ARIF MASIH and anothe vs THE STATE

HAMID ALI MIRZA, J.---This Criminal Appeal by leave of this Court is directed against the judgment of conviction dated 2-7-1998 in Criminal Appeal No,607 of 1995 passed by learned Division Bench of Lahore High Court, Rawalpindi Bench, whereby conviction of the-appellants under sections 302(b)/34, P.P.C. And sentence of life imprisonment as per judgment dated 16-8-1995 awarded by Additional Sessions Judge, Faisalabad were maintained.

2. Brief facts of the case are that Tariq Masood Seleem lodged F.I.R. 353 of 1993 on 28-8-1993 at 1-30 p.m. At Police Station Nishatabad, District Faisalabad stating therein that on the said date at 1-00 p.m. He alongwith his family was at his house when three persons on a motorcycle came and gave bell at the door, on which his mother Mst. Hameedan opened the door. All the three persons entered into the house and on hue and cry of Mst. Hameedan, the informant Tariq Masood Saleem, Abid Masood and their wives came to the courtyard where the said persons were present. The complainant has mentioned in the F.I.R. The description of the features of the said accused persons and stated that one of the said person was armed with a pistol, the second accused was armed with Churri while the third stood at the main door and when Abid Masood entered into courtyard, one of the accused armed with pistol fired at Abid Masood which hit him on the right side of chest who fell on the ground and then the said accused persons left on the same motorcycle. Abid Masood died then the there, leaving the dead body, the said complainant left for Police Station and met with Police Officer at Petrol Pump Millat Road and got the complaint recorded which was subsequently incorporated in the F.I.R. Book. The appellants/accused were arrested on 29-1-1994 by P.W.11 Falak Sher, S.-I. While the third accused whose description was given in the F.I.R. Remained absconding.

3. The trial Court after recording the evidence, examining the appellants/accused under section 342, Cr.P.C. And hearing the learned counsel for the parties convicted and sentenced' the appellants as said above who thereafter preferred Appeal No,607 of 1995 before the Lahore High Court, Rawalpindi Bench which appeal was heard by learned Division Bench and was dismissed vide impugned judgment.

4. Mr. Javed Aziz' Sindhu, learned Advocate Supreme Court who was entrusted this case did not appear. Mr. Muhammad Munir Paracha, Advocate Supreme Court who was present in Court was requested to assist us. Court file was therefore, handed over to him. He after having prepared the case has argued and assisted the Court.

5. We have heard the learned counsel for the parties and perused the record.

5-A. Learned counsel for the appellants has argued that evidence of identification of the appellants was not reliable as the identification test parade was held after about 6 months from the date of occurrence. Learned counsel for the State in reply submitted that admittedly incident had taken place in the house of the informant in the day time when all the family members including the witnesses were present in the house and they all had seen the appellants/accused at the time of incident, therefore, the photos of description of features of the appellants were imprinted in their memory in view of said sad unforgetable incident wherein their near and dear had lost his life; consequently delay for about one month from the date of arrest in the identification of the appellants could not be said to be unreliable. He further submitted that appellants/accused were arrested on 29-1-1994 and were put to identification parade on 26-2- 1994 wherein P.W.5 Tariq Masood, P.W.6 Mst. Ghazala in presence of P.W.7 Malik Salah-ud-Din, Alaqa Magistrate, identified the appellants which was also not challenged by the appellants/accused in the cross-examination.

6. We do not find merit and substance in the contention of learned counsel for the appellants. The incident had taken place at 1-00 p.m. In the day time in the house of the informant when all the family members of the house including the wife of deceased P.W.6 Mst. Ghazala were present.

P.W.5 Tariq Masood, informant, in the F.I.R. Had given description as to features of the appellants/accused, which he reiterated in the 'Court. He also stated in the F.I.R. That the appellants/accused could be identified. At the time of identification parade P.W.5 Tariq Masood and P.W.6 Mst. Ghazala have identified and assigned the respective overt acts committed by the appellants/accused which statement was corroborated by the said P.Ws. Including Magistrate P.W.7 Malik Salahuddin who conducted the identification parade proceedings in the jail of the appellants in their respective depositions recorded in the Court. The unfortunate and unforgetable incident was witnessed by the family members including P.Ws. And the deep impressions/photos of the appellants in respect of their personal characteristics and features were perceived, preserved and retained/imprinted in the mind and memory record by the said P.Ws. Who had seen appellants while committing crime but later on when the said characteristics/features/items reappeared again, the perception stimulated the original memory record consequently recognized and identified the appellants. But no hard and fast rule could be laid down as perception of events and their preservation in the memory record and their stimulation or reappearance of items of events of human beings vary from person to person and other circumstances. Mere long interval in holding identification test parade and identification of accused would not itself be sufficient to discard the said testimony when the testimony as regards his/their identification itself was also not challenged by the appellants/accused in the cross-examination. Reference may be made to Bharat Singh v. State of U.P. AIR 1972 Supreme Court 2478. There is no animus on the part of P.Ws. To falsely implicate the appellants with the commission of offence considering also that the appellants went underground till they were arrested and the third co-accused was still absconder.

The testimony of eye-witnesses examined is confidence-inspiring consequently creditworthy being inmates of the house of the deceased where the incident had taken place. The trial Court and the learned Division Bench of the High Court have given cogent and valid reasons in arriving at the finding of guilt of the appellants, therefore, no exception could be taken.

7. In view of aforesaid reasons, we find no merits in this appeal which is hereby dismissed maintaining the conviction and sentence passed by the learned Division Bench of the High Court.