P L D 1976 Supreme Court 629 (PLP)

SALAHUDDIN AHMED, J.-These two appeals by special leave of this Court are from an order of a Division Bench of the Peshawar High Court dismissing the appellants' appeals from their conviction and sentences under section 302/34 of the Pakistan Penal Code and confirming the sentence of death passed upon them each. Both the appeals are now being disposed of by one judgment. Appellant Aminullah, 40-43 years old, and appellant Naimatullah, 35-40 years old, and Hakimullah and Masudullah, and Mst. Dilshad Begum are sons and daughter, respectively, of Haji Muhammad Yousaf Jan deceased by his late first wife. Both the appellants along with two unknown persons were involved in an incident which resulted in the death of Haji Muhammad Yousaf Jan. According to the first information report lodged by Mst. Sherin Janan, a 70 years old spinster sister of Haji Muhammad Yousaf Jan, the two appellants having been armed with guns (topaks) came to the door of the kitchen where Haji Muhammad Yousaf Jan along with his second wife, Mst. Janat Bibi (P. W. 21, his daughter, Mst. Nuzhat Shaheen (P. W. 3), and the complainant were sitting and taking their sehri. Appellant Aminullah fired the first shot and appellant Naimatullah the second shot with their guns, at the deceased and killed him on the spot. There were two other unknown and unidentified persons alongwith the two appellants. Thereafter the appellants fired more shots and all the four escaped. The incident was witnessed by the complainant and the aforesaid two women. The motive for the incident was that the appellants had grudge with the deceased over his estate. The complainant promptly went in a car to Police Station, Parang situated at a distance of two furlongs from the spot, and lodged a first information report there at 4-30 a.m., and it was recorded by S. H. O. Muhammad Arif (P. W. 4). The Investigating Officer left the police station at 5-15 a.m., and arrived at the spot at 6-00 a.m. In course of his preliminary inquiry he prepared the injury sheet and the inquest report. He sent a constable for the doctor, who came and held the post-mortem examination in a house adjacent to the house of the deceased. Among other things the Investigating Officer seized blood-stained earth, a blood-stained mazri mat, a blood-stained dart and a blood-stained carpet from the kitchen of the house of the deceased. Subsequently the Serologist found that the blood-stained earth and the blood on the mazri mat and the dari were stained with human blood. The Investigating Officer also extracted and seized a pellet Exh. P. 2 from the back-wall of the kitchen. He also recovered three pellets, one .303 bore empty shell, one .12 bore empty shell, and one .12 bore missed cartridge from the spot. From underneath the mazri mat two more pellets and a lead bullet were recovered. The accused were searched for but they could not be traced. According ly, warrants of arrest were issued against them under section 204 of the Code of Criminal Procedure and they were entrusted to foot-constable Ghulam Habib (P. W. 6) for execution. The foot-constable searched for the appellants Aminullah and Naimatullah in their village and the surrounding villages, but they could not be traced with the result that the warrants were returned unserved. Thereafter, proclamations were issued under section 87 of the Code of Criminal Procedure against the two appellants and they were affixed at the outer doors of their houses. Appellant Aminullah appeared before the S. H. O. on the 12th of November 1971, but could not be arrested as he bad been on bail before arrest. After the rejection of his bail he did not surrender, and was arrested at Rawalpindi on the 26th of March 1972. Appellant Naimatullah appeared before the S. H. O. at the Police Station on the 16th of November 1971, having already obtained an order for bail before arrest in his favour. The hail was, however, not confirmed and be appeared before the S. H. O. on the 29th of December 1971, and was arrested. Upon the completion of the investigation a charge-sheet was submitted against the appellants. After the usual inquiry under Chapter XVIII of the Code of Criminal Procedure before a competent Magistrate, the appellants were committed to the Court of Session for trial, and were ultimately .convicted under section 302/34 of the Pakistan Penal Code for the murder of their father Haji Muhammad Yousaf Jan, and were sentenced to death each. Both the appellants denied the motive alleged against them as well as their abscondence. They denied the prosecution allegations against then and set up a plea of alibi. The prosecution relied upon the ocular evidence as corroborated by the various recoveries, the medical evidence and the existence of motive to prove its case against the two appellants. So far as the motive is concerned, the prosecution led evidence to prove that on the 28th of July 1971, the deceased had gifted away 275 kanals and 12 marlas of land in favour of Mst. Farasat Yasmeen and Mst. Nuzhat Shaheen P. W., daughters of the deceased by the second wife, Mst. Janat Bibi P. W. This is supported by the evidence of P. W. Fazal Hamid, Naib- Saddar Qanungo, Charsadda, who stated in his cross-examination that according to Mutation No. 335 attested on the 28th of September 1971, Haji Muhammad Yousaf Jan had transferred 275 kanals and 12 marlas of land in favour of his daughters. Mst. Farasat Yasmeen and Mst. Nuzhat Shaheen. P. W. Exh. P. Z/I at page 61 of the printed paper-book shows that on the 20th of January 1972, Aminullah applied to the Member, Board of Revenue, Government of N.-W.F. P., Peshawar, for taking the estate of his father under the Court of Wards Act on the ground that his father was suffering from mental infirmity and that on account of his dissipation of his property he was incapable of managing his affairs. He further stated therein that the mental infirmity of his father was exploited by his step-mother and that due to he undue influence the father had grown hostile to his sons and a daughter who 'were born of the first wife who was dead. The appellant also asked for direction not to sanction the aforesaid Mutation No.

335. In his statement) before the learned Additional Sessions Judge Aminullah admitted having made the said application. P. W. Sherin Janan stated that the deceased had transferred 68 jaribs (275 kanals and 12 marlas) of land in favour of his two daughters, Farasat Yasmeen and Nuzbat Shaheen P. W. and the accused were thereby annoyed. She said that the dispute regarding the land had arisen a month before the occurrence. P. W. Mst. Janat Bibi supported the statement of mst. Sherin Janan that the accused had been annoyed with the deceased on . account of the mutation attested in the names of Mst. Farasat Yasmeen and Mst. Nuzhat Shaheen P. W. Upon these evidence both the Courts have held that there was a motive on the part of the two appellants to commit the crime. This finding is based upon evidence and has not been affected in any way by the fact that Aminullah, too, had been given 30 jaribs of land and Natmatullah bad been educated in Europe by his father at considerable expense, and his wife had been given 30 jaribs of land, a serai and a pakka house as her dowers by the deceased. Apparently the appellants could not bear the transfer of 68 jaribs of land in favour of their step-sisters, Mst. Farasat Yasmeen and Mst. Nuzat a Shaheen P. W. The motive that the prosecution sought to prove, therefore, has been proved, and nothing further was expected of the prosecution in this regard. I now come to the ocular evidence. The most important of the three eye-witnesses is, undoubtedly, Mst. Sherin Janan, an aged spinster sister of the deceased and an aunt of the two appellants. Of the other two witnesses one is 441st. Janat Bibi, the second wife of the deceased, aged about 50 years. The deceased's first wife had died 25 years ago, and two years after her death he had married Mst. Janat Bibi. By the second wife the deceased had only two issues, namely, the daughters, Mst. Farasat Yasmeen and Mst. Nuzhat Shaheen P. W., the former was married and the latter was unmarried. The third witness P. W. Mst. Nuzhat Shaheen was about 16, years old, and was a student of 10th class. P. W. Mst. Sherin Janan had lodged the first information report at the police station promptly. It was the month of Ramazan, and she was one of the persons taking the sehri along with the deceased and his wife Mst. Janat and daughter Mst. Nuzhat Shaheen. An electric bulb of 50 candle power was burning in the kitchen at the time, and it was also seized by the police. According to Mst. Sherin Janan the two appellants entered the kitchen and fired at the deceased from a distance of about three feet. She stated that Aminullah fired first at the deceased on his chest and Naimatullah fired next and bit the deceased on his thigh. She stated that they had been called for the sehri meal by their maid servant aged 10/20 years, and that they had all come together. She stated that she was examined a second time by the police in the house. She said she went to the police station in a car, but did not know who drove the car. It is significant that not a single question was addressed to her suggesting any reason whatsoever for her to be inimical or ill-disposed towards the two appellants. All that the two appellants said in course of their examination under section 342 of the Code of Criminal Procedure was that Mst. Sherin Janan was a helpless lady and was dependent on P. W. Mst. Janet Bibi, the step-mother of the two appellants or under her influence. But this bad not been put to P. W. Mst. Sherin Janan. Before the learned Additional Sessions Judge Naimatullah said be did not just know why the three witnesses deposed against him. Mst. Sherin Janan had been living with her brother (the deceased) and until his death she might, have been dependent upon her brother but on none else. The death of her brother may have made her dependent on the appellants and their brothers rather than on their step-mother. There was absolutely no reason why the aunt would falsely implicate her two nephews in a murder charge, the nephews whom she might have helped in bringing up after the death of their mother, and apparently this was the reason why the appellants dared not suggest to her that she falsely implicated them. Similarly, the deceased's unmarried daughter P. W. Mst. Nuzhat Shaheen was a natural witness and had no reason to falsely implicate her two step brothers, the appellants herein. The only comment against her is that she followed or towed the line of her mother, P. W. Mst. Janet Bibi. The comment could only be of some value if P. W. Mst. Janet Bibi was herself involved in the murder. There is, however, nothing on record to this effect, except the vague suggestion to her that she had been annoyed with her husband over property. Of course this was denied and there is nothing to support the suggestion. Only before the Magistrate Aminullah said she was responsible for the murder of his father through hired assassins. This was not repeated before the learned Additional Sessions Judge or put to Mst. Janat Bibi herself. The third eye-witness, P. W. Mst. Janat Bibi, was undoubtedly, a natural witness. Except the fact that she is the step-mother of the appellants there is nothing against her to involve her in the murder of her husband. She has no son and the death of her husband would throw her on the mercy of her grown up and educated step-sons. There was no evidence and no suggestion that during her long association with the deceased and her residence in his house there was any quarrel or bad blood between her and the two appellants or their two other brothers and their sister. The fact that the sister of the deceased lived in her brother's house along with P. W. Mst. Janat Bibi and her daughters for such a long time rather spoke in her favour and her toleration. She denied the suggestion that she had not seen the occurrence and that she bad charged the appellants falsely because they were her step sons. She also denied that she had been annoyed with her husband over property. Mst. Janat Bibi stated that the maid servant after having prepared the sehri meal left the house. The maid servant lived with her children in a house situated inside the main gate of the house of the deceased. The witness said that the main gate of the house was open, and this statement has gone unchallenged. It being sehri time, and near the fajar prayer time this was not unlikely. Muhammad Yousaf, a chemist neighbour, who had accompanied the complainant to the police station was examined as C. W.

