P L D 1980 Peshawar 186 (PLP)

(9) On incised wound on left buttock post. Lateral aspect 1' x 2/3' x 1/2' deep On internal examination, scalp, membrane and brain were found injured while left parietal bone was found fractured. Death, in the opinion of doctor, was due to shock resulting from injury to the brain. Injuries 1, 2 and 9 were found having been caused by means of a sharp weapon and injury No. 3 by sharp pointed weapon and the rest of the injuries were the result of use of blunt weapon. According to the doctor, injuries 1 and 2 were fatal. The same doctor examined Khudha Bakhsh accused on 17th October 1977, at 9-15 a.m. and found the following injuries on his person (1) Left hand swollen and tender. (2) One small-incised wound on middle of post-medial aspect of left forearm, 1 /4' x 1 /8'. (3) One lacerated wound on bridge of nose, I/2' a 1/4' x 1/4' deep. (4) Top of nose cut and the out part was hanging down. The wound behind was 2/3' x 2/3' in size. Injuries 1 and 3 were found having been caused by blunt means and injuries 2 and 4 by sharp weapon. The accused was admitted in the Hospital on the same day and was discharged as cured on 31st of the same month. On having been X-rayed, his nosal bone was found fractured. The prosecution examined 13 witnesses at the trial to support its case. The accused when examined denied the prosecution allegations against him. He set up the plea of self-defence, which is reproduced below for the sake of convenience "A day prior to the occurrence I was cutting 'Khaggal' tree situated on the "Lath" of my field which is also possessed by me. P. W. Hussain Bakhsh and his son the deceased asked me not to cut those trees. There was a row between us which attracted Falak Sher and Alam Sher P. Ws. and they effected separation between us. I came to my house. It was about Peshin time. On the following day in the morning, I took the usual path which runs in-between the fields of Master Anwar which is cultivated by the deceased and it leads to my field known as 'Manjhiwala'. I wanted to have a round of my field and so I was carrying the axe with me as safe-guard against wild animals, when I was passing on the thoroughfare, the deceased stopped his yoke., took `Vahola', Exh. P-2, which was lying near him and started towards me challenging me that he would not spare me. I asked him not to be so harsh but to no avail. He gave me blows with 'Vahola', which fell on my person resulting in the fracture of ray nosal bridge. I apprehending more danger to my life at his hands gave him a few blows with axe. The deceased fell on the ground. I left him and came to my house with the axe in question. P. Ws. Sher Zaman and Allah Bakbsh came and I informed them accordingly. The Police arrived and I produced the axe Exh. P. 7 to the I. O. Before that I had lodged the report, Exh. P. A./1 to the I. O. I did not intend to do away with the deceased. We had no previous enmity before that. Whatever I have done, I have done to save my own skin and in my self-defence. I am innocent." No evidence in defence was, however, led. The trial Judge, on reviewing the evidence, came to the conclusion that the accused had exceeded the right of self-defence and was, therefore, liable under section 304, Part I, Pakistan Penal Code. The reasons given by him for holding the accused guilty are as follow:- "There is no other evidence on record, as earlier stated, besides the statement of accused in support of his plea. It is well settled that in the presence of proof of aggression by the due, plea of self-defence is available to the accused. But in the present case there are no circumstances, as earlier mentioned, which support accused's explana tion and which are consistent with the defence story. It is in evidence that the accused had three injuries in all and his left hand was found swollen and tender. While on the other hand, the deceased had nine injuries and his death occurred as a result of injury to vital organ-brain. He had one incised wound on left mid half of skull 2' x 2/3' x cavity deep. The nature and the number of injuries found on both the accused and the deceased shows that the accused was the aggressor. In the present case except the statement of the accused, there is no other material to support his plea of the right of private defence. Thus I am of the view that the accused had failed to make out a case of self-defence, he was not justified in law to murder the deceased and he had exceeded the right of private defence. However, in the present case, there was no premeditation on the part of the accused and there was no previous enmity between the accused and the deceased. The accused and the deceased were closely related as the deceased was the brother's son of the accused. It is highly probable that altercation between the accused and the deceased must have preceded the fatal occurrence. Obviously this fatal occurrence was without premeditation and sudden. In my opinion it was the result of provocation caused by the deceased. There is a reasonable possibility that the accused acted on grave and sudden provocation due to altercation and receiving injuries at the hands of the deceased whereby he was deprived of the power of self control. At any rate, as discussed above, he has exceeded the right of self-defence and is, therefore, guilty under section 304 (Part 1). P. P. C." The learned State Counsel argued