' Through this appeal the appellant has assailed the setting aside of judgment, dated 24-11-1996 passed by the learned Sessions Judge, Mandi Baha-ud-Din in, case F.I.R. No,327/93 registered at Police Station Saddar Mandi Baha-ud-Din on the complaint of Muhammad Khalid by which the appellant was convicted and sentenced to imprisonment for life and also burdened to pay Rs,40,000 as compensation to the legal heirs of the deceased.
2. The brief. Facts of the prosecution case narrated by Muhammad Khalid complainant in the F.I.R.
Are that on 18-10-1993 dead body of his brother Muhammad Farooq Shahid was found on the Saim Nullah in the area of village Mandi Bahad-ud-Din. He further explained that when the dead body was traced it was lying alongside the bank of Saim Nullah near Sugar Mills was found injured on head, chest and other parts of the deceased. He got registered a case F.I.R. No,322/93 in which he has stated that his brother Muhammad Farooq Shahid wanted to purchase a car. He had 60,000 or Rs,70,000 with him. He asked his father to give him permission for the purchase of the car which was refused but his friends namely Abdul Ghani, Altaf, Muhammad Imran, Mistry Mushtaq, Muhammad Anwar Ghauri and the appellant Mushtaq alias Khoji advised him to purchase the car.
He had also given Rs,22,000 to Altaf and Abdul Ghani accused as loan. According to the complainant on 17-10-1993 last time the above named persons Altaf and his deceased brother Muhammad Farooq Shahid were seen together by his relative Faiz Ahmad owner of Khawaja Medical Store. The complainant also stated that when he went to his own shop i.e, Naeem Medical Store he and his other brother Kashif Zubair saw Muhammad Farooq Shahid on the Medical Store alongwith Altaf. In the meanwhile Mushtaq alias Khoji also came there. Muhammad Farooq Shahid deceased had taken Rs,60,000 and on complainant's enquiry Mushtaq alias Khoji appellant told to the complainant that the other friends are waiting for them as they are going to purchase the car.
In the presence of complainant and his brother Kashif Zubair and Muhammad Farooq Shahid, deceased alongwith Altaf and Mushtaq alias Khoji went to purchase the car but he did not turn up and the complainant and his brother started searching for him. On 18-10-1993 at 8-00 a.m. They found the dead body on Saim Nullah. He took the firm stand that his brother has been murdered by Abdul Ghani, Altaf, Mistry Mushtaq, Muhammad Imran, Muhammad Anwar Ghauri and Mushtaq alias Khoji.
3. After the registration of the case the investigation was started. In the investigation, the Investigating Officer finally found all the accused as innocent except Mushtaq alias Khoji and challan was submitted before the Court of learned Sessions Judge, Mandi Baha-ud-Din. Though the remaining accused were placed in Column No,2 but they were summoned by the learned Sessions Judge and charge was framed which was denied by all the accused and the prosecution in order to prove the guilt of the accused procuced 19 witnesses and also tendered in evidence the Chemical Examiner's Report and that of Serologist and closed the prosecution case. The accused were examined under section 342, Cr.P.C. And all the accused denied the allegations and deposed that they have been falsely implicated in this case. Mushtaq alias Khoji appellant in reply to question have you to say anything else he made the following statement:- "As soon as murder of Farooq Shahid was disclosed I was arrested by police and that police had tortured me to confess the guilt. Police has kept me under custody for about 20 days without any legal sanction. During this period I produced sufficient evidence of my innocence and also intimated to higher police authorities in this respect.
' Investigation was still in progrees that police received information that one Safdar Gondal son of Sher Muhammad resident of Dera Haji Jalal, Mohallah Shafqatabad, M.B. Din has actually murdered Farooq Shahid but police has not accepted my version and had dishonestly concluded investigation against me. I am innocent."
' He also opted to appear in his defence and produced nine witnesses. The learned Sessions Judge, Mandi Baha-ud-Din vide judgment, dated 24-11-1996 convicted the appellant/accused and sentenced him to life imprisonment with a fine of Rs,40,000.
4. Learned counsel for the appellant has contended that this is a case of circumstancial evidence.
The prosecution has failed to prove the case against the appellant. There is no motive to murder Farooq Shahid. He has further contended that Muhammad Inayat and Sultan are witnesses of "Wajtakr" but they had appeared before the Investigating Officer after 4/5 days. They were not residents of the village hence their statements due to the delay in appearing before the Investigating Officer are not reliable. Learned counsel for the appellant has also attacked on the statement of Muhammad Anwar P.W.5 before whom the appellant made extra judicial confession.
