' ABDUL LATIF KHAN, J.---This appeal has been directed against the judgment dated 27.11.2013 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Dir Lower, Samarbagh, whereby appellant Fazal Mania, involved in case FIR No. 640 dated 2.10.2012, registered at Police Station Samarbagh, was convicted and sentenced as under:--
(i) Under section 324 PPC to undergo RI for three years and also directed to pay fine of Rs. 40,000/- or in default to undergo SI for one month.
(ii) Under section 337-F (v) PPC to pay Rs. 50,000/- as `daman' to the injured complainant.
2. According to prosecution story, complainant, Gul Rooz Khan, in injured condition, on 2.10.2012, lodged a report in Police Station to the effect that he had gone to his field known as `Nawano ghar' for cutting grass, in the meanwhile, at 17.45 hours, Fazal Maula came, asked him as to why he had come to the land, in reply, he told that it was his land. On this, he started firing at him as a result of which he was hit on his right thigh and received injuries. Motive for the occurrence was stated to be dispute over landed property. He stated that the occurrence might have seen by anybody else. The report of complainant was recorded vide FIR Ex.PA.
' Accused was arrested in the case. After completion of investigation, complete challan was submitted Copies of relevant documents were supplied to the accused. He was charge sheeted to which he pleaded not guilty and claimed trial. Prosecution in order to prove its case produced twelve witnesses. After closure of prosecution evidence, accused was examined under section 342 Cr.P.C. Wherein he claimed his innocence and false implication, however, he was neither ready to be examined on oath nor wished to produce defence. Learned trial Court after hearing the parties convicted and sentenced the appellant as stated to above, hence, the present appeal.
4. Learned counsel for the appellant contended that there is delay inordinate delay in lodging of the report and the ocular account furnished by complainant, PW 11 and Noor Hamid Khan, PW-12, is not convincing and confidence inspiring, which cannot be based for conviction of the appellant. He contended that recovery of pistol as weapon of offence is concocted story. He contended 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.
5. As against that, learned AAG and counsel for complainant argued that single accused has been charged by the complainant in promptly lodged FIR and his versions has also been supported by the testimony of Gul Bahadar, Naqeeb Khan, Noor Hamid, Sartaj and Fazal Qayum coupled with recovery of pistol as weapon of offence, blood stained earth and garments of the injured. They argued that the prosecution proved its case against the accused beyond any shadow of doubt and supported the conviction and sentence awarded to the accused.
6. I have considered arguments of learned counsel of the parties and gone through the record with their valuable assistance.
Perusal of the record would reveal that there is unexplained delay in lodging of the report as the occurrence has taken place at 17.45 hours on 2.10.2010 while report has been lodged at 18.45 hours whereas the distance between police station and place of occurrence is 4/5 k.m, therefore, possibility of false implication of the appellant on the basis of suspicion could not be ruled out.
Statement of complainant-cum-injured also runs contrary to contents of FIR as well as statements of Medical Officer and Noor Hamid, PW-12. Complainant appeared as PW-11 and deposed that on the day of occurrence, he had gone to his land known as `Nawano ghar' for cutting grass, in the meanwhile, at about 5.30/5.45 hours, accused Fazal Mawla came and started firing at him with his pistol due to which he was hit on his thigh and received injuries but he did not disclose the names of eyewitnesses. On the 3rd day of the occurrence, PWs Noor Hamid and Majid Ullah were introduced as eyewitnesses and the Investigating Officer prepared the site plan at their instance and their statements were also recorded under section 164/161 Cr.P.C. In cross examination, complainant deposed that after receipt of injury Noor Hamid Khan and Majid Ullah came to him from the nearby fields and they shifted him to the Police Station, where he lodged a report. He next deposed that at the relevant time the accused was in `malitia' dress. Noor Hamid Khan, PW-12, who is brother of victim, stated that after receipt of injury, he brought `charpai' from the house of Wali Hazrat and shifted the complainant with help of village people to police station where report was lodged by the complainant. He further deposed that on 5.10.2012 he accompanied the police to the place of occurrence and on his pointation site plan was prepared and on 16.10.2012 he and Majid Ullah were summoned by the police to Police Station where their statements were recorded. He further stated that at the relevant time the accused had worn half-white clothes. When his brother Abdul Hamid was present with the complainant at the time of lodging report in the Police Station then why the complainant was not disclosing his name to the police at the time of lodging of report as eyewitness. There is nothing on record to suggest that what prevented the 1.0. From recording the statements of witnesses, particularly, when they both were present with the complainant at the time of lodging of report. There is no answer to the question that what prevented the investigating officer from inspecting the spot just after registration of the case on 2.10.2012 and instead inspected it on the third day of the occurrence on 5.10.2012. Credibility of a witness becomes highly suspicious if his statement under section 161/164 Cr.P C is recorded with delay without offering plausible explanation. In Rahat Ali 's case, reported in 2010 SCMR 485, the apex court has observed that delay in recording statement by police without furnishing any plausible explanation, is fatal to the prosecution case and statement of such witness is not to be relied upon. The above anomaly leads one to the logical conclusion that either both the witnesses were not ready to record their statements in support of version of complainant or they were not present on the spot. It is fundamental principle of criminal jurisprudence, that is, to disbelieve a witness, it is not necessary that there should be numerous infirmities and if there is one which impeaches the credibility of the witness that may make the entire statement doubtful.
