' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,86-J of 1992 filed by Muhammad Nawaz and Muhammad Mansha, who were convicted and sentenced by Special Court No,11, Suppression of Terrorist Activities, Sargodha Division vide his judgment, dated 21-7-1992, to undergo 10 years' R.I. Under section 392, P.P.C. Each with a fine of Rs,20,000 (twenty thousand) each or in default to undergo one year's R.I. Benefit of section 382-B, Cr.P.C. Was also granted to the appellants.
2. The occurrence took place between the night of 27-4-1991 and 28-4-1991 and the matter was reported to the police on 30-4-1991 by Haji Ahmad P.W.7 and the same was recorded by Asghar Hayat, S.-I. Which is Exh.P.A.
3. The prosecution story as disclosed by Haji Ahmad in his statement Exh.P.A., made before the police was to the effect that on the night between 27/28th of April, 1991, the first informant with his nephew Ghulam Ahmad was coming in a car from Quaidabad to Jandawala. At about 3-30 at night when they reached between Saminanwala and Jhandanwala, they noticed that the road had been blocked by placing a log. They stopped the car. In the meanwhile, three unknown persons, who had muffled their faces, the description of each of them was given in the F.I.R., two of them were armed with Kalashnikovs and the third was armed with a revolver emerged. They made them get down from the car. The said persons searched them and took out Rs,4,200 from the pocket of the first informant, and took Rs,1,300 with the National Identity Card and wrist-watch from the pocket of Ghulam Ahmad. In the meanwhile, a bus from Jhandanwala and a pick-up also arrived there. The accused persons stopped them also and robbed the passengers. Thereafter the accused got into a pick-up parked in the nearby bushes and went away. Since the first informant and his nephew Ghulam Ahmad had to go to Lahore in connection with some important work, therefore, on their way back they lodged the report.
4. Muhammad Aslam, S.-I., P.W.10 had partly investigated the case. He had arrested Muhammad Mansha and Muhammad Nawaz, appellants on 17-1-1992 and sent them to judicial lock-up. On 19- 1-1992, he recovered pick-up bearing No,BUR-3638 from Police Station Mandera vide recovery memo. Exh.P.L. On 20-1-1992, Ghulam Ahmad P.W. Produced watch P.11, allegedly given to him by Azam alias Aju, absconder co-accused of the appellants, which was secured vide memo. Exh.P.I. He recorded the statements of the recovery witnesses. On 21-1-1992, he gave application Exhs.P.D. To A.C., Kalur Kot and obtained orders Exh.P.D./1 regarding holding of identification parade. On 27-1- 1992, identification parade was held under the supervision of Ilaqa Magistrate wherein one Bashir Ahmad was not identified by any of the witnesses, therefore, he was got discharged. However, the other accused/appellants were identified. Muhammad Nawaz, appellant while in custody on 11-2- 1992, got recovered cash and golden ornaments from his house which were watch P.2, pair of ear- rings P.2/1-2, finger-rings P.4 and five currency notes of Rs,500 each, P.13/1-5 which were secured vide memo. Exh.P.M. On the same day, Muhammad Mansha accused also led the police to his house and got recovered golden ear-rings P.3, identity card of Ghulam Ahmad P.W., four currency notes of Rs,500 each P.14/1-4 and ten currency notes of Rs,100 each P.15/1-10. All these articles were secured vide recovery memo. Exh.P.N. After completion of the investigation, he challaned the accused.
5. The prosecution in support of its case produced ten witnesses in all. P.W.1 Muhammad Razzaq, H.C. Had proved the formal F.I.R., Exh.P.A./1, registered by him. P.W.2 Zafar lqbal a driver, stated that 1-1/2 years earlier he had sold the watch P.1 to Qasim Shah P.W., for Rs,1,000 and executed receipt Exh.P.B. Muhammad Iqbal P.W.3 stated that two months before the occurrence he had prepared and sold a pair of golden ear-rings P.2/1-2, earrings P.3 and a golden finger-ring P.4, to Qasim Shah, P.W. Receipt Exh.P.C. Was in his hand. P.W.4 Mr. Tahir Abbas Bukhari, Magistrate 1st Class, supervised the identification parade held on 27-1-1992. According to him, he took all the precautions and supervised the identification parade wherein Muhammad Mansha and Muhammad Nawaz accused were identified by the witnesses. He further stated that both the accused were made to sit alongwith other 28 undertrial prisoners. Fayyaz Akhtar, S.-I./S.H.O. P.W.5 stated that on 16-1-1992 he arrested Muhammad Nawaz, appellant and recovered revolver P.5, 16 live cartridges P.6/1-16 and took them into possession vide memo. Exh.P.F. On the same day he arrested Muhammad Mansha, accused and recovered Kalashnikov P.8 loaded with 20 live cartridges P.8/1-20, spare magazine P.9 with 20 live cartridges P.9/1-20, a bag P.10 containing 215 live cartridges P.10/1-215 vide memo.
