' ASSADULLAH KHAN CHAMKANI, J.---This criminal appeal is directed against the judgment dated 22-3-2011 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Wari Dir Upper, whereby Bakht Sher, the appellant, involved in case F.I.R. No. 184 dated 8-7-2009 under sections 336/ 337-A (i)/34, P.P.C. Registered at Police Station Wari, Upper Dir was convicted and sentenced under section 337-A(i), P.P.C. To pay Daman Rs.1,00,000 (one Lac ) to the injured.
2. Facts of the case are that Riyasat Bibi complainant lodged a report that on 6-7-2009 she was present in her house when heard the noise at mountain known as Sholo and her children also came to house in frightened condition. She was inquiring the matter, when at 20.00 hours Bakht Sher, Bashar, Bahadar Sher and Waris came and started pelting stones as a result of which she received injury on her cheek and eye. The accused also made aerial firing. The occurrence was witnessed by Gul Sabar Khan and Khial Zameen besides her; as such, the above referred F.I.R. Was registered.
3. After registration of the case and on completion of investigation challan against the accused was submitted. The accused were sent for trial to the Court of Additional Sessions Judge/Izafi Zilla Qazi, Wari. Learned trial Court after receipt of the complete challan, complied with the legal formalities under section 265-C, Cr.P.C., framed the formal charge against the accused, who did not plead guilty and claimed trial. Prosecution in order to prove its case produced witnesses.
Thereafter, statements of the accused were recorded under section 342, Cr.P.C., wherein they totally denied the allegations levelled by the prosecution and professed their innocence. After close of the evidence and hearing the arguments of the parties, learned trial Court convicted and sentenced the accused-appellant as stated above, while the remaining accused were acquitted of the charge, hence, the present appeal against his conviction.
4. Learned counsel for the appellant argued that four persons were charged for pelting stones at the complainant with no specific role. He further submitted that there are material contradictions amongst the ocular account, medical evidence and site plan. He argued that the medical evidence furnished by P.W.7 contradicts the prosecution version. He submitted that the prosecution has miserably failed to prove its case against the appellant-convict beyond any shadow of doubt and the learned trial Court has wrongly and mistakenly assessed the evidence on record and passed the impugned judgment of conviction without any cogent evidence, therefore, the same is liable to be set aside and the accused be acquitted of the charge.
5. Learned D.A.-G. Appearing on behalf of the State and counsel representing the complainant party controverted the contentions of the learned counsel for the appellant and argued that the appellant-convict is directly charged for causing injury to the complainant and her version is fully supported by the eye-witnesses and medico legal report. He further argued that the prosecution proved its case against the appellant, therefore, the appeal is liable to be dismissed.
6. Arguments heard and record perused with the valuable assistance of counsel for parties.
7. Perusal of file would reveal that in the F.I.R. Four persons were charged by the complainant for causing injury to her but no specific role has been attributed to any of the accused. The complainant when appeared as P.W.3 again she charged all the four accused for pelting stones and causing injury to her with no specific role. The Investigating Officer P.W.2 stated in his cross- examination that according to his investigation no specific role has been ascribed to any of the accused. The statement of complainant is also not ringing true because the F.I.R. Has been lodged by the complainant at 9-25 p.m. While the complainant stated in her cross-examination that she left her house at 10-00 p.m. And reached to police station at 11-00 p.m. She further admitted that the report has been lodged by Ras Muhammad. She admitted that after report her statement was not recorded by the police. Besides the above, the I.O. Inspected the spot on 9-7-2009, i.e, on the following day of the occurrence, in the presence of complainant as well as eyewitnesses while the complainant stated in her cross examination that she remained in the hospital Wari for 2/3 days wherefrom she went to Mardan hospital. Gul Sabar P.W.2, the alleged eye-witness, also confirmed that at the time of spot inspection, the complainant was not present and was in the hospital. The prosecution also produced Gul Sabar and Khial Zameen as P.Ws.4 and 5. Though, they stated in their statements that from the stone blow of Baht Sher the complainant received injury, however, they made improvement in their courts statement. Besides the above, when four persons were hurling stones at the complainant in that case it was difficult for the P. Ws. To differentiate that at whose stone blow the complainant received injury and that too, when the occurrence took place at 8-00 p.m.
11. As a matter of fact the prosecution is always bound to prove its case beyond any shadow of doubt. Though, the complainant ' bearing the stamp of injury but stamp of injury pnly indicates the presence of the witness at the relevant time but it is not the guarantee of the truthfulness. In criminal jurisprudence, the general rule of appreciation of evidence is that want of interest or absence of enmity does not stamp the statement of a particular witness with presumption of truth and that much depends on the intrinsic value of the statement of a witness. The real test is as to whether the statement of a witness is in consonance with the probabilities, whether it .Fits in with the other evidence and whether it inspire confidence in the mind. Reliance in this regard is placed upon the cases of Muhammad Iqbal v. The State (1984 SCM R 930), Muhammad Arahad alias Achhi v. The State (1995 SCM R 1639) and Haroon alias Harooni v. The State and .Another 1995. SCMR 1627.
It is also fundamental principle of jurisprudence, that is, to disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which impeaches the credibility of the witness, that may make the entire statement doubtful. It has been now settled that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. Reliance in this regard is placed on case Muhammad Khan and another v. The State, 1999 SCM R 1220.
12. In view of the above discussion and scrutiny of evidence from all angles, I am of the view that the prosecution has failed to prove the guilt of the appellant-convict through unimpeachable ocular testimony. Since the prosecution has failed to prove the guilt of appellant beyond any shadow of doubt, therefore, the conviction of appellant cannot be maintained. Resultantly, while extending the benefit of doubt, I accept the appeal filed by the appellant-convict by setting aside his conviction and sentence acquit him of the charges levelled against him.