P L D 1953 Federal Court 115 (PLP)

ABDUL RASHID, C. J. ‑The principles of law applicable to the present case have been laid down by the House of Lords in the cases of Woolmington (L R 1935 A C 462), and by this Court in the case of Safdar Ali. Had the High Court examined the entire evidence in this case in accordance with those principles, it would not have been open to this Court to review the evidence afresh. The High Court has, however, not approached the case from a correct angle of vision, and has in effect held that it is incubment on the accused to establish his plea in mitigation or justification of the killing with the same rigidity and exactitude as the prosecution case. This Court has, therefore, felt constrained to examine the entire evidence carefully to determine whether there is a reasonable possibility of the defence plea being true. Judged in the light of the principles laid down in Safdar Ali's case, the guilt of the appellant has not been established beyond reasonable doubt. He is, therefore, entitled to an acquittal. SHAHABUDDIN, J.‑In this case the learned Judges of the High Court appear to have proceeded on the basis that the accused could take advantage of the exception of the right of private defence only if he could establish such a plea beyond reasonable doubt. That this is not the correct standpoint but that it would suffice if the accused is able to create a reasonable doubt regarding his guilt has been pointed out in our judgments in Safdar Ali v. The Crown . But even from the point of view adopted by the learned Judges the defence of the appellant cannot be said to have been fully considered. The appellant examined D. W. 1 in support of his plea, but the evidence of that witness does not seem to have been considered at all by the learned Judges. The comment on the probability of the version of the appellant can hardly be regarded as a considera tion of the definite evidence of the defence witness, especially when with regard to the case of the prosecution specific reference is made to the merits of the individual prosecution witnesses. We had therefore to look into the evidence, and so doing we found that the case for the prosecution had not been proved beyond reasonable doubt. We therefore allowed the appeal and acquitted the appellant. CORNELIUS, J.‑This case raises a question which has been dealt with at length in the recent appeal of Safdar Ali (1) viz., the correct mode of treatment of a circumstantial plea of self defence raised in a murder case, having regard to the onus of proof resting on the prosecution to establish, its case, and the burden lying upon the accused to prove his special pleading. In Safdar Ali's case, the principles laid down by the House of Lords in the well‑known case of Woolmington have been examined and it has been found that in material respects, those principles do not conflict with the rules derivable from the statute law of Pakistan, contained in the Evidence Act, 1872. The conclusions arrived at in Safdar Ai'l's case may be stated as follows. Under the law of Pakistan the burden lies upon the prosecution, when it lays a charge of murder against an accused person to establish, by evidence such as a prudent man would require for the purpose of founding action thereon, as follows. Under the law of Pakistan the burden lies upon the prosecution, when it lays a charge of murder against an accused person to establish, by evidence such as a prudent man would require for the purpose of founding action thereon, that the killing was attended by one or other of the intentions which are specified in section 300, P. P. C. Where no such intention is established, but the killing is admitted, the highest charge which can be preferred is that of culpable homicide and amounting to murder. In either case, if the accused person replies by the special pleading of self‑defence, it will be for the accused to prove, by evidence which should be sufficient to satisfy a prudent man that he can safely act thereon, that the homicide was committed in such circumstances as gave to the accused the right to cause death in defence of property, or of the person, which is the case, here. (The limitation upon the exercise of the right of self‑defence are stated with precision, in a murder of sections of the Pakistan Penal Code commencing with section 96). Yet in order to give a verdict on the whole case, it is not enough for the Court to be satisfied only as to whether the special pleading of the accused has been established or otherwise. It is not correct to say that in such a case, the prisoner must discharge the burden of proving his innocence. Having put forward a special pleading, it is un doubtedly for him to prove it by evidence of a quality and character such as will satisfy the conditions of the definition of the expression "proved" contained in the Evidence Act. But should he fail