2023 PLP 2130 (MLD)

IRSHAD ALI SHAH, J.

It is the case of the prosecution that the appellant committed death of Mst. Rukhsana by causing her knife injuries and then took away her Rs.150,000/-, for that he was booked and reported upon. After due trial, the appellant was convicted under section 302, P.P.C. and sentenced to undergo imprisonment for life and to pay compensation of Rs.10,00,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months; the appellant was further convicted under section 397, P.P.C. and sentenced to undergo rigorous imprisonment for 07 years; all the sentences were ordered to run consecutively with benefit of section 382(b), Cr.P.C, by learned Additional Sessions Judge-I, Karachi East vide judgment dated 07.06.2021, 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 the police at the instance of the complainant; there was no eye witness to the incident; the slip/chit purported to be written by the deceased containing name of the appellant could not be treated as a dying declaration of the deceased, same even otherwise, has been managed by the complainant and evidence of the prosecution's witnesses being doubtful in its character has been believed by learned trial Court without assigning cogent reasons. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

3. Learned Additinal P.G for the state and learned counsel for the complainant by rebutting the above contentions, have sought for dismissal of the instant appeal by contending that on arrest from the appellant has been secured the cell phone of the deceased and the knife which he has used in commission of the incident.

4. Heard arguments and perused the record.

5. It was stated by complainant Nasir Nawaz that on 06.11.2020, it was intimated to him by his sister Mst. Saima that somebody has stabbed their mother Mst. Rukhsana; on such intimation, he went at the place of incident, there was intimated by the Mohallah people that his mother has been taken to Jinnah Hospital by P.W Mujtaba; on such intimation he went at Jinnah Hospital, his mother Mst. Rukhsana was unable to speak and she by way of gesture demanded paper and pen, which was provided to her by him and on it, she wrote the name of the appellant with two additional words and . To such extent the complainant is supported by P.Ws Mst. Saima and Obaid-ur-Rehman. Surprisingly P.W Muhammad Aftab came with a different version. As per him the team of Doctors were present there and they provided pen and paper to Mst. Rukhasana, where upon she wrote the name of the appellant with two additional words and . There is nothing in evidence of any of the medical officer which may suggest that they provided pen and paper to Mst. Rukhsana. In order to strengthen the story said above, the prosecution has examined P.W Mujtaba. It was stated by him that on finding a boy coming out of the house of Mst. Rukhsana, he went inside of her house and found her lying on cot, in injured condition and on inquiry she disclosed to him that she has been stabbed by the appellant, being her nephew. He took Mst. Rukhsana first to Fouji Foundation Hospital and then to Jinnah Hospital. Nothing has been brought on record, which may suggest that Mst. Rukhsana in first instance was taken to Fouji Foundation Hospital. Be that as it may, as per Medical Officer Dr. Noor-un-Nisa, Mst. Rukhsana was brought at Jinnah Hospital by Nasir (he is the complainant). It belies PW Mujtaba that he actually taken Mst. Rukhsana to Hospital. P.W Mujtaba on asking was fair enough to admit that his 161, Cr.P.C statement was recorded by the police on 11.11.2020, it was with delay of about 05 days to FIR; such delay having not been explained plausibly could not be overlooked which has put, the cloud of doubt on his version, thus it could be concluded safely that he was introduced in investigation by the police at the instance of the complainant subsequently with ulterior motives. The slip/chit allegedly containing the name of the appellant has not been subjected to its examination through handwriting expert to make it confirm that it actually was written by Mst. Rukhsana. In absence of Expert Opinion in such respect, it would be hard to conclude that the chit/slip was containing the handwriting of Mst. Rukhsana. It was Mst. Zainab, who actually intimated the police about the incident at about 1500 hours, which was recorded under Roznamcha entry No.19 dated 06.11.2020 at PS Shah Faisal Colony. She has not been examined by the prosecution. There was every possibility that on examination, she would have disclosed the true picture of the incident. Her non-examination could not be lost sight of. On asking IO/SIP Sardar Muhammad was fair enough to admit that as per charge sheet the slips/chits were handed over by the complainant to ASI Rana Muhammad Javed. He has also recorded 154, Cr.P.C statement of the complainant. He has not been examined by the prosecution. His non-examination could not be overlooked. It was stated by per IO/SIP Sardar Muhammad that on investigation the appellant admitted his guilt before him by making such statement, if for the sake of arguments, it is believed that such statement was actually made by the appellant even then same could not be used against him in terms of Article 39 of the Qanun-e-Shahadat Order, 1984. It was further stated by IO/SIP Sardar Ahmed that he secured the cell phone of the deceased at the instance of the appellant from one Amir, that Amir too has not been examined by the prosecution. His non-examination could not be ignored. It was further stated by IO/SIP Sardar Muhammad that he secured the blood stained knife at the pointation of the appellant. On examination, it was found to be stained with human blood. There is nothing on record which may suggest that it actually was stained with the blood of the deceased. Even otherwise, the recovery of the knife was made from the house of the complainant, if it was actually lying at the house of the complainant, then it was ought to have been secured by the police much before its actual recovery at the instance of the appellant. It was further stated by IO/SIP Sardar Muhammad that on investigation he obtained the photos of the appellant from CCTV recording. On asking he was fair enough to admit that face of the appellant in those photos of CCTV recording is not clear. No statement of the person, who actually handed over those CCTV photos of the appellant to the I.O/SIP Sardar Muhammad has been recorded; therefore, the appellant could hardly be connected with the recovery of cell phone, knife and CCTV photos. In these premises, it could be concluded safely that the prosecution has not been able to prove its case against the appellant beyond shadow of reasonable doubt and to such benefit he is found entitled.

6. In case of Abdul Khaliq v. 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."

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

9. The instant appeal is disposed of accordingly. JK/M-150/Sindh Appeal allowed.