1. He stated that the complainant told the former on the way to police station that the deceased had been killed by the two appellants. He has, thus, corroborated the complainant on material particulars. No enmity against the appellants was suggested to C. W. I. The three eye-witnesses have been relied on by the trial Court as well as the High Court and I see no reason to disagree with them. Their evidence not only satisfies the test of probability, but appears convincing and reliable. They have received ample and adequate support from other reliable evidence. Besides the evidence of motive, the medical evidence has corroborated their evidence. According to P. W. 5 Dr. S. Rafi-ud-Din, who held the post mortem examination, there were two fire-arm entrance wounds, one on the chest and the other on the thigh. The two entrance wounds are : (1) one fire-arm entrance wound 2" x I on the inner side of upper part of right thigh with five exit wounds " x ', each, on the outer aspect of right buttock ; bones of right hip joint were fractured, and (2) one fire-arm entrance wound ' x ' on the front of chest one inch from the left of midline and two inches above the nipple. The exit wounds on the buttock accounted for blood on the carpet, dari and mazri mat. The chest cavity was found to be full of blood. Stomach was full of food and this 1441 support to the time of the occurrence i.e. sehri time, and this notwithstanding the omission of the doctor to note the state of digestion of the food. The doctor had found charring marks on the holes on the shirt and shalwar of the deceased corresponding to the two injuries on him. The injuries ere consistent with the evidence of P. W. Mst. Sherin Janan that the distance between the deceased and the barrel of the gun of the accused at the time of occurrence was about three feet. The absence of blood on the utencils or on the clothes of the witnesses does not, in any way, harm the prosecution case. The evidence of the recoveries from the spot not only fixed the place of occurrence but also gave full support to the manner of occurrence as to the nature of the crime weapons and of the injuries caused on the deceased. It is convenient at this stage to dispose of certain speculative and inconsequential criticisms levelled by the defence against the prosecution case. It has been contended why in the presence of two unknown persons in their company, the two appellants who were well known to the witnesses, would take upon themselves the task of firing on and killing the deceased and why did not the widow herself lodge the first information report instead of the aunt of the appellants ? No doubt, it is the duty of the prosecution to prove its case against the appellants beyond any reasonable doubt. This duty, however, does not extend beyond that, and they are not required tot answer all hypothetical questions and to explain why the accused did not act in a particular manner. Only the widow could say why she did not lodge the report, but she was not asked about this. It is likely that of the three eye-witnesses, P. W. Sherin Janan, the oldest among them, was considered most appropriate to lodge the report. It has been submitted that the driver of the car that took the complainant to the police station was a mysterious person about whom the prosecution was silent. There is no doubt about the fact that the complainant did go to the police station in a car, and this has hardly been disputed. There is no suggestion that the driver saw the occurrence which took place inside the house of a Pathan whose family are strict pardanashin ladies and where ordinarily no male particularly an outsider had ready access. The driver was, thus, not a natural or material witness about whom any detailed investigation was necessary. T his should be considered along with the usual phenomenon prevailing in such place, namely, that persons are very reluctant to come forward as witnesses parti cularly in a matter where close relations are involved. This also answers the contention that no neighbour or independent person was examined in the case. The incident took place inside the house of a Parda observing Pathan family, and it has not been shown that there was omission to examine any material witness. The mere omission to examine neighbours, whether relatives or non-relatives, does not affect the prosecution case. In the facts and circumstances of the present case there is no scope for drawing an adverse inference against the prosecution tinder section 114 of the Evidence Act. In presence of the unchallenged evidence of P. W. Mst. Janat Bibi that the main gate of the house was open I am unable to accept the contention that the assailants of the deceased had no means of access to the house. As against the prosecution case, the defence case may now be considered. At the very outset I should like to state the law and the principles applicable to a plea of alibi. Under section 103 of the Evidence Act the onus lay upon the defence to prove its plea of alibi. The best possible evidence should have been adduced in support of the plea. In the case of Sarat Chandra Dhupi v. Emperor (A I R 1934 Cal. 719), a Special Bench of the Calcutta High Court held;

"Whenever, a defence of alibi is set up and that defence utterly breaks down it is a strong inference that if the prisoner was not in fact where he says he was then in all probability he was where the prosecution say he was. At any rate the line of defence adopted and his failure to substantiate it is an element which it is right to take into considera tion in deciding whether or not the accused is guilty." In the case of Public Prosecutor v. Chidambaram (A I R 1928 Mad. 791), a Division Bench of the Madras High Court observed as follows;

"Alibi evidence should be scrutinized very carefully for it is very easy to set up alibi and not always easy to prove it, and it must be definitely proved in order to suffice for the rebuttal of a case made out by the prosecution." In the case of Suraj Bakhsh Singh v. Emperor (A I R 1933 Oudh 369), a learned Single Judge of the Oudh Chief Court has observed as follows;

"Several persons witnessed the attack and the accounts they give are in substantial agreement ; the story told in the first report, which was made at the thana by Nangu's mother. Mst. Batasa, is also in agree ment with the story told in Court. Five of the appellants pleaded alibis. The alibis of three of them were somewhat ingeniously supported, but the learned Sessions Judge considered those alibis, and came to the conclusion that they were not made out. In view of the strong and consistent evidence on the prosecution side, I have no hesitation in agreeing with the learned lower Court on this point. It may not always be possible to see how alibi evidence, especially when as in the cases of three of the present appellants, it is supported by documentary evidence, has been procured, and it has been urged on behalf of those three appellants in particular (the appellants concerned, are Gaya Dutt, Jagannath and Bodbi) that there is no reason why their alibi evidence should not be believed. The reason for not believing the alibis of those three men is that there is convincing evidence that they took part in the crime ; it need hardly be said that where there is satisfactory evidence that a man committed a crime at a certain place and at a certain time a Court will never find any difficulty in rejecting an alibi be may seek to establish, even if that alibi be supported by what, on the surface, would appear to be satisfac tory evidence." In the case of Muksed Molla v. The Crown (P L D 1957 Dacca 503), a Division Bench of the Dacca High Court observed :

"In our opinion, the authorities cited can be of no avail to the appellants, because under section 103 of the Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The illustration to that section is to this effect : `B' wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it. It is, therefore, clear that as a special plea was taken by some of the appellants, namely, appellant No. 1 Muksed Molla, Sadek Kazi and Abdul Aziz Molla that they were at the time of occurrence at Mirapara Hat. the onus was entirely on them to prove affirmatively that they were there and not at any other place. The accused examined some witnesses to prove the alibi, and this evidence was placed before the Jury in detail as also the evidence of the eye-witnesses, and the Jurors did not accept the defence case." In a case, however where both the parties lead evidence on the point at issue the question of onus loses its importance and a decision of a Court has to rest on the evidence adduced by both the parties. Vide Muhammad Bashir v. Mst. Rehmat Bibi (1970 S C M R 478), wherein it has been observed as follows;

"The question of onus has no important bearing on the case because both the parties have led evidence in support of their case. In this circumstance, the learned Courts below were perfectly justified in holding that the question of onus has lost importance." Nevertheless, the onus of proving its case against the accused lies entirely upon the prosecution and it does not shift at any point of time. Whether the defence succeeds in proving its plea of alibi or not, the prosecution is under an obligation to prove its case against the accused beyond any reasonable doubt. This duty, however, does not extend to proving that the defence case of alibi is false. Even if the defence fails to prove the plea of alibi, but upon the evidence in the case it succeeds in raising a reasonable doubt in the mind of the Court as to the guilt of the accused, it will result 1 in a situation in which the prosecution must be held to have failed to prove its case against the accused beyond any reasonable doubt and the result must be one of acquittal. This view is supported by the case of Sofdar Ali v. The Crown ((1952) F C R 238), wherein Chief Justice Abdul Rashid in a case where section 105 of the Evidence Act was under consideration 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." I should, however, like to add that having regard to the provisions of section 103 of the Evidence Act read with the second illustration the accused having failed to discharge the onus legally put on him and failed to prove his case of alibi the Court would be left with the evidence adduced by the prosecution in support of its case and the question would then be whether this evidence convincingly proved the case against the accused ? I am unable to accept the astounding proposition that the very failure of the accused to prove his plea of alibi will go to his benefit. In the case of R. v. Lobell ((1957) All E R 734), it has been observed as follows :

"It must, however, be understood that maintaining the rule that the onus always remains on the prosecution does not mean that the Crown must give evidence-in-chief to rebut a suggestion of self-defence before that issue is raised, or, indeed, need give any evidence on the subject at all. If an issue relating to self-defence is to be left to the jury there must be some evidence from which a jury would be entitled to find that issue in favour of the accused, and ordinarily, no doubt, such evidence would be given by the defence. But there is a difference between leading evidence which would enable a jury to find an issue in favour of a defendant and in putting the onus on him. The truth is that the jury must come to a verdict on the whole of the evidence that has been laid before them. If, on a consideration of all the evidence, the jury are left in doubt whether the killing or wounding may not have been in self-defence the proper verdict would be not guilty. A convenient way of directing the jury is to tell them that the burden of establishing guilt is on the prosecution but that they must also consider the evidence for the defence which may have one of three results ; it may convince them of the innocence of the accused, or it may cause them to doubt, in which case the defendant is entitled to an acquittal, or it may, and sometimes does, strengthen the case for the prosecution. It is, perhaps, a fine distinction to say that before a jury can find a particular issue in favour of an accused person he must give some evidence on which it can be found but, nonethe less, the onus remains on the prosecution. What it really amounts to is that if, in the result, the jury are left in doubt where the truth lies the verdict should be not guilty, and this is as true of an issue as to self-defence as it is to one of provocation. though of course the latter plea goes only to a mitigation of the offence." In the case of Rameshwar Singh v. Bajit Lal Pathak (A I R 1929 P C 95), it has been observed that if the best evidence which is available has not been produced it raises an adverse presumption against the person on whom lay the onus to prove a certain matter. This observation is consistent with section 114(g) of the Evidence Act. The failure to produce the evidence of alibi at the earliest opportunity is also a circumstance which may go against the accused (Vide A I R 1934 All. 27). Having indicated the law that will apply to a matter of the present kind I now proceed to deal with the defence case and the plea of alibi. Appellant Naimatullah gave his address as Charsadda in the committing as well as the Sessions Courts. He claimed that ho was at Karachi when the incident took place. On the 25th of October, 1971, he had executed a power-of-attorney in favour of his brother-in-law, Major Sikandar Hayat Durrani at Karachi. On the same day he bad fallen ill and had been admitted in Arshad Clinic in Karachi and had remained there till his discharge on the 13th of November 1971. In support of his plea he examined the stamp-vendor, D. W.

