1. ' WAZIR SHAKEEL AHMED, J.---This appeal is preferred against the judgment of the learned Sessions Judge Gilgit dated 24-10-2012, whereby the conviction of the appellant by the trial Court was maintained. Argument advanced by the counsel of the appellant/ convict and learned Deputy Advocate General assisted by Mr. Pir Muhammad Advocate heard. Also perused the record of the case with the able assistance of counsel of the parties.
2. ' Brief facts of the case gathered from the record are that a criminal case was reported against the appellant and another accused namely Miskeen by one Naseer Khan at Police Station Juglote on the night of 25/26 August under the above offence. According to the narrations of the report the complainant/injured Naseer was rescued by one Muhammad Ghazi and others. The S.H.O. Police station Joglote entered the said report in Roznamcha (Daily Diary) and sent the injured to Civil Hospital Joglote for treatment, on receiving the medico-legal report, a former F.I.R. No, 4-3-2005 was chalked against the present petitioner/convict and the other accused on 16-9-2005 that is after about 20 days after the date of occurrence, so the objection regarding delay in chalking of F.I.R. Has less weight and in the given circumstances the prosecution can not be blamed for failing to procure the circumstantial evidence (recovery of blood stone etc).
3. ' Record of the case reveals that the eye-witness named in the F.I.R. P.W.3 Muhammad Ghayaz did not suppor.Ted the case of the prosecution and was declared hostile and so was Maqsood Alam P.W.4, while P.W.5 Sher Ghazi in cross-examination admits that he has neither seem hitting stone to the complainant nor he has seen him in an injured condition: The third circumstantial evidence in this case is that of Hakeem Khan who is real brother of the complainant, who is charging the two accused in his statement. The said P.W. Improves his statement before the Court by saying that the accused Miskeen hit his brother on his head while petitioner/convict hit him on his nose there after the complainant got unconscious, but in the cross-examination he again admits that his statement regarding hitting of stone by Miskeen on the head of the complainant and also hitting stone to him by Rahat Shah and felling down of the injured on the ground is true.
4. ' The only corroborating evidence, against the convict accused is the statement of PW.1 Dr. Muhammadullah M.O. District Head quarter Hospital Gilgit. The statement of this P.W. Cannot be relied on the following grounds:---
(i) That according to the statement of the P.W.6 and his reiteration in the cross-examination that the complainant was reported to be brought before him on 25th August at about 2. p.m. At Civil Hospital Juglote, after initial checkup sent the injured to DHQ Hospital Gilgit. This statement contradicts the contents of the F.I.R. Wherein the injured was first went to the Police Station Juglote after midnight of 26-8-2013 at 1:45 a m which comes out to be the early hours of 27-8-2013.
(ii) The P.W.1 also admits that the MLR Exh/P.W.1/A does not contain an opinion of any Doctor and further states that all the record of the Radiologist is with him.
(iii) That above medico-legal report does not bear any countersign by the medical superintend of DHQ Hospital Gilgit and the investigating Officer P.W.7 also states that the said MLR Exh/P.W.1/A was delivered to him by the complainant by hand.
(iv) In important aspect of the case pertaining to this 'corroborative evidence of Exh/P.W.1/A (MLR) is that the record of the case is silent about a question put forward to the accused under section 342 regarding the medical report Exh/P.W.1/A against him.
5. ' The accused cannot be penalized on a particular evidence of which he was not made aware of through section 342, Cr.P.C. Of Criminal Procedure Code.
6. ' There as also no cavil with the proposition that burdon of proving the guilt of an accused beyond any shadow of doubt rest upon the prosecution and the benefit of slightest doubt should go non, other than to the accused. #TBS . #TBE #TBS HBT/3/GB #TBE #TBS File be consigned to record. #TBE ' As discussed above, the declaration of two important eyewitness as hostile, the material discrepancies and improvement in the statement of real brother of the complainant whose name does not appear in the F.I.R. As an eye-witnesses, coming of the complaint in the hospital one and half day before reporting the incidence at Police Station Juglote, procuring un-countersigned
(MLR) by the complainant and finally the material rather fatal omission of non-putting of question regarding medical evidence to the accused cast serious doubt on the prosecution case meriting acceptance of the appeal in hand, which is accordingly allowed by setting aside the orders of the two Courts below. The accused is acquitted from charges, who is directed to be set free if not/d involved in any other case.