before me, in support of the view adopted by the trial Judge that it was for the appellant to have proved affirmatively the plea of self-defence put forth by him, and the fact that the aggression emanated from the deceased and it was under the force of circumstances that the appellant was obliged to retaliate. The learned counsel further urged that as nothing in the Pakistan Penal Code, or any other law, has the effect of laying upon an accused person a lighter burden of proof than that which lies upon the prosecution to prove the crime charged against him, it would be too much to say that while the prosecution must prove its case beyond reasonable doubt, the accused can displace the burden lying upon him by evidence raising a probability such as would suffice to show that the defence put forward by the accused might be true. He added further that there were also two circumstances which lend support to the view that the appellant had already made up his mind to proceed to the fields in order to kill the deceased. The first was that the appellant carried a hatchet with him from the house and the second was that there was no path or thoroughfare passing by the side of the place of occurrence leading to the land owned by the appellant. It was suggested that the inference, and the only inference, that could be drawn from these circumstances was that the appellant had left the house with the sole object of killing the deceased. I have carefully analysed the entire evidence on the record and have examined the legal position on the point and have come to the conclusion that there is no substance in the contentions raised by the learned State Counsel. The provisions relevant to the point in question are found in section 105 of the Evidence Act which reads as under : "

105. Burden of proving that case of accused comes within exceptions.- when a person is accused of any offence, the burden of proving the existences of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances." The effect of this proviso of law was considered by the Federal Court of Pakistan in the case of Safdar Ali v. The Crown (P L D 1953 F C 93). It is desirable that I should recall in this judgment the relevant observations made upon the point in that judgment. Sir Abdur Rashid, C. J., as he then was, observed as follows "In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt." The view expressed by Shahabuddin, J. on the same point is contained in the following words ;- "The plea of the accused may not be established and yet it may create a reasonable doubt with regard to his guilt. It cannot be said that because under section 105 the burden of proof is on the accused and he has not discharged that burden but has only raised reasonable doubt, the Court has to convict him in spite of the existence of such a doubt. The decision has to be taken on the entire evidence and not on the special pleading." The principle enunciated in the said case was reiterated in Shamir alias Shamla v. The State (P L D 1958 S C (Pak.) 242) and it was held that where the evidence is not led to prove the plea of self-defence but accused's version receives support to the extent of being reasonably possible from prosecution evidence he would be entitled to acquittal. It will be seen that in the case of self-defence, the burden of proof placed upon the accused is much lighter than that which lies upon the prosecution to prove the crime charged against him. It is undeniable that finally the burden lies upon the prosecution to prove each ingredient of the offence charged i.e. to support each ingredient by such evidence as would justify action, by a prudent man, on the basis that such ingredient is established. There does not appear any appreciable difference between this duty, and the duty of proving each ingredient beyond reasonable doubt. If an accused person is able to establish by evidence, or if the prosecution's evidence itself presents such feature as goes to establish the existence of a reasonable doubt regarding an essential ingredient of offence charged, then the prosecution must fail. Such intention may be established by proof of circumstances surrounded by an evident act of accused and need not necessarily be proved by direct evidence. The present case is to be judged by these tests and not by the standard laid down for the prosecution to prove its case against an accused. In the instant case, the trial Judge, while holding the accused guilty of offence of exceeding the right of private defence, proceeded on wrong premises when he said that "the nature and the number of injuries found on both the accused and the deceased shows that the accused was an aggressor". In fact this is the only ground on which the accused was found to be an aggressor. The trial Judge seems to have been ignorant of the legal position on the point. It is well settled that the mere fact that a deceased is suffering greater number of injuries than those suffered by the accused is not sufficient to hold the accused as an aggressor. In this connection, I need no more than refers to the exposition of this subject in P L D 1966 Lah. 8 where it was held that "it would be wrong in principle to hold the two petitioners as aggressors merely on the basis of the fact that complainant and his son Hidayatullah suffered greater number of injuries then the injures by Faiz Alam without taking into account