IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 466 of 2020
Appellants: Jamila
Bibi and Arshad Ali through Mr. Nazeer Ahmed Shaikh advocate
The State: Mr. Khadim
Hussain, Additional Prosecutor General Sindh
Date of hearing: 28.01.2023
Date of judgment: 28.01.2023
J U D G M E N T
IRSHAD ALI SHAH,
J-
It is alleged
that the appellants in furtherance of their common intention, committed death
of Allah Ditta by administering some poisonous substance to him, for that they
were booked and reported upon by police. On conclusion of trial, they were
convicted under Section 302(b) PPC and sentenced to undergo imprisonment for
life and to pay compensation of Rs.25,000/- and Rs.100,000/- respectively to
the legal heirs of the deceased and in default whereof to undergo simple
imprisonment for 06 and 12 months respectively by learned VII-Additional
Sessions Judge/MCTC-II, Karachi Central, vide judgment dated 22.10.2020, which
is impugned by them before this Court by way of 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 police at the instance of the complainant party; the
incident was unseen, it was reported with delay of about 06 months and
confessional statement of appellant Mst. Jamila was obtained by putting her
under promise. By contending so, he sought for acquittal of the appellants.
3. None has come forward to advance
arguments on behalf of the complainant. However, learned Addl. P.G for the
state by supporting the impugned judgment has sought dismissal of the instant
appeal by contending that the prosecution has been able to prove its case
against the appellants beyond shadow of doubt and the confessional statement
made by appellant Mst. Jamila was true and voluntarily.
4. Heard arguments and perused the record.
5. It was stated by complainant Allah Yar
that on 18.04.2015, he was intimated that his brother Allah Ditta has become
seriously ill; on such information, he and P.W Gul Bahar went at his house, he
disclosed to him that he was called by appellant Arshad at Hotel to settle
account with him, there he served him tea, thereafter, his condition has deteriorated,
then he and others took him to Jinnah Hospital and then shifted him to Ziauddin
Hospital, there he died. His dead body then was taken to Khanpur Taluka Rahim
Yar Khan, Punjab for burial. If for the sake of arguments, it is believed that
the deceased actually made dying declaration before the complainant then it was
obligatory upon him to have reported the incident to the police promptly, it
was not done by him, therefore, the delay in lodgment of the FIR of the
incident on his part, which is spreading over 06 months could not be
overlooked. It was further stated by the complainant that the construction work
of the deceased was taken over by appellant Arshad, which he insisted to be
taken up by P.W Shahid, being son of the deceased, which was refused to be
taken by appellant Mst. Jamila, which created suspicion in his mind and then he
intimated the incident to his nek mard P.W
Muhammad Akram, who interrogated appellant Mst. Jamila on Holy Quran during
course whereof she admitted her guilt before him by stating that she in
collusion with appellant Arshad has committed death of the deceased by
administering him some poisonous substance through milk. It was stated by P.W
Gul Bahar that he went at the house of the deceased on information furnished to
him by P.W Shahid, the deceased in serious condition was taken to Jinnah
Hospital and then was shifted to Ziauddin Hospital, there he died, subsequently
he came to know that the deceased was killed by the appellants. P.W Shahid was
given up by the prosecution, for the reason that he was not going to support the
case of prosecution. He was son of the deceased and appellant Mst. Jamila, as
such, his examination, in any way, was essential to prove the actual fact of the
incident. It was stated by P.W Muhammad Akram that appellant Mst. Jamila on
inquiry, admitted before him on Holy Quran that she in collusion with appellant
Arshad has committed death of the deceased by administering some poisonous
substance to him. It was stated by P.W/Dr. Tariq Farooq no drug/poison was
deducted in liver and stomach contains of the deceased. By stating so, he
belied the complainant and his witnesses that the deceased was done to death by
administering some poisonous substance to him. Obviously, the complainant and
his witnesses have not seen the appellants actually committing the death of the
deceased. Only evidence with the prosecution whereby the appellants have been involved
in commission of incident is confessional statement, allegedly made by
appellant Mst. Jamila before the complainant party and Mr. Munir Ahmed Panhwar,
the Magistrate, having jurisdiction, it was recorded by him on 19.11.2015, on
application of appellant Mst. Jamila on her appearance before him through her
counsel. It would have been better, if it was to have been recorded by him at
the instance of police. His evidence, however, is silent with regard to the
actual narration of incident made by appellant Mst. Jamila. She, however, by
way of such confessional statement has implicated her and co-appellant Arshad
Ali, in commission of incident. It is settled by now that the confessional
statement made by one person cannot be used against other, even if, it is found
to be true and voluntarily. On being asked u/s 342 Cr.P.C about such
confessional statement, it was stated by appellant Mst. Jamila that it was got
recorded by the complainant party on assurance that she would get rid of the
case. The judicial confession, which is got recorded by the complainant party
with promise could never be said to be true or voluntarily. On investigation,
as per I.O/SIP Banda Nawaz, he recorded 161 Cr.P.C statements of the P.Ws,
arrested appellant Arshad, arranged for the exhumation of the dead body of the
deceased, collected C.D/voice recording under memo and then submitted challan
of the case. C.D/voice recording, has not been subjected to forensic
examination. On asking, he was fair enough to admit that he has not heard
CD/voice recording. Even otherwise, as per P.W/mashir Abdul Aziz, it was not
the same C.D/voice recording, which was handed over to the I.O/SIP Banda Nawaz.
In that situation no much reliance could be placed upon such C.D/voice
recording. In these circumstances, it would be safe to conclude that the
prosecution has not been able to prove its case against the appellants beyond
shadow of doubt and to such benefit they are found entitled.
6. 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…...”
7. In
case of Tahir
Javed vs. the State (2009 SCMR-166),
it was observed by Hon’ble Court that;
“---Extra-judicial confession having been made
by accused in the presence of a number of other persons appeared to be quite
improbable, because confession of such a heinous offence like murder was not
normally made in the public”.
8. 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".
9. In view of above, the conviction and
sentence awarded to the appellants by way of impugned judgment are set-aside,
consequently, they are acquitted of the offence for which they were charged,
tried and convicted by learned trial Court and they shall be released
forthwith, if are not required to be detained in any other custody case.
10.
Above are the reasons of short order
dated 28.01.2023, whereby the instant appeal was allowed.
JUDGE
..