IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 464 of 2019

Appellant: Arshad Ali through M/s Ajab Khan Khattak & Iftikhar Ahmed Shah, Advocates

The State: Through Mr. Abrar Ali Khichi, Additional Prosecutor General Sindh

Date of hearing: 14.06.2023

Date of judgment: 14.06.2023

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged by the prosecution that the appellant committed murder of Asad Ali by causing him dagger blows and thrown his dead by putting it in gunny bag in a street at Abdullah Town, Malir, in order to save himself from legal consequence, for that he was booked and reported upon by the police. On conclusion of trial, he was convicted u/s 302, PPC without specifying the clause and sentenced to undergo imprisonment for life with fine of Rs.2,500,000/-, payable to the legal heirs of the deceased as compensation and in default whereof to undergo simple imprisonment for six months with benefit of Section 382-B, Cr.PC by learned 1^st Additional Sessions Judge/MCTC Malir, Karachi vide judgment dated 27.07.2019, which he has impugned 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 and has been convicted and sentenced by learned trial Court virtually on the basis of no evidence, therefore, he is entitled to be acquitted of the charge by extending him benefit of doubt, which is opposed by learned Additional Prosecutor General for the State by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

3. Heard arguments and perused the record.

4. The FIR of the incident has been lodged by complainant ASI Muhammad Javed on behalf of State, on the basis of recovery of dead body of unknown person. Subsequently, it subsequently was identified by PW Maqsood Ali to be of his brother Asad Ali, who suspected the appellant to be involved in the commission of incident; as he was suspecting him to be on illicit relations with his wife. Suspicion may be strong or otherwise, yet is not enough to involve the appellant in commission of the incident in absence of direct evidence. PW Riaz Hussain, who allegedly has seen the appellant with gunny bag containing the dead body of the deceased, on account of his failure to support the case of prosecution was declared hostile, as such, his evidence is of no help to the case of prosecution. PWs Anand Lal and Umeed Ali have not been examined by the prosecution. The inference which could be drawn of their non-examination in terms of Article 129(g) of the Qanun-e-Shahadat Order, 1984, would be that they were not going to support the case of the prosecution. Evidence of PW Hanif is only to the extent that he has identified the appellant in police custody to be the same person who had thrown the dead body of the deceased duly kept in the gunny bag. The identity of the appellant by him in police custody without involvement of the Magistrate could hardly be relied upon to maintain conviction. As per I.O/SIP Madad Ali, on arrest the appellant admitted his guilt before him and then led to recovery of dagger allegedly used by him in the commission of incident. If for the sake of arguments, it is believed that the appellant had actually admitted his guilt before the said IO/SIP, even then such admission in terms of Article 39 of the Qanun-e-Shahadat Order, 1984, cannot be used against him as evidence. The recovery of dagger used in commission of incident was affected from the appellant on the 3^rd day of his arrest that too from the house, which was not found in his exclusive possession, therefore, such recovery together with the CDR, if any, could hardly be taken a conclusive proof to make the appellant guilty for the alleged incident, which obviously was un-witnessed to the extent of death of the deceased allegedly at the hands of the appellant. The appellant during his course of examination under section 342, Cr.PC had pleaded his innocence by stating that the deceased was nominated in a murder case at Swabi and he has strong suspicion that he has been killed by the complainant party of that murder case in revenge. By stating so, it was further stated by him that copy of such FIR he has already produced before the Court along with his bail application. In these circumstances, it could be concluded safely that the prosecution has not able to prove the involvement of the appellant in commission of incident beyond shadow of doubt and to such benefit he is found entitled.

5. In case of Muhammad Jamil vs. Muhammad Akram and others (2009 SCMR 120), it has been held by the Hon’ble Apex Court that;

“When the direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence.”

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 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, if not required to be detained in any other custody case.

8. Above are the reasons of short order dated 14.06.2023, whereby the instant appeal was allowed.

J U D G E