SH. MUHAMMAD ZUBAIR, J.--- Zulfiqar aged 26/27, Muhammad Naeem aged 32, Muhammad Nawaz aged 23 and Muhammad Arshad aged 30/32 were tried by the learned Judge Special Court No.9, Gujranwala, under section 392/397, P.P.C. The learned trial Court acquitted Muhammad Nawaz and Muhammad Arshad but convicted Zulfiqar and Muhammad Naeem under section 392/397, P.P.C. And sentenced them to R.I. For 14 years plus fine of Rs.25,000 each or in default 2 years' R.I. Vide order dated 1-6-1988. The learned Judge further directed that fine if realized be paid to the victim of robbery as compensation under section 544-A, Cr.P.C. Zulfiqar and Muhammad Naeem have challenged their convictions through Criminal Appeals Nos.723 and 838 of 1988 respectively. As both the appeals arise out of the same judgment, we propose to dispose of these appeals by this judgment.
2. The prosecution case in nutshell is that on 20-6-1987 at about 4 a.m. Haji Abdur Rehman's P.W.2 alongwith his son Khadim Hussain P.W.3 was going on a motor-cycle to slaughterhouse for doing his business. When they reached near Khan Mahal Cinema they saw the appellants and the acquitted accused armed with deadly weapons i.e. Klashnikov, carbine and revolver. Zulfiqar, Muhammad Naeem and Muhammad Nawaz stopped their motor-cycle and Muhammad Arshad (since acquitted) kept sitting in the car. They threatened the complainant and his son to hand over what they had in their possession under fear of instant death. The accused snatched Rs.59,100 from the complainant and thereafter directed him and his son to leave the place. Allah Ditta P.W.4 also saw the occurrence. The accused also threatened him to run away.
3. After the occurrence Haji Abdur Rehman's P.W.2 went to the police station and made application Exh. P.C. Before Muhammad Tufail S.H.O. P.W.7 on the basis of which formal F.I.R. Exh.P.C./1 was drafted by the said Police Officer. Thereafter he went to the spot, recorded the statements of the P.Ws. The complainant suspected some persons responsible for the offence. They were made to join the investigation but later on they were declared innocent by the police.
4. Fazal Ahmed Masood P.W.6 Inspector Police Station Model Town, arrested Zulfiqar accused on 1- 11-1987 and got recovered Klashnikov P.1 alongwith 30 live cartridges, 2 magazines and 7 empties which were taken into possession vide memo. Exh. P.M.
5. Muhammad Tufail Sub-Inspector made an application for identification parade of the accused persons. Noor Ahmad Mirza, Magistrate 1st Class P.W.1 was deputed to supervise the identification parade in the Central Jail, Gujranwala on 14-11-1987. The witnesses correctly identified Muhammad Naeem and Zulfiqar appellants. The remaining accused could not be identified by them. Thereafter the Sub-Inspector formally arrested Zulfiqar and Muhammad Naeem on 27-1-1988. After completing the legal formalities the police submitted challan.
6. The appellants, when examined, denied the prosecution allegations and professed innocence.
They stated that they had been involved in this case due to enmity with the police. Muhammad Naeem made the following statement regarding his involvement:-- "Due to enmity with the police the police has involved me in this case falsely to show their efficiency."
To the same effect is the stance of Zulfiqar. No evidence -was produced in defence.
7. Placing reliance on the prosecution evidence, the learned trial Judge convicted the appellants and gave them the sentences mentioned above.
8. The learned counsel for the appellants contended, the occurrence took place when it was dark, thus the eye-witnesses were not in a position to recognize the real culprits, And they made certain substantial improvement to beef up the prosecution case at the trial stage, hence no reliance can be placed on their uncorroborated testimony. Haji Abdul Rehman's complainant categorically mentioned in the F.I.R. From the voice of the culprit who was holding Klashnikov at the time of the commission of the offence, he recognized that he was Achhu Machhiwala (fisherman) with whom he had criminal litigation, who lodged a case under section 307/324/325, P.P.C. Against his sons Muneer Hussain etc. The complainant in the F.I.R. Did not disclose detailed description and broad features of the culprits, which could facilitate their recognition at a later stage in the test identification parade, held under the supervision of Noor Ahmad Mirza P.W.1. The complainant gave numerous applications to higher police officials, showing his suspicion against above mentioned Achhu Machhiwala (fisherman), it was at a belated stage, he under the police pressure changed his stance and made the appellants as the culprits, who looted him on the day of occurrence. No implicit reliance can be placed on this dubious test identification parade, which was held by the P.W.1 without observing legal and procedural formalities laid down by the Government. The occurrence took place on 20-6-1987, the appellants were allegedly identified by the eye-witnesses on 14-11-1987, after the lapse of 5 months, it is not humanly possible for the eye-witnesses to recognize the real culprits at the test identification parade after the lapse of so much time. Hence no conviction can be recorded on the basis of this meagre evidence.
9. The learned State counsel adopted those reasons, which prevailed with the learned trial Judge while convicting the appellants.
10. We have examined the record carefully with the able assistance of learned counsel for the parties.
11. We find the decision of this case, depends upon this fact alone `whether the eye-witnesses were in a position to correctly recognize the real culprits at the time of the commission of the offence or not'. It appears the eye-witnesses were not in a position to recognize the real culprits, that is why, they named, Achhu Machhiwala (fisherman) as a suspect in this case who was found innocent by the police, thus no reliance, can be placed upon the identification of the appellants by the witnesses in the test identification parade held by Noor Ahmad Mirza, P.W.1 in the present case because a person's right perception of an object seen by him depends on several circumstances. It depends mainly `(i) on his situation relative to the object viewed, his nearness to or distance from it, (ii) also on his capacity to see with perfect or sufficient distinctness an object far-of, (i.e) he may be able to discern clearly things at a great distance from him, or to see distinctly only objects near to him; that is, he may be either far-sighted or near-sighted, (iv) his right perception of the object may also depend on the light by which it is seen and therefore, on the time, whether day or night.
(v) it may depend, also, on the length or shortness of the time he has, in which to view the object,
(vi) it may depend also on the freedom of his view from all obstruction at the time, from whatever cause, or momentary, (vii) the sun shining full in the face of a person may very much obstruct his sight. And the same effect may be produced by falling snow, or dense rain or smoke'.
12. Applying aforementioned factual test to the present case, we find, the eye-witnesses were not in a position to correctly recognize the real culprits at the time of the occurrence due to darkness. The matter was further complicated by the overzealous Police officer, who had the motive to falsely involve the appellants in this case for two reasons; firstly to take revenge from the were of Haji Naeem appellants, secondly to gain credit for unearthing blind dacoity case which had become headache for the district police. The law requires before acting upon the evidence of the identification parade the Courts must look for some independent evidence, direct or circumstantial, to eliminate the chances of false implications, which unfortunately is missing in the present case, so it would not be safe to convict the appellants on the uncorroborated testimony of the eye--witnesses who had shown their suspicion on one Achhu Machhiwala (fisherman) their enemy at the initial stage and later on changed their mind without any solid foundation to implicate present appellants as the real culprits.
13. The upshot of the above discussion is that, the prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt, the appeals of the appellants are accepted and they are acquitted of the charges. We direct that they should be released forthwith, if not required in any other case.