' ASSADULLAH KHAN CHAMKANI, J.---This criminal appeal is directed against the judgment dated 22-4-2010 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Lower Dir at Timergara, whereby Qalandar Syed, the appellant, involved in. Case F.I.R. No. 82 dated 17-2-2009 under sections 324/34, P.P.C., Police Station Dir Lower, Timergara, was convicted and sentenced as under:- -
(i) under section 324, P.P.C. To undergo four years' R.I. And also fine of Rs.10,000 and in case of non- payment of fine he was directed to further undergo two months' S . I .
(ii) under section 337-F(iii), P.P.C. To undergo two years' R.I. And further to pay Rs.15,000 as daman to the injured. Both the sentences were directed to run concurrently. However, benefit of section 382-B, Cr.P.C. Were extended to the appellant-convict, while the remaining two accused were acquitted of the charge.
2. Qalandar Syed, the appellant, has questioned his conviction and sentence through this Appeal bearing No. 382 of 2010.
3. Facts of the case are that Hussain Ullah complainant, in injured condition, lodged a report that on 17-2-2009 he along with his father brought Pocleen vehicle for levelling his land, situated in Muhajir Camp No.2, in the meanwhile, at 16.00 hours, Qalandar Syed son of Syed Rehman Bacha, Muhammad Ayaz son of Amir Jehad Khan. And Junaid son of Muhammad Ayaz came in a motorcar and started abusing to the driver of Pocleen and stopped the work. On their intervention, all the three accused started firing at them in order to commit their Qatal -Amd, as a result of fire shot of Qalandar Said he was hit on his right thigh while his father remained escaped from their firing. The incident was witnessed by many people present there. Motive for the occurrence was stated to be dispute over landed property. The report of complainant was reduced into writing in shape of Murasilla, Exh.PA/1, which he signed as .Token of its correctness. The injury sheet of the deceased was prepared and, thereafter, dispatched him to hospital while the Murasilla was sent to Police Station through constable Kifayat Ullah for registration of the case, as such, the above referred F.I.R. Exh.PA was registered.
4. 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, Dir Lower at Timergara. 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 seven 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.
5. Learned counsel for the appellant argued that the eye-witness Khalil-urRehman mentioned in the F.I.R. And other material witnesses were abandoned by the prosecution on the ground of being unnecessary. He further argued that there are material contradictions amongst the ocular account, medical evidence and site plan. He argued that the medical evidence furnished by P.W.1 contradicts the prosecution version. He also challenged the recovery of two empties of .30 bore and contended that it was planted one. He contended that motive was set up in the F.I.R. But the same has not been proved. He submitted that the prosecution has miserably failed to prove its case against the appellants-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.
6. Learned A.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 it is not necessary for prosecution to produce each and every witness and it is quality and not the quantity of evidence to be relied upon. He contended that there is no reason for substitution of the actual culprit by the complainant. He maintained that non-production of the witnesses, mentioned in the list, cannot adversely affect the prosecution case. He further argued that the prosecution proved its case against the appellant, therefore, the appeal is liable to be dismissed.
7. Arguments heard and record perused with the valuable assistance of counsel for parties.
8. The prosecution case mainly hinges upon the solitary statement of Hussain Ullah, the injured complainant. The case of prosecution is that on the day of occurrence he along with his father Khalil-ur-Rehman was busy in levelling the field through pokleen, in the meantime, all the three accused came, first they started abusing the pokleen driver and stopped the work and thereafter started firing at them as a result of pistol fire of Qalandar Said he was hit on his right thigh while from the firing of remaining. Accused they escaped. Astonishingly, the complainant neither in his first report disclosed the name of pokleen driver nor in his statement recorded during trial as P.W.6.
Complainant at the time of report specifically mentioned the name, of one Khalil-ur-Rehman, who happened to be the father of the complainant, as eye-witness of the occurrence, but he was not produced before the court in support of his version rather abandoned on the ground of being unnecessary and, as such, the prosecution withheld' its best. Evidence. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness, if produced, might not have supported the prosecution and in such eventuality the prosecution must not be in a. Position to avoid the. A consequence. Similarly, the complainant stated in his first report that the occurrence was witnessed by many people present there. The I.O.
During investigation introduced four other eye-witnesses, namely, Sher Zaman, Najeeb Ullah, Khan Muhammad and Abdur Raziq but they too, were abandoned by the prosecution. The driver of the vehicle was also not produced, who was the most natural and material witness of the occurrence.
Therefore, it can safely be held that either they were not supporting the prosecution case or were withheld to avoid cross-examination and bringing the true facts on record.
' In case of Lal Khan v. State, reported in 2006 SCM R 1846, it was held:-- "non-production of most natural and material witness of the occurrence would strongly lead to an inference of prosecutorial misconduct, which would not only be considered a source of undue advantage for prosecution but also an act of suppression of material facts causing prejudice to accused"
' It was further held:-- "Act of withholding of most natural and a material witness of occurrence would create an impression that had such witness been brought into witness box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid consequence"
' It is settled principle of law that if a best piece of evidence is available with the party and the said party fails to produce the same before the Court then a presumption under Article 129(g) of B Qanun-e-Shahadat Order, 1984 can, be drawn that had the said piece of evidence been produced before the Court it would have been unfavourable to the said party. Such presumption can fairly be drawn in the present case that had P.W. Khalil-urRehman and other eye-witnesses produced in the Court they would have not supported the prosecution case. Non-examination of the material witnesses has materially affected the prosecution case. In case of Riaz Ahmad reported in 2010 SCM R 846, it was held:-- "prosecution case rested only on the solitary statement of the complainant. One witness of the occurrence had expired and the other eye-witness had been given up by the prosecution being unnecessary. Presumption under illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 could fairly be drawn that had the given up eye-witness been examined, his evidence would have been unfavourable to the prosecution".