Exh.P.G. Ghulam Ahmad P.W.6, Haji Muhammad P.W,7 and Ghulam Qasim Shah P.W.8 gave the eye- witness account of the occurrence. According to Ghulam Ahmad P.W.6 he alongwith Haji Muhammad P.W.7 between the night of 27/28-4-1991 was going to Jhandanwala when they stopped the car because of blockage of the road. Three accused armed with fire-arms came and robbed them. In the meanwhile, a bus being driven by Qasim Shah P.W. Was also stopped and the passengers alongwith the driver was also robbed. Another pick-up came, the passengers of that pick-up were also robbed. He further stated that an identification parade was held wherein he was able to identify the appellants. Haji Muhammad P.W. Corroborated the version given by him in the F.I.R. Exh.P.A. And further stated that he had identified the accused in jail. Ghulam Qasim Shah, P.W.8 stated that on 28-4-1991 at about 3-30 a.m., he was taking.Baraat in his bus to Sargodha. On the way he found the road was blocked. He also saw some dacoits robbing the passengers of a car.
When he stopped his bus, two of the culprits came there. They were armed with Kalashnikovs and a revolver. Muhammad Mansha and Muhammad Nawaz appellants were armed with revolver and Kalashnikov, respectively. He and Muhammad Shah were directed to get down from the bus. The witness was robbed of Rs,10,000. The accused persons wanted to rob the womenfolk as well but the witness requested that he would hand over the ornaments to them and they should not enter the bus to which they agreed, and thereafter he took a pair of golden ear-rings P.2/1-2 and finger-ring P.5 from his wife and one ear-ring P.4 from sister and handed over to the accused. The witness had seen and identified the accused in the moonlight as well as in the light of the vehicles. He further stated that he had purchased watch P.1 from one Zafar Iqbal P.W. And had got prepared ornaments P.2 to P.4 from Muhammad Iqbal P.W. He was associated in the identification parade and identified the culprits. The investigation was conducted by Asghar Hayat, S.H.O. P.W.9 and finally by Muhammad Aslam, S.-I. P.W.10 who challaned the accused.
6. At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. They however, stated that they were shown to the witnesses before the identification parade. They also stated that there was a police encounter wherein one constable was injured. The police suspected them as one of the culprits of the said encounter. As many dacoities were committed in the District, they were arrested simply on suspicion and thereafter falsely involved in the case. They, however, neither appeared in their defence on oath nor produced any defence evidence.
7. Learned counsel for the appellants submitted that the case of the appellants is based on mala fide and with ulterior motive, that no case is made out against the appellants, that the occurrence took place in the dark hours of the night, that the occurrence took place on 27-4-1991 while the appellants were arrested on 17-1-1992 and their identification parade was held on 27-1-1992.
Learned counsel for the appellants submits that after such a long time no body could be able to identify the real culprits. He further submits that according to the F.I.R. The accused persons had muffled their faces. He submits that P.W.2 and P.W.3 had admitted during the cross-examination that the receipts of golden ornaments and other ornaments were executed by them on the asking of the police. He submits that the prosecution case is full of doubts.
8. On the other hand learned State Counsel submits that there is no enmity between the police and the P.Ws. That the appellants were correctly identified in the identification parade. That the appellants were identified in the light of vehicles and also in the moonlight. He supports the judgment of the trial Court.
9. We have heard the learned counsel for the parties and also have gone through the evidence recorded by the trial Court. In the instant case the occurrence took place in the dark hours of night.
According to the F.I.R. The accused had muffled their faces. The question is that if they had muffled their faces how their descriptions could be given in the F.I.R. And how they could be identified.
Moreover, the occurrence took place on 27-4-1991 and the appellants were arrested on 17-1-1992 and the identification parade had held on 27-1-1992 and it is not possible that after the lapse of about 9 months the P.Ws. Could be able to identify the appellants. The recoveries effected from the appellants are also doubtful. It may also be noted here that the appellants have already undergone the sentence and have already been released from the judicial lock-up as submitted by the learned counsel for the appellants but he had argued the appeal on merits. After scanning the 'whole prosecution evidence we are of the view that case is full of doubts and benefits of doubt is extended to the appellants. Conviction awarded to the appellants is set aside. If they have not been released, then they shall be released from judicial lock-up if not required in any other case.