IN THE HIGH COURT OF SINDH, AT KARACHI

 

 

Criminal Appeal No. 560 of 2020

  

                            

 

Appellants:                   Ansar Khan, Mst. Anwari Begum and Mst. Maira through Mr. Muhammad Ismail Meo advocate

 

The State:                      Through Mr. Zafar Ahmed Khan, Additional Prosecutor General Sindh

 

Date of hearing:           20.09.2022

 

Date of judgment:        20.09.2022

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J- It is alleged that the appellants with rest of the culprits in furtherance of their common object committed murder of Mst. Afshan by strangulating her throat then attempted to cause disappearance of evidence in order to save themselves from legal consequences, by giving such incident a cover of suicide, for that the present case was registered. After due trial, co-accused Mst. Saba and Mst. Hira were acquitted, appellant Ansar Khan was convicted under section 302(b) PPC and sentenced to undergo imprisonment for life and to pay compensation of Rs.15,00,000/- 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; appellants Mst. Anwari Begum and Mst. Maira were convicted u/s 202 PPC and were sentenced to undergo simple imprisonment for 06 months by Additional Sessions Judge-I, Karachi East, vide judgment dated 05.12.2020, which is impugned by the appellants before this Court by preferring the instant appeal.

2.         It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party in order to satisfy its matrimonial dispute with them; it was a case of suicide which has been given cover of murder, even otherwise the incident was not witnessed by anyone, therefore, the appellants are entitled to their acquittal by extending them benefit of doubt. In support of his contentions, he relied upon the cases of Habib Ahmed vs. The State (2020 YLR 238) and Muhammad Zahid vs. The State and others (2020 YLR 2018).

3.         None has appeared to advance arguments on behalf of the complainant. However, learned Addl. 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 appellants beyond shadow of doubt. In support of his contentions, he relied upon cases of Shamshad Ali vs. The State (2011 SCMR 1394) and Saeed Ahmed vs. The State (2015 SCMR 710).

4.         Heard arguments and perused the record.

5.         It was stated by complainant Muhammad Saleem that deceased was his daughter and was married with appellant Ansar Khan. On the night of incident, it was intimated to him by appellant Ansar Khan that his wife is fallen sick and he has taken her to hospital. On receiving such information, his wife Mst. Shahnaz and son Hammad Ahmed proceeded to the hospital, they were followed by Waqas, Waseem and Imran. Subsequently, he was intimated by his son Hammad Ahmed that the postmortem on the dead body of the deceased will be conducted, on hearing so, he rushed to the hospital, met with the Medico-Legal Officer and obtained the dead body of the deceased without postmortem. Subsequently, he was intimated by his wife Mst. Shahnaz that at the time of ablution, she has noticed mark of violence on the neck of the deceased. Mst. Shahnaz has not been examined by the prosecution for no obvious reason. Her non-examination could not be overlooked. It was further stated by the complainant that on such information and on insistence of his family members, he took the dead body to P.S Zaman Town, and then lodged report of the incident, it was lodged with delay of about 15 hours; such delay in lodgment of FIR that too at the instance of family members could not be ignored. It was further stated by the complainant that the postmortem on the dead body of the deceased was conducted and after 01/02 days he was intimated by the Investigating Officer of the case that the appellant Ansar Khan has admitted his guilt by stating that he has committed murder of his wife by strangulation. If for the sake of argument, it is believed that appellant Ansar Khan had made such statement before Investigating Officer, even then such statement being inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used. Whatever is stated by the complainant, if is believed to be true then it prima facie suggests that he was not an eye witness of the incident. So is the case with P.Ws Hammad Ahmed and Raheel Ahmed. In that situation it would be hard to rely upon their evidence to maintain conviction on the basis of presumption. The Medico Legal Officer with whom the complainant initially met and obtained the dead body of the deceased without postmortem has not been examined by the prosecution. His examination too could not be lost sight of. IO/SIP Abdul Hameed Khan was fair enough to admit that he submitted challan of the case after six months of the registration of the FIR. No explanation to such delay is offered by him which reflects adversely on his performance. As per him, it was the case of murder, by stating so he was fair enough to say that no confessional statement of appellant Ansar Khan was got recorded by him through Magistrate; such omission too could not be lost sight of. In these circumstances, it could be conclude safely that the prosecution has not been able to prove its case against the appellants beyond any shadow of doubt and to such benefit they are also found entitled which has already been extended in favour of co-accused Mst. Saba and Mst. Hira by recording their acquittal by learned trial Court.

6.         In the case of Wajahat vs. Gul Daraz and another (2019 SCMR 1451), it has been held by the Hon’ble Supreme Court that;

“….Appellant's reticence to satisfactorily explain as to what befell upon his better half under the same roof, though somewhat intriguing, however cannot be equated to qualify as evidentiary certainty, essentially required in order to saddle him with formidable corporal consequences; his failure would not give rise to an adverse presumption within the contemplation of Article 121 of the Qanun-e-Shahadat Order, 1984 and thus it would be grievously unsafe to maintain the conviction, without potential risk of error as well as diametrical departure from adversarial nature of criminal trial…”.  

 

7.         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".

 

8.         The case law which is relied upon by learned Addl. PG for the state is on distinguishable facts and circumstances. In case of Shamshad Ali (supra) the complainant was eye witness of the incident. In case of Saeed Ahmed (supra) the complainant and his witnesses on hearing of commotions woke up and found the appellant and others running. In the instant case, none actually has seen the appellants committing the alleged death of the deceased.

9.         In view of above, the impugned judgment is set aside, consequently, appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court, they shall be released forthwith, if they are found to be in custody and are not required to be detained in any other custody case.

10.       Above of the reasons of short order dated 20.09.2022, whereby the instant appeal was allowed.

 

             JUDGE

 

 

 

 

 

 

 

 

 

 

 

 

 

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Appeal No. 560 of 2020

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DATE                            ORDER WITH SIGNATURE OF JUDGE(s)

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For hearing of case

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20.09.2022

Mr. Muhammad Ismail Meo advocate for the appellants

Mr. Zafar Ahmed Khan, Additional Prosecutor General Sindh

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          Heard arguments. For reasons to be recorded later, the appeal is allowed, impugned judgment is set aside; consequently, appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court and they shall be released forthwith, if they are found to be in custody and are not required to be detained in any other custody case. 

 

JUDGE