' Learned Counsel for the appellant has also stated that one Safdar Gondal confessed who was an accused in case F.I.R. No,332 and 144 before Aziz Ahmad, A.S.-I. D.W.5 that he has committed the murder of Farooq Shahid. He has further contended that the recovery witness Muhammad Shafi P.W.13 is relative of the complainant and pistol was recovered from the Haveli of Akhtar alias Kala from an open space, hence the recovery is not reliable. He has further contended that pistol having recovered after 22 days of the occurrence has got not evidentiary value. He has also contended that the statements of last seen evidence consisting of the complainant, his brother Kashif Zubair P.W.11 is of no help to the prosecution. He has contended that the prosecution has miserably failed to prove the guilt of the appellant.
5. Learned counsel for the State has contended that the prosecution evidence is trust-worthy and has proved its case beyond any shadow of doubt. Learned counsel for the State has further contended that the witnesses are not inimical to the appellant and there is no reason that why their statements should not be relied upon.
6. I have heard learned counsel for the parties and have perused the record. Muhammad Khalid complainant P.W.14 and his brother Kashif Zubair P.W.11 have lastly seen the appellant with the deceased on 17-10-1993 when they were present at their Medical Store. Then the deadbody was found on the next day. Muhammad Khalid complainant involved all the friends of his deceased's brother and suspected that they had murdered the deceased for extracting money amounting to Rs,60,000 which was in his possession for the purchase of car. They had supported the version that they had seen the appellant with the deceased on the night of 17-10-1993. Muhammad Inayat P.W.6 and Sultan Ahmad P.W.7 two witnesses, had seen the appellant and the deceased on the Canal Bank on the night between 17/18-10-1993. Both these witnesses admittedly are not related to the deceased or the complainant. They had fully supported the prosecution version. Merely on the basis of the arguments that their statements were recorded after 2/3 days of the occurrence will not be sufficient to discard their evidence. The main point is whether they are related to the complainant party and had a motive to falsely implicate the appellant in the case in hand, they had no enmity or motive to falsely implicate the appellant in the case. Their statements cannot be discarded for the reason mentioned above. Muhammad Anwar P.W.5 before whom extra judicial confession was made is neither related to the complainant nor is inimical to the appellant. Not a single suggestion has been put to him that he had personal grudge against the appellant to falsely involve him in this heinous offence. It will be relevant to point out that the appellant was arrested on 6-11-1993 and recovery of pistol was effected on 10-11-1993. The empty recovered from the spot was sent to the office of Forensic Science Laboratory on 31-10-1993 before the arrest of the appellant in the case in hand and after the recovery of pistol was on 10-10-1993 it was sent to the office of Forensic Science Laboratory. The report of the Forensic Science Laboratory is positive as,the empty recovered had matched with the pistol recovered from the appellant. The prosecution case is fully established against the appellant through the evidence relied upon by the prosecution consisting of last seen proved by P.W.10 Mukhtar Ahmad Patwari and P.W.14 Muhammad Khalid and through extra judicial confession made before P.W.5 Muhammad Anwar and the statements of "Wajtakr" namely Muhammad Inayat and Sultan Ahmad. Learned counsel for the State contended that six accused were nominated by the complainant in this case out of which five has been declared innocent but it was the consistent view of the police that the appellant was challaned and recovery of pistol was effected from him. No value is attached to the finding of the police but there is no reason that the police exonerated all the accused but challaned the appellant only. The case of the appellant was that one Safdar Gondal was arrested by the police and he confessed before the police that he has murdered Farooq Shahid deceased.
To prove the same, defence has produced Aziz Ahmad D.W.5 who stated that Safdar was murdered in a police encounter. He made confession before the police about the murders and dacoities committed and also the murder of Farooq Shah. After obtaining the confession of Safdar case was reinvestigated and it was found that the confessional statement made before the police by Safdar Gondal was not correct and actually the appellant has to be challaned. The appellant has relied upon that statement of Safdar Gondal and has produced D.W.S. This confessional statement made by Safdar Gondal is of no help to the appellant. In the police custody if any statement is made by an accused that would be of no evidentiary value and cannot be made basis for the acquittal of an accused and even does not cast any doubt in the prosecution case which is otherwise proved against the appellant through the evidence produced by the prosecution which connects the appellant with the commission of the crime. Learned counsel for the appellant has failed to point out any enmity between the appellant and the witnesses who had deposed against him. The prosecution in the case has proved its case beyond any shadow of doubt.
7. For the foregoing reasons the appeal has no merit which is accordingly dismissed.