' ASSADULLAH KHAN CHAMKANI, J.---Bakht Zada, the convict/appellant, was charged vide F.I.R. No, 160 dated 11-10-2009 under sections 302, P.P.C. Registered at Police Station Rahim Abad, District Swat. He was tried by learned Additional Sessions Judge/Izafi Zila Qazi-IV, Swat. Learned trial Court found him guilty of committing the Qatl-e-Amd of Dawa Khan, deceased, and he was convicted and sentenced under section 302(b), P.P.C. Through judgment dated 22-5-2010 to imprisonment for life. He was directed to pay Rs,2, 00,00 as compensation to the legal heirs of the deceased or in default to suffer six months simple imprisonment. Benefit of section 382-B, Cr.P.C. Was extended to him. The convict/appellant has filed Criminal Appeal No,523 of 2010 against his conviction and sentence.
2. Brief facts of the case are that Aman Khan, in casualty room of Saidu Sharif Hospital, lodged a report that he along with Fateh-or-Rehman, Bakht Zada and Dawa Khan was going home after selling milk when at 9-00 hours reached to the place of occurrence where an altercation took place between accused and deceased, suddenly, Bakht Zada(accused) took out Chhuri from the folder, of shalwar, and gave blow to his brother Dawa Khan as a result of which he received injury on his left side chest and died on the spot. The occurrence was witnessed by them besides other people present there; however, no previous enmity was stated by him in his report. The Report was recorded in shape of Murasilla Exh.PA/1, which was, signed by the complainant as well as Fateh ur Rehman in token of its, correctness, thereafter, prepared the inquest report 4/1 and injury sheet of the deceased and handed over the dead body to Doctor for post mortem examination and seat Murasila to Police Station where case was registered.
' 4(sic). Investigation was carried out by Muhammad Rehman S.-I., who, on receipt of copy of F.I.R., proceeded to the crime spot, prepared the site plan, Exh.PB, at the instance of complainant and during spot inspection he took into possession a piece of cement duly blood-stained, vide recovery memo E..P.W.1/2. He also took into possession blood-stained "chadar" of the deceased, vide recovery memo Exh.P.W.3/2. He sent the blood-stained articles to FSL. He arrested accused Bakht Zada along with "chhuri", and he took the same, vide recovery memo Exh.P.W. 3/1. He produced P.W.
Fateh-ur-Rehman before Magistrate for recording his statement under section 164 Cr.P.C. Which was accordingly recorded. He also placed on file FSL report Exh.P.W. 8/7. After completion of the investigation, case file was handed over to S.H.O., who submitted complete challan in the court for trial of the accused.
5. Learned trial Court after receipt of the complete challan, complied with the 'legal formalities, framed the formal charge against the accused, who did not plead guilty and claimed trial.
Prosecution in order to prove its case produced eight witnesses. Thereafter, statement of the accused was recorded under section 342, Cr.P.C, wherein he totally denied the allegations levelled by the prosecution. After close of the evidence and hearing the arguments of the parties, learned trial Court convicted and sentenced the accused as, stated above.
6. Learned counsel for the appellant argued that there is delay in lodging of the report: He argued that complainant P.W.2 being related to deceased and interested witness cannot be relied upon.
He contended that blood-stained "chadar" of the deceased was produced to the police by the complainant with the delay of eight days and as such report of the FSL cannot be used against the appellant. He argued that recovery of "chhuri" is also planted one. He argued that there are material contradictions in between the statements of P. Ws. Lastly, he submitted that the prosecution has miserably failed to prove its case against the accused 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.
7. On the other hand learned A.A.-G. Appearing on behalf of State and counsel for the complainant argued that the report of the occurrence was lodged promptly, therefore, there was hardly any time for false charge. They further argued that the statement of the complainant has fully corroborated by the medical as well as circumstantial evidence. They further argued that the prosecution proved its case against the accused beyond any shadow of doubt. They supported the conviction and sentence awarded to the accused.
8. We have heard learned counsel of the parties and gone through the record with their valuable assistance.
9. Perusal of the record would reveal that there is unexplained delay in lodging of the report as the occurrence is that of 09.00 hours while the report has been lodged at 10.50 hours, i.e,, after about two hours of the occurrence, whereas the distance between the place of occurrence and the police station is 3/4 k:m., therefore, it can be safely held that time was consumed in deliberations and consultations.
10. The Star witnesses of the prosecution are complainant Aman Khan and Fateh-ur-Rehman. The prosecution produced complainant Muhammad Aman as P.W.2, whereas the other eye-witness namely Fateh-ur-Rehman, was abandoned being won-over. The only eye-witness, i.e,, complainant, who is brother of the deceased, when appeared as P.W.2, has departed from his F.I.R./report by stating that on the day of occurrence he, Fateh-urRehman, and Dawa Khan (deceased) were going to their house after selling milk, on the way, they met with Bakht Zada, standing beside the shop of Bacha Zada, who accompanied with him while he and Fateh-ur- Rehman were going behind them at some distance. Deceased and Bakht Zada (accused) were talking regarding water, in the meanwhile, the occurrence took place while as per contents of F.I.R., complainant, Fateh-ur-Rehman, Bakht Zada and deceased were going to their house when reached to the place of occurrence, in the meanwhile, an altercation took place and Bakhtzada took out "chhuri" and gave blow to deceased. The complainant further stated in his first report that the occurrence was witnessed by other persons present on the spot but during cross-examination he stated that no other person was present on the spot besides them. The rule for safe administration of justice is that improvement made by eyewitness in order to strengthen the prosecution case, lose their credibility and evidentiary value and when a witness made contradictory statement or improvement changing his version to suit the situation, if found to be deliberate and dishonest, would cause serious doubt on his veracity. In the present case, the complainant has made deliberate and dishonest improvement in his statement to strengthen the prosecution case, therefore, his statement lose its credibility and evidentiary value.