1. Asghar Ali, and D. W. 2 Mansoor Ahmad, an attesting witness to the power of attorney, and produced Exh. D. 6 special power-of-attorney, Exh. D. 7 certificate from Dr. Viqar Zaidi who owned Arshad Clinic, Exhs. D. 9, D. 10 and D. 15 medical prescriptions, Exh. D. 8 a receipt showing payment made by the appellant for his treatment in Arshad Clinic, Exh. D. 14 letter of Dr. Athar Hussain to Dr. Zaidi, and Exh. U. 16 to D. 16/2 containing the history, examination, investigation, general condition of appellant Naimatullah and the medicines prescribed for him. The register of admission of patients to Arshad Clinic had pot been produced earlier, and had to be summoned by the High Court at the appellate stage and produced there. The appellant also examined D. W. 3 Dr. Viqar Zaidi, owner of Arshad Clinic. The High Court in addition to examining Dr. Zaidi once again, summoned and examined the aforesaid Dr. Athar Hussain. Appellant Aminullah claimed that be had left his village on the 25th of October 1971, and had gone to Lahore to purchase an electric cane-crusher, and therefrom proceeded to Bahawalpur on the same day to repay the loan which he bad taken from his brother-in-law Lt.-Col. F. G. Khattak. In support of his plea he examined D. W. Subedar-Major Adalat Ali Khan and produced Exh. P. Z/3 an extract from the Guest Register-76 Field Regiment Artillery. It appears from the evidence of the Investigating Officer P. W. 4 Muhammad Arif Khan that Naimatullah appeared before him on the 16th of November 1971, and had produced before him photostat copies of the power-of-attorney Exh. D. 6. certificate of Dr. Zaidi Exh. D. 7, and the receipt Exh. D.

8. Appellant Aminullah does not appear to have produced anything before the Investigating Officer when he appeared before him on the 12th of November 1971. It was only at the time of his arrest on the 26th of March 1972, that he produced Exh. P. Z/3, an extract from the Guest Register. (Vide P. W. 12 Said Quresh Khan, A. S.1.). Before the committing Court on the 2nd of August 1972, Naimatullah, inter alia, stated that he had been admitted in Arshad Clinic on the 25th of October 1971, and had been discharged from there on the 13th of November 1971, after an operation, and that on the 25th of October 1971, he had executed a power-of-attorney in the name of his brother-in-law at Karachi. In course of his examination before the Additional Sessions Judge he gave more details about the power-of-attorney Exh. D. 6 and also about his treatment in Arshad Clinic. He produced the summary sheet which is Exhs. D. 16 to D. 16/2 but those appear to have been inadvertently noted by the learned Additional Sessions Judge as Exh. D. 7 which is only a receipt showing payment by Naimatullah to Dr. Zaidi for the former's treatment in the clinic. He also produced Exh. D. 9 dated the 13th of November 1971, advising dressing on alternate days, and Exb. D. 10, a prescription. Aminullah gave his address as "Baly Koroona' in Charsadda before the committing Magistrate. While explaining his absence from the village, he, inter alia, said that he was in Bahawalpur on the night of occurrence. He said he had produced the certified copy of an extract from the Guest Register 76 Field Regiment, Bahawalpur Cantt. during the investigation and that the police had gone to Bahawalpur to a4certain the truth of the statement. Aminullah did not say anything about his proceeding to Lahore to purchase the electric cane-crusher. In course of his examination before the Additional Sessions Judge on the 19th of January 1973, he gave his address as Chitral in Tehsil Charsadda. He explained his absence from the village and stated that he had started from his village on the 25th of October 1971, for Lahore from where he had gone to Bahawalpur. He wanted to purchase an electric cane-crusher. He owed his brother-in-law Lt.-Col. F. G. Khattak some money and he gave details of his visit to Bahawalpur in order to pay back the loan. Naimatullah did not produce the best evidence to prove his plea of alibi. So far as the power-of-attorney Exh. D. 6 is concerned neither the scribe nor the witness's own brother-in-law, Major Sikandar Durrani in whose favour the power was executed and who is alleged to have signed it have been examined. Neither Mr. S. M. Hamid, Advocate and Notary Public, Karachi, before whom the power was supposed to have been executed nor the Assistant Commissioner, who is supposed to have countersigned the document, has been examined. Although the power is alleged to have been executed on the 25th of October 1971, the date below the alleged signature of the Magistrate appears to be either 11th of January 1971, or 1st November 1971. This in itself makes the power highly suspicious. The Notary Public was summoned by the High Court but he did not appear on the ground of illness. He wrote to the High Court that there was no register with him in which the powers-of-attorney was entered. The purchase of the stamp paper for the power was admittedly the last transaction on the 25th of October 1971. That being so, it is difficult to believe that the Notary Public and the Magistrate were available on that day to complete the transaction. Besides, the counter. signature of a Magistrate was neither necessary nor usual. Naimatullah could not be identified by the stamp-vendor, D. W. Asghar Ali. The witness stated that on the 25th of October 1971, he had sold to Naimatullah stamp paper Exh. D. 6 which was recorded at Sr. No. 14652 of the date at page 35 of the register and that it was signed by Naimatullah. This was the last entry on the 25th of October 1971, and the first entry on the 26th of October 1971, bore Sr. No. 14653. He said there was a line drawn at the end of the entries for the 25th of October 1971, as usual, and admitted that the alleged signature of Naimatullah had crossed the column of the entry and had extended to the entry of the 26th of October 1971. He denied the suggestion that the entry in the register was made on the 26th of October 1971, and not on the 25th of October 1971. He proceeded to state that at the close of every day he drew a line in his register and admitted that he had not drawn the closing line on the 25th of October 1971, in the register when the stamp paper in question was sold to Naimatullah Khan. We have examined the register carefully. The number of Sr. No. 14652 dated the 25th of October 1971, has clearly crossed the line at the end of the entry. The contents of Sr. No. 14652 clearly appear to have been compressed in the column which according to the witness was usually left blank. The alleged signature of Naimatullah Khan clearly appears to have been appended after the said line had been drawn. By all indications the questioned entry dated the 25th of October 1971, appears to have been made after the transac tion for the day was closed. The stamp register shows that the stamp was pur chased for execution of a bond. The stamp was, however, used to execute a power of attorney. This indicated that the purchaser had not made up his mind till then to execute a power of attorney. Besides, the power authorised the attorney to purchase land at Karachi for Naimatullah and to complete the transaction on his behalf. This was improbable, for Naimatullah was himself present in Karachi. No urgency for the purchase of the land or for Naimatullah to leave Karachi has been shown. On account of these infir mities the trial Court as well as the High Court rightly and quite reasonably refused to place any reliance upon the stamp-vendor and his register. As regards Naimatullah's illness and his admission in Arshad Clinic it may be stated here that Dr. Athar Hussain is an M. B., B. S. (Punjab), M. R. C. P. (Glasgow), M. R. C. P. (Edin), D. T. M. & H. (England), D. C. H. (London). He wrote Exh. D. 14 to Dr. Zaidi and stated therein that he suspected Naimatullah to be suffering from "Appendicitis" or "Gastroentritis". Naimatullah was brought to Dr. Athar Hussain by Major Sikandar Durrani, brother-in-law of Naimatullah. Dr. Athar could not recognize or identify Naimatullah, and he gave as his reason for referring Naimatullah to Dr. Zaidi that Naimatullah came to him when his own working time was over. This is rather against the duty of a doctor to refuse to attend to a patient who was suffering from such acute or grave illness merely on the ground that the doctor bad no time. Exh. D. 15 is an admission note by Dr. Zaidi's wife on a piece of paper and it supports Exh. D. 15 so far as the nature of the disease of Naimatullah is concerned. So do Exhs. D. 16 to D. 16/2. It is, however, curious that entry D. W. 3 in the admission register shows the illness of Naimatullah as "Abscess abdominal'' on the very date of admission, namely, the 25th of October 1971. Dr. Zaidi admitted, and this admission is supported by Exhs. D. 16 to D. 16/2, that it was only on the 27th of October 1.971, that Naimatullah was for the first time found to have developed abscess. It is pertinent at this stage to mention that the register D. W. 2 was produced only in the High Court for the first time on having been summoned. The aforesaid entry D. W. 3 is, therefore very suspicious and was not worthy of reliance. Besides, the entry admittedly was in the hand of one Munir Beg Theatre Technician, and although he was available he was not examined to prove the entry and explain under that circumstances he had mentioned "Abscess abdominal" in the entry D. W.

