' JUSTICE ABDUL MAJID TIWANA, MEMBER.---This State appeal is directed against the judgment, dated 10-2-1993, by which the learned Judge of Special Court for Speedy Trials, Lahore, acquitted Abdul Sattar alis Kali respondent of the charge under section 394/34, P.P.C. for committing robbery and under section 302/34, P.P.C. for committing Qatl-i-amd' of Ansar Javaid.
2. The brief facts of the case, as embodied in the report lodged by Abdul Shakoor complainant (P.W.1) resident of Chak No, 109/S.B. at Police Station Cantt. Sargodha, are that in the evening of 29- 2-1992 when he was going to his village on a cycle after finishing his work at a denting shop in Sargodha Town and at 7.30 p.m. reached a katcha road in the area of Chak No, 48/N.B., he was suddenly accosted by a person having a short stature and wheatish colour, aged about 24/25 years. He demanded the match box from him but he told him that he had none. Meanwhile another person emerged from the cluster of trees situated on the right side of the road. He was smart and taller, having wheatish colour and aged about 27/28 years, armed with a double barrel gun. He threatened and stopped him. Then the empty handed person caughthold of him and the one armed with gun gave him butt blow on his right cheek. On gun point they took him to a cluster of trees in the area of Chak No, 88/N.B. There they searched him and took out his purse containing two notes of the denomination of rupees 10 and three notes of the denomination of rupees 5 each.
Then they tied up his hands behind his back with an empty bag of fertilizer. Having done so, the empty handed person removed his wrist watch worth Rs, 15 but after some time returned the same to him. He requested them for his release but they asked him to wait for some time more and made him sit at some distance from the road.
3. Meanwhile a person came on a bike from the direction of Chak No, 88/N.B. Whose name was later found to be Ansar Javaid (deceased). The culprits asked him to stop but he told them that he was in hurry to go far his duty. They stopped him forcibly and when he resisted his search, the person armed with gun fired at him. The other culprit, however, ran away, while the assailant ran away on the cycle towards the north. Meanwhile a boy came on the road whose both hands stood tied up behind the back like his (complainant) and told him that he was resident of Sargodha Town and two persons had, after intercepting his way searched his person and tied up his hands but nothing was recovered from him. The complainant and the aforesaid person both went near the injured but meanwhile he had died. The complainant made the boy sit on the cycle and dropped him at Chak No, 88/N.B. The complainant knew Ansar Javaid even personally but did not disclose the occurrence about the murder of Ansar Javaid to anyone in that village, to which the deceased belonged. Reaching his own village, the complainant informed the Lambardar and got the announcement made on the loudspeaker of the mosque. Residents of the village went to the spot and meanwhile sufficient number of persons also came from Chak No, 88/N.B. Leaving them to watch over the dead body, he left for the police station for lodging the report and meeting S.I./S.H.O. of police station Cantt. Sargodha on the way, lodged the report with him.
4. S.I. Ghulam Qasim (P.W.13), after writing the complaint (Exh.PA.) sent the same to the Police Station for the registration of the case and himself proceeded towards the spot. There he prepared the injury statment and inquest report of the dead body of Ansar Javaid and despatched the same to the mortuary for post-mortem examination. He collected blood-stained earth and seized the cycle of the deceased. On 1-3-1992 he recorded the statement of Javid Iqbal (P.W.7) and Tariq Mahmood (P.W.8) and from their statement he came to know that the culprits were Abdul Sattar alias Kali respondent and Umar Hayat alias Umri (since killed in police encounter). He got prepared the sketch of the spot.
5. Abdul Sattar, respondent was arrested by S.I. Ghulam Qasim on 4-5-1992 from Tariqabad-cum- Sargodha and sent him to the judicial lock-up for identification parade which was held on 14-5- 1992 under the supervision of Muhammad Yasin, Magistrate Ist Class, Sargodha (P.W.3). Abdul Shakoor complainant and Asghar Ali P.W. both correctly identified Abdul Sattar alias Kali respondent as one of the culprits who had committed highway robbery. On 16-5-1992 Abdul Sattar alias Kali respondent led the police party to his house at Chak No, 87/N.B. and got recovered purse P.8 of Abdul Shakoor complainant containing two notes of the denomination of rupees 10 and three notes of the denomination of rupees 5 each. The same were seized by the S.H.O. In this way he completed the investigation and submitted the challan.
6. On the commencement of trial, the respondent was charged for robbery of Abdul Shakoor complainant and Muhammad Asghar, P.W. as also for the murder of Ansar Javaid. On his pleading not guilty, the prosecution led evidence against him by producing as many as 13 witnesses. To be a little more precise, Abdul Shakoor (P.W.1) and Muhammad Asghar P.W. were produced as eye- witnesses of the occurrence but only the former supported the prosecution case by reiterating the facts alleged in the complaint and the latter resiled. He was cross-examined by the learned prosecutor but could not bring on the record anything favourable to the prosecution.
