KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.984 of 1998 filed by Iftikhar alias Bhola, Riasat Ali and Naseer Ahmad, appellants, who were convicted and sentenced by learned Additional Sessions Judge, Gujranwala vide his judgment dated 2-11-1998 as under:-- All the three appellants under section 394, P.P.C. 10 years R.I. Each and a fine of Rs.15,000 each and in default three months' R.I. Each.
Iftikhar and Riasat appellants, under section 302(b)/34, P.P.C. To death and to pay Rs.5,000 each as compensation to the legal heirs of Javed deceased or in default six months' R.I. Each.
Naseer Ahmad appellant, under section 302(b)/34, P. P. C. To imprisonment for life and to pay Rs.25,000 as compensation or in default three months' R.I.
Murder Reference No.440 of 1998 for confirmation of death sentence of two appellants mentioned above or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 10-30 p.m. On 24-5-1992 at a distance of eight miles from Police Station Saddar, Kamonke while the matter was reported by Irshad Ullah complainant at 10-30 p.m. On the same night at Chowk Taj Amina Abad through written complaint Exh.P.W.1/1 and the formal F.I.R. Was recorded at 11-00 p.m. By Amjad Ali, Head Constable.
3. Briefly stated the facts of the case are that Irshad Ullah complainant was conductor while Rehmat Butt was driver of Wagon No.LEJ-3872. On 24-5-1992, they boarded passengers from More Amina Abad for Tharam Kot in their wagon. At 8-30 p.m. When they reached near the Grid Station three accused sitting on the front seat while the 4 on the pillion seat alongwith the complainant on the tool box were armed with pistol and Chhurri. The description of all the accused has beenth given in the F.I.R. The accused sitting on the front seat, closed to the driver took out his pistol and directed the driver to take the wagon on the Katcha road leading towards Dera Bagh Wala on pistol-point. After passing a distance of about one acre, the accused made the wagon stopped.
The accused who was empty-handed started physically searching the passengers. They snatched Rs.500 from Rehmat, Driver, Rs.47 from Irshad Ullah, complainant and other cash from rest of the passengers. When the accused were departing from the spot a passenger namely Javed alias Boota made Jhapa to one of the accused and snatched his pistol. In order to rescue him, his co- accused inflicted a Chhurri blow on the left flank of Javed due to which he became injured. On raising alarm the accused persons ran away from the spot.
4. Muhammad Sharif, S.-I. P.W.5, Zulfiqar Ali, S.-I., P.W.10, Mumtaz Inspector, P.W.11 and Muhammad Aslam, S.-I. P.W.18 conducted the investigation of the case. Muhammad Aslam, S.-I. On 18-9-1994 arrested Iftikhar, Riasat and Naseer Ahmad accused. On the personal search of Iftikhar 7-MM rifle was recovered, similarly a dagger like Churri was recovered from Riasat and a .30 bore pistol from Naseer Ahmad accused. After completion of the remaining formal investigation all the three accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case 18 witnesses in all, then, the learned D.D.A.
Tendered in evidence report of Chemical Examiner Exh.P.A., reports of the Serologist Exh.P.B. And Exh.P.C. And closed the case of prosecution, then, the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence.
6. In support of this appeal, learned counsel for the appellants submits that occurrence had taken place on 24th of May, 1992 when it was dark hours of night, that no source of light had been mentioned in the F.I.R., that all the three appellants were arrested on 18-9-1994 and identification parade was held on 19-11-1994, that it is impossible that after two years and six months of the occurrence the P.Ws. Could have identified the appellants, that no role of any appellant was mentioned or stated by the eye-witnesses at the time of identification parade, that Riasat P.W. Was not mentioned as an eye-witness in the F.I.R., that no recovery of looted articles was effected from any of the appellant, that it is improbable that blood-stained Chhurri was got recovered by one of the appellants two years and six months after the occurrence and there was Also blood found by the Serologist, that neither the driver of the wagon nor Noor Muhammad P.W. Were produced in this case, that Naseer Ahmad appellant had produced two D.Ws., namely, Shafique Ahmad and Iqbal Masih, who had stated that Naseer Ahmad appellant was booked in Central Jail, Gujranwala on 17- 5-1992 and he was released on 12-9-1992 and in fact he was in jail at the time of occurrence, that prosecution had failed to prove its case against the appellants beyond any shadow of doubt.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that it was a case of promptly lodged F.I.R., that deceased in this case tried to save the ladies who were being molested by the appellants, so he was given knife blow by the appellants, that all the P.Ws. Are independent, that there was no reason to falsely implicate the appellants, that there was no occasion on the part of the police to have falsely roped the appellants, that all the appellants were duly identified by the P. Ws. During identification parade and also before the learned trial Court and all the P. Ws. Had also attributed the roles which the appellants played during the occurrence. They both support the judgment of the learned trial Court.
8. We have heard learned counsel for the parties at a great length and have also gone through the evidence on record very minutely and carefully. It is a case in which nobody was named in the F.I.R.
Only description of the accused persons was mentioned therein. Occurrence had taken place in dark hours of night and the prosecution witnesses had admitted the same fact. The date of occurrence is 24-5-1992, appellants were arrested two years and four months thereafter i.e. On 18- 9-1994. Even their identification parade took place two months after their arrest i.e. On 19-11-1994.
Under these circumstances, we are of the opinion that identification parade of the accused was not possible after the lapse of such a long period as stated above. The occurrence had taken place in dark hours of night, even P.Ws. Did not state the role of any of the appellants in the identification parade which they played during the occurrence, it also appears to be most unnatural and improbable that after such a long period the recovery of weapon of offence like Chhurri was effected and it was still stained with human blood according to the reports of Chemical Examiner and Serologist. No other weapon of offence was recovered from the appellants. No looted articles were recovered from the appellants. Riasat P.W. Was not mentioned as an eye--witness in whole of the F.I.R. The most important and star witness of the prosecution was driver of the wagon but he was not produced by the prosecution. Noor Muhammad mentioned as an eye-witness was also not produced by the prosecution. Naseer Ahmad appellant also produced two D.Ws., namely, Shafique Ahmad and Iqbal Masih. Shafique Ahmad D.W.1 had brought the record of case F.I.R. No. 305 dated 15-5-1992 registered with Police Station Saddar, Gujranwala. Iqbal Masih D.W.2 who was Jail Warder appeared before the learned trial Court and made a statement on Oath that Naseer Ahmad appellant was in jail in connection with the case mentioned above on 17-5-1992, he remained in jail till 12-9-1992 when he was released by the learned Sessions Judge concerned, while the occurrence in this case had taken place on 24-5-1992. If this is the position, that one of the appellants who was already in jail has been implicated falsely and what is surety that two the appellants could not have been falsely implicated by the police. The learned trial Court acquitted one of the co-accused Muhammad Ashiq. No appeal against his acquittal was filed either by the complainant or the State.