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

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