3. Naimatullah's brother-in-law, Major Sikandar Durrani was not called to prove that Naimatullah, indeed, fell ill on the very day he had purchased the stamp paper and executed the aforesaid power of attorney and that the former took the latter to Dr. Athar Hussain and therefrom to Dr. Zaidi's clinic. It is also curious that Exhs. D. 16 to D. 16/2 gave the address of Naimatullah as "50, The Mall, Peshawar", and the patient's local address in Karachi was not mentioned. There are overwritings in the address. It is also curious that an eminent physician of the qualification of Dr Athar Hussain knowing that Naimatullah had been suffering from Appendicitis or Gastroentritis, instead of referring him to the hospital or some eminent surgeon, referred him to Dr. Zaidi who admittedly was an Anesthetist and not a surgical specialist, and did only minor cases of surgery. There was, therefore, several unsatisfactory features in and about the register of admission and in the evidence of Dr. Zaidi which made both of them unreliable. In these circumstances, there did exist reasonable grounds for not relying on them by either Courts. Naimatullah'a conduct both before and after the incident could not be ignored. He did not leave any word with his family as to his whereabouts although his wife was enceinte and expecting their first baby soon. The police officer who went to serve the warrant on Naimatullah was unable to get any information about the latter. Similarly, Naimatullah's conduct after the incident was unusual. He did not at once rush to his father's place on learning about his murder. It also does not appear that he went to his father's house at all to participate in the various funeral ceremonies that are usually performed upon a man's death. Aminullah, too, did not lead the best evidence to prove his alibi. No evidence was produced at all to prove that he had gone to Lahore to purchase an electric cane-crusher. He did not examine any body to prove that he left his village for Lahore en the 25th of October 1971, as he claimed in his statement before the learned Additional Sessions Judge. He did not examine his own brother-in-law, Lt.-Col. F. G. Khattak or his wife to prove that the former had gone to the latter on the 25th of October 1971, at mid-night to pay back the loan. Lt.-Col. Khattak, although a relation, was the best person to prove this, and the omission to examine him entitled the Court to draw and adverse inference against the appellant. The explanation advanced during arguments before us that Lt.-Col. Khattak was a relation and he might not be believed by the Court is untenable. The onus was on the appellant to prove his alibi and, therefore, it was his duty to produce and examine the Colonel leaving it for the Court to assess his evidence. D. W. 4 who proved the extract from the guest register Exh. P. Z./3 does not appear to have identified Aminullah. D. W. 4 said he had contacted the Colonel's wife on the telephone and she asked the former to allow Aminullih to come to the residence. Aminullah did not talk to her on the telephone. The Colonel's wife has not been examined. Aminullah was the only guest of a commissioned officer whose name was entered in the guest register kept for the guests of non-commissioned officers. There was emergency those days and the military officers were mostly away on the border, and, indeed, Col. Khattak was himself away on the border. It was, therefore, curious that Aminullah thought of returning the loan to his brother-in-law at such a time, and he left his house quietly to do so. The amount of the loan has not been disclosed. The trial Court as well as the learned Judges of the High Court did not believe D. W. 4 and not rely on the guest register for good reasons. When the police officer went to his house to inquire about him, and to execute the warrant against him he was not available and apparently nobody gave his whereabouts. This is an unusual conduct on the part of a man with a family. His conduct after the occurrence was also unusual. It is likely that he was aware of the murder of his father soon after the incident, and yet he did not appear to react as a son would have reacted to the murder of his father. He appeared before the police on the 12th of November 1971, i.e., about 17 days after the incident, and then ' disappeared until his arrest on the 26th of March 1972. He, too, never went to his father's house to attend any funeral ceremony. He said in course of his examination under section 342 of the Code of Criminal Procedure that his step-mother was responsible for the murder of his father. He gave no such suggestion to his step-mother P. W. Mst. Janat Bibi. If he believed this to be true he did not at once proceed to the spot and lodge any complaint. On the contrary he appeared to be busy arming himself with an order for pre-arrest bail. I may now sum up the prosecution and defence cases. The time, date and place of occurrence can hardly be disputed and they have been proved by reliable evidence. The real point of dispute is about the identity of the assailants. On the one side there is the prosecution case proved by reliable ocular evidence that the two appellants committed the murder of their father. Included in this evidence is the un-impeachable evidence of the aunt of the appellants who had no reason whatsoever to falsely implicate her own nephews. It is not even put to her that the appellants were not present at the incident. The ocular evidence has received ample and adequate corroboration from the existence of motive on the part of the two appellants to commit the murder, from the recovery of the blood-stained articles, the pellets, the empty shells and a missed cartridge from the spot, the medical evidence, and last though not the least the conduct of the appellants. The prosecution case was accepted by both the Courts. and in doing so they have not disregarded any accepted principles regarding the appreciation of evidence. On the other hand the defence has led unsatisfactory and inconvincing evidence to prove its case of alibi. Aminullah never came out with the materials in support of his alibi at the earliest opportunity. There are two parts of his plea of alibi. One is that he had gone to Lahore to purchase an electric cane-crusher. No evidence has been led to substantiate this part. The other is that he had gone to Bahawalpur at the dead of night on the 25th of October 1971, to 'pay back the loan to his brother-in-law Lt: Col. Khattak. Besides the fact that having regard to the state of emergency then existing, the time selected for paying back the loan was unusual, Aminullah has failed to examine his brother-in-law or his wife to prove this. He relied on a guest register to prove his presence there, but D. W. 4 who produced it did not identify Aminullah. There are other unsatisfactory features about the register which have already been noticed. Except, therefore, the dubious entry in the guest register written by Aminullah himself there is nothing to show that he was present at Bahawalpur on the date in question. Finally there is the unusual conduct of Aminullah. As regards Naimatullah, the evidence produced in support of his alibi is unsatisfactory. His case may also be split up in two parts. As regards the first part i.e. the power of attorney, its execution on the date in question has not been proved. Neither his brother-in-law Major Durrani, nor the Notary Public, nor the Magistrate nor the scribe, who were the best witnesses to prove the power of attorney were examined. The entry regarding the purchase of stamp paper for the power appears to be a fabrication and not genuine. As for the second part i.e. Naimatullah's illness and his admission into Arshad Clinic, both the oral and , the documentary evidence are unsatisfactory. Of the two doctors one, namely, Dr. Athar Hussain has not identified him, and Naimatullah's brother-in-law who took him to the doctor has not been examined. The other doctor, namely, Dr. Zaidi's evidence is inconsistent with the records of his clinic. It was highly improbable for a doctor of the eminence of Dr. Athar firstly, to refuse Naimatullah medical assistance and secondly, to refer a patient suffering from such grave disease as appendicitis or gastroentritis to an Anesthetist instead of to the hospital or an eminent surgeon. The trial Court as well as the learned Judges of the High Court have held that the defence failed to prove its case of alibi in respect of both the appellants and this finding has been teased on evidence and upon reasonable grounds. The onus having been upon the accused persons to prove their case of alibi and they having failed to prove it the matter must rest there and the Court is then left with the prosecution case and the evidence adduced in support of it, to come to a conclusion whether the prosecution has succeeded in proving its case against the accused beyond any reasonable doubt. In the facts and circumstances of the present case, both the Courts have held that the prosecution have, in fact, succeeded in proving its case against the two appellants. There are reliable evidence in support of such a conclusion. There has been no contravention of the norms applicable to the appraisement of evidence. Upon the principle laid down by this Court in the case of Noora v. State (P L D 1973 S C 469), I do not think there is any scope for interference with the conclusions arrived at by the two Courts. In the case under report this Court has observed as follows :- "As an ultimate Court, we must give due weight and consideration to the opinions of the Courts below, and normally we should not interfere with their findings where we are satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. 'The mere fact that this Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below ; but we should first satisfy ourselves that there is some serious defect in the process by which the finding has been arrived at. Where such defect is discovered and the finding is not considered tenable, then it should be open to the Court to come to its own independent finding upon a re-examination of the evidence untrammelled by the opinions of the Courts below." As regards the sentence, far from the existence of any extenuating circu mstance in favour of the appellants the fact that they killed their own father is an aggravating circumstance against them. I would, accordingly, dismiss the appeals and maintain the conviction and sentences passed upon the appellants. MUHAMMAD YAQUB ALI C. J.-I agree. DORAB PATEL, J.-I have read the judgment to be pronounced by my learned brother Salahuddin Ahmed, J. but, with great respect, I am not able to agree with it, because I am not impressed by the ocular evidence. My learned brother has held that the three eye-witnesses were natural, disinterested and reliable witnesses. I agree that they were natural witnesses because they lived with the deceased, and the appellants also failed to prove in the Sessions Court that they were inimical witnesses. However, in my humble opinion, their evidence suffers from material discrepancies and I am not able to believe their claim that they had seen the murderers of the deceased. The three eye-witnesses were emphatic that the occurrence took place at about 4.00 a.m. They further stated that they were sitting in the kitchen with the deceased, taking sehri, when the appellants suddenly appeared without any warning, fired two shots at the deceased, then after firing one or two more shots they and the two other persons with them ran away. On this evidence, the occurrence could hardly have taken a minute, and, as it took place in the early hours of the morning, the statement of the eye witnesses that the occurrence took place whilst they were taking sehri is crucial to the prosecution case.' But according to Mr. Brohi and Mr. Qasuri this was inconsistent with the circumstantial evidence, and at the outset I would observe that one of the suggestions on which the prosecution witnesses were cross-examined, was that the occurrence had taken place some time after sehri when the so-called eye-witnesses were resting or sleeping. I would, therefore, first examine the circumstantial evidence on which the learned counsel relied. The F. I. R. (Exh. P A) stated that it was recorded at 4-30 a.m. and it is common ground between the learned counsel that the police station was two furlongs from the house of the deceased, and that P. W. Mst. Shirin Janan had gone by car to the police station. Further P. W. Muhammad Arif Khan, S. H. O., who recorded the F. I. R. stated in cross-examination, after verifying from his diary, that he had left with Mst. Shirin Janan by car for the house of the deceased at 5-15 a.m. and reached at 6-00 a.m. As the F. I. R. (Exh. P A) was an extremely short document. Mr. Brohi's submission was that it could not have taken 45 minutes to record it and to make the requisite entries in the police diary. I am disturbed by this submission, the more so, as the sister of the deceased had herself come to lodge the F. I. R. despite the fact that she was a pardanashin lady. In any case, it was the duty of the police to commence investigations immediately, and even if P. W. Muhammad Arif Khan had walked to the house of the deceased, he would have reached it in about five minutes as the distance was only two furlongs. He, however, said that he had gone with P. W. Mst. Shirin Janan in her car. P. W. Mst. Shirin Janan denied that the police officer had returned with her to her house and her statement is supported by that of C. W. Yousaf Khan. But, on the other hand, P. W. Mst. Jannat Bibi stated that "the Investigating Officer had come with Mst. Shirin