11. There are also material contradictions in timing of report and examination of the dead body of the deceased. According to F.I.R., the occurrence took place at 9-00 a.m. While the report has been lodged on 10.50 hours. The scriber of the report Muhammad Aziz appeared as P.W.4, who in his cross-examination stated that when the injured was brought to the hospital, he at once recorded the report, prepared injury sheet and handed over the dead body to the doctor, however, the said injury sheet is not available on the file whereas the complainant stated in his cross-examination that first the doctor examined the dead body of deceased and, thereafter, the police 'recorded its report. On perusal of Postmortem report Exh.P.W.6/1 would reveal that the dead body of deceased was brought at 10-00 a.m. The Medical Officer, who conducted the autopsy on the dead body of deceased, when appeared as P.W.6, affirmed the contents of his report and stated in his cross- examination that the dead body of deceased was brought at 10-00 a.m. Similarly, as per story of the prosecution the &ceased died on the spot while on perusal of Postmortem Exh.P.W.6/1 would reveal that the time between injury and death is 2 to 3 hours. Had the deceased died on the spot, the complainant could have lodged report in the Police Station as the same falls on the way while going to the hospital and secondly had the dead body of deceased been brought to the hospital at 10.00 hours, the complainant could have lodged report to the police at 10-00 a.m., which creates serious doubt in the prosecution case. Similarly, the complainant stated in his cross-examination that the clothes of the deceased were stained with blood but the same were not taken into possession by the Investigating Officer. Though, a bloodstained "chadar" was produced by the complainant but on the eight day of the occurrence without any explanation, which creates serious doubt in the prosecution case.
' Although, the police has shown a recovery of "chhuri" from the possession of accused at the time of his arrest but since the weapon used is dagger, which was easily available in the market as the same was not stained with blood, therefore, the same is of no help to the prosecution. Besides above, one of the marginal witness namely Kamran Khan, when appeared as P.W.3, stated in his cross-examination that his statement was recorded by the Investigating Officer in the Police Station while the Investigating Officer stated that the statements of marginal witnesses were recorded on the spot, which cast doubt.
' Similarly, from the conduct of P.Ws., it also appears that the occurrence has not taken place in their presence and in the manner as narrated by the prosecution because from perusal of site plan it is evident that the complainant and Fateh-urRehman P.W. Were at a distance of 4/5 paces from the deceased at the time of occurrence and as per record, the age of accused is .23 years while the ages of complainant and Fateh-ur-Rehman are 54 and 28 years respectively. Had the complainant and P.W. Fateh-ur-Rehman been present in a such close distance with the accused, the complainant being' brother of deceased could have caught the accused with the help of his other companion/ relative but it is astonishing to note that the occurrence was committed in presence of complainant, who is brother of deceased, and Fateh-ur-Rehman, the relative of deceased, but they had not shown any resistance and no attempt on their behalf was shown to have been made to overpower the accused or try to rescue the deceased from the accused or to chase the decamping accused, therefore, the story as put forth by the prosecution, is unnatural and hardly to be relied upon which is totally against the natural human conduct, most particularly, when the I.O. Has not taken into possession the "Jerry can" in which the milk was taken by them and even the statement of Bacha Zada shopkeeper was not recorded. Having considered the contention of learned counsel for the defence in the light of available record we are convinced that the claim of the complainant to have seen the occurrence could not be believed. Reliance in this regard is placed on the case of Muhammad Khan and another v. The. State, 1999 SCM R 1220.
True that conviction can be based on statement of solitary eye-witness, provided same is confidence inspiring and intrinsic worth of same rang true and satisfied conscience of the court but it is equally true that for, the purpose of conviction and sentence in a case of capital punishment, evidence must come through unimpeachable source and court with to see intrinsic value of such evidence with strong corroboration. The contention of learned counsel of the complainant that the complainant is having no previous enmity with the accused and question of substitution does not arise is not convincing one because want of enmity or interest will not stamp the statement of a witness with truth and the court has to see whether statement of such witness is inconsonance with the probabilities and material evidence and inspire confidence in a prudent mind. In this regard reliance is placed on case of Muhammad Arshad alias Achhi v. The State, 1995 SCM R 1639. It' is now settled that a single circumstance creating reasonable doubt in a prudent mind is sufficient for acquittal of accused not as a matter of grace but as a matter of right.
Therefore, we find that evidence led against the present appellant is not sufficient for maintaining conviction and sentence. He is, therefore, extended the benefit of doubt and this appeal is allowed.
Conviction and sentence recorded by the learned trial Judge are set aside and the appellant is acquitted of the charge. He be set at liberty forthwith, if not required in any other case.