2016 PLP 1189 (MLD)

ABDUL LATIF KHAN, J.

This appeal has been preferred against judgment/order dated 31.01.2013, passed by learned Additional Sessions Judge/Izafi Zilla Qazi Kabal, Swat whereby the appellant Muhammad Khurshad, involved in case FIR No.195 dated 23.07.2012 under section 324, P.P.C./13 AO of Police Station Shah Dheri, District Swat, was convicted and sentenced as under:-- a. Under section 324, P.P.C. to undergo RI for 3 years with a fine of Rs.10,000/- and in default thereof to further undergo SI for three months. b. Under section 337-D, P.P.C. to undergo RI for one year along with Arsh which shall be 1/3rd of the Diyat and he shall be kept in confinement till payment. c. Under section 13 AO to undergo one year RI with fine of Rs.5000/- or in default thereof to suffer one month SI.

2. As per prosecution case, the appellant/convict while passing water through Electric Motor from 'Chashma' of mosque to his house, was abstained by the complainant due to which he was infuriated and started beating the complainant by giving knife blows as a result of which he sustained injuries on different parts of his body. The occurrence was also witnessed by PWs Kishwar Khan, Rashid Ali, Dr. Jehanzeb and Fazal Rehman. Consequently on the basis of report of complainant instant FIR was registered against the appellant/convict.

3. After completion of investigation, complete challan was put in Court for trial against accused, where in order to prove its case the prosecution examined the following 8 PWs:-- "PW.1 Amir Rehman SHO, submitted complete challan against appellant; PW.2 Sher Alam IHC has drafted murasila Ex.PW.2/1 on the report of complainant; PW.3 Maraj Ali is marginal witness to recovery memo Ex.PW.3/1 and Ex.PW.3/2 vide which knife and blood stained shirt of complainant were taken into possession; PW.4 Dr.Asghar Khan has examined the complainant and submitted medico legal report Ex.PW.4/1; PW.5 Sher Bahadar ASI, has conducted investigation in the instant case; PW.6 Janat Iqbal is complainant/victim in the instant case who narrated the whole story as per his report; PW.7 Kishwar Khan and PW.8 Fazal Rahman being eye witnesses of the case narrated the incident in their own words.

4. At conclusion of trial, the learned trial Court convicted and sentenced the appellant through impugned judgment/order, hence the instant Criminal Appeal has been preferred by the appellant/convict. Arguments heard record perused.

5. In the instant case the star witnesses of prosecution are complainant (PW.6), Kishwar Khan (PW.7) and Fazal Rahman (PW.8) who were allegedly present on the spot at relevant time. However there are material contradictions and improvements in their statements. As per PW.6, at the time of occurrence PW.7 Kishwar Khan and PW.8 Fazal Rehman were also present on the spot and witnessed the occurrence but as per cross examination of PW.8, he was not present on the spot at the time of quarrel/occurrence nor in his presence the occurrence has taken place. He also belied the complainant by stating that he saw the complainant/injured in the medical store of Dr.Jehanzeb which is near to the spot, meaning that he was not present at relevant time. PW.7 has also admitted in his cross examination that on his arrival to the spot only altercation was in progress and also belied the version of complainant by introducing other persons namely Sami Ullah, Khalil and Rafique to be the alleged eye witnesses of the occurrence while these persons have not been mentioned by complainant in his report nor the other eye witness PW.8, which creates doubt in the mode and manner of the occurrence as described by the complainant.

6. Similarly PW.3 who is marginal witness to recovery memo Ex.PW.3/1, vide which the weapon of offence (knife) was taken into possession, stated in his cross-examination that the said knife was recovered beneath the pillow in the Baitak whereas as per PW.5 (Investigation Officer) the knife was lying on the ground which he took into possession. As per PW.4 the recovery memo was prepared in the Baitak whereas according to PW.5, the recovery memo in respect of knife was not prepared in the Baitak which contradicts the PW.4, making the recovery of alleged weapon of offence doubtful. Besides the report of FSL is also not supporting the recovery of blood stained knife which was sent along with blood stained shirt of complainant for chemical analysis and as per opinion of the expert, though it was human blood but not sufficient for grouping, creating further dint in the prosecution case.

7. It is also very strange to observe that there is no injury sheet available on file on the basis of which medico legal report has been prepared which makes the medico legal report as doubtful. Furthermore the electric motor on which the present incident took place, has also not been taken into possession by the I.O, nor the 'Chashma' has been shown in the site plan which belied the version of complainant.

8. Apart from the above there is nothing on record to suggest that appellant/convict is hardened or dangerous criminal, having previous history of involvement in such like cases. He has also made no confession before the competent Court which could connect him with the commission of alleged occurrence. There are material contradictions as well as loop holes in the prosecution evidence which creates doubt in a prudent mind about involvement of the appellant/convict in the commission of offence, the benefit of which would go to the appellant. It is well settled by now that a single doubt if found reasonable, would entitle the accused to earn acquittal and it is not necessary that the defense shall furnish bundle of doubts for winning the acquittal of accused.

9. In view of what has been observed above, it is held that the prosecution has badly failed to prove its case against the appellant/convict beyond any reasonable shadow of doubt, therefore, the judgment of conviction and sentence passed by learned trial Court is based on misreading, non-appreciation of evidence available on record, which is against the law and facts on record and liable to be set aside. Thus the instant Criminal Appeal is allowed and the conviction and sentence passed by learned trial Court vide judgment dated 31.01.2013, is set aside and the appellant is acquitted of the charges leveled against him. He is on bail, his bail bonds stands cancelled and the sureties are discharged from liabilities of bail bond. HBT/28/P Appeal allowed.