IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. S-09 of 2022

Appellant: Shahbaz Ali son of Ghulam Mustafa bycaste Mahar (Now confined in Central Prison Sukkur).

Through Mr. Alam Sher Bozdar advocate.

The complainant: Through M/s Ubedullah Ghoto and Naeemuddin Chachar, advocates.

The State: Through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General.

Date of hearing: 24-02-2023

Date of judgment: 24-02-2023.

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of the prosecution that appellant with one more culprit committed death of his wife Mst. Lal Khatoon by strangulating her throat with rope, for that he was booked and reported upon by the police. At trial he denied the charge and the prosecution to prove it, examined in all 08 witnesses; the appellant in his statement recorded u/s 342 Cr.P.C denied the prosecution’s allegation by pleading innocence by stating that he has been involved in this falsely by the police at the instance of Munshi of Ghulam Muhammad Khan Mahar. On conclusion of trial, he was convicted u/s 302 (B) PPC and sentenced to undergo Imprisonment for life as Ta’azir 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 by learned 1^st Additional Sessions Judge/(MCTC) Ghotki, vide judgment dated 01-02-2022, 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 complainant party in order to satisfy its grudge with him over matrimonial affairs; the FIR of the incident has been lodged with unexplained delay of 04 days and evidence of the complainant and his witnesses being doubtful in its character has been believed by learned trial Court without assigning cogent reasons, therefore the appellant is entitled to his acquittal by extending him benefit of doubt, which is opposed by learned DPG for the State and learned counsel for the complainant by contending that the prosecution has been able to prove its case against him beyond shadow of doubt.

3. Heard argument and perused the record.

4. It was stated by complainant Muhammad Ali and PW Mst. Farzana that on 08-11-2019 they and PW Mst. Patni went to see the deceased at her house at village Sheru Mahar, the moment they reached there, they found the appellant with one more culprit strangulating the neck of the deceased with rope, she died there; the appellant then made his escape good. The appearance of the complainant and his witnesses at the house of the deceased at the time when she was going to be killed by the appellant with one more culprit is appearing to the surprising. It was further stated by the complainant and PW Mst. Farzana that then they took the dead body of deceased through Datsun pickup to Taluka Hospital Khanpur Mahar and then to Taluka Hospital Ghotki for post mortem. It is contrary to FIR, wherein it is stated that the post mortem on the dead body of deceased was conducted at Taluka Hospital Khanpur Mahar. It was further stated by them that they took then dead body of deceased to their village and after funeral ceremony; lodged FIR of the incident with PS Khanpur Mahar. It was lodged on 12-11-2019, it was with delay of about 04 days to the incident, such delay having not been explained by them plausibly, could not be over looked, it is reflecting consultation and deliberation. As per post mortem report time between death and post mortem was about 09 to 11 hours, if it was so then the deceased might have died at about 10/11 am, it is contrary to time of incident as is given in FIR which is said to be 06 pm. Such inconsistency prima-facie suggests that the complainant and PW Mst. Farzana have not witnessed the incident personally. On asking, it was stated by PW Dr. Nasreen Nawaz that the deceased might have died to due to hanging. If it was so, then it belies the complainant and PW Mst. Farzana that the deceased was done to death by way of strangulating her throat with rope. PW Mst. Patni has not been examined by the prosecution. The inference which could be drawn of her non-examination under Article 129 (g) of Qanoon-e-Shahadat Order, 1984 would be that she was not going to support the case of prosecution. I/O ASO Liaquat Ali as per the complainant was with him since beginning, he obviously has conducted the initial investigation of the case. If the complainant was not going to lodge the FIR of the incident promptly, then he was under obligation to have recorded the same on behalf of the State, which he did not record for no obvious reason. By such omission he failed to discharge his lawful obligation. The sketch of wardhat prepared by PW Tapedar Ali Asghar is not indicating the availability of the complainant and his witnesses at the place of incident. It was stated by I/O SIP Zulfiquar Ali that 161 Cr.P.C statements of the PWs were recorded by one police constable at his dictation. There is nothing in 161 Cr.P.C statements of any of the witness which may suggest that those were recorded by police constable at the dictation of I/O SIP Zulfiquar Ali. Perhaps in that context it was contended that the investigation on part of I/O SIP Zulfiquar Ali is only to the extent of table. In these circumstances, it could be concluded safely 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.

5. In case of Imran Ashraf and others vs. the State (2001 SCMR-424), it was observed by Hon’ble Court that;

“Section 154, Cr.P.C. lays down procedure for registration of an information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure. Therefore, police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help the investigating agency in completing the process of investigation expeditiously”.

6. 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".

7. In view of 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 and convicted by learned trial Court and he shall be released forthwith, if not required to be detained in any other custody case.

8. Above of the reasons of short order dated 24-02-2023, whereby the instant jail appeal was allowed.

JUDGE

Nasim/P.A