IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 560 of 2020
Appellants: Ansar
Khan, Mst. Anwari Begum and Mst. Maira through Mr. Muhammad Ismail Meo advocate
The State: Through
Mr. Zafar Ahmed Khan, Additional Prosecutor General Sindh
Date of hearing: 20.09.2022
Date of judgment: 20.09.2022
J U D G M E N T
IRSHAD ALI SHAH,
J-
It is alleged
that the appellants with rest of the culprits in furtherance of their common object
committed murder of Mst. Afshan by strangulating her throat then attempted to
cause disappearance of evidence in order to save themselves from legal
consequences, by giving such incident a cover of suicide, for that the present
case was registered. After due trial, co-accused Mst. Saba and Mst. Hira were
acquitted, appellant Ansar Khan was convicted under section 302(b) PPC and
sentenced to undergo imprisonment for life and to pay compensation of
Rs.15,00,000/- 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;
appellants Mst. Anwari Begum and Mst. Maira were convicted u/s 202 PPC and were
sentenced to undergo simple imprisonment for 06 months by Additional Sessions
Judge-I, Karachi East, vide judgment dated 05.12.2020, which is impugned by the
appellants before this Court by preferring the instant appeal.
2. It is contended by learned counsel for
the appellants that the appellants being innocent have been involved in this
case falsely by the complainant party in order to satisfy its matrimonial
dispute with them; it was a case of suicide which has been given cover of
murder, even otherwise the incident was not witnessed by anyone, therefore, the
appellants are entitled to their acquittal by extending them benefit of doubt.
In support of his contentions, he relied upon the cases of Habib Ahmed vs. The State (2020 YLR 238) and Muhammad Zahid vs. The
State and others (2020 YLR 2018).
3. None has appeared to advance arguments
on behalf of the complainant. However, learned Addl. P.G for the state by
supporting the impugned judgment has sought for dismissal of the instant appeal
by contending that the prosecution has been able to prove its case against the
appellants beyond shadow of doubt. In support of his contentions, he relied
upon cases of Shamshad Ali vs. The State
(2011 SCMR 1394) and Saeed Ahmed vs. The State (2015 SCMR 710).
4. Heard arguments and perused the record.
5. It was stated by complainant Muhammad
Saleem that deceased was his daughter and was married with appellant Ansar
Khan. On the night of incident, it was intimated to him by appellant Ansar Khan
that his wife is fallen sick and he has taken her to hospital. On receiving
such information, his wife Mst. Shahnaz and son Hammad Ahmed proceeded to the hospital,
they were followed by Waqas, Waseem and Imran. Subsequently, he was intimated
by his son Hammad Ahmed that the postmortem on the dead body of the deceased
will be conducted, on hearing so, he rushed to the hospital, met with the
Medico-Legal Officer and obtained the dead body of the deceased without
postmortem. Subsequently, he was intimated by his wife Mst. Shahnaz that at the
time of ablution, she has noticed mark of violence on the neck of the deceased.
Mst. Shahnaz has not been examined by the prosecution for no obvious reason.
Her non-examination could not be overlooked. It was further stated by the
complainant that on such information and on insistence of his family members,
he took the dead body to P.S Zaman Town, and then lodged report of the
incident, it was lodged with delay of about 15 hours; such delay in lodgment of
FIR that too at the instance of family members could not be ignored. It was
further stated by the complainant that the postmortem on the dead body of the
deceased was conducted and after 01/02 days he was intimated by the
Investigating Officer of the case that the appellant Ansar Khan has admitted
his guilt by stating that he has committed murder of his wife by strangulation.
If for the sake of argument, it is believed that appellant Ansar Khan had made
such statement before Investigating Officer, even then such statement being
inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984
could not be used. Whatever is stated by the complainant, if is believed to be
true then it prima facie suggests that he was not an eye witness of the
incident. So is the case with P.Ws Hammad Ahmed and Raheel Ahmed. In that
situation it would be hard to rely upon their evidence to maintain conviction
on the basis of presumption. The Medico Legal Officer with whom the complainant
initially met and obtained the dead body of the deceased without postmortem has
not been examined by the prosecution. His examination too could not be lost
sight of. IO/SIP Abdul Hameed Khan was fair enough to admit that he submitted
challan of the case after six months of the registration of the FIR. No
explanation to such delay is offered by him which reflects adversely on his
performance. As per him, it was the case of murder, by stating so he was fair
enough to say that no confessional statement of appellant Ansar Khan was got
recorded by him through Magistrate; such omission too could not be lost sight
of. In these circumstances, it could be conclude safely that the prosecution
has not been able to prove its case against the appellants beyond any shadow of
doubt and to such benefit they are also found entitled which has already been
extended in favour of co-accused Mst. Saba and Mst. Hira by recording their
acquittal by learned trial Court.
6. In the case of Wajahat vs. Gul Daraz and another (2019
SCMR 1451), it has been held by the Hon’ble Supreme Court that;
“….Appellant's reticence to
satisfactorily explain as to what befell upon his better half under the same
roof, though somewhat intriguing, however cannot be equated to qualify as
evidentiary certainty, essentially required in order to saddle him with
formidable corporal consequences; his failure would not give rise to an adverse
presumption within the contemplation of Article 121 of the Qanun-e-Shahadat
Order, 1984 and thus it would be grievously unsafe to maintain the conviction,
without potential risk of error as well as diametrical departure from
adversarial nature of criminal trial…”.
7. In
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. PG for the state is on distinguishable facts and circumstances.
In case of Shamshad Ali (supra) the
complainant was eye witness of the incident. In case of Saeed Ahmed (supra) the complainant and his witnesses on hearing of
commotions woke up and found the appellant and others running. In the instant
case, none actually has seen the appellants committing the alleged death of the
deceased.
9. In view of above, the impugned judgment
is set aside, consequently, appellants are acquitted of the offence for which they
were charged, tried and convicted by learned trial Court, they shall be
released forthwith, if they are found to be in custody and are not required to
be detained in any other custody case.
10.
Above of the reasons of short order
dated 20.09.2022, whereby the instant appeal was allowed.
JUDGE
ORDER SHEET
IN THE HIGH COURT OF
SINDH, KARACHI
Criminal
Appeal No. 560 of 2020
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DATE ORDER
WITH SIGNATURE OF JUDGE(s)
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For
hearing of case
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20.09.2022
Mr.
Muhammad Ismail Meo advocate for the appellants
Mr.
Zafar Ahmed Khan, Additional Prosecutor General Sindh
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Heard arguments. For reasons to be
recorded later, the appeal is allowed, impugned judgment is set aside;
consequently, appellants are acquitted of the offence for which they were
charged, tried and convicted by learned trial Court and they shall be released
forthwith, if they are found to be in custody and are not required to be
detained in any other custody case.
JUDGE