lanan in the same car". Whichever of these conflicting versions be true, the Police Officer could not have taken more than five minutes to reach the deceased's house. Yet he said that he left the police station at 5-15 a.m. and reached the house at 6-00 a.m. The High Court has believed this statement and observed that the Police Office must have been lazy and, therefore, taken 45 minutes to reach the house. With respect, this was not any body's case and the view of the High Court is not supported by any evidence whatsoever. On the other hand, as the prosecution, despite express cross-examination on the point, failed to give any explanation of this delay of more than half an hour, this is a circum stance which lends some support to the plea of the appellants that the occurrence had taken place after sehri so that the murder was an unwitnessed crime. I now turn to another very disturbing aspect of the case which was ignored by the Sessions Court and explained away by the High Court on M the basis of conjecture. This is that the post-mortem of the deceased was carried out in his house, and, despite prolonged cross-examination, none of the prosecution witnesses gave a satisfactory explanation of this departure from the practice of conducting post mortem at mortuaries. And as it is not alleged that the body of the deceased was putrefying, the burden of justifying this deviation from the normal practice was heavily on the prosecution. P. W. Mst. Shirin Janan stated in this connection; "the Investigating Officer had come to my house subsequent to my return from the police station. The doctor was summoned and the post mortem was conducted by him in my house . . . ." But P. W. Dr. Rafiud-Din gave evidence after P. W. Mst. Shirin Janan, and he stated in his cross-examination that the Investigating Officer had orally given him permission to conduct the post-mortem but that he had done it in the house "as a matter of favour because an old lady present on the spot had requested him for thin". According to the three eye-witnesses, the only old lady present inside the house was Mst. Shirin Janan Thus the doctor's statement is inconsistent with that of P. W. Mst. Shrin J anon, and the question is which of these statements is false. I am not impressed by P. W. Dr. Rafiud-Din, because he did not state in his examination-in -chief that he bad conducted the post-mortem in the house and he had also refrained from stating how and why he had come to the house. But his statement is supported by that of P. W. Mst. Jannat Bibi, who said in her cross-examination "the cousins of Mst. Shirin Janan had come to our house along with the Investigating Officer. They brought the doctor, who examined the deceased inside the house." P. W. Nusrat Shaheen was also cross-examined about the arrival of the doctor, but she said she did not know who had brought him. ; Therefore, Mr. Shaukat Ali and the learned Assistant Advocate-General invited us to prefer P. W Mst. Shirin Janan's statement, because it was supported by the Investigating Officer in his examination-in-chief. It is true that P. W. Muhammad Arif Khan said in his examination-in-chief that he had "sent a constable for the doctor, who came there and performed the post-mortem examination". But the witness said in his cross-examination : "I had not directed the F. C. to bring the doctor to the house of the deceased for post-mortem examination. I did not know who brought the doctor. I did not allow the doctor to perform the post6mortem examination in the house. I had banded over the dead body to the F. C. for taking it to the mortuary". Similarly P. W. Gal Bahadur, the Foot Constable, who took the dead body to the mortuary, said "I accompanied the dead body of Yusaf Khan, deceased, from his house to the mortuary at Charsadda. Nobody interfered with the dead body on the way. After the post-mortem examination, the doctor gave me a shirt which I handed over to the Investigating Officer." This means that some of the prosecution witnesses gave false evidence on a point of crucial importance, and further P. W. Mst. Shirin Janan's evidence on the point is contrary to that of all the other prosecution witnesses. The attention of the learned Judges of the High Court was not drawn to these discrepancies. This was unfortunate, because these discrepancies were linked with another suspicious circumstance. The post-mortem report was written on a plain piece of paper, and Dr. Rafiud-Din's explanation was that printed forms of post-mottem reports were not available in Charsadda; The learned counsel invited us to reject this extraordinary plea as false. I will assume that it is true, and that it is one of the several improbable circumstances on which the prosecution case is based. Now, according to this post-mortem report, the stomach of the deceased was full. Clearly this was a circumstance which supported the statement of the eye witnesses that the occurrence had taken place when they were having sehri. However, the doctor also said that the probable duration between injury and death was 30 minutes, whilst accordingly to P. W. Nusrat Shaheen, death was instantaneous, but, once again, only in cross-examination Dr. Rafiud-Din. said that although the stomach of the deceased was full "the state of digestion was not noted by me. I would not be able to contradict that the food was in semi-digested form. The food had not started passing to the intestines while the food starts passing to the intestines when digested. The state of food changes in the stomach with the passage of time." So the occurrence could have taken place whilst the deceased was taking his sehri or quite some time afterwards. The forms for post-mortem reports always contain a column about the state of digestion of the food, and if this form had been available, the doctor would have been compelled to note the state of digestion of the deceased and this evidence would have been decisive on the question whether the occurrence took place whilst the deceased was taking sehri or whether it took place after sehri when the deceased might have been alone. Obviously the strange co-incidence of the forms for post-mortem reports not being available was very convenient to the prosecution. I am also disturbed by the question whether any doctor with any experience could have failed to note the state of digestion of the deceased whose body was being examined. Is this strange lapse on the part of the doctor not related to the fact that he was carrying out the post-mortem in the presence of the Investigation Officer, or at least in a house in which the Investigation Officer was also present and was recording the statements of the eye-witnesses? I regret to say that the manner in which the post-mortem was carried out does not inspire confidence, and the gross negligence of the doctor in not noting the state of digestion of the deceased has destroyed a piece of evidence by which the veracity of eye-witnesses is tested in criminal prosecutions. The discrepancies in the statements of the witnesses about the manner in which the doctor was called to the house to carry out the post-mortem must be examined in the light of this background. The witnesses knew that the post-mortem would be challenged on this ground, therefore, they deliberately gave evasive answers. And although it is not easy to ascertain the truth, on the whole, it seems to me that the post-mortem was carried out in the house of the deceased at the request of P. W. Mst. Shirin Janan. Her statement to the contrary was false, and so was the statement made by P. W. Muhammad Arif Khan in his examination-in-chief. But why did the Investigating Officer falsely attempt to support the statement of P. W. Mst. Shirin Janan? The witness was cross-examined specifically on this point, but he could not give any explanation. It is also necessary to refer here to the evidence of P. W. Gal Bahadur, Foot Constable, who had been examined in the lower Courts in order to prove that the post-mortem had been carried out at the mortuary in the hospital. As the post-mortem had been carried out in the house of the deceased, why did the prosecution fabricate evidence in the lower Court? No explanation has been given of this extraordinary performance, but as the prosecution witnesses admitted only in their cross-examination that the post-mortem had been carried out in the house when the Investigating Officer was also around, the only possible inference is that the prosecution had not anticipated that the truth would come out in cross-examination, therefore, it had compelled a poor Foot Constable to commit perjury in order to misguide the Court, because it knew that the fact of the post-mortem in the house of the deceased was very damaging to its case. This is a circumstance which reacts on the entire prosecution case, but the High Court has explained it away on the basis of a Pushto proverb to the effect that the dissection of dead bodies by sweepers was a stigma to respectable persons. With respect, the question was not merely of the sentiments of respectable persons, nor can the law draw a distinction between such persons and the vast majority of the other citizens who would not fall in this fortunate category. The question was only of what was in consonance with the administration of justice and the investiga tion of crime, and in my humble opinion, the method adopted in the instant case was calculated to defeat both these objects. I now turn to the submission that the prosecution version of the occurrence was too improbable to be believed. Thus the eye-witnesses admitted that they had two maid-servants but further said that both these servants had left just before the occurrence. And as the appellants were alleged to have come through the gate of the house, P. W. Mst. Nusrat Shaheen said that the gate had probably been opened by one of the maid servants as she went home for her sehri. According to Mr. Brohi, the gate could not have been left open at 4-00 and the servants could not have left before serving their master. But the gate could have been left open by negligence, and I see nothing improbable in the departure of the maid servants even though it was at the crucial time, because they also had to take sehri. I would, therefore, only examine the criticism of learned counsel which did not find favour in the High Court but which disturbs me profoundly. And in examining learned counsel's criticisms, it is necessary to bear in mind P. W. Mst. Jannat Bibi's admission in cross-examination "the houses of the cousins of Shirin Janan are at a distance of a furlong from our house." The words 'houses' and 'cousins' mean that more that one cousin lived within a stone's throw of the house. Mr. Brohi pointed out that as the eye-witnesses were sitting with the deceased at the time of the occurrence, their claim to have been present and their claim that the occurrence took place when they were having sehri was false, because the dishes and plates from which they and the deceased were eating were not stained with human blood and because their clothes were also not stained with the blood o f the deceased. The fact that the plates and dishes were not stained with blood could be a lucky coincidence, and so also the fact that the clothes of the three eye-witnesses were not stained with blood, provided the death of the deceased was instantaneous, as claimed by P. W. Mst. Shirin Janan in the F. I. R. and by P. W. Nusrat Shaheen in her evidence. But the difficulty in the way of the prosecution case is that according to P. W. Dr. Rafiud-Din, the deceased bad died about half on hour after he had been hit by the fatal shots. In order to overcome this difficulty, P. W. Mst. Jannat Bibi said in her evidence that the deceased had died "soon after" the occurrence. Whilst this evidence removes one difficulty in the way of the prosecution case, it creates another, because if the deceased died "soon after as the eye-witnesses were his wife, sister and daughter, they would have rushed to his aid, at least after the departure of the appellants, therefore, on this version of the occur rence, it is not possible to believe that the clothes of all the eye-witnesses would be free from blood-stains, unless of course they were not there. Next, according to Mr. Brohi, the claim of the three eye-witnesses that there were two other armed assailants with the appellants was false, because it was unlikely that such other persons would take the risk of coming with open faces to commit a planned murder. I will presently revert to this question, but, as submitted by Mr. Shaukat Ali, criminals also can be negligent. However, according to the prosecution, the appellant were such cunning villains that they had fabricated and forged documents in order to create false alibis. Obviously, as submitted by Mr. Brohi, such villains would not commit crime in a foolhardy manner. And further the crime which, according to the prosecution, the appellants had so carefully planned was a most heinous crime which they knew would make them social outcasts, so that no one would hesitate to give evidence against them. In these circumstances, it is extremely difficult to believe that the appellants would have come at a time when people were taking sehri without taking any precautions to conceal their identity. But, according to the eye witnesses, not merely did the appellants not conceal their identity, but, after murdering their father, they also fired a few more shots in the air, which were not aimed at anyone. As the only effect of these unnecessary shots would be to raise an alarm and attract people, I cannot believe this part of the prosecution case. Another aspect of the