KHADIM HUSSAIN Versus THE STATE Muhammad Aslam Chatha for Appellant. , Kh. Shaukat for the State.

The appellant Khadim Hussain, was convicted under section 302, P.P.C. and was sentenced to life imprisonment plus a fine of Rs.5,000 or in default thereof to suffer further rigorous imprisonment for one year by the learned Sessions Judge, Khushab vide his judgment, dated 18‑5‑1986. The appellant has come up in appeal challenging his conviction and sentence.

2. Briefly stated, the prosecution story as given in the F.I.R. Exh.P.C. lodged at the instance of the complainant Zafar Iqbal is that the complainant is a cultivator by profession. His younger brother Zulfiqar used to load Sarkandas on the Tractor Trolley. On 1‑2‑1984 at Peshiwela, the complainant Zafar Iqbal in the company of Haji Muhammad Ramzan and his younger brother Zulfiqar was sitting in the house of Haji Muhammad Ramzan. Zahoor son of Assalat Khan and Khadim Hussain appellant, came there and asked Zulfiqar (deceased) to accompany them. At that time Zulfiqar was putting on a green Shalwar and Qameez. When Zulfiqar did not turn up till evening, the complainant Zafar Iqbal went out in search of him and enquired from Zohar Ali and Khadim Hussain appellant about Zulfiqar. Both of them disclosed that Zulfiqar had left them saying that his father had been injured by a camel and that he had gone to his Dera to see him. On the next day it came to the notice of the complainant that Zulfiqar had not come back to his Dera and he, therefore, in the company of his father Karam Ali went to the Appellant as well as Zohar Ali for the second time, who in turn admitted before them that they had told a lie and disclosed that in fact Zulfiqar had gone to Rawalpindi on a truck. On this information the complainant party searched for Zulfiqar there but they could not trace him out. Later on the complainant alongwith his father went to the father of the appellant who told them that he .vas unable to give any proof of innocence of the appellant. It was further stated that father of the appellant was ready to pay compensation to them. The motive is that the deceased Zulfiqar was engaged with Mst. Kausar daughter of Fateh Khan and the appellant Khadim Hussian had illicit relations with her. Zohar Ali and Khadim Hussain appellant are close friends and they committed murder of Zulfiqar in execution of their common intention.

3. Ijaz Hussain Khan S.I./S.H.O., Police Station Daud Khel P.W.9 investigated the case. He inspected the spot and prepared the site plan Exh.P.E. Statements of the witnesses were recorded by him under section 161, Cr.P.C. The appellant Khadim Hussain as well as the acquitted co‑accused Zohar Ali were arrested by him on 15‑3‑1984. On 20‑3‑1984 while in custody, Zohar Ali, acquitted co‑accused, disclosed that he as well as the appellant committed the murder of Zulfiqar and threw his dead body in the canal. Similar statement was also made by the appellant. The accused were taken to Rangpur and both of them separately while in police custody led to the place of occurrence near the canal bank where the dead body of the deceased Zulfiqar was disposed of. The witness stated that on the pointing out of the appellant and the acquitted co‑accused 15 pieces of bones P.3/1‑15 were recovered and were taken into possession. The witness also recovered Shalwar P.1 and Shirt P.2 which were taken into possession vide memo. Exh.P.D. The memo. of recovery Exh.P.D. was attested by Fida Hussain and Mushtaq Ahmad P.Ws. These articles were sent to Medical Officer, Civil 'Hospital Noorpur Thal for medical examination and then despatched to the Surgeon Medico‑Legal, Punjab, Lahore.

4. The prosecution produced as many as 11 witnesses to prove its case against the appellant. Dr. Sh. Muhammad Akram P.W.1 made a statement that on 24‑4‑1984 while he was posted as Chemical Examiner, Lahore, he examined the articles sent to him and his report is as under:‑

"No metallic poison is detected in. above article No.l. The above article No.2 are not stained with semen. They are stained with blood only."