7. Muhammad Yasin, Magistrate Ist Class, Sargodha (P.W.3) gave the details of the identification parade conducted by him.
8. Dr. Muhammad Aslam (P.W.4), who had carried out the post-mortem examination of the dead body of Ansar Javaid gave the details to the injuries found on his dead body. According to him he found, a rounded fire-arm wound 3 x 3 c.m. on the right upper chest, 2 c.m. below from the medial 1/3rd of the clavical and 7 c.m. above from the right nipple. He also noticed five small wounds each 1/2 x 1/2 c.m. on the back of right side upper cheat, 5 c.m. medial from the medial border of scapula on right side. Under injury No,1 he found Ist and 5th rib fractured and right lung having a big tear.
Right chest was found full of blood. There pallets were recovered from subcutaneous tissue. Rest of the organs were found healthy. In his opinion, death had occurred as a result of injury No,1 leading to haemorrhage and shock and the same was sufficient in the ordinary course of nature to cause immediate death. He proved post mortem report (Exh.P.E.).
9. On the same day he had medically examined Abdul Shakoor complainant and found an abrasion 2-1/2 c.m. x 1 c.m. with swelling around 7 x 3 c.m. around it on left cheek, 1 c.m. below from the left eye caused by a blunt weapon.
10. Javaid Iqbal (P.W.7) and Tariq Mahmood (P.W.8) were the witnesses of "Wajtakkar S.I. Ghulam Qasim (P.W.13) gave the details of the investigations Rest of the prosecution witnesses were formal.
11. On the completion of prosecution evidence the statement of Abdul Sattar alias Kali respondent was recorded under section 342, Cr.P.C. He denied all the incriminating circumstances figuring against him in the prosecution evidence and alleged his false implication. He did not produce any defence. On the conclusion of the trial, the learned trial Judge acquitted the respondent on benefit of doubt and aggrieved by it the State has come up in appeal.
12. It is argued on behalf of the State that Abdul Shakoor complainant, who was victim of the crime, bad fully supported the prosecution case against the respondent and in the absence of any previous enmity with the respondent or relationship with the deceased, conviction could be based on his testimony but the learned trial Court has acquitted him erroneously. According to the learned counsel, this witness had correctly identified the respondent during the identification parade which was carried out by Muhammad Yasin, Magistrate Ist Class, Sargodha (P.W.3) who correctly and honestly observed all legal formalities. According to him, the evidence of "Wajtakkar" was also available and the recovery of stolen purse of the complainant containing some money was also a corroborative factor. In the opinion of the learned State counsel the respondent can be convicted at least for committing robbery if not for murder as the fatal injury was attributed to Umar Hayat alias Umri co-accused who is said to have been killed in a police encounter.
13. The perusal of the impugned judgment indicates that the learned trial Judge did not believe that Abdul Shakoor complainant could see the culprits, including the respondent, at the time of occurrence in such a manner that he could later identify him during the identification parade held quite some time after the occurrence. This finding has been reiterated by the learned counsel for the respondent during the course of argument. He has also pointed out that the same stolen purse of Abdul Shakoor complainant was found near the dead body of Umer Hayat alias Umri co- accused after he was killed in police encounter and the same purse was later recovered by the police at the instance of Abdul Sattar alias Kali and this fact by itself indicates the padding and mala fide of the police in falsely implicating him.
14. Despite the alleged immediate vicinity of Abdul Sattar alias Kali respondent and his co-accused Umer Hayat alias Umri with Abdul Shakoor complainant at the time of occurrence, when they allegedly searched his person after intercepting him and took out his purse, in our view it was not possible for him to see their features so attentively so as to later identify the respondent in the identification parade. No doubt according to the deposition of Muhammad Yasin, Magistrate Ist Class, Sargodha (P.W.3), Abdul Shakoor complainant had correctly identified the respondent during the identification parade, but at the same time it was asserted by the respondent before the Magistrate that he had been shown by the police to Abdul Shakoor complainant and Muhammad Asghar P.W. at the police station prior to the holding of identification parade. There seems to be substance in his objection. Besides Abdul Shakoor complainant, who was the sole eye-witness and the mainstay of the prosecution in this case, there was no other reliable evidence available with the prosecution. The evidence of "Wajtakkar" did not inspire confidence and the evidence of recovery of the purse of the complainant instead of improving the case of the prosecution has undermined it because the same purse was found lying near the dead body of Umar Hayat alias Umri co-accused and after a few day the respondent also led to the recovery of In the same purse from his house.
15. In view of the above, there is no substance in the State appeal and the same is dismissed.