prosecution version of the occurrence, which the learned counsel criticised, was the claim of the eye-witnesses that only "women folk" had come on the alarm raised by them. Mr. Brohi submitted that this claim of the eye-witnesses was patently false and had been advanced in order to explain away the failure of the prosecution to examine the cousins of the deceased. This plea was rejected by the High Court on the ground that people were reluctant to give evidence in murder cases and on the ground that people would be reluctant to come out of their houses at 4-00 a.m. when they were fasting. With respect, if these circumstances did not deter "women folk" from rushing to help, would they deter the husbands and fathers of these women from going to the help of their own Khan's family? There is yet one circumstance on which Mr. Brohi laid great stress and which escaped the attention both of the Session Court and of the High Court. This is the evidence of P. W. Shah Muhammad and the reluctant admission of P. W. Mst. Shirin Janan in her cross-examination that she had twelve male cousins. P. W. Shad Muhammad was one of the twelve cousins, and he said that on being informed on the telephone about the occurrence, he had immediately rushed to the house of the deceased in his car. As this cousin, who lived 7 miles away, had been sent for. I find it impossible to believe that P. W. Mst. Shirin Janan and Mst. Jannat Bibi would not have sent for those cousins of P. W. Mst. Shirin Janan who, according to P. W. Mst. Jannat Bibi, were living within a furlong of their own house. Here Mr. Brohi also referred us to the admissions of P. Ws. Jannat Bibi and Mst. Nusrat Shaheen in their cross-examination. P. W. Mst. Jannat Bibi said that the cousins of P. W. Mst. Shirin Janan had come with the doctor and the police, whilst the other witness said that one Muhammad Ali or his son had come even before the arrival of the police. Now, if the said Muhammad Ali or his son came even before the arrival of the police, is it incredible that P. W. Mst. Shirin Janan would not have sent for them if only to take her to the police station to lodge the F. I. R.? I also agree with Mr. Brohi that the last quarter of 1971 was a period of turmoil, therefore, it is inconceivable that a person, who was an important Khan, would not have had for his protection some faithful, retainers who would have seized the appellants if they had really committed patricide. I am aware that P. Ws. Shirin Janan and Mst. Jannat Bibi were purdanashin ladies, but, in my humble opinion, this cannot lead to the inference that the deceased did not have male servants or male retainers, the more so as no such explanation was given by these ladies in their cross-examination. And, on the other hand, P. W. Mst. Shirin Janan said that she had asked C. W. Yusaf Khan to take her to the police station. Now C. W. Yusuf Khan said that he had never met P. W. Mst. Shirin Janan and that he only knew of her as his Khan's sister. But even assuming that C. W. Yusuf Khan knew Mst. Shirin Janan, as it is not the prosecution case that P. W. Mst. Shirin Janan was a friend of the witness, the fact that P. W. Mst. Shirin Janan did not send for her cousins, who were living only a furlong away, and instead went with a comparative stranger to the police station is a circumstance totally inconsistent with the theory of strict purdah. Again, as pointed out by the learned counsel, P. W. Mst. Sairin Janan admitted that she had been driven to the police station in her car by a "driver". This means that there was a male servant around, and if a driver could appear, suddenly and without any explanation, I cannot believe that the deceased did not have retainers or chowkidars for his protection. I now turn to the claim of the three eye-witnesses in their evidence that the appellants were accompanied by two other unknown persons who were armed with guns. The evidence of the eye-witnesses is difficult to reconcile with P. W. Shad Muhammad's statement in cross-examination that "the people in the hujra were saying that the deceased was killed by the two accused who had a third person as well with them who were standing in the lane." Unfortunately, this witness's evidence was ignored by both Courts. Finally, the evidence of the eye-witnesses is, in my humble opinion, totally inconsistent with the evidence of C. W. Yusaf Khan, but before examining it, I must observe that the witness was examined as a Court witness on the request of the appellants because the prosecution has dropped him as an unnecessary witness. C. W. Yusuf Khan's statement to the Court was very brief and reads ; "I was present in my house after taking the sehri meal on 26-10-1971. I was about to sleep when I heard a noise outside my house in the lane. I went out but the door of my house was chained from outside. Many people including boys, men and women were standing out. I requested them to unchain the door. The door was unchained. I went out and a woman, in the meanwhile approached me. Her face was muffled and she requested me to accompany her to the police station, for making a report. I accompanied her to the police station where she made a report." The witness was not cross-examined on his categorical assertion that many people including boys and men had gathered outside his house. But if men could gather outside his house, it is difficult to believe that they would have avoided the house of their own Khan. Secondly, the many people outside the witness's house did not tell C. W. Yusuf Khan that the Khan had been murdered. But the witness's house was only furlong from the place of the murder, and according to P. W. Mst. Shirin Janan women "had come to our house on hearing our cries". Now if these women had been informed that the appellants had murdered their own father, it is difficult to believe that the many people outside C. W. Yusuf Khan's house would not have informed C. W. Yusaf Khan of the patricide. This would suggest that the women folk, who had come on the cries of Mst. Shirin Janan, had not been informed by her of the patricide. Thirdly, and this is most important, the statement implies that P. W. Mst. Shirin Janan had not informed C. W. Yusuf Khan on the way to the police station that the appellants had committed patricide. But it is absolutely impossible to believe that Mst. Shirin Janan would not have informed C. W. Yusuf Khan about the patricide if she had seen the appellants murdering their father. Therefore. C. W. Yusuf Khan's evidence casts very great doubt on the evidence of the three eye-witnesses, and if this evidence is true, it would mean that P. W. Mst. Shirin Janan and others had not seen the assailants but perhaps entertained suspicions against the appellants. Further as submitted by Mr. Brohi and by Mr. Qasuri, this version of the occurrence would throw light on some of the aspects of the prosecution case which are otherwise inexplicable. Thus for example P. W. Mst. Shirin Janan took C. W. Yusuf Khan with her to lodge the F. I. R. but the witness did not go with her into the room where P. W. Muhammad Arif Khan, S. H. O. recorded the F. I. R. Why did this lady of high social position who kept purdah see a mere Police Officer alone? The only possible inference is that P. W. Mst. Shirin Janan did not want any other person to be present whilst she was discussing the murder with the Police Officer. Similarly although C. W. Yusuf Khan was a corroboratory witness, he was not mentioned in the F. I. R. nor was he examined by the police. This would suggest that the police had doubt as to whether the witness would support P. W. Mst. Shirin Janan's evidence. Now although the evidence of C. W. Yusuf Khan is crucial to the prosecution case, it escaped the attention of the Sessions Court, whilst the High Court ejected it because of the evidence of P. W. Mst. Shirin Janan. But the question whether P. W. Mst. Shirin Janan had informed C. W. Yusuf Khan of the occurrence, as claimed by her, was of crucial importance to the prosecution case, and at the earliest possible opportunity given to him, C. W. Yusuf Khan had made it clear, in the committal Court, that Mst. Shirin Janan had not informed him about the occurrence at all. As the evidence of the two witnesses was totally discrepant, the best evidence would have been of the driver of the car, who could have deposed about the conversa tion between Mst. Shirin Jana and C. W. Yusuf Khan on their way to the police station. The driver would also have been in a position to give evidence on the question which disturbed the High Court. This was the vexed question on which all the learned counsel addressed us, and, according to Mr. Shaukat Ali, C. W. Yusuf Khan's claim that there was a shop keeper in the car was false, whilst according to Mr. Brohi and Mr. Qasuri C. W. Yusuf's evidence had to be preferred to that of P. W. Mst. Shirin Janan because the shop-keeper was not examined. This controversy as well as the more important question of what P. W. Mst. Shirin Janan had told C. W. Yusuf Khan on the way to the police station could have been decided if the prosecution had examined the driver of the car. Instead of doing so, knowing that C. W. Yusuf Khan did not support the prosecution case, the prosecution had made statement to the Sessions Court on 19-1-1973 that it had dropped C. W. Yusuf Khan as an unnecessary witness, and by this strategem it succeeded in cross-examining its own witness. It is unfortunate that all these circumstances escaped the attention of the High Court which should have drawn an adverse inference against the prosecution for not examining the driver of the car. However, the High Court observed that C. W. Yusuf Khan was a tenant of the deceased and then stated "he could not, therefore, afford to come out with the whole truth even if he knew some thing more as is evident from his cross-examination. He has tried to please both the parties and has stated things which has made the statement look ridiculous." With respect, I am unable to understand these observations. I quoted earlier the statement of the witness to the Court, and I pointed out that the prosecution did not dare to cross-examine him on aspects of his evidence which were very damaging to its case. But it did cross-examine him on the allegation that Mst. Shirin Janan had informed him about the occurrence. Resiling from his statement in the committal Court, the witness said in his cross-examination : "Mst. Shirin Janan has disclosed to me on the way to the police station that the deceased had been killed by the two accused." The witness was, therefore, cross-examined by the appellants, and he first attempted to stand by what he had said in his cross-examination to the prosecution, but confronted with his statement in the committal Courts, he said "it is correctly recorded in my statement before the Committing Magistrate that neither I had made any inquiry from Mst. Shirin Janan nor she had told me about the occurrence." Thus the witness made an obliging statement only to the prosecution, but was this a ground for rejecting his evidence insofar as it was inconsistent with that of Mst. Shirin Janan? And further, as submitted by the learned counsel for the appellants, the question is not merely of an erroneous appreciation of evidence. Thus, for example, P. W. Mst. Shirin Janan had only said in her examination-in-chief that she had gone to the police station to lodge the F. I. R. She admitted in cross-examination that she was accompanied by C. W. Yusuf Khan and on further cross-examination she merely replied that she had informed "Yusuf about the occurrence" This ambiguous statement must be construed in the light of C. W. Yusuf Khan's statement in his cross-examination to the prosecution in which he made it clear that Shirin Janan had only informed him that the appellants had murdered their father. As, despite this statement, the prosecution did not cross -examine C. W. Yusuf Khan on the allegation that he had been informed about two other armed men with the appellants, it is clear that the prosecution accepted C. W. Yusuf Khan's evidence on this point as correct. But as Mst. Shirin Janan did not inform Yusuf Khan about the two other assailants who, according to her, were dressed in khaki, it would not be safe to believe the claim of the eye-witnesses that four persons had conspired to commit the murder. It is true that these other persons were never tried, because of the extra-Ordinary statement in the F. I. R. by Mst. Shirin Janan that she could not identify them. But the failure of the police to apprehend these persons does not alter the fact that the three eye-witnesses had implicated two innocent persons, and innocent persons might have been apprehended in consequence. Accordingly, in any view of the matter, the ocular evidence cannot be accepted without corroboration by independent evidence of a reliable nature. My learned brother is of the view that the ocular evidence was corroborated by the evidence of the recovery of the bullets and empties. With the utmost respect, I cannot agree with this view. As the firearms alleged to have been used by the appellants were not recovered from them, the recovery of the bullets and the empties support the ocular evidence only o to the extent that it corroborates their statements that the deceased had been killed by a firearm. But even if the eye-witnesses had been sleeping at the time of the occurrence, they would have been awakened by the gun reports, therefore, in my humble opinion, nothing turns on these recoveries. I now turn to the question of motive, because a motiveless patricide is inconceivable. The learned Judges of the High Court observed in this connection;

