THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 509 of 2019

Appellant: Mst. Hina through Malik Muhammad Tariq advocate

The State: Through Ms. Robina Qadir D.P.G Sindh

Date of hearing: 23.09.2022

Date of judgment: 23.09.2022

J U D G M E N T

IRSHAD ALI SHAH J- The appellant with rest of the culprits allegedly committed murder of Khalid Javed for that she was booked and reported upon. After due trial, she was convicted under Section 302 PPC and was sentenced to undergo imprisonment for life with fine of Rs.20,00,000/- payable to the legal heirs of deceased, apparently as compensation and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382-B Cr.P.C, which obviously could only be awarded under clause (b) of Section 302 PPC, by learned 1^st Additional Sessions Judge/MCTC, Malir Karachi, vide judgment dated 06.08.2019, 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 IO/SIP Khadim Ali Shahani being relative of Mst. Shamim, the owner of the house and has been convicted and sentenced by learned trial Court, on the basis of no evidence, therefore, she is entitled to her acquittal by extending her benefit of doubt.

3. None has come forwarded to advance arguments on behalf of the complainant. However, learned DPG for the state by supporting the impugned judgment has sought for dismissal of instant appeal by contending that the prosecution has been able to prove its case against the appellant beyond reasonable shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by complainant Ahmed Javed that his father Khalid Javed went at the house of Rana Kaleem to deliver him car, but did not return; he therefore, tracked his location through Tracker Company and found his car parked outside of house of Rana Kaleem, he therefore, went there and on inquiry, came to know that Rana Kaleem was residing on top floor of the house together with his wife, the appellant, went there and knocked the door but it was not opened, therefore, the police was called, they opened the door, found the appellant present and on inquiry she disclosed before the police that she and her husband Rana Kaleem have committed murder of Khalid Javed by way of torture only to usurp his car and cash; the formal FIR of the incident was recorded by SIP Khatto Mal. On investigation, arrest of the appellant was effected and certain recoveries were made from the place of incident by I.O/SIP Khadim Ali Shahani he is not examined by the prosecution. PW Adnan Rasheed has attempted to support the complainant, but both of them on asking were fair enough to admit that they were not present at the time of incident, which prima facie suggests that they are not eye witnesses of the incident, therefore, their evidence hardly lends support to the case of prosecution. If for the sake of arguments, it is believed that the appellant admitted her guilt before police by making such statement, even then such statement being inadmissible in evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984 could not be used against her. There is nothing in either of the memo of arrest, which may suggest that any blood mark was found on the person or clothes of the appellant at the time of her arrest. As per SIO/SIP Khatto Mal at the pointation of appellant, the dead body of the deceased was secured duly wrapped in a sack lying at the place of incident, it was dispatched to hospital for postmortem. None even Mst. Shamim being owner of the house and residing on its first floor noticed the death of the deceased which allegedly was committed after severe torture, which appears to be surprising. Mst. Shamim has admitted her relationship with I.O/SIP Khadim Ali Shahani who is alleged to have conducted dishonest investigation only to save her. Even otherwise, it is hard to believe that the appellant being lady would remain at the place of incident after committing death of the deceased only to be arrested by the police. In these circumstances, the involvement of the appellant in commission of incident solely on the basis of her own statement and recovery of the dead body of the deceased from house on rent with her husband is appearing to be doubtful.

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

9. Above of the reasons of short order dated 23.09.2022, whereby the instant appeal was allowed.

JUDGE