9. In the present case, 8 stated above, the most natural and material witnesses have been abandoned by the prosecution, therefore, the prosecution case mainly hinges upon the solitary statement of complainant cum injured. As the ocular testimony is plying a pivotal role in the criminal cases, therefore, I would like to reappraise his testimony with great care and to draw conclusion as to whether he has seen the culprits at the time of firing, whether his testimony is worthy of credence, believable and whether his conduct is natural and in accordance with the ordinary human conduct or otherwise.
' From the perusal of contents of report, it is evident that the complainant in his first report has not disclosed the type of weapons, which the accused were carrying at the time of occurrence. The site plan reveals that distance between the complainant and accused party was ten paces and, as such, they were very close to each other at the time of occurrence, so, there was no chance for the complainant to omit the description of the crime weapons possessed and used by each accused, particularly, when the report was lodged on the spot where the complainant was waiting for twenty minutes till the arrival of police to the spot but strange enough on the part of the complainant that he has not disclosed the type of weapons of offence in his first report and when the Investigating Officer shown recovery of two empties of 30 bore pistol, just to in line his statement with the story of prosecution, the complainant during court statement made improvement and stated that Qalandar Syed had fired at him with .30 bore pistol. So, in this back ground non-specification of weapon in the hand of appellant by the complainant in, his first report and his subsequent improvement during court statement hurl doubt with regard to prosecution story.
' Similarly, the conduct of the complainant is very dubious, because nobody had gone to the Police Station for lodging the report. The complainant and the P.Ws. Allegedly present there, were waiting for the arrival of police to the spot. Had the P.Ws. Been present on the spot, definitely they could have shifted the complainant either to Police Station or Civil Hospital and made report regarding the occurrence. The occurrence allegedly took place at 16:00 hours and complainant was waiting for the arrival of police to the spot for twenty minutes on the spot. When the police reached to the spot he made a report to them then the police took him to Civil Hospital where after medical examination at 5-00 p.m., the complainant again came to the Police Station, where the Investigating Officer was waiting for him and he was taken to the spot. A look at the Medico-legal Report would reveal that the medical officer made addition subsequently in his report with different ink and pen which suggests that the occurrence has not taken place in the manner and mode as alleged by the prosecution.
10. There is another material discrepancy in the prosecution case because as per prosecution story, all the three accused made indiscriminate firing at the complainant party but during spot inspection two empties of .30 bore pistol has been recovered. Strangely, the same have not been sent to FSL to determine as to whether the same were fired one weapon or different weapons, which also cast doubt on the case of prosecution.
' Similarly, as per prosecution story, the complainant party was busy in levelling the field through a pokleen but the Investigating Officer did not bother either to take into possession the said vehicle or show the work done by the complainant on the spot. Besides the above, when we juxtapose the site plan and Medico-legal Report with the statements of complainant and Investigating Officer, it totally negates their statements because as per contents of site plan, it was prepared at the instance of complainant and the eye-witnesses. The Investigating Officer when appeared as P.W.7, he stated in his cross-examination that he prepared the site plan at the instance of complainant and only the eye-witness Khalil-ur-Rehman with further admission that he recorded the statements of the eyewitnesses on the following day of the occurrence i.e., on 28-2-2009 for the reason that they were not present on the previous day. When the alleged eye-witness Khalil-ur- Rehman was present with the Investigating Officer then what restrict him not to record his statement on that day and postponed to record his statement on the following day of the inspection of spot. In the site plan it has specifically been mentioned at point No.5 that Hussain Ullah complainant had received two fire arm injuries on his right thigh which fact has also been written in the injury sheet marked as Exh.PC that injuries on the right thigh were present but perusal of statement of Dr. Rashid Khan P.W.1 and Medico-legal Report would reveal that there was only one entry wound on lateral aspect of right leg and one exit wound also on lateral aspect of right leg. As per statement of doctor, there was one entry and exit wound on the person of complainant but astonishingly, the I.O. Did not recover blood from the spot. The above discussion of material facts with regard to the making of report and the way the investigation was conducted and medical examination of the complainant would lead one to the conclusion that extreme dishonesty was committed by the Investigating Officer and, in fact, the F.I.R. Was lodged after considerable consultations and deliberation and after conducting preliminary investigation in the case.
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 only 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 pladed upon the cases of Muhammad lqbal v. The State (1984 SCM R 930), Muhammad Arshad alias Achhi v. The State (1995 SCM R 1639) and Haroon alias Haroon I v. The State and another 1995 SCM R 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 bebased 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 J regard is placed on case Muhammad Khan and another v. At 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 accused through unimpeachable ocular testimony, The basic principle of Sharia/Law that conviction must he based on evidence beyo'i' any shadow of doubt because the damage resulting from erroneous sentence is irreversible and the principle that it is better to acquit person than to, punish an K innocent one, but as 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. He is on bail and his sureties are also discharged from the liabilities of the bail bonds.