to prove his special pleading that is not the end of the case, for the verdict of the Court must be given upon and as the result of the whole of the case. And it remains the duty of the prosecution from 1st to last, to establish that the offence charged, or some other offence for which under the law of Pakistan, are accused may upon the same evidence be convicted, has been proved, by the same standard as aforesaid. Therefore, the duty of the Court is, before it gives its verdict, to apply its mind to the whole of the evidence and the circumstances appearing from the record, whether adduced by the prosecution or by the defence, and if upon such a review, the Court is left in a state of reasonable doubt whether the killing was accompanied by one or other of the intentions which are necessary ingredients of the offence of murder, or whether the accused acted with the single intention of saving his own life, then the accused is entitled to be acquitted, unless, upon consideration of the whole case, the Court is satisfied that he exceeded the right of self‑defence vested in him, in which case there may be a conviction and sentence for culpable homicide not amounting to murder. The essential consideration underlying the conclusion is that the accused person cannot be regarded as having acted in the ordinary case, (to which category the present case belongs) with more than one intention. Either he must be deemed to have acted with the intention to save himself, or with a criminal intention such as constitutes murder. For the determination of this questions it is necessary that the Court should take into account fully all ` the facts and circumstances appearing on the entire record, including such portion of the evidence led for the defence as the Court finds worthy of belief, for even though such evidence may be insufficient to establish the special pleading, it cannot be without effect in relation to the opposing evidence led for the prosecution, since ex hypothesi, it relates to the same incident. The effect, in such a case, may be to create the state of reason able doubt indicated above, of which the Court is bound to get the benefit to the accused. In the present case, after anxious consideration of the entire evidence and circumstances, I am clearly of the opinion that the order of the High Court against which the appellant Muhammad Aslam has been granted special leave to appeal and by which, his conviction under section

302. P. P. C. was affirm but the sentence of transportation for life awarded to him by the trial Court, was enhanced to death, proceeds upon a basis which is inconsistent with the principles enunciated above. Muhammad Aslam was charged with the murder of cousin Muhammad Sadiq and with attempt to murder one Sardar Bahadur, both by means of shots fired from a pistol. Each of these persons sustained injury from the single shot obviously fired at close range, judging from the degree of penetration. Muhammad Sadiq was hit m the chest by a bullet which pierced his heart and escaped through an exit wound in the beck. The edges of the hole made by the bullet in the shirt he was wearing were blackened indicating that the range was not so close as to cause signing, but was little more than a yard, in view of the quantity of un-burnt powder carried along with the bullet: Muhammad Sadiq died instantaneously. Sardar Bahadur received the bullet on the outer side of his rights thigh and it passed right through the thigh, exiting on the inner side and then entering the left thigh where the wound of entry was 1J in external dimensions. There being no exit wound in the left thigh the possibility of the bullet being still inside the thigh appeared, but it was not explored, the doctor being content to say that the bullet could not be felt by palpation. It is admitted that in the same incident, Muhammad Aslam himself received a large number of injuries, of such a nature that he had to be carried from the spot to the thana and hospital 3 miles away. There was one grievous hurt, namely, fracture of the right ulna bone under two contusions and an abrasion. The minor injuries were an abrasion on the left knee, two abrasions and a contused wound on the left forearm. There was a large contusion on the top of the left shoulder, as well as four large contusions on the back, the smallest measuring 3" x 1 " and the largest 9" x 1 " There was a contused wound 1" in length on the bridge of the nose and two contused wounds on the head, the less serious injury being 1" in length, while the other measured 2 " within an area of 4" x 3" which was markedly swollen and, in the floor of the wound, the scalp was torn apart to the extent of an inch. It is common ground that the incident occurred in the fields about a furlong away from the abadi of village Bai to which the parties belong.‑ About 50 karams (250 feet) away is a Khalwara belonging to Maria, an eye‑witness, and the defence have been at pains to show that the spot lies on a path which leads to village Bai from some water‑mills in which the accused owns a share. The prosecution alleged that there was bad blood between Aslam and Sadiq of the affections of a boy named Akram, son of the aforesaid Mana, and that Aslam having been superseded by Sadiq had even threatened to kill the latter. Both Aslam and Sadiq apparently play dholkis and sing songs, and it is in evidence that at the time of the occurrence Sadiq kept his dholkis at a but belonging to Mana and made a practice of singing songs there. Aslam denied ever having had any friendship with the boy Akram, and that his dholki had been stolen a year before the occurrence, and he had suspected that Sadiq was the thief, as was stated by the witness Maria. He admitted, however, that about a week before the occurrence Sadiq's dholki was stolen, apparently from Mana's hut, and that he himself was suspected of being the thief. He denied, however, that a day before the occurrence he and Sadiq bad a quarrel at a certain hujra, and that they were separately by Abdur Rahman. The prosecution went on to allege that on the day in question viz. the 30th December 1949, Sadiq in company with Mana and a relation of his from another village, named, Sardar Bahadur (P. W. 10) who had been living with Mana for about two months before the occurrence, and Mana's young son Afzal aged 12 years' went from the village towards the Khalwar mentioned above. On the way they became separated and Sadiq was going ahead by himself, with the other three some 15 or 20 paces behind him, when the accused got up from a hiding place in a field adjoining but four feet lower than the path which Sadiq was following, and aiming a revolver at him pressed the trigger but the cartridge misfired. Sadiq advanced towards Aslam and was close to him when the second shot was fired; which hit him and he fell down dead. Then Sardar Bahadur ran towards Aslam and asked him why he had done such a deed, whereupon Aslam fired a shot at him which missed, and then he fired another shot which hit Sardar Bahadur who fell down. After this, Mana threw a stone at Aslam and succeeded in hitting him and he fell down, where upon Maria snatched away the pistol from him and gave him some blows with a soti, which he took from Afzal, and also hit him with stones. Sardar Bahadur too got up and gave some soti blows to Aslam. Shortly after Faqir Muhammad, father of the accused, arrived on the spot and later the chowkidar and lambardar also arrived. A report was made at the thana by Mana without undue delay, and the injured Aslam was also brought to the thana by his relations, about the same time. It has been stated by the investigating police officer that he recorded Aslam's statement in the zimni "but did not record a separate F. I. R. as no offence was disclosed from his statement". The accused's case may be stated in his own words which were as follows:‑‑ "It was the deceased and his companions who way laid me and assaulted me with dangs, etc., and I acted in self‑defence." "On the day of occurrence at Rotivela I was returning from my jandar to village Bai. Dost Muhammad D. W. was follow ing me. Sadiq deceased, Mana and Sardar Bahadur P. Ws. were standing at the place of occurrence. They had sotis with them. Sadiq called out that he was going to take dholki from me. I replied that I had no dholki with me. Sadiq ran after Sadiq, Mana and Sardar Bahadur gave sots blows to me. I had a loaded revolver with me. In self‑defence, I fired 2 or 3 shorts. Sadiq and Sardar Bahadur were injured with bullets. I also fell down senseless at that place. I do not know who took away my revolver." Of the three alleged eye‑witnesses mentioned in the prosecu tion case, two namely, Abdur Rahman or Mana, and the relation Sardar Bahadur, were examined at length. The third, Mir Afzal son of Mana aged 12 years was tendered for cross‑examination but no question was put to him. Lost Muhammad who was mentioned by the accused as an eye‑witness was duly examined. Evidene was also received regarding certain important circumstances. Firstly, the free use of stones alleged by Mana postulates the presence of stones in the vicinity in considerable quantity. The village patwari Ghulam Sarwar, declared that neither along the paths followed by the prosecution witnesses nor in some fourteen surrounding fields which he enumerated were there any stones to be found. The investigating police officer, A. S. I., Muhammad Ali (who was not in the Police service at the time of the trial but was doing business at Sargodha declared that there were some stones lying at the place of occurrence of which the largest might be 4 or 5 chattaks (about half a pound) in weight but none of them were blood‑stained and he therefore did not take any into possession. Next, as to the pistol seized from the accused on the spot, the chamber was found to contain two empty fired cartridges and one cartridge which had misfired. The cir cumstance is relevant to the statements of the prosecution eye witnesses that the accused fired four times. The trial Judge elicited by particular‑questions put to Sardar Bahadur at the close of his evidence that he did not hear a report on the first and third occasions when the accused fired, and has concluded on this point that on: of the chambers, either the first or the third, "must be empty". As regards the distance from which the shots were fired, Abdur Rahman said that Aslam first fired at Sadiq from a distance of 18 or 20 feet, while Sardar Bahadur placed the distance at 30 feet. Both say that after the first shot misfired Sadiq continued to advance towards Aslam, and Sardar Bahadur goes so far as to say that Sadiq caught hold of Aslam, what one asked whether Sadiq had also given Aslam a blow with the stick which he was carrying. Sardar Bahadur said that he did "notice" this. He himself was fired at from a distance of 20 or 25 feet. The manner in which the trial Judge has dealt with the case is as follows. Commencing with the statement that the causes of querrel stated by the prosecution were "common ground", which is not strictly correct, he holds it proved by the evidence of "Mina, Sardar, Bahadur, and Mir Afzal (P. Ws.)" that Aslam lay in ambush for Sadiq and fired at him from behind the banna, and that Sadiq advanced towards him "obviously to snatch the revolver from him" but Aslarti fired again and injured Sadiq who fell down and thereafter fired two shots at Sardar Bahadur also. The injuries to Aslam resulted firstly from the stone thrown by Mana, secondly, from soti blows by Mana with Mir Afzal's soti, and thirdly, from soti blows by Sardar Bahadur. The trial Judge next considered and disbelieved the defence version, which was supported by Dost Muhammad, whose state ment was that Sadiq, Mana and Sardar Bahadur assaulted Aslam with sticks and then Aslam took out his revolver and fired two or three shots at them. He said that the defence story was "an afterthought and false" on the following grounds, viz., that Dost Muhammad did not appear before the police, that Aslam had not explained why it was necessary for him to be carrying a loaded revolver on the way back from his water‑mill, and that if Aslam had been attacked and beaten by 3 persons in the first instance, it would have been impossible for him to take out his revolver and fire shots at them. He referred to the fact that Sardar Bahadur "had admittedly no enmity with the accused nor any interest in Sadiq" and therefore was not likely to join Mana and Sadiq in assaulting Aslam. He thought that if Maria intended to assault Aslam that morning he would not have taken his small son Afzal with him. He believed that Aslam had a motive for attacking Sadiq. Towards the conclusion of his judgment, he expressed the following opinion. "Even if the accused had any right of private self‑defence of body he exceeded that right in firing shots and injuring Sadiq and Sardar Bahadur." The learned Judge did not, however, give effect to this view, for he convicted the accused under section 302 in respect of the killing of Sadiq. In dealing with the defence witness Dost Muhammad, the trial Judge contended himself with a resume of his evidence in no more than six lines, and did not advert to either his personal credibility, or the intrinsic nature and quality of his evidence. In the judg ment of the High Court, the evidence of Dost Muhammad receives notice in the following sentence only:‑ "One witness has been produced in support of this allegation." (The "allegation" referred to is that Aslam fired in self‑defence when attacked by Maria, Sardar Bahadur and Sadiq.) The judgment of the High Court, is marked by exceptional brevity. Here too, the opposing cases for the prosecution and the defence have been examined separately and in sequence. With regard to the prosecution case, it is said that no "real reason" exists for rejecting the evidence of Maria and Sardar Bahadur, because neither of them was concerned to engage in a conspiracy to attack Aslam on behalf of Sadiq. Mana's son being involved in an objectionable relationship with Aslam was thought to furnish no basis for liana to bear a grudge towards Aslam. The latter's injuries were believed to have been caused by Mana and Sardar Bahadur in attempting to disarm him or perhaps to "punish him for having killed Sadiq." The defence pleading is rejected on the same grounds as those which appealed to the trial Judge with one addition, namely that if the prosecution party had" set out to murder the appellant", his injuries would have been "much more serious". These circumstances were thought to "militate against the appellant's version and to support the prosecution case". The