' HAMID ALI MIRZA, J.--- This criminal appeal with leave of this Court is directed against judgment dated 21-2-2000 in Criminal Appeal No,1094 of 1999 passed by the Lahore High Court, Lahore, whereby the said appeal was dismissed and judgment of conviction dated 27-7-1999 passed by learned Additional Sessions Judge, Gujrat, was maintained, thereby accused Sohail Ahmad, Muhammad Zaman, Maqsood Ali and Faryad Ahmed were convicted under section 302(b)/34, P.P.C. And sentenced to life imprisonment with a fine of Rs,ten thousand and in default S.I. For three months' each and they were also convicted under section 324/34, P.P.C. And sentenced to 10 years'
R.I., each, so also under section 395, P.P.C. To seven years' R.I. Each and sentences passed were ordered to run concurrently, extending benefit of section 382-B, Cr.P.C. Which conviction and sentences were also affirmed by the learned Single Judge of the Lahore High Court.
2. Brief facts of the case are that the appellant Muhammad Zaman and convict co-accused Sohail Ahmed, Maqsood Ali and Faryad Ahmed were charged that they all were armed with fire-arms in the Nurpur Padday and had committed robbery upon Imtiaz and Rasheel P.Ws. In furtherance of their common intention thereby had committed an offence punishable under section 394, P.P.C.
And secondly on the same date, time and place being armed during the course of robbery also fired at Imtiaz as a result of which he died and committed offence of Qatl-i-Amd under section 302/34, P.P.C. And thirdly that on the same date, time and place they during the course of robbery also fired at Rasheel Aamer and caused him injuries under such circumstances and intention that if he would have died they would have been guilty of his murder and thereby committed an offence under. Section 324/34, P.P.C. The appellant before us and convict co-accused denied the commission of charged offences and claimed to be tried. Prosecution accordingly examined as many as 17 P.Ws. In support of its case. After recording to evidence appellant/ accused was examined under section 342, Cr.P.C. Wherein the appellant denied the commission of offence and stated false implication. Recovery of P.7, P.8, P.9 and P.10 was also denied. So far identification test it was stated that he and co-accused were shown to the P.Ws. At the time of arrest at the police station. He also stated that in fact his namesake of the village Lundpur has committed the above robbery but the police involved him in this case and made him scapegoat while the actual culprits were let off after having bribe from them. He tendered birth certificate Exh.D.C. In the name of one Jahangir Zafar son of Muzaffar Hussain. The appellant did not examine any witness in defence so also did not examine himself under section 340(2), Cr.P.C.
3. After recording of evidence and hearing learned counsel for the parties the trial Court convicted and sentenced the appellant as aforementioned.
4. We have heard learned counsel for the parties and, perused the record.
5. Learned counsel for the appellant read out the leave granting order and F.I.R. And thereafter contended that incident has occurred at 7-30 p.m. When it was dark cold winter night while F.I.R.
Was registered at 10-45 p.m. After inordinate delay of more than three hours for which no explanation has been furnished. He also submitted that in fact it was some other Jahangir of the same village who has committed the offence of whom birth certificate Exh.D.C. Has been tendered as such the present appellant was implicated in this case and actual culprit was let off. He submitted that the investigation was not genuine and so also identification test was not carried out as per requirements of law considering that the appellant and co-accused were shown to the P.Ws. He further submitted that the appellant/accused and convict co-accused were arrested on 5-3-1996 when the incident had taken place on 15-1-1996 at 7-30 p.m. As such identification test was held after 9 days of arrest and 50 days from the date of occurrence, therefore, identification test was of no evidentiary value. He submitted that there is no corroboration to the ocular version and in absence of proper identification test parade, the appellant/accused, cannot be held guilty of the commission of offence.
6. Learned counsel for the respondent/State has controverted the contentions of the learned counsel for the appellant and submitted that there was no delay in lodging of F.I.R. And further that ocular testimony is confidence inspiring and unimpeachable of eye-witnesses Muhammad Javed, Rasheel Aamer and Muhammad Ali which is corroborated by identification test parade held in accordance with rule and law. He also submitted that the allegation of the appellant and convict- coaccused that they were shown to the P.Ws. While they were in, the police lock-up stands falsified as the appellant and convict co-accused were remanded to judicial custody on the same day after getting remand from the Magistrate. He also submitted that neither P.Ws. Nor police had animus with the appellant and convict co-accused, therefore it could not be said that the appellant and the convict co-accused were falsely implicated.
7. We do not find merit and substance in the contentions and submissions of the learned counsel for the appellant and find force in the submissions made by learned counsel for the State.
8. All three eye-witnesses, namely, Muhammad Javed, Rasheel Aamer and Muhammad Ali in their testimony have fully implicated the appellant in the commission of offence and in the identification. Test parade present appellant was correctly picked up by all the three P.Ws. Wherein specific role while committing' the offence was stated by the P.Ws. Which fact is mentioned by the learned Magistrate in his identification parade proceedings.
9. Mere long delay in holding identification test of the accused would not by itself be sufficient to discard testimony. Reference may be made to decision of this Court in (i) Arif Masih and another v.
The State PLD 2001 SC 398, (ii) Lal Singh and others v. State of Uttar Pradesh 2003 INSC 506, (iii)
Vikram Singh v. Raj Singh 1998 SCC (Crl.) 578 and (iv) Vikram Singh V. Raj Singh (1973) 3 SCC 896. In the circumstances of the case and the law laid down by this Court and from the Indian jurisdiction it could safely be said that even delay of three months in holding the identification test would not be fatal to the prosecution case. In the instant case only there is delay of 5 days when on the first day of arrest of the accused/appellant, he was remanded to judicial lock-up where subsequently identification test parade was held through eye-witnesses who correctly identified the appellant attributing the role to him at the time of commission of offence.
10. The ocular testimony of all three witnesses along with identification test and medical evidence proved beyond reasonable doubt that the appellant had committed the said charged offence, considering that nothing has been brought on record that the said P.Ws. And police had any animus with the appellant. Even if the recovery made is excluded from consideration as no crime- empties were recovered from the spot, case against the appellant/accused stood proved beyond reasonable doubt. Learned trial Court has rightly appreciated the evidence in accordance with law and convicted the appellant/accused with the commission of charged offence which findings were rightly affirmed by the learned Single Judge of the High Court.
11. In view of aforesaid reasoning, we do not find any legal or factual infirmity with the impugned judgment, therefore, finding no merit in this appeal, the same is dismissed.