"On the other hand, there was a strong motive for the accused to murder the deceased. It is common knowledge that though Shariat has been in force for a long time, yet Pathans of this part of the country have not been able to adjust themselves to it. Nobody allows landed property to go to females and most of the family troubles and consequent murders result from these types of disputes." The learned Judges then went on to observe that both the appellants had a motive for the crime as the deceased was wealthy and had daughters to whom he bad transferred some property. With respect, this view is based on conjecture, and I would only observe that the prosecution case of motive against the appellant Aminullah has been proved, not because of the opinions expressed by Mst. Shirin Janan and Mst. Jannat Bibi in their evidence, but because of the nasty letter written by this appellant to the Board of Revenue ( P. Z. I) which they duly proved. However, there is not a shred of evidence against the other appellant who said on the contrary that his father had always been more generous to him. This was also admitted by Mst. Shirin Janan who gave some details of the money spent by the deceased on this appellant. Further, the evidence of Mst. Shirin Janan and Mst. Jannat Bibi against this appellant is a mere statement of their opinion which is of no evidentiary value- whatsoever, because neither of these witnesses have even alleged that the appellant Naimatullah ever had differences with the deceased about money matters. Therefore, the prosecu tion has failed to produce any evidence of motive against this appellant, and it is impossible to conceive of a motiveless patricide, this is another circumstance which casts doubt on the ocular evidence against this appellant. I am aware that both the Courts have been impressed by Mst. Shirin Janan's evidence. This is because, as pointed out by my learned brother, the appellants have failed to prove their allegation of enmity against this witness, and because the witness was their aunt. However, the question always is of the veracity of a witness, and if the defence can establish that the evidence of a prosecution witness suffers from infirmities on material aspects of the prosecution case, then such evidence, even if it does not merit outright rejection, cannot be accepted without corroboration. And, in my humble opinion, the evidence of Mst. Shirin Janan and of P. Ws. Mst. Jannat Bibi and Mst. Nusrat Shaheen is so full of infirmities that it would not safe to accept it without corroboration, even though the appellants may have failed to prove their allegation of enmity in the Sessions Court. I deli berately used the words "in the Sessions Court", because I am deeply disturbed by what happened in the High Court, P. W. Mst. Shirin Janan, who has been treated as a benign and disinterested aunt, had filed a revision against the judgment of the Sessions Court. This revision was dismissed by the High Court and was only fit to be dismissed, but the prayer in the application was that the properties of the appellants should be confiscated. As the only effect of this application, if allowed, would have been to reduce to penury the widows and the children of the appellants, the fact that it was filed tarnishes the image of Mst. Shirin Janan as a disinterested witness. I now turn to the question of abscondence. According to the prosecu tion, the fact that the appellants absconded was consistent only with their guilt. The submission is based on the assumption that the guilty man tries to escape from the police whilst the innocent man rushes to the police to vindicate his innocence. But this assumption is itself based on several assumptions, so that it would not be safe to hold that the abscondence of an R accused automatically amounts to evidence of his guilty mind. Thus, for example, apart from the question of the public confidence in the integrity of the Investigating Agency the conduct of the investigation in a particular case might be such as to lead the accused to think that the investigation was biased in favour of the complainant. And, on the other hand, it would be difficult for an accused to explain away a very long period of abacondenee. Munir in his Law of Evidence (1974 Edition) observes at page 61; "The conduct of a person in absconding after the commission of the offence is evidence to show that he was concerned in the offence, but it is usually a very small item in the evidence on which a conviction can be based. Absconding is equally consistent with innocence and guilt. It is a proper matter to be considered along with the other ` facts of the case, whether they bear upon guilt or upon innocence. It is well known that different persons are differently constituted, and that some accused persons, though innocent, deliberately abscond rather than fear the ordeal of a criminal trial." In my humble opinion, this passage states the correct law. Next as to the corroborative value of abscondence I would only refer to the Federal Court's judgment in Mesal and another v. The Crown (1971 S C M R 239). Cornelius and Shahabuddin, JJ. who pronounced the majority judgment of the Court observed at page 244; "While the fact of an alleged offender having absconded may be regarded as providing some kind of support to another evidence which in itself is strong enough to sustain a conviction for the crime charged, such conduct by itself never has the effect of remedying defects in the other evidence led to show participation in the crime. The reason is simple, namely that a man may wish to avoid the consequence of being reported against for the commission of a serious crime as ardently if he is not guilty as he might if he is guilty." I am in respectful agreement with this view, which was followed by the Federal Court in Abdul Rauf v. The Crown (1971SCMR256). The same view was taken by Cornelius, C. J. in Siraj Din v. Kala and another (PLD1964SC26) and by Sajjad Ahmad Jan, J. in Khan Zaman v. Kachkol and another (1972 S C M R 574). There are of course judgments in which this Court has held that the abscondence of the accused furnished corroboration of the prosecution evidence, but the question is always of the facts and circumstances of each case. But the view taken in Mesal's case has never been dissented from by this Court, and I deprecate the tendency to exaggerate the importance of abscondence by the accused. I would now examine the prosecution evidence in support of its plea that the appellant Aminullah had absconded. According to the warrant for this appellant's arrest (Exh. P. Q. 1) his address is shown as village Bhosa Khel, Charsadda, and the endorsement on the proclamation under section 87 (Exh. P. Q. 3) of the Code of Criminal Procedure also shows the same address. However, long before P. W. Ghulam Habib F. C. produced these documents, this appellant had given the village Baly Karoona as his address in his statement in the committal Court. It is not contended that Bhosa Khel is another name for Baly Koroona, yet the appellant was not questioned on the allegation that he lived in village Bhosa Khel, and the prosecution only relied on the evidence of P. W. Ghulam Habib, F. C. But, the witness merely stated that be had "searched (for the appellants) in the villages noted in my report. The proclamations were affixed on the house of the accused in village Charsadda. The house's of Aminullah accused was pointed out to him by Amirullah, Lambardar." The prosecution did not examine Amirullah, Lambardar, nor did it produce the report referred to by the witness in his cross-examination. The result is that the prosecution has failed to prove that it had searched for the appellant in village Baley Karoona. My learned brother has however, relied on the fact that the appellant must have known of his father's murder but did not attend the ceremonies consequent on his father's demise. I have no doubt that the appellant must have learnt of his father's murder but he may also have learnt of the post-mortem conducted in his father's house, and this was not a circumstance which could inspire confidence in the Investigating Agency. In any event the prosecution cannot rely on the appellant's failure to attend the ceremonies consequent on his father's demise because the appellant was not questioned on this circumstance in his statement under section 342, Cr. P. C. Additionally, both the appellants had examined witnesses and produced documentary evidence in support of their pleas of alibi, and one of the questions for which leave was granted by this Court was the question whether the mode of appreciation of this evidence by the High Court was correct. The question is of great importance, specially in view of the amendment of the law, but as it is unusual for the accused to produce evidence, I would quote here a passage from Phipson on Evidence. The learned author draws a distinction between the legal burden of proof, which always rests on the prosecution, and the evidential burden which may shift with the evidence produced by the parties. The learned author further states in paragraph by the parties. The learned author further states in paragraph 101 (Eleventh Edition); "In many cases, however, the accused's defence will involve introducing new issues, for example, automatism, provocation, self-defence, T duress, etc. Once there is any evidence to support such 'explanation' the onus of disproving them rests upon the prosecution." This passage states the correct law, and I would observe here that the onus of disproving the evidence produced by the appellants was on the .prosecution, but as it did not produce evidence in rebuttal, the evidence produced by the appellants must be accepted as correct, unless it is inherently improbable or unless it has been discredited by cross-examination. The next question for determination is whether the appellants were required to prove beyond reasonable doubt their pleas of alibi, or, whether in the words of Sir Abdur Rashid, C. J. in Safdar Ali v. Crown (P L D 1963 F C 93 (2) ) they were merely required to show that there was a reasonable possibility that their plea of alibi might be true. My learned brother is of the view that the rule in Safdar Ali's case which has been re-armed by this Court, is not applicable to these appeals, because the case of the appellants falls under section 103 of the Evidence Act, not under section 105, and this was also the view of the East Pakistan High Court in Muksed Molla and others v. The Crown (P L D 1957 Dacca 503). As the question is of great importance, I would first refer to the English law as it stood before the judgment of the House of Lords in Woolmingion v. The Director of Public Prosecution (1935 A C 462). The appellant in that case was charged for the murder of his wife, and his defence was that whilst attempting to shoot himself, his gun went off without his knowing that it was pointing at his wife, therefore, she was killed by accident. The Court's direction to the Jury on this plea of accident was that the burden of proving it, and therefore of his innocence, was on the appellant. This direction was in accordance with the law, as then understood both in England and in India. The appellant was convicted. He challenged his conviction on the ground that the Court's direction to the Jury was illegal because it had placed on him the burden of proving his plea of accident. The House of Lords set aside the appellant's conviction and Lord Sankey L. C. observed at page 481; "Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a milicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal." The rule laid down in this case was applied by the Privy Council to a plea of provocation in Bulland v. The Queen (1957 A C 635). Similarly this rule, was applied by the Court of Appeal to a plea of duress in Samuel James Gill ((1963) 47 Cr. A R 167) and to a plea of alibi in Rex v. Johnson ((1961) 3 A E L R 959). On the other hand, the plea of the accused in Safdar Ali's case was of self-defence, whilst the plea in both the appeals is of alibi. Is this difference material?' If the rule in Woolmington's case is applicable to a defence under section 105 of the Evidence Act, why should it not be applicable to a defence under section 103 of the same Act ? As the leading judgment in Safdar Ali's case was written by Cornelius, J., as he then was, it is this judgment which requires examination, and I may point out that the contention of the State was that the view taken in. Woolmington's case was inconsistent with section 105 of the Evidence Act, because that section expressly imposed an obligation on the accused taw prove his plea of self-defence. This submission was supported by the Indian judgments on which Mr. Shaukat Ali relied and which have been examined by my learned brother in his judgment. However, Woolmington's decision did not come up for examination in these judgments. But the State: relied in Safdar Ali's case on a judgment of the Bombay High Court in Sakur's case (A I R 1947 Bom. 38) and of the Allahabad High Court in Parghu (I L R 1941 All. 843), because Woolmington's case was examined in both these judgments but was not followed because of section 105 of the Evidence Act. Cornelius, J. however,. dissented from the view taken in both these judgments and observed;-- "I feel satisfied that in cases like the present, there is no material difference between the application of the standard of proof required under-- Pakistan law and that which underlies the rule of reasonable `doubt" which obtains in the English Courts. It is undeniable that finally the burden lies upon the prosecution to prove each ingredient of the offence charged." This being the true ratio of the case, the rule laid down in it would be, applicable to section 103 unless the burden of proof imposed by this section is heavier than that imposed by section

