IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 330 of 2021
Appellant: Israr
Ahmed through Ms. Abida Parveen Channar advocate
The State: Through
Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh
Date of hearing: 25.11.2022
Date of judgment: 25.11.2022
J U D G M E N T
IRSHAD ALI SHAH, J- It is alleged that the appellant committed
murder of his wife Mst. Seema by strangulating her throat, for that he was
booked and reported upon by the police. On conclusion of trial, he was
convicted under Section 302(b) PPC and sentenced to undergo imprisonment for
life as Tazir 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 West vide judgment dated 14.12.2020,
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 complainant and he was convicted and sentenced by learned trial
Court virtually on the basis of no evidence. By contending so, she sought for
acquittal of the appellant by extending him benefit of doubt.
3. None has come forward to advance
arguments on behalf of the complainant. However, learned D.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
appellant beyond shadow of doubt.
4. Heard arguments and perused the record.
5. It was stated by Mst. Sanora Begum, the owner
of the house where the incident took place, that the deceased was her tenant,
on the date of incident, on hearing of cries of her baby, when she went to her
room, it was found locked from inside, it was opened, therein was found the
deceased lying dead; she then intimated the incident to her mother Mst. Razia
Begum. It is stated by Mst. Razia Begum that she on having been called by Mst.
Sanora Begum at her house, found her daughter Mst. Seema lying dead, she then
first reported the incident to P.W Muhammad Ali and then to police, it was
recorded by I.O/ASI Fakhar. Evidence so discussed above, prima facie suggests
that none has actually seen the appellant committing the death of the deceased,
therefore, it would be hard to maintain conviction against the appellant on the
basis of their evidence. I.O/ASI Fakhar, who has conducted the initial
investigation of the case, has not been examined by the prosecution, for the
reason that he has been dismissed from the service. Dismissal of an employee
from the service may not be a sufficient reason for his non-examination in a murder
case. In that way, the appellant has been prejudiced in his defence seriously. It
was stated by I.O/ Inspector Muhammad Nawaz that he apprehended the appellant
and he by admitting his guilt pointed out the place of incident. If for the
sake of arguments, it is believed that the appellant has actually admitted his
guilt before the said I.O/Inspector, even then such admission on his part being
inadmissible in evidence in terms of Article 39 of the Qanun-e-Shahadat Order,
1984 could not be used against him. 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.
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. The
instant appeal is disposed of accordingly.
JUDGE