ABDUL HAMEED BALOCH, J.---Through this judgment we intend to dispose of Criminal Appeal No. 52 of 2018, Criminal Revision Petition No. 37 of 2019 and Criminal Acquittal Appeal No. 315 of 2018, as the same are out come of one and same incident and same have been directed against the judgme nt dated 28th September , 2018 (impugned judgment), passed by learned Additional Sessions Judge-III, Quetta, (trial court).
2. Succinct facts of the case are that on 1st May, 2017, FIR No. 54 of 2017, under section 395 Pakistan Penal Code (P.P.C.) was registered with Police Station Gawalmandi, Quetta, on the written report of complainant Attaullah dated 10th April, 2017, alleging therein that on the day of incident i.e. 10th April, 2017, he was at Chaman when his family members informed him on phone about dacoity in the house, on which he returned home and it was informed that on the day of incident at about 7:50 a.m., around six persons knocked the door pretending themselves to be security force. One of them was speaking Pashto and wearing commando uniform. It was further alleged by the complainant that his servant Abdul Majeed opened the door, on which they entered the house and inquired about Aminullah and his servan t told them that he had proceeded to Karachi. After that they conducted search of the house and looted five crore rupees cash, jewelry amounting to' fifty/si xty lakhs. It was alleged that out of six, five were with muf fled faces. With these averments FIR was chalked against unknown persons.
3. After registration of FIR, accused Muhammad Naeem, Muhammad Amir and Hayatullah were arrested and subjected to investigation. After completion of investigation challan of the case to the extent of arrested accused was submitted before the court of Additional Sessions Judge-III, Quetta.
4. After codal formalities charge was framed to which the accused denied. At the trial the prosecution produced as many as fourteen (14) witnesses. After close of prosecution side the accused were examined under section 342, Cr.P.C., in which they once again denied the allegation and claimed to be innocent. The accused neither recorded their statements on oath under section 340(2), Cr .P.C., nor produced any witness in their defence.
5. After completion of trial the learned trial court heard arguments and thereafter , vide impugned judgment dated 28th September , 2018, acquitted accused Muhammad Amir and Hayatullah of the charge by giving benefit of doubt, whereas accused Muhammad Naeem was convicted under section 395, P.P.C. and sentenced to suffer ten
(10) years rigorous Imprisonment with fine of Rs. 30,000/-and in default of fine to further undergo six months simple imprisonment with benefit of section 382-B, Cr.P.C. Hence the accused Muham mad Naeem has filed appeal against his conviction, while the complainant filed criminal revision petition for enhancement of the sentence and criminal acquittal appeal against acquittal of accused Muhammad Amir and Hayatullah.
6. Learned counsel for the appellant/convict contended that the appellant was not nominated in the FIR. The appellant was arrested in another case, whereafter he was taken into custody in the instant case. The allegation against the appellant is disclosure/ admission before the police which is not admissible in evidence, thus the conviction and sentence awarded to the appellant by the trial court is against the norms of natural justice. He urged for acquittal of the appellant.
7. Conversely the learned counsel for the complainant stated that the sentence provided for the offence i.e. section 395, P.P.C. is life imprisonment. The trial court without any reason awarded lesser sentence. Further , the learned trial court wrongly acquitted co-accused though the complainant through straight forward evidence proved the case against the acquitted accused/ respondents. The learned counsel for the complain ant prayed for enhancement of the sentence awarded to appellant Muhammad Naeem and conviction of acquitted accused/ respondents. While the learned Additional Prosecutor General supported the judgment of the trial court.
8. We have heard the learned counsel for the appellant, complainant as well as APG at length and perused the record. The perusal of record reveals that Abdul Majeed (PW-3) had informed the complainant that some unknown persons had committed dacoity in the house and had taken away cash amount and jewelry . On the above information the complainant (PW-1 Attaullah) proceeded to Quetta and after getting information went to Police Station Gawalmandi where he submitted an application dated 11th April, 2017 for registration of FIR. It reveals that the SHO of concerned Police Station instead of registration of FIR started inquiry under section 157(2), Cr.P.C., during which statements of witnesses were recorded and thereafter , submitted Report to superior officer with recommendation of registration of FIR on 1st May , 2017.
9. After submission of inquiry report under section 157(2), Cr.P.C., the instant FIR was registered against unknown persons on the basis of written application of complainant dated 11th April, 2017 (Ex: P/1-A). The investigation of this case was entrusted to IP/SHO Muhammad Bashir (PW-14), who took into possession the papers of inquiry , prepared site plan Ex: P/14-B. The custody of appellant Muhammad Naeem was taken who was already in custody of another case FIR No. 37 of 2017 under section 392, P.P.C. During investigation the appellant made disclosure and on pointation of appellant the Investigating Officer got recovered an amount of Rs. 28,50,000/-, one 9 mm pistol with live cartridges, one gold ring, which were taken into possession through recovery memo dated 20th June, 2017. Vehicle bearing registration No. AYT-321 and commando uniform was also taken into possession from the house of appellant through recovery memo. On 1st July 2017 Haji Umar handed over an amount of Rs.
500,000/- to the Investigating Officer by stating that the appellant and acquitted respondent Muhammad Amir purchased articles of body building from him, which were taken into possession through memo. The Investigating Officer produced inventory memo of inqui ry containing 19 pages as Ex: P/7-A and inquiry documents as Article P/5, mobile phone as Ex: P/7-C, recovery memo of foam and pillow Ex: P/1-D, recovery memo of cash Ex: P/7-E, commando uniform and vehicle as Ex: P/7-F , recovery memo of Rs. 500,000/- as Ex: P/7-G, recovery memo of receipts Ex: P/7-H, recovery memo of pistol as Ex: P/7-J, mobile phone with sim Art: P/6, two pillows Art: P/7, parcel of currency notes as Art: P/9, vehicle-321-A YT as Art: P/11, commando uniform as Art: P/12, Rs. 500,0001- as Art: P/14, pistol along with magazine and live cartridges as Art: P/17, receipt Art: P/19, black bag as Art: P/20, four pictures as Art: P/21.
10. The prosecution case rests on disclosure of appellant Ex: P/10-A, memo of identification parade Ex: P/3-A, certificate issued by Judicial Magistrate as Ex: P/5-A. PW-3 Abdul Majeed is ocular witness. He stated that on 10th April, 2017 he along with family members of complainant were present in the house. Meanwhile 5/6 persons entered in the house, kept them in a room and searched the house. They took with them Rs. 50-million and jewelry .
The list of jewelry was produced by PW-1 as Ex: P/1-B. PW-3 during identification parade, which was held in the supervision of PW-5 (Judicial Magistrate), identified the appellant, who was in commando uniform and armed with pistol entered in the house, locked inmates of the house in a room and took away cash and jewelry .
11. The concept of identification parade is two fold, one to establish identification of culprit and second to pin point the role of accused in commission of offence. It appears that the appellant was not -personally known to the witness. In such circumstances the identification parade was mandatory . The record transpires that the appellant's custody was taken by the police on 23rd June, 2017; then the identification parade was conducted. Even the delay of identification per se is not itself sufficient to discard the testimony . The identification parade is not substantive piece of evidence, can only corroborate the statement of witness.. Reliance is placed oil the case of Muhammad Akram v The State 2015 SCMR 877 . It was held: ".....as it is well-settled by now that identi fication of an accused during identification parade cannot be considered as substantive piece of evidence and it is merely a corroboration and even otherwise identification parade is immaterial if the identification of accused is proved by other convincing evidence...."
12. The appellant during custody made disclosure and thereafter on pointation the Investigating Officer got recovered Rs. 28,50,000/- in a bag from the house of appellant and four pictures of appellant and acquitted respondents where they distributed dacoity amount. The appellant in his disclosure had given detail of dacoity , his companions, purchase of body buildingarticles, purchase of vehicle and same - were recovered on the pointation of appellant. Where recovery is effected on the disclosure and pointation of accused then under Article 40 of Qanun- e-Shahadat Order ,. 1984, such information is admissible in evidence. It "40. How much of information receiv ed from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer , so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
13. Under Article 40 of Qanun-e-Shahadat Order , 1984, when a fact depose d by an accused before the Investigating Officer and in consequence of information received from the accused of an offence in custody whereof recovery is effected then such information whether amount to confession or not, can be proved against the accused. It appears from the record that the appellant had made disclosure Ex.: P/10-A, in which he narrated all the facts which were not in the knowledge of Investigating Officer. On the basis of information received the Investigating Officer has recovered the articles which were taken away during dacoity . The appellant disclosed that he and co-accused Amir have purchased body building articles in sum of Rs. 500,000/-. PW-4 admitted that the accused had purchased body building articles from him. The prosecution has collected four pictures of the accused persons from the bag and commando uniform. These articles were only in the knowledge of appellant and same were recovered on pointation of the appellant. The perusal of disclosure of appellant coupled with discovery of new facts i,e. recovery of looted currency and other articles is admissible under Article 40 of the Qanun-e-Shahadat Order , 1984, as held in the case of Qadan alias Qadir Bux v. The State PLD 2015 Sindh 426. It was held by Honorable Supreme Court in the case of Nazir Shehzad v . The State 2009 SCMR 1440 : "The mere plurality of information received before discovery shall not necessarily take any of these informations out of the section. In a suitable case it is possible to ascribe to more than one accused the information which leads to the discovery , so was held in the case Naresh Chandra Das and another v . Emperor AIR (29) 1942 Cal. 593.
It was held by this Court in the case of Sher Muhammad v . The State 1968 PCr .LJ 221 as follows:-- "In the absence of any explanation by the accused as to how he came to have knowledge of the dead body in the disused well, it may fairly be presumed thai he was the person who had thrown the body in a dismembered state into the well."
14. The learned counsel for the complainant contended that the sentence provided for the offence is life imprisonment. The trial court has awarde d lesser sentence. The contention of the learned counsel has no force. It would be appropriate to reproduce section 395, P .P.C.: "395. Punishment for dacoity . Whoever commits dacoity shall be punis hed with imprisonment for life or with rigorous imprisonment for a term which shall not be less than four years nor more than ten years and shall also be liable to fine.
15. From perusal of above section it appears that by Ordinance III of 1980 dated 3rd February , 1980, the sentence, was substituted as [shall not be less than four years nor more than] ten years. The trial court has awarded maximum sentence.
16. The learned counsel for the appellant urged that the FIR was registered with delay of more than twenty days. It appears from the record that PW-1 submitted application for registration of FIR on 11th April 2017. The concerned SHO instead of registering FIR started inquiry under section 157(2) Cr.P.C. and finally on 1st May, 2017 recommended for FIR, meaning thereby that the application was filed simultaneously under section 154, Cr.P.C. when information relating to commission of cognizable offence orally or written shall be reduced to writing. The complainant on 11th April, 2017 submitted application fulfilled responsibility on his part. Even otherwise mere delay in lodging FIR never be sufficient to belie ve or disbelieve the contents of FIR, but question of guilt or innocence shall always required evidence. The concept of FIR is to set criminal law into motion. Reliance is placed on the case of Imdad Hussain alias Imtiaz v . The State 2018 YLR 2184 . It was held: "Admittedly , there is a delay of about one (01) month in reporting the matter but it is a matter of record that such delay has not been at advantage of the complainant party , the victims of dacoity who had no enmity against the appellants / accused to falsely involve them by taking advantage of delay . On the other hand the conduct and attitude on part of the complainant party appears to be quite natural as the complainant detailed every thing in straight forward manner while recording the FIR which prima facie attaches the truthfulness to such narration particularly where no benefit/advantage appears to have been obtained so as to settle any personal score e.t.c.
Reference may be made to the case of Nasir lqbal alias Nasra and another v. The State 2016 SCMR 2152 wherein it is held as:--- "7. ... The scrutiny of their evidence does not suggest any exaggeration rather not assigning any specific role to the accused persons reflects the truthfulness of their testimony when in hustle and bustle of the occurrence which has been committed within a few seconds or minutes it is humanly impossible to assign specific role and giving detailed description of the same would rather infer or input to have been made out to falsely rope the accused persons, as such lodging of the FIR in straightforward manner in the fact and circumstances of the cases rules-out any possibility of falsely roping the accused persons rather the lodging of the FIR in a straightforward manner shows that it carries the lodging of the FIR in a straight forward manner shows that it carries the true version. ..."
17. So far as the acquitted accused are concerned. The only evidence is disclosure of convict in police custody . On basis of such disclosure nothing has been recovered from the acquitted accused. The record transpires that there is no corroboration of disclosure/ admission of co-accused in respect of acquitted accused. It is well settled principle of law that admission of accused could not be based for conviction of other accused.
18. It appears from the record that PW-3 has not identified the acquitted accused during identification parade.
Further , no articles were recovered on their pointation. The learned trial court has rightly acquitted them. Acquittal always carries double presumption of innocence in favour of accused and warrant no interference unless the same is arbitrary , capricious, and fanciful and against the record. Reliance is placed on the case of Haji Paio Khan v.
Sher Biaz, 2009 SCMR 803 . It was held therein: "10. It needs no reiteration that when an accused person is acquitted from the charge by a court of competent jurisdiction then, double presumption of innocence is attached to its order , with which the superior courts do not interfere unless the impugned order is arbitrary , capricious, fanciful and against the record."
19. The perusal of record shows that the complainant prima facie had no motive or mens rea to falsely involve the appellant. We are of the clear view that evidence tendered by prosecution qualifies the term confidence inspiring to the extent of appellant/convict. Hence in absence of any possibility of false involvement such evidence was rightly believed by the learned trial court.
In view of the above discussion the judgment of conviction so recorded by the trial court is proper and well reasoned, hence no interference is warranted by this honorable court, as such the appeal filed by the appellant against his conviction is dismissed; whereas the Criminal Revision Petition No. 37 of 2018 and Criminal Acquittal Appeal No. 315 of 2018 are dismissed.