105. Section 103 reads;

"The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence . . . . ." Section 105 reads; "When a person is accused of any offence, the burden of proving the., existence of circumstances bring the case within any of the Generate Exceptions in the Pakistan Penal Code . . . . . . is upon him, and the-: Court shall presume the absence of such circumstances." The burden of proving "any particular fact" under section 103 is obviously not heavier than the burden of proving a plea under section 105, therefore, in, my humble opinion, the difference, if any, between these two sections is not: material and Safdar Ali's case applied to both these sections. This conclusion is also in consonance with the principles for the construc tion of statutes. The principle that the legal burden of proof always remains on the prosecution is the most fundamental principle of our Criminal Jurisprudence, and is much older than the Evidence Act, because it was principle of the common law administered by the Supreme Courts of the Sub-continent. Therefore, when the Legislature intended to abrogate it, it did so by express provision, as for example by section 8 of the Suppression of Terrorist Activities (Special Court) ordinance, 1974. As observed by Maxwell in his Interpretation of Statutes (11th Edition) at page 79; "It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness, and to give any such effect to general words, simply because they have a meaning that would lead thereto when used in either their widest, their usual or their natural sense, would be to give them a meaning other than that which was actually intended. General words and phrases, therefore, however wide and comprehensive they may be in their literal sense, must, usually, be construed as being limited to the actual objects of the Act" I would, therefore, hold that section 103 does not amount to a repeal by implication of the principle that the burden of proof always remains on the prosecution. Accordingly, if an accused raises a defence which falls under this section, he is only required to show that this evidence is a reasonable possibility, and the question before us is not whether the appellants have proved their pleas of alibi but only whether they have succeeded in showing that these pleas are reasonable possibilities. Aminullah's plea was that he was in Bahawalpur on the midnight of 24-10-1971 because he had gone there to see his brother-in-law Lt.-Col. Khattak who was the Commanding Officer of the 76th Field Regiment. In support of this plea he produced an extract from the guest register of the r 76th Field Regiment and he also examined Subedar Major Adalat Ali Khan, who proved this extract. As the prosecution could not shake the credit of this witness, I would first examine the reasons given by the High Court for rejecting the plea of alibi raised by this appellant and Mr. Qasuri submitted that the learned Judges had misread tire evidence and ignored section 342 of the Code of Criminal Procedure. With reference to the appellant's plea that he had left Charsadda by car for Bahawalpur on 25-10-1971 and reached Bahawalpur the same night, the learned Judges observed. "it is very much doubtful if he could have reached Bahawalpur at 11-30 p.m. on 25-10-1971 when according to his own statement, he started from his village in Charsadda the same day." With respect, the assumption thus made by the learned Judges is itself based on assumptions about several questions of fact. The journey was undertaken during Ramazan when there would be less traffic on the roads, and if the, appellant had set out after sehri there would be nothing improbable in his claim. But we do not know when the appellant had commenced this journey, because be was not questioned about it in his statement under section 342 of the Code of Criminal Procedure. Additionally, the appellant's plea was supported by the extract from the guest register of the 76th Field Regiment and by the evidence of Subedar Major Adalat Ali Khan. But, although the prosecution had had nearly one year to verify the correctness of the register, it did not produce evidence in rebuttal. However, the learned Judges rejected "this evidence and observed; "Now so far as the defence evidence of Aminullah accused is concerned, it consists of the solitary statement of Subedar Adalat Ali . . . . the first point in this connection . . . . . is that this witness was a direct sub ordinate of F. G. Khattak, Commanding Officer of the Regiment, who is brother-in-law of the accused." As the registers were for a border town and related to a period when war was imminent, it is difficult to believe that any soldier loyal to his country would have been a party to fabricating them at the instance of a. mere Lt.-Colonel, the more so as the registers were summoned through the Court after Lt.-Col. Khattak bad been transferred from the 76th Field Regiment. It was also the duty of the police to verify whether the extract from these registers supplied about a year earlier by the appellant was true or false, and if it was false, the prosecution would have produced evidence in rebuttal. It did not, nor did it allege that the army authorities had not cooperated in investigation ; on the contrary, the appellant was arrested "after obtaining permission from the Army authorities" according to P'. W. Saw Qureshi Khan, A. S. I. Turning now to the evidence of Subedar Major Adalat Ali Khan, he said that the appellant had told him that he wanted to see Lt: Col. Khattak; that the appellant had, therefore, signed the guest register himself, that he (the witness) had contacted Mrs. Khattak and Mrs. Khattak had told him y that the appellant should be allowed to come and that her husband's orderly would be waiting at Circuit House to bring him to her house. As the witness also said that there was a clerk on duty with him, the learned Judges drew an adverse inference against the appellant for not examining this clerk. But as the extract of the guest register bad been signed by the witnes3 and not by the clerk, the appellant was required to examine the witness and not the clerk. Further if the evidence of the witness was false, the prosecution would have produced evidence in rebuttal by examining this clerk. As it did not, the Courts erred in filling up the lacuna in the prosecution case by drawing an adverse inference against the appellant, the more so, as the appellant was not required to prove his alibi beyond reasonable doubt, but had only to show that it was a reasonable possibility, and for that the Subedar Major's evidence was more than sufficient. But the attention of the learned Judges was unfortunately not drawn to Safdar All's case. Reverting, however, to the witness's evidence, he produced the register containing the entry about the appellant's visit to Bahawalpur on 25-10-1971 which he proved, therefore, the register was not exhibited. 1t was from 2-9-1971 to 2-8-1972, and the witness admitted that the first guest register of the regiment was from January 1971 to August 1971. Despite this statement, he was not cross-examined on the suggestion that there was any irregularity in the closing of the first guest register in August 1971. However, the learned Judges observed : "the register in question was opened on 2-9-1971 in which entries had been made up to 2-8-1972. Now, if this register could last for about a year it is not understood why the other register was abondoned which had lasted only for eight months. This clearly suggests that the register in question was fabricated." With respect, the manner in which a regiment may maintain its guest register is not a matter of which a Court has any knowledge whatsoever. And, on the other hand, if the register had been fabricated, it would have been very easy for the prosecution to produce evidence in rebuttal. That it did not speaks for itself. Next, because the witness said that he had allowed the appellant to go to Mrs. Khattak with a pass, the learned Judges were of the view that he gave false evidence`. The question whether any pass was required was a question of fact, and if it had beers required the prosecution could easily have produced evidence to rebuttal. As it did not, in my humble opinion, the learned Judges erred in law in rejecting the evidence of the witness on the basis of their own surmises and conjectures. Mr. Shaukat Ali relied on the fact that both the Courts had rejected the evidence of the witness because he was a subordinate of the appellant's brother-in-law. I agree with learned counsel that the appreciation of evidence by the Courts below has been dominated by this circumstance, but the question is whether there was any justification for the assumption thus made both by the High Court and by the Sessions Court. We do not, for example, reject as false the evidence of a witness merely because he is related to the complainant. We only scrutinise it with care, therefore, I do not see how a Court can reject evidence against the prosecution on the ground that the witness who gave such evidence was employed by Government in a post under a close relation of the accused. And, in my humble opinion, this assumption has vitiated the appreciation of evidence by both the Courts and has led, as submitted by Mr. Qasuri, to a misreading of evidence. The result of this discussion is that the prosecution has failed to show that Subedar Major Adalat Ali Khan was an unreliable witness, and, as it did not produce evidence in rebuttal, the evidence of the witness must be accepted. My learned brother has, however drawn an adverse inference against the appellant for not examining Lt.-Col. Khattak, but I find from the record that he had been summoned by the appellant to give evidence. The witness was dropped later, but as Subedar Major Adalat Ali Khan was not even cross-examined on the allegation that the records produced by him had been fabricated at the instance of the Lt: Col. Khattak, it was not necessary for the appellant to examine his brother-in-law. Accordingly, although this appellant's case seemed dark at first sight in my humble opinion, the evidence produced by him is more than sufficient to bring his case within the rule laid down in Safdur Ali's case. Therefore, in the words) of Shababuddin, J. as he then was, in Safdar Ali's case this evidence creates "a reasonable doubt about the appellant's guilt, and, as, the prosecution evidence with all its infirmities has to be weighed against this evidence, I would hold that the prosecution bas failed to prove beyond reasonable doubt this appellant's guilt. I now turn to the case of the other appellant Naimatullah. He said that he was in Karachi in a nursing home known ay the Arshad Clinic and Hospital from 25-10-1971 to 13-11-1971, and in support of this plea he examined D. W. Dr. Zaidi the owner of this nursing home. This appellant further claims that he had, before going into hospital, executed a power of attorney (Exh. D. 6) which was attested by one Mansoor Ahmad. In support of this plea, he examined the said D. W. Mansoor Ahmad and D. W. Asghar Ali, the stamp vendor of the City Court, Karachi from whom he had purchased the stamp paper for the power of attorney. But the High Court re-examined Dr. Zaidr and also Dr. Athar Hussain, as pointed out by my learned brother. The High Court then examined in detail the evidence about the power of attorney and rejected it. 1t also rejected, in a very brief discussion, the evidence of Dr. Zaidi and Dr. Atbar Hassain and dismissed the appellant's plea as false. Unfortunately, the attention of the High Court was not drawn to the fact that even if the appellant bad executed his power of attorney on 25-10-1971, he could still have reached Peshawar the same night by P. I. A. Accordingly, even if the appellant's evidence about the power of attorney is accepted as correct, as it would not be sufficient to make out a case for an alibi, it is not necessary to examine it. I would, however, point out that this does not mean that I approve of the view taken by the High Court. I would now examine the reasons given by the High Court for rejecting the evidence produced by the appellant in order to show that he was an indoor patient in the Arshad Clinic and Hospital D. W. Dr. Zaidi, the owner of this clinic produced in the High Court on 26-3-1974 the register of this clinic (Exh. D. W. 2) and the relevant entry (Exh. D. W. 3) shows that the appellant Niamatullah was an indoor patient at the clinic from 25-10-1971 to 13-11-1971 and that he had paid a sum of Rs. 1215 for his treatment. As the register (Exh. D. W. 2) was produced only in the High Court, the learned Judges observed that "its non-production at the trial makes its genuineness somewhat doubtful". With respect, if the register was fabricated, it could have been fabricated for the trial Court. And, on the other hand, it is unlikely that a professional man, who had not dared to fabricate documents for production in the subordinate Courts, would take this risk in the superior Courts. Secