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