This judgment will govern Criminal Appeal No.165/L of 1994, filed by Manzoor son of Muhammad Khan Kharal and connected Jail Criminal Appeal No.207/L of 1994, filed by co-convict Walayat alias Ghora son of Rajada Kharal. By judgment dated 12-4-1994 of the learned Additional Sessions Judge, Sheikhupura, both the appellants, who were accused in Crime No.248 of 1991, dated 19-11- 1991, under section 324/392/34, P.P.C. Read with section 16 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, have been convicted in Hudood Case 1 of 1992. Both the appellants were convicted under section 392/34 and sentenced to ten years' R.I. Each and also fined Rs.10,000 each and in default of payment of fine to further undergo one year R.I. Each, and under section 324/34 also they have been given the same punishment. It has been directed that the sentences shall run concurrently and they will be entitled for the benefit of section 382-B, Cr.P.C.
2. I have heard at length the arguments of Mr. R.I Muhammad Hayat Kharal, Advocate for appellant in Criminal Appeal No.165/ L of 1994, and Mr. Malik Khuda Bakhsh Khokhar, Advocate for appellant in Jail Criminal Appeal No.207/I, of 1994, and Mr. Muhammad Anwar Dholan, Advocate, who has represented the State in both the appeals. With the assistance of the learned counsel, I have gone through the entire record and the impugned judgment.
3. The appeal filed by pauper appellant Walayat is time-barred by 29 days, but the Appeal No.165/L of 1994, filed by Manzoor is within time. As the appeals arise out of the same judgment; both the appellants being co-accused and Walayat being a pauper, the delay in the filing of the appeal by him is condoned. Learned counsel for the State did not raise any objection to the condonation of delay.
4. Case of the prosecution as per the complaint (Exh. PA) lodged by P.W.1 Mushtaq Ahmad at P.S. Safdarabad on 19-11-1991 at 6-45 p.m. Was that on the same day at 5-30 p.m. After closing his shop in which he carries on business of watches, he left for his house on motor-cycle No.2925/LOC and when he reached at Karkan Road, he saw one unknown person pushing his motor-cycle on the road side and then suddenly this person placed his motor--cycle in front of complainant's motor- cycle and then all of a sudden two other unknown persons duly armed with 7-MM rifle emerged, dragged the complainant to the side of the road and forcibly snatched away Rs.2,000 from the complainant. When complainant raised alarm, P.Ws. Abdul Razzaq and Sultan also came there.
According to the complainant, he had caught hold one of the accused; but then his other companions opened fire with 12-bore gun which hit him at his patella. All the three culprits then decamped leaving their motor-cycle No.8540/FDM. Investigation of this case was carried out by P.W.6 S.I. Muhammad Aslam, who also inspected the sight and secured both the motor-cycles as well as a trigger and empty cartridges from the place of occurrence. Investigation was then transferred to P.W.7 Inspector Nazir Ahmad, who recorded the statements of the witnesses and then searched for the accused. Manzoor was arrested on 15-1-1992 and his identification parade was held on 3-3-1992 in Jail. Walayat was later on arrested on 21-3-1992 and his identification parade was held on 10-5-1992. Challan was then submitted. The third accused Mumtaz alias Kala could not be apprehended and as such challan against him was submitted under section 512, Cr.P.C. Both the accused denied that they had committed the offence and pleaded that they had been involved in this case on account of enmity. Their statements under section 342, Cr.P.C. Were recorded, They did not lead any evidence.
5. Learned counsel for the appellants argued that the entire prosecution case rest upon the identification as, admittedly, none of the accused was known to any of the three witnesses, namely, complainant Mushtaq, P.Ws. Sultan and Abdul Razzaq. It was argued that identification parades were held after great delay and the appellants must have been shown to the witnesses. According to learned counsel for the appellants, in the circumstances of this case, reliance could not be placed on identification and, therefore, prosecution had failed to establish their case against the appellants. It was further submitted that no recovery had been made from the two appellants and the motor-cycle alleged to have been used by the accused in the offence was not connected to either of the two accused as no evidence was led to establish any connection of ownership or possession of the two accused withthe said motor-cycle. On the other hand, according to learned counsel for the State, the evidence had established the case of the prosecution against the two appellants and enmity had not been established to indicate the possibility of false implication.
6. In my view, the prosecution had failed to discharge their burden of establishing the case beyond reasonable doubt against the two appellants. As rightly pointed out by learned counsel appearing for the appellants, apart from the evidence of identification through the identification parades, no other evidence connected the appellants with the offence in question.
7. As noted, the offence had taken place on 19-11-1991; Manzoor was arrested on 15-1-1992 and his identification parade was held on 3-3-1992 i.e. After about six weeks of his arrest; Walayat was arrested on 21-3-1992 and his identification parade in Jail was held on 10-5-1992 i.e. After about six weeks of his arrest. According to the prosecution evidence, P.Ws. Sultan, Abdul Razzaq and complainant Mushtaq identified Walayat in the identification parade, but in the identification parade of Manzoor, complainant Mushtaq was not associated and Manzoor was identified only by Sultan and Abdul Razzaq.
8. It was not safe to base the conviction of the two appellants solely on the basis of the said identification parades as, firstly, in the case of both the accused there was delay of nearly six weeks in the holding of the identification parades after their arrest and no explanation has been given by the prosecution about this delay and during this period, the appellants must have been produced before the Court and the possibility of the appellants having been shown to the prosecution cannot be ruled out. Then, secondly, in the exercise of identification, evidence of the Magistrate as well as the prosecution witnesses is confined only to the statements that they had picked the accused without there being any statement from the prosecution witnesses that the accused were the culprits who had taken part in the offence snatching the amount and injuring the complainant.
None of the prosecution witnesses or the Magistrate stated that while identifying the accused, the prosecution witnesses had mentioned about the actual role played by the accused. In this context reference may be made to a recent decision of the Supreme Court of Pakistan in the case of Mehmood Ahmad v. The State reported in 1995 SCM R .127. While dealing with the identification of the accused by the prosecution witnesses in the case before the Supreme Court, it was observed as follows:---- "It is quite clear from the entire evidence relating to identification parade that the accused named were not identified by their role in the crime. They were merely picked up and the role attributed to them was not stated by the witnesses. In such circumstances the settled law is that identification could not be relied upon and was of no evidentiary value."
9. The Supreme Court in the said judgment referred to an earlier decision of the Supreme Court in the case of Khadim Hussain v. The State (1985 SCM R 721).
10. Then there are other infirmities and deficiencies in the prosecution case. As observed, complainant Mushtaq was not associated in the identification of Manzoor and no explanation has been given for this lapse. Then, according to the F.I.R. And evidence of complainant Mushtaq and P.W. Sultan, there were three culprits, whereas, P.W. Abdul Razzaq in his evidence stated that there were only two culprits and Abdul Razzaq also did not give any evidence regarding the identification parade. No recovery was made from the appellants.
11. In the circumstances where the only evidence was that of the identification parades which evidence has been found to suffer from illegality and infirmity, the impugned judgment cannot be sustained.
12. Both the appeals are allowed and the judgment dated 12-4-1994 of the learned Additional Sessions Judge Sheikhupura, is set aside. These are the reasons for my short order, dated 31-1-1995 passed on the conclusion of the arguments.