JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No.S-54 OF 2021

Appellant: Mst. Naheed Khatoon d/o Manzoor Ali bycaste Shar.

Through Mr. Muhammad Qayyum Arain, advocate.

The State: Through Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General, Sindh

Date of hearing: 16-01-2023

Date of judgment: 16-01-2023

J U D G M E N T

IRSHAD ALI SHAH, J- It is alleged that the appellant with rest of the culprits in furtherance of their common intention committed death of her husband Bashir Ahmed by setting him on fire, for that she was booked and reported upon. On conclusion of trial, she was convicted u/s 302 (b) PPC and sentenced to undergo imprisonment for life as Tazir and to pay compensation of Rs. 300,000/- (Three lac) to the legal heirs of the said deceased and in default whereof to undergo simple imprisonment for six months with benefit of section 382-B Cr.P.C by learned Additional Sessions Judge-III/MCTC-II Sukkur vide judgment dated 15-06-2021, which is impugned by the appellant before this Court by way of instant Crl. Jail Appeal.

2. It is contended by learned counsel for the appellant that the appellant is wife of the deceased and she has been involved in this case falsely by the complainant only to deprive her from the inheritance and custody of her kids and evidence of the PWs being doubtful in its character has been believed by learned trial Court without assigning cogent reasons, therefore she is entitled to her acquittal by extending her benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant. However, learned Additional P.G for the State by supporting the impugned judgment has sought for dismissal of instant jail appeal by contending that the prosecution has been able to prove its case against appellant beyond shadow of doubt.

4. Heard argument and perused the record.

5. It was stated by complainant Akhtiar that the appellant was married with his son Bashir and she once attempted to commit his death by giving him some poisonous substance, but she later-on was pardoned by him. On the night of incident, he, his sons Aijaz and Sharafat went at the house of deceased, when were sleeping, woke on some noise and found absconding accused Hadi Dino and one unknown culprit there, they put down his son Bashir Ahmed and then the appellant provided a bottle containing petrol to them, which they pour on Bashir Ahmed and then set him on fire and then fled away, Bashir Ahmed died on his way to Hospital and he then lodged report of the incident with PS Patni. Surprisingly, it was lodged on 4^th day of the incident and no explanation to such delay is offered by the complainant. PW Aijaz beside attempted to support the complainant on asking was fair enough to state that the FIR was lodged after consultation with the relatives. No such relative is examined by the complainant party to justify delay in lodgment of FIR. The FIR lodged after due consultation, could hardly be relied upon. As per Investigating Officer ASI Ihsan Ali, the 161 Cr.P.C statements of the PWs were recorded by him on 11-10-2020. It was with delay of one day even to FIR and no explanation to such delay is offered. PW Sharafat Ali has not been examined; the inference which could be drawn of his non-examination under Article 129 (g) of Qanoon-e-Shahadat Order 1984 would be that he was not going to support the case of the prosecution. PW Aijaz, who is also mashir to every mashirnama prepared in the present case, on asking was fair enough to admit that he does not know what was written in those mashirnamas. By admitting so, he impliedly did not support the contents of mashirnamas, so prepared in the present case. Admittedly, it was night time incident, the identity of the appellant and others as per FIR was based on bulb light. As per Investigating Officer ASI Ihsan Ali, no bulb was found available at the place of incident. Such inconsistency could not be over looked. As per the complainant and PW Aijaz, they were not on visiting terms with deceased, if it was so, then their visit to the house of deceased on the night of incident without any reason, could reasonably be judged with doubt. The involvement of the appellant in commission of incident on point of vicarious liability on the basis of allegation that, she provided bottle containing petrol to absconding accused is appearing to be doubtful.

6. The conclusion which could be drawn of above discussion would be that the prosecution has not been able to prove the its case against the appellant beyond shadow of doubt and to such benefit, she is found entitled.

7. In case of Muhammad Asif vs the State (2008 SCMR 1001), it has been held by Hon’ble apex Court that;

“…..yet there is a delay of about two hours which has not been explained. Similarly P.W.7 stated during cross-examination that the police reached the spot at twelve noon and about half an hour was consumed in conducting inquest proceedings and thereafter the dead body was sent to the hospital. He further stated that he accompanied the dead body which was taken in a wagon to the hospital and that it took only 15 or 20 minutes in reaching the hospital. In that case the dead body would have been received at the hospital by 1-00 p.m. On the contrary, the doctor, who is an independent witness, stated that he immediately started post mortem examination after the receipt of body and the time of post-mortem given by him was 4-50 p.m. that means that the body remained at the spot for quite some time. The F.I.Rs. which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations…...”

8. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it has been held by Hon’ble apex Court that;

“……It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay.”

9. 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".

10. In view of above, the conviction and sentence awarded to the appellant by way of impugned judgment are set-aside, consequently, she is acquitted of the offence for which she was charged, tried, convicted and sentenced by learned trial Court and she shall be released forthwith, if not required to be detained in any other custody case.

11. Above of the reasons of short order of even date, whereby the instant Crl. Jail Appeal was allowed.

JUDGE

Nasim/P.A