' ASSADULLAH KHAN CHAMKANI, J.---This criminal appeal is directed against the judgment dated 17- 3-2008 passed by learned Additional Sessions Judge/Izafi Zila Qazi-I, Swat, whereby Sultanat Khan was convicted and sentenced under section 302(b), P.P.C. To life imprisonment and also directed to pay Rs,3,00,000 (three lac) as compensation to the legal heirs of deceased, however, benefit of section 382-B, Cr.P.C. Was extended to him.
2. Brief facts of the prosecution case are that complainant Mst. Sultana, in injured condition, in the Casualty Room of Civil. .Hospital, Saidu Sharif, Swat, reported the matter to the local police that on 4-7-2006 she was busy in working at home, when at 10.00 hours her brother-in-law, namely, Sultanat Khan son of Bakhti came and with some object he gave her blows as a result of which she received injuries on her chest and left arm etc. She disclosed no motive in her report nor the name of eye-witness, however, stated that the occurrence might have seen by someone else. The report of the complainant was reduced into writing in the shape of Murasilla Exh.P.W.8/1. On' 7-7-2006 she succumbed to her injuries and, as such, case F.I.R. No,1299 dated 7-7-2006 under section 302, P.P.C.
Was registered at Police Station Mingora.
3. The accused-appellant was arrested in the case. After completion of investigation, complete challan was submitted against him before the Court. The trial Court after supplying copies under section 265-C., Cr.P.C., charge-sheeted the accused-appellant to which he pleaded not guilty and opted to face the trial. The prosecution in order to prove its case produced ten witnesses in all and at the close of prosecution evidence accused was examined under section 342, Cr.P.C. However, he did not opt to be examined on oath under section 340(2), Cr.P.C. The learned trial Court after hearing the parties convicted and sentenced the accused-appellant as referred to above, vide the impugned judgment, hence, the present jail criminal appeal.
4. Learned counsel for appellant argued that there is inordinate delay in lodging of the F.I.R. He further argued that though, the report was lodged in the hospital but the same was not verified by the doctor. He further argued that the alleged dying declaration and statements of P.Ws. Are inconsistent with the medical evidence. He argued that it is a case of no evidence because the only alleged eye-witness namely Gul Muhammad has been abandoned by the prosecution being unnecessary. He further argued that the recovery has been planted against the appellant by the I.O. By joining hands with the complainant party, therefore, the impugned judgment is based on conjecture and surmises and liable to be set aside and appellant may be acquitted of the charge.
5. On contrary, learned DAG appearing on behalf of State argued that the appellant has been charged by the deceased in her report and the version of prosecution is supported by Bakht Zaiba, Zahir Khan and Kameen Khan. He argued that single accused is charged and was well-known to the deceased being her brother-in-law, therefore, there was no chance of substitution or misidentification. Learned counsel argued that the deceased then injured charged the accused- appellant for the commission of crime, which is duly supported by natural witnesses. It was argued that the prosecution version is fully supported by prosecution evidence, which is consistent and confidence-inspiring and supported the impugned judgment.
6. We have considered the arguments of learned counsel for the parties and have gone through the record.
7. No doubt, a statement of a deceased person in the form of an F.I.R. Can be treated as a dying declaration which, per se, is good enough under Article 46 of Qanun-e-Shahadat Order, 1984, for sustaining conviction on a capital charge, however, to make it basis for conviction, the prosecution is required to establish, firstly, that the dying man was in full senses, conscious and alert to surrounding, was fully oriented in space and time and was able to make a coherent statement, secondly, the dying declaration rings true and is sound in substance to be relied upon, thirdly, it is free from promptness given by the outside quarter and, fourthly, the doctor present at the occasion shall give a fitness certificate about the condition of the dying man. Keeping in sight the above criteria, it is to be seen whether the maker of the statement Exh.P.W.8/1 was in a fit condition to make a statement. No doubt, there is a certificate regarding her consciousness but the same cannot be relied upon because according to certificate, the doctor examined her at 12.30 hours while P. W.8 Farman Ali, who recorded the report of the complainant, stated that he reached to the hospital at 1300 hours, P.W.8, though, stated that he recorded the report of the complainant but there is nothing in his statement regarding preparation of her injury sheet or handing over her to Medical Officer or presence of doctor at the relevant time and obtaining fitness certificate from him. Dr. Inayat Ullah when appeared as P.W.9 has neither testified the same nor the same has been exhibited in his statement. There is also inconsistency regarding the time of arrival of deceased then injured to the hospital because P.W.9, Dr. Inayat Ullah, stated in his examination-in-chief stated that the victim was brought by Abdul Aziz ASI, the Investigating Officer of the present case, but Abdul Aziz P.W.6 negated his such statement and stated that the victim was not taken by him to the hospital nor produced her before the doctor. The doctor has said not a single word regarding his presence with the 'police at the time of report, which makes the story of prosecution doubtful.
Honourable Supreme Court in a case of Tahir Khan v. The State reported in 2011 SCM R 646 has held that:- "Mere Dying Declaration shrouded by mystery and fraught with so many infirmities is not enough to convict a person---Dying Declaration is weaker type of evidence, which needs corroboration when fully corroborated by other reliable evidence---Facts and circumstances of each case have to be kept in view and also credibility, reliability and acceptability of such Declaration by Court."
8. Prosecution produced Bakht Zaba P.W.2, Zahir Khan .P. W.3 and Kameen Khan P.W.4 but they are neither eye-witness of the occurrence. Nor in their presence the deceased then injured made statement to the police or doctor. P.W.8 Farman Ali stated in his statement that at the time of report except her husband Gul Muhammad no one was present with her.
9. Another damaging aspect of the case is that Gul Muhammad, the husband of the deceased, was alleged to be the eye-witness of the occurrence, therefore, he was an important witness of the prosecution 'but, strangely, he was abandoned by the prosecution without assigning any reasons and, as such, the prosecution withheld its best evidence. The act of withholding of most natural and a material witness of the C 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 consequence, therefore, not producing the material witness makes the case of prosecution further doubtful. Reliance is placed on the case of Muhammad Rafique and others v. The State (2010 SCM R 385) wherein it has been held that if any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it. Mere fact that single accused is charged could not advance the case of prosecution and even otherwise single accused by itself is not proof of guilt. Reliance in this regard is placed on case of Muhammad Khan and another v. The State 1999 SCM R 1220.
10. Now it has been settled by the honourable apex Court that for giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts but a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit not as a matter of grace and concession, but as a matter of right. Reliance is placed on the case of Muhammad Akram V. The State 2009 SCM R 230. It has now also been 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, we are of the view that the prosecution has failed to prove the guilt against the appellant. The evidence available on record are not of such a character which could be relied upon to convict a person on a capital charge. As the prosecution has failed to prove the guilt against the appellant beyond any shadow of doubt, therefore, their conviction cannot be maintained.
' Resultantly, while extending the benefit of doubt, we accept the appeal filed by the appellant- convict by setting aside his conviction and sentence and acquit him of the charges levelled against him. He is in custody and be set free forthwith, if not required in any other case.
' These 'are the detailed reasons for our short orders even date. #EndJudgment