proper weight to be attached to these several circum stances will be duly considered when the whole case is examined, on the principles enunciated above. Here I propose to consider the evidence of the defence witness Dost Muhammad, which has received undeserved neglect in both the Courts below. The solitary ground of a direct nature expressed for disbelieving him is that he did not make a statement to the police in the investiga tion. Any general proposition that such a statement is a necessary condition of a witness being believed when deposing later at the enquiry or trial cannot, of course, be endorsed. Moreover, Dost Muhammad declared more than once in his evidence that he appeared and made a statement before the investigating police officer at Peshiwela (say 2‑0 p.m.) a few hours after the occurrence, and this statement is not rebutted by anything on the record. In point of personal character, as affecting this veracity, Dost Muhammad compares favourable with Mana and Sardar Bahadur, whose evidence he was called to rebut. He is cousin to Mana, and his daughter is married to a son of Maria's own brother Jahandad. Moreover, whereas it is admitted by Akram, son of Mana, that after he disclosed Aslam's alleged threat of murder to his father, the latter ceased to be on speaking terms with Aslam, and while the partiality of Mana and his family towards Sadiq. Aslam's rival, appears plainly enough on the record, there is nothing to indicate that Dost Muhammad has either cause or inclination to favour one of the two cousins, Sadiq and Aslam, against the other. His statement that Aslam fired when he was actually being beaten with sticks by Sadiq, Mana and Sardar Bahadur, and that Sadiq was shot at "very close range, about one or two paces", accords with the natural probabilities somewhat better than the prosecution version that Sadiq seeing that Aslam was firing at him, took no evasive action but ran some 8 or 10 paces right up to Aslam, and even caught hold of him. Dost Muhammad does not mention the use of stones, and this again is in accord with several matters appearing out of the prosecution case, viz., the statement of the patwari, the difficulty ‑of believing that stones would have been thrown at Aslam when he and Sadiq were so close to each other and the non‑discovery of any blood stained stones. A small point, viz., that the shot which killed Sadiq was fired from not less than 3 feet range, is better explained by Dost Muhammad's version than by that of Sardar Bahadur, who says Sadiq caught hold of Aslam. Finally, it is appreciably easier to accept Dost Muhammad's version that the four men were on the same level, viz., on the footpath, than the prosecution story of Aslam being on a level four feet below the others, and yet Sadiq is said to have come to grips with Aslam, without any indication that one of them jumped up or down for the purpose. As this Court is not a Court of error in regard to the appreciation of evidence, an explanation is necessary for this somewhat detailed examination of Dost Muhammad's evidence. It is true that where evidence which has been properly received has been considered, or even appears to have been considered, by the High Court; this Court will ordinarily accept the High Court's findings thereon. It is only in certain exceptional types of cases that evidence will be examined afresh in the Federal Court. But in this case, it is evident‑that even apparent consideration has not been‑given by the High Court to Dost Muhammad's evidence, and the trial Judge has rejected it for a reason which is not valid. The evidence was of great importance to the accused's pleading of self‑defence, which appears to have been raised at a very early stage of the case. Indeed, on the view apparently taken by the learned Judges below, viz., that an accused person raising a plea of this kind must establish it affirmatively beyond reasonable doubt, Dost Muhammad's evidence was of crucial importance. The view of this Court as expressed in Safdar Ali's case is materially different, and it is not necessary therefore to strike a separate balance between the testimony of Dost Muhammad on one side, and that of Mana and Sardar Bahadur on the other, in the light of all the proved circumstances. If such a necessity arose, however, I would incline to the view that the preponderance, if any, is not on the side of the prosecution. It remains to make a survey of the whole case, i.e., all the proved circumstances, as well as the evidence led on both sides, in order to determine whether the charge has been established beyond reasonable doubt, or on the other hand, the prosecution evidence, when received in the light of the circumstances, and bearing in mind the reaction upon it of so much of the defence pleading and proof as may be held to have been established, leaves the point of the accused's intention in firing at