5. Zafar Iqbal P.W.6 is the complainant in the case. He stated that the deceased Zulfiqar was his brother and that he was a labourer by profession. He used to load Sarkandas on Tractor Trolley. On 1‑2‑1984 at Peshiwela, the witness alongwith Haji Muhammad Ramzan P.W.7 and Zulfiqar deceased was sitting in the house of said Haji Muhammad Ramzan at his Dera where the appellant Khadim Hussain came and requested the deceased to accompany him for the purpose of cutting Sarkandas. Thus, the deceased Zulfiqar parted their company and went with him. At that time the deceased was putting on a green Shalwar and Qameezs. He did not come back till evening Search was made. The appellant told the complainant that the deceased had in fact gone to enquire about his father as it was stated that he had been injured by a camel. Later on it came to light that Karam Ali, father of the deceased was not injured by the camel .nor the deceased came to see him at his Dera. Therefore, under the circumstances, the witness in the company of his father for the second time went to the appellant and when confronted with this situation that the father of the witness had not been injured by a camel and that the deceased did not go to the house of his father, the appellant told that in fact he had told a lie and that the deceased had left for Rawalpindi on a truck. Thus, the witness continued searching for the deceased for about 11 months but he could not trace him out. Ultimately, the appellant confessed before them that he had murdered Zulfiqar. It is further stated by the witness that father of the appellant was also present at that time and he offered them to pay compensation for the murder of Zulfiqar. The matter was lodged with the police vide F.I.R. Exh.P.C. This statement of Zafar Iqbal P.W.6 was supported by Haji Muhammad Ramzan P.W.7 and Fida Hussain P.W.8.

6. The appellant while making statement under section 342, Cr.P.C. denied the allegations levelled against him. In reply to question No .7 he stated that the case has been registered against him due to enmity. To the same effect is the statement of the acquitted co‑accused, Zohar Ali. In reply to question No. 7, he stated that due to suspicion he has been involved in the case.

7. Learned counsel for the appellant argued that the prosecution has miserably failed to prove its case against the appellant inasmuch as there is no direct evidence to connect the appellant with the commission of the offence. Learned counsel stated that the last seen evidence produced by the prosecution is not worthy of any credence. Similarly, the learned counsel stated that the mere fact that certain bones were recovered at the pointedness of the appellant will not necessarily show that the bones were that of the deceased. Learned counsel maintained that the extra‑judicial confession made by the appellant before the witnesses is not enough to convict the appellant under the capital charge. Learned counsel stated that there is no corroboration to the highly interested and unreliable evidence of the prosecution witnesses and as such the evidence should be straightaway rejected. Learned counsel further contended that there is considerable delay in lodging the F.I.R. and no plausible explanation thereof has been given. The learned counsel also stated that the report of the chemical examiner is negative and it was specifically reported that no poison or semen was detected from the articles sent to him. Learned counsel urged that the report of the Doctor Exh.P.N. showed that the articles were stained with blood and as such the same is not a piece of evidence to be relied upon. Learned counsel stated that the articles were not stained with human blood. The learned State counsel supported the conviction and sentence of the appellant. The learned counsel frankly conceded that there is no direct evidence produced by the prosecution inasmuch as there is no evidence regarding the extra‑judicial confession. However, he stated that there is motive which is proved on record for commission of the crime.

8. I have heard the learned counsel for the parties at considerable length and have perused the record very minutely. I am of the view that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. To begin with, there is no direct evidence to connect the appellant with the commission of the crime. The prosecution evidence in the case only pertains to last seen evidence, extra‑judicial confession, recoveries and the motive. The contention of the learned counsel is that the prosecution case regarding the extra‑judicial confession has been introduced for the first time during the trial. This was not the case of the prosecution during investigation of the case. Learned counsel stated that the witnesses have amply conceded that this was not their case before the police. In this behalf the prosecution has produced Gul Jahan P.W.4, Karam Ali P.W.5, Zafar Iqbal P.W.6 and Haji Muhammad Ramzan P.W.7. It may be noted that the evidence of Gul Jahan P.W.4 and Karam Ai: P.W.5 has not been believed by the learned trial Court, and as such, there is no need to make any reference to their statements. The learned trial Court has placed reliance on the evidence of Zafar Iqbal P.W.6. I am convinced that the complainant has wholly failed to give plausible explanation for not lodging the F.I.R. promptly. The occurrence as mentioned earlier took place on 1‑2‑1984 and admittedly the F.I.R. was lodged with the police after the delay of 11 months. There is ample evidence on record that the complainant did not proceed in the case promptly. In my view the success or otherwise of the prosecution case depends upon the evidence of Zafar Iqbal P.W.E and Haji Muhammad Ramzan P.W.7. I have thoroughly checked up the statements of these two witnesses and I find that these statement could not be relied upon to convict and sentence the appellant under a capital charge. Zafar Iqbal P.W.6 has stated in categorical terms before the learned trial Court that a confessional statement was made before him as well as before his father and maternal‑uncle. A specific question was put to him as to whether the witness had made a similar statement in Exh.P.C. He stood contradicted on this point as there is no mention of this part of his evidence in the statement Exh.P.C. Thus, it is clear that the story regarding the extra‑judicial confession made by the appellant before him was introduced by him for the first time before the learned trial Court. It finds no place in his statement Exh.P.C. as stated above. Thus, I am of the view that this witness is telling a lie. He has changed his statement when he made a statement before the learned trial Court. Under law he cannot be allowed to improve his statement before the learned trial Court. The requirement of law is that the witness must remain consistent throughout. The witness who is found to be contradictory at various stages cannot be given any credibility whatsoever. This witness has obviously changed his statement from the one made while making the statement Exh.P.C. Thus, I reject the statement of Zafar Iqbal P.W.6. Similarly the statement made by Haji Muhammad Ramzan P.W.7 cannot be relied upon for the same reason that he too attempted to improve his statement before the learned trial Court. He was duly contradicted on the basis of his statement made by him before the police vide his statement Exh.P.E. He took the position before the learned trial Court that a confessional statement has been made by the appellant before him alongwith P.W.6 Zafar Iqbal but this part of his statement is missing from the statement made by him before the police vide EXh.P.E. It is apparent that the witness has tried to fill up the lacuna in the case in order to give support to the prosecution version. Therefore, I reject the statement of this witness as well. The recovery of various bones again is of no use to the prosecution case inasmuch as there is nothing on the record to show that the bones Exh.P.3/1‑15 are of the dead body of Zulfiqar deceased. The evidence on the point has wholly failed to disclose as to how these bones are of the deceased. The prosecution case is that a skeleton consisting of the above referred bones was recovered at the pointing out of the appellant but I am not prepared to believe that these bones are of the dead body of Zulfiqar deceased. The statement of Fida Hussain P.W.8 is, therefore, of no help to the case of the prosecution. Accordingly, the same is rejected outrightly. The motive part of the prosecution story too has not at all convinced me in any way. The motive appears to be weakest link in the prosecution story. The prosecution version regarding the motive was that the deceased was engaged with Mst. Kausar and that Khadim Hussain appellant had illicit liaison with the girl. There is not an iota of evidence on the record to show that as to how Zafar Iqbal P.W.6 came to know that the appellant Khadim Hussain was carrying on with Mst. Kausar who is alleged to be engaged with the deceased Zulfiqar. Under the circumstances, the motive as alleged by the prosecution appears to be highly improbable, weak and ambiguous and does not at all fit in the prosecution case. Therefore, the motive part of the prosecution story too is discarded.

8. The upshot of the Above discussion is that the prosecution has failed to prove its case against the appellant beyond doubt. This is a case of no evidence at all. The prosecution evidence regarding the motive, extra‑judicial confession, recovery and last seen is not at all convincing. reliable and trustworthy and no conviction whatsoever can be based on such type of evidence. Resultantly, I proceed to accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith provided, of course, he is not required in any other criminal case.

S.A./K‑87/L Appeal accepted.