judgment dated 30.04.2021, which is
impugned by the appellant before this Court by preferring the instant appeal.
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 brothers of the deceased, in order
to settle with him their dispute over property left by the deceased; DNA report
is inconclusive and evidence of the P.Ws being doubtful in its character has
been believed by learned trial Court without lawful justification. By contending
so, they sought for acquittal of the appellant. In support of their
contentions, they relied upon cases of (i)
Muhammad Ishaq vs. The State (2009 SCMR 135), (ii) Sardar Bibi and another vs.
Munir Ahmed and others (2017SCMR 344), (iii) Kamal Din alias Kamala vs. The
State (2018 SCMR 577) and (iv) Naveed
Asghar and 2 others vs. The State (PLD 2021 S.C 600).
3. It is contended by learned Addl. P.G for
the state and learned counsel for the brothers of the deceased that the
appellant has committed the death of the deceased in a very clandestine manner
only to grab her property and prosecution has been able to prove its case
against him beyond shadow of doubt. By contending so, they sought for dismissal
of instant appeal by supporting the impugned judgment. In support of their
contentions, they relied upon cases of (i)
Wilayat Ali vs. The State and another (2004 SCMR 477), (ii) Aurangzeb and
another vs. State and another (PLJ 2005 Sh.C (AJ&K) 83), (iii) Dr. Javaid
Akhtar vs. The State (PLD 2007 S.C 249) and (iv) Muhammad Shakeel vs. The State (2011 SCMR 917).
4. Heard arguments and perused the record.
5. The FIR of the incident was lodged by the
appellant himself with a narration that when his wife and P.W Tariq Hussain
were available in his house, there came two unknown culprits being male and
female and they during course of robbery committed death of his wife by causing
her iron rod and dagger injuries as was intimated to him by his neighbour D.W Tariq
Ali. Such FIR at his verbatim was recorded by I.O/SIP Rana Asghar Ali, who also
conducted initial investigation of the case. On further investigation, at the
instance of P.Ws Shahid Hussain and Ashique Hussain, who happened to be
brothers of the deceased, P.W Tariq Hussain was interrogated by I.O/SIP
Muhammad Khan, who allegedly disclosed before him that the appellant has
committed death of the deceased by causing her dagger injuries. His 161 and 164
Cr.P.C statements to such effect were got recorded. P.W Tariq Hussain, on
account of his failure to support the case of prosecution, was declared
hostile. His evidence as such could hardly be relied upon to uphold conviction.
It was insisted by learned Addl. P.G for state and learned counsel for the
brothers of the deceased that 164 Cr.P.C statement of P.W Tariq Hussain could
not be lost sight of for the reason that it prima facie implicates the
appellant in commission of incident. Evidence of P.W Mr. Shahrukh Tariq, the
Magistrate having jurisdiction, who recorded 164 Cr.P.C statement of P.W Tariq
Hussain is silent with regard to the actual narration made before him by P.W
Tariq Hussain. As such, it would be hard to rely upon 164 Cr.P.C statement of
P.W Tariq Hussain for maintaining the conviction, in case like the present one.
Evidence of P.Ws Shahid Hussain and Ashique Hussain, who happened to be
brothers of the deceased, is of little help to the prosecution for the reason that
they are not eye witnesses to the actual death of the deceased. Evidence of
I.O/SIP Muhammad Latif is only to the extent that he conducted some
investigation of the present case. As per I.O/SIP Muhammad Khan, he arrested
the appellant and secured from him the clothes of the deceased and the dagger,
which he allegedly used in commission of incident and those together with nail
clipping, iron pipe, blood stained earth etc. were sent to forensic expert for their
analysis. As per DNA report; “the
appellant and P.W Tariq Hussain, anyone of them or both may be the contributor
of human exogenous tissues/epithelial remains identified on nail clipping of
the deceased.” As per DNA report, those articles were deposited with
laboratory by I.O/SIP Malik Muhammad Riaz. He has not been examined by the
prosecution. His examination was essential to prove the safe custody and its
transmission to the laboratory. Such DNA report in absence of direct evidence could
hardly be made a conclusive piece of evidence to base conviction. Dr. Tasneem,
who conducted postmortem on the dead body of the deceased, has not been examined
by the prosecution, under the pretext that she has gone to her native place at
Punjab, without intimation. It was not a valid reason to justify her non-examination,
in a case like present one. In that way, the appellant obviously has been
deprived of his right of defence seriously. The plea of innocence, which is taken
by the appellant as such could not be overlooked. 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 and to such benefit he is
found entitled.
6. In the case of Dr. Javaid Akhtar vs. The State (PLD 2007 S.C 249), it has been
held by Hon’ble Apex Court that;
“8. It is admitted fact that P. W.13 Khurshid Ali was declared
hostile, therefore, both the Courts below were justified to ignore his
statement. See Parita's case 47 Cr.LJ 232 and Habibullah's case PLD 1969 SC
127.”
7. 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".
8. The
case law which is relied upon by learned Addl. P.G for the State and learned
counsel for the brothers of the deceased is on distinguishable facts and
circumstances as in none of the case so relied upon, the conviction was
maintained, on the basis of evidence of hostile witness.
9. 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 for 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.
10. Above
are the reasons of short order dated 23.12.2022, whereby the instant appeal was
allowed.
JUDGE