Sadiq and Sardar Bahadur in a state of reasonable doubt such that a prudent person would not act upon it. Taking first the question of motive, it is clear that while the remote cause viz., the loss of the affections of Akram to Sadiq which had happened a year earlier, operates against Aslam, the proximate incident, viz. the loss of Sadiq's dholki for which Aslam was suspected, furnishes a fresh cause for Sadiq and his friends to chastise, not necessarily murder, Aslam. The scene of the occurrence is near Mana's Khahvara and is also on the route followed by Aslam in visiting his water‑mills; the probability favours the use of the place by persons lying in wait for Aslam rather than by an enemy or enemies of Sadiq, who is not shown to have had any occasion for being there which could have been anticipated Aslam was never asked at any time to explain why he was carrying a loaded revolver at that time, and, therefore, it is not; in my view, a fair conclusion to draw that this fact by itself "indicates quite clearly that he was out on a murderous expedition". He might well have explained that having to pass by a Khalwara belonging to staunch friends of his enemy Sadiq, and his lameness minimising his chances of escape by flight, he regarded such a weapon as an absolute necessity for self‑protection. It is absurd to suppose that he could not possibly have drawn and used this weapon when three men were attacking him with sticks, and if their purpose be assumed to be a severe beating, and not murder, the infliction of fifteen injuries; including a broken bone and a very severe blow on the head which ruptured the scalp, might be accepted as an adequate carrying‑out of the intention. As for the alleged presence of the boy Afzal, which is not accepted by the accused, it might well be explained by the nearness (50 karams of his father's Khalwara, which is visible from the spot. Appreciating that, with respect to each of the" e circumstances, another view viz., that favourable to the prosecution story is also possible, it nevertheless appears that, on a balance, it cannot be said with certainty that any of these circumstances, or all of them jointly, is or are unequivocally in favour of the prosecution. If anything, the defence version receives support, though more clearly from some of these circumstances than from others. When the ocular evidence on the two sides is placed in the scales, in relation to the proved circumstances, this indication seems to gain emphasis. Dost Muhammad's character as a witness and the quality of his evidence has been considered already. Neither he nor his testimony, when tested against the circum stances, loses anything by comparison with the eye‑witnesses for the prosecution. In the circumstances, the conclusions that must be drawn on an analysis of the entire case are:‑ (a) the prosecution must be held to have failed to establish the charge of murder beyond reasonable doubt, since it is left in doubt whether the accused acted with one of the intentions specified in section 300, P. P. C., and (b) even if the accused be held to have failed to prove affirmatively his special pleading viz., self‑defence, yet the evidence he has adduced, coupled with his own statement, and the circumstances, leaves it in a state of reasonable doubt whether the intention operating on his mind when he used the revolver, was not to save his own life from immediate danger of death or grievous hurt. On these findings, the prosecution could not claim a convic tion for any higher offence than that of culpable homicide not amounting to murder, i.e., on the ground of exceeding the right of self‑defence. But as to that, it is sufficient to point to the general severity of the injuries sustained by Aslam, which included one broken bone (constituting grievous hurt) for the purpose of reaching the conclusion that, in the absence of direct evidence, the circumstances do not justify any presumption or conclusion other than that there was no excess of the right of self‑defence. On that finding, the only proper order in the case was an order of acquittal. It remains to mention that the four assessors who assisted the Judge at the trial unanimously declared their opinion to be that Aslam fired at Sadiq and Sardar Bahadur in self‑defence, and that he did not exceed his right of private defence. The Judge states in his judgment that he has considered the opinion of the assessors, and that perhaps explains his tentative observation quoted above, that assuming there was a right of self‑defence, it had been exceeded. The latter suggestion is not tenable in the light of the relevant evidence. It is a matter for regret that on account of his failure to resolve the issues arising in the case on correct principles, the learned Judge was prevented from accepting and acting on the sound advice tendered to him by the assessors. A. H. Appeal allowed.