the ambient circumstances of the case which are clearly established from the evidence on the record". It would therefore, be wrong in principle to hold the appellant as aggressor merely on the basis of the fact that the deceased of this case suffered greater number of injuries than the injuries suffered by the appellant, without taking into account the circumstances of the case. It is an admitted position that there is no direct ocular account in this case to connect the appellant with the crime of murdering the deceased. The appellant, however, admitted having caused the injuries to the deceased with his hatchet. The question, however, that arises for determination is as to the circumstances in which the appellant caused injuries to the deceased resulting in his death. The fact that the appellant carried a hatchet while leaving his house would not justify me to draw an inference that he had a guilty mind, having an intention to kill the deceased. He has fully explained this position saying that he wanted to have a round of his own fields and was carrying an axe with him as a safeguard against wild animals. This explanation obviously sounds well. Ac regards the contention of the learned State Counsel with regard to a thoroughfare,, it may be pointed out that the appellant's case from the very outset had been that a path to his fields runs in between the lands of Master Anwar which were being cultivated .by the deceased and that he was proceeding on that path when he was challenged and attacked by the deceased. The prosecution could lead evidence to the effect that there was no such path, which has not been done. The mere fact that such a path has not been shown in the site plan would not be conclusive proof of the fact that there was none. Apart from this, no question on this point was put to the accused in his statement under section 342; Criminal Procedure Code. Since the prosecution now seeks to use this fact against the accused and the same was never put to the accused at the time of hi: statement under section 342, Cr. P. C., the fact even if it is found to exist cannot be used against the accused appellant. It is manifest, therefore, that there is no direct evidence to warrant the conclusion that the appellant was an aggressor and that the attack in the first instance was launched by him. There also do not appear any circum stances from which an inference as to the guilt of the appellant being an aggressor could be drawn. In such a situation, I have per, force to fall back on the statement of the appellant himself as there is no evidence circums tantial or oth6rwise, to negative or contradict that statement in whole or part. I am thus forced to the conclusion that the version of the appellant that it was the deceased who was the aggressor has to be accepted. The question then arises whether he has, in defending himself from the vaholas blows, exceeded his right. I have given my anxious thought and dispassionate consideration to this aspect of the matter and find that in the context of the circumstances of this case, it is not possible for me to hold that the appellant exceeded his right of private defence. The provisions as to the exercise of the right of private defence are found in sections 96 and 100 of the Pakistan Penal Code which lay down that nothing is an offence which is done in the exercise of the right of private defence, and that the right of private defence of the body extends to the causing of death where an assault may cause the apprehension of death or grievous hurt. This right has been given because the law does not require a citizen to behave like a rank coward on any occasion. If a man is attached he need not run away and he would be perfectly justified in the eye of law if he holds his ground and delivers a Counter attack to his assailant provided always that the injury which he inflicts in self-defence is not out of proportion to the injury with which he is threatened. He can use such force as is necessary to secure his safety or avert the danger. In the present case, the accused appellant suffered grievous hurt and he was, therefore, justified in killing his attacker in self defence. The accused was all the more justified in hitting, back the deceased because the latter does not seem to have stopped giving blows to the accused. The fact of the matter is that it is not possible for me to fix the stage of the point of time at which should have stopped causing further harm to the deceased. The appellant was gravely injured and he could not even exclude the possibility of his death at the hands of the deceased unless the latter was rendered powerless. In such a state of things, it would be too much to expect from the appellant to have weighed in golden scales the amount of harm which he should have caused to his assailant, the deceased of this case. In these circumstances, even if there be some excess, it is to be condoned because of the difficulty in assessing the extent of the ex committed. The result is that the appellant has to be acquitted, not as a matter o grace but as of right. The appeal is, therefore, accepted and the conviction and the sentences passed on the appellant are set aside and he is acquitted. He shall be set at liberty forthwith provided he is not required in any other case. The fine, if already realised, shall be refunded to the appellant. M. Y. M. Appeal accepted.