' From the perusal of statements of both the witnesses, it is clear that they have failed to prove that they are truthful witnesses, therefore, their testimony is neither believable nor confidence-inspiring.
Though, complainant was having the stamp of injuries but stamp of injuries is not the guarantee of the truthfulness and his statement is also to be tested with the touchstone as required for other witnesses.
8. The testimony of Medical Officer is also contrary to the statement of complainant. Dr. Fazal Qayum appeared as PW-8 and deposed that on 2.10.2012 complainant was produced to him in hospital under the escort of Rahat Shah, Constable, and he after examining him prepared his report, posted Ex PW 8/1. It is worth to mention that his report neither bears the name of victim, nor time of arrival and examination of victim nor duration of injury. The report Ex PW 8/1 reveals that neither it bears the size of injuries nor the victim has been advised for X-ray. The doctor in his cross examination, clarified that he prepared his report on 2.10.2012 on the front page of the injury sheet while two lines overleaf the injury sheet were written after receipt of detail report. He further stated that the victim remained in the emergency room for about 30/40 minutes but complainant, PW-11, completely negates the statement of Medial Officer and deposed that on reaching hospital, Samarbagh, except the police and levy personal no one was present there. He further deposed that he was sitting in the vehicle `ghwagai' and his brother brought a chit from someone and from there they started for Hospital Timargara. He categorically deposed that he was not deboarded from the vehicle in the hospital rather from the bank of road they started for Timergara hospital. Khan Bahadar Khan and Naqeeb Khan appeared as PW-1 and PW-3 but they have not named the present appellant for the commission of offence. A 3-bore pistol is shown to have been produced by one Swal Faqir as weapon of offence but the same has also not been established as the same has neither been recovered from the possession of appellant nor on ,his pointation and even said Swal Faqir has not been produced before the Court, therefore, the same is also of no avail to the prosecution.
9. Apart from this, four shots have allegedly been made by the accused but during spot inspection no empty has been recovered by the Investigating Officer. The place of occurrence is surrounded by maize crop and other bushes/trees. The complainant was allegedly cutting the grass at the time of occurrence but nothing in shape of cutting grass, rope, bag or sickle has been taken into possession. The gist of the above discussion is that the presence of PW-12 is highly doubtful at the time of occurrence as he failed to explain his presence in a satisfactory manner with the complainant and statement of complainant has also not been corroborated by any independent evidence. Majid Ullah one of the important witness has been abandoned by the prosecution and, as such, best evidence has been withheld, therefore, adverse inference can be drawn and from the above discussion, it seems that the appellant has been involved in the case due to suspicion, however, it is settled law that the suspicion, howsoever, strong it cannot take the place of proof. It is well settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence and if Court comes to the conclusion that the charge so leveled against the accused has not been proved beyond reasonable doubt, then the accused becomes entitled for his acquittal on getting benefit of doubt. In criminal case, where more than one possibility appears in the case, then the possibility in favour of -accused is always to be preferred for simple reason that benefit of doubt is never to be extended to the prosecution and is always given to the accused.
' For the aforesaid reasons, I find that evidence led against the appellant/convict is not sufficient for maintaining his conviction and sentence. He is, therefore, extended with the benefit of doubt, resultantly, this appeal is allowed, conviction and sentence recorded by the learned trial Judge is set aside and the appellant is acquitted of the charge. He be set at liberty forthwith, if not required in any other case.
' These are the reasons of my short order announced on 3.6.2014.