' RASHEED AHMED RAZVI, J.--- Appellant has been convicted vide judgment, dated 9-3-1995 passed by Special Court (Suppression of Terrorist Activities), Dadu and sentenced to suffer R.I. For 7 years and to pay a fine of Rs,10,000 or in default to undergo further R.I. For one year for committing offence under section 13-E of the Arms Ordinance, 1965. On 22-3-1995 learned counsel filed appeal before thisN Court on behalf of the appellant which was numbered as Criminal Appeal No,37 of 1995. Office of this Court has also received appeal through Superintendent, Central Prison, Hyderabad which was numbered as Criminal Jail Appeal No,42 of 1995. This common judgment will dispose of both the abovesaid appeals.
2. On 27-9-1993 complainant S.I.P. Mondar Khan, S.H.O., Police Station Rukkun lodged report alleging therein that on the same day he received instructions from S.S.P., Dadu that the arms and ammunition belonging to deceased dacoit Khabro Chandio are in illegal possession of his brother Haji Ayub. It is stated in the F.I.R. That after receiving such information the complainant along with other police persons left Police Station Rukkun for Dadu. It is alleged that when the police party reached near Pat Bridge on Dadu Canal, they saw one person coming towards them. This person was identified to be the appellant by H.C. Muharram Ali and A.S.I.P. Muhammad Hassan Hingoro. It is further alleged in the F.I.R. That on seeing the police party, the appellant started running who was apprehended by the police and on inquiry he disclosed his name and address. That he also admitted to be in possession of illegal arms belonging to his deceased brother. That the appellant led to the police party to his village where from the vicinity of Hassan Shah Graveyard after digging earth he produced one plastic bag. That upon checking the said bag two klashnikovs, six magazines, two bendoliars and three hundred (3001 bullets were recovered. That the appellant was not able to produce any license, therefore, he was arrested and Mashirnama was prepared at the site which was signed by the two Mashirs A.S.I.P. Muhammad Hassan Hingoro and H.C. Ali Gul. In such circumstances, as alleged by the prosecution, the abovesaid F.I.R. Was lodged under section 13-E, Arms Ordinance, 1965. Charge was framed to which the appellant pleaded not guilty. The prosecution has examined Ali Gul, H.C. As P.W.1, Mondar Khan complainant as P.W.2 and Khuda Bakhsh as P.W.3. On 16-2-1995 the appellant was examined under section 342, Cr.P.C. By the trial Court. Appellant also examined himself on oath under section 340(2), Cr.P.C. He also produced two defence witnesses namely Allah Jurio as Exh.10 and Rahim Bux as Exh.11.
3. We have heard Mr. Muharram G. Baloch, Advocate for the appellant and Mr. Abdul Latif Ansari, Assistant Advocate-General, Sindh for the State. We have also gone through the entire paper book.
It is argued by the learned counsel for the appellant that the appellant is involved falsely in this case due to the reason that dacoit Khabro Chandio was his real brother. That the alleged recovery was made in clear violation of section 103, Cr.P.C. That the learned trial Court has not considered the evidence of the two defence witnesses. Mr. Abdul Latif Ansari, Assistant Advocate-General, Sindh has supported the judgment and relied upon the case of Mir Muhammad v. The State 1995 SCM R 610 where the Honorable Supreme Court has held that the police officials are as good witnesses as any other citizens and that the provisions of section 103, Cr.P.C. Are not attracted when anything is to be discovered in consequences of information given by or on potation of accused.
4. We have considered arguments of both the learned counsel and have also scrutinized in detail the evidence of prosecution as well as of defence. Learned counsel for the appellant has relied upon the. Case of Yar Muhammad and 3 others v. The State 1992 SCM R 96 wherein it was held by the Honorable Supreme Court that recovery is important piece of evidence which has, according to the circumstances, a direct as well as corroborative value. It was further held that it is the duty of the Investigating Agency to pick up Mashirs from the same locality unless, from the facts and circumstances of the case, it appears that it was not possible to obtain Mashir of the same locality where the recovery and arrest is made by the prosecution. The rule laid down by a Division Bench of this Court in the case of Yameen Kumhar v. The State PLD 1990 Kar. 275 was cited with approval, This Court in another case titled as Awais Shibli v. The State 1995 M LD 592, after referring to the case of Yar Muhammad and the case of Amir Ali v. The State 1993 PCr U 437, held that Investigating Officer was duty bound to make efforts for compliance with letter and spirit of the provisions contained in section 103, Cr.P.C. In this reported case also a klashnikov and two magazines were recovered at the instance of accused. A learned Division Bench of this Court accepted the appeal and set aside the conviction and sentence of the appellant. In one of the recent case the Honorable Supreme Court has again held that the prosecuting/Investigating Agency is under heavy burden to prove that there were such circumstances which made it impossible for them to pick up Mashirs from the same locality. Otherwise, they are bound to pick up Mashirs of the same locality. (For reference see Iltaf Hussain v. The State 1996 SCM R 167.
5. No where in the entire prosecution story it was shown that the appellant was already known to the complainant or other members of the police party. The prosecution has tried to m.-et this deficiency hr their case by saying that the accused was identified by two members of the police party namely H.C. Muharram All and A.S.I.P. Muhammad Hassan Hingoro. But both these members of the police party were not examined by the prosecution. It was held by the Honourable Supreme Court in the case of Yar Muhammad (supra) that, "It is a well-settled principle that where there is any discrepancy in the evidence of prosecution or if it requires some clarification or explanation, then the prosecution must explain and clarify the same, failing which the benefit will go to the accused". In this reported case the prosecution witnesses have also received injuries from blunt and hard substance while the deceased died of several injuries which were inflicted by the sharp side of a hatchet. It was observed by the Honorable Supreme Court that what that blunt and hard substance was, has remained a mystery as the prosecution has led no evidence to explain it.
6. The learned trial Court has completely overlooked a well-established principle of administration of justice by ignoring the defence evidence and by stating that the defence has failed to prove its case beyond shadow of doubt. It is well-settled principle of criminal jurisprudence that where a defense version has a reasonable possibility of being true, the accused is entitled to benefit of the same. (For reference see Safdar All v. The Crown PLD 1953 FC 93 and the case of Ashique Hussain Chandio v. The State PLD 1992 Kar.
5. It was held by the Honourable Supreme Court in the case of Mir Ahmed v. The State PLD 1962 SC 489 that if in the opinion of Court there appears reasonable possibility in the defence then such opinion must react upon the entire prosecution case and the accused is entitled for benefit of doubt. In the case of Hakim All and others v. The State 1971 SCM R 432 that it is enough for the defence if it succeeds in casting a serious doubt upon the prosecution case and that the benefit of such doubt must go to the accused.
7. The appellant during his examination on oath under section 340(2), Cr.P.C. Has stated that he was working in Huffaz Scamless Pipe Factories Limited Norreahad since 1987 as Assistant Operator and on the date of alleged incident he was on duty. That the moment he punched his card, he was arrested by Rukkun police from the site. He has produced certificate of Manager Administration to this effect which was brought on record as Exh.9/A. In his cross-examination he has vehemently denied all suggestions put by the Special Public Prosecutor. D.W. Allah Julio was examined who has stated that on the date of incident he was present at the said mill when the appellant was arrested from there. Likewise, another D.W. Rahim Bux has also stated the same fact that the appellant was arrested on the date of incident from the mill. The learned trial Court has disregarded this piece of evidence on the grounds that the defence was not able to prove this plea beyond reasonable doubt. It was held by a Full Bench of the Honorable Supreme Court in the case of Aminullah v. The State PLD 1982 SC 429 that the burden on accused to prove alibi is not onerous as proving guilt of accused by the prosecution and that the accused is only required to produce evidence to raise sufficient doubt, benefit of which must go to the accused.
8. In one of the recent case, titled as Muhammad Azam v. The State PLD 1996 SC 67 a Full Bench of the Honourable Supreme Court has held that section 103, Cr.P.C. Is relatable to the place and not to the person and that the main object behind section 103, Cr.P.C. Is to guard against possible chicanery and concoction. The rule laid down by the Honourable Supreme Court in the case of Muhammad Khan v. Dost Muhammad and 17 others PLD 1975 SC 607 and Mirza Shah v. The State 1992 SCM R 1475 was reiterated. It was concluded by their lordships that where the circumstances are such that it is not possible to comply with section 103, Cr.P.C. The Court will not insist on its strict compliance but will examine other evidence. In the present case, no explanation was offered by the Investigating Officer or by any other police witnesses as to why Mashirs/witnesses of the locality were not joined while the search was made. It was further held by the Honourable Supreme Court in the case of Muhammad Azam (supra) that the Court should evaluate the defence evidence in detail and should see whether it affects the credibility of the prosecution case. Such exercise was not gone into by the learned trial Court while appreciating evidence. Following is the relevant observation of the Honorable Supreme Court in the above reported case which is applicable in the circumstances of the case with full force:-- "There is no satisfactory explanation as to why raid was made in the middle of the night in the absence of witnesses from the locality. Evidence of two Police Officers is conflicting on the point whether door of the house of Amin was knocked or not .... These documents are to be considered in concession with general allegation of enmity against the police of the area and are not to be discarded on that short ground that allegations were made after the incident. In such circumstances we are of the view that evidence produced in defence has not been properly evaluated in the manner as is required and it does cause dent in the credibility of the prosecution case because it is the duty of the prosecution to prove the case against appellant beyond doubt and not the duty of the defence to disprove the case of the prosecution. We are, therefore, of considered view that it is a tit case in which benefit of doubt can be given to the appellant."
9. If the defense version is placed in juxtaposition with the prosecution version, it creates doubts on the point of arrest of the appellant. It also creates doubt as to the identification of the appellant at the time of his arrest. No reason was given by the Investigating Officer for not picking up Mashirs of recovery from the same area despite the fact that they were informed well in advance about the alleged fact that the appellant is possessing arms and ammunition. All these facts lead to the irresistible conclusion that the prosecution has failed to bring home guilt of the appellant and that he is entitled to benefit of doubt. In the circumstances, this appeal is allowed and the conviction and sentence is set aside. The appellant shall be released forthwith if not required in any other case.