' On 6-1-2000 Asmatullah complainant lodged a report in Police Station Lakki Marwat to the effect that preceding night at 1200 hours he was proceeding from Lakki Marwat to village Aba Khel in a motorcar driven by. Aziz-ur-Rehman. When reached the middle of Dalo Khel and Aba Khel, three unknown armed persons who had muffled their faces, emerged on the road and stopped the vehicle and forcibly snatched from him cash amount of Rs,26.000 and a wrist watch. He stated that the matter could not be reported with promptitude as the complainant was in search of the culprits. On this report of the complainant, case vide F.I.R. No,19 dated 6-1-2000 was registered at Police Station Lakki under sections 382/411, P.P.C. Read with section 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 against unknown persons by Jehangir Khan, A.S.-I.
(P.W.9). After recording report of the complainant, he proceeded to the spot, prepared site plan (Exh.P.W.9/2) at the instance of complainant, took into possession two moulds vide recovery memo. (Exh.P.C.), recorded statements of P. Ws. And handed over the case file to S.H.O. Habibullah Khan for further investigation. Habibullah Khan, S.H.O. (P.W.4) arrested accused Abdul Karim on 16- 1-2000 and accused Alamgir alias Alama on 12-1-2000. He also produced accused Alamgir on 13-1- 2000 before Maqbool Khan, E.A.C. (P.W.5) for identification parade. He also produced complainant before a Magistrate and got recorded his statement under section 164, Cr.P.C. Wherein the complainant charged accused Alamgir, Yaseen and Falak Naz. He took into possession the snatched property. On completion of investigation, this witness submitted complete challan against the accused.
2. Formal charge against accused Alamgir, Yasin Khan and Abdul Karim was framed on 30-5-2001.
The prosecution in order to establish its case against the accused produced a total of nine witnesses. The accused were also examined under section 342, Cr.P.C. Wherein they denied the prosecution allegations and claimed to have been falsely charged. They neither appeared as their own witnesses on oath as required under section 342, Cr.P.C., nor produced defence evidence. In reply to a question regarding identification parade, accused Alamgir stated, "It is incorrect. Actually the complainant saw me in police lockup and on the day of alleged identification parade, complainant had accompanied me from P.S. To the Court of Judicial Magistrate, where I was standing alone in handcuffs."
' In reply to another question as to what is his statement and why he has been charged, the accused stated, "I am innocent and falsely charged. I have got old blood feud enmity in my village. My enemies have mobilized the local police as well as complainant party for my false involvement in the instant case. Moreover, I have satisfied the complainant party regarding my innocence on Holy Qur'an before the elders of our locality but the complainant party suppressed this fact during the trial on the pretext that they may not be prosecuted by the police."
3. The learned trial Judge on conclusion of the trial, while acquitting accused Yasin and Abdul Karim by extending benefit of doubt to them, convicted accused Alamgir under section 392, P.P.C.
And sentenced him to suffer R.I. For eight years and to pay fine of Rs,10,000 or in default, to undergo six months' S.I. Vide judgment, dated 21-11-2003. The appellant feeling aggrieved, has preferred instant Criminal Appeal No,114 of 2003 challenging his conviction and sentence.
4. Appearing on behalf of the appellant, Mr. Najibullah Khan Marwat, Advocate contended that the learned trial Court has failed to assess the prosecution evidence in judicial scale and has based its findings on conjectures and surmises. Learned counsel directly assailed the value of identification test and contended that no role was specifically assigned by the complainant in the test, hence, the same has not been conducted according to law. Additionally, he urged that the recovery of alleged snatched amount is also doubtful and cannot result into conviction of the appellant. In support of the contentions, he relied on Malik Jamshed Iqbal and another v. The State 1975 PCr.LJ 1051 and Abdul Qadir v. The State 1973 PCr.LJ 887.
5. Syed Gohar Ali Zaidi, Advocate appearing for the State controverted the arguments raised by learned counsel for the appellant maintaining that the appeal is liable to be dismissed because the conviction was based on solid evidence: that the prosecution has proved its case oeynnd any shadow of doubt and the minor discrepancies appearing in the prosecution evidence do not damage the case of prosecution on its material points.
6. The prosecution case mainly hinges on identification parade and recovery of snatched cash amount. Appellant Alamgir was arrested on 12-1-2000 and on 13-1-2000 Maqbool Khan. EAC (P.W.5) conducted identification parade of the appellant wherein he was correctly identified by the complainant twice. No illegality in the identification parade could be pointed out by learned counsel for the appellant. As regards the argument that possibility of arranging 30 persons for the purpose of identification test was too remote, it may be mentioned that such minute particulars could, of course, be emphasized, had the identification test been the sole evidence to connect the appellant with the crime. There is ample evidence to establish the prosecution case. It cannot be presumed that the identification test was a managed affair. The identification test, on the whole, was trustworthy. There can be no cavil to the exposition of law that ordinarily in the identification test the witness should also ascribe the role of each accused while identifying him. In the present case, the role has already been specified through direct ocular evidence, as such. This question would not be of material significance. With respect to the contention regarding the delay in identification test, it may be observed that the delay was not exorbitant as test was held on the following day of arrest of the appellant in which the appellant was correctly picked up and identified as one of the accused persons. The complainant has charged the appellant in his statement recorded under section 164, Cr.P.C. As well as in his Court statement. The complainant faced the test of lengthy cross-examination successfully and the defence failed to shake his testimony. The witnesses have fully supported the prosecution case and demonstrated complete unanimity on all material aspects of the case.
7. As far as the sentence is concerned, I find that a sum of Rs,9,000 is claimed to have been returned to the petitioner by the appellant. Similarly, Abdul Karim, co-accused is also shown to have returned a sum of Rs,8,000 to the appellant. In view of the above, I while maintaining the impugned judgment, reduce the sentence of the appellant from eight years to five years. However, sentence of fine of Rs,10,000 or in default to undergo six months S.I. Is maintained. Benefit section Cr.P.C. Shall also be available to the appellant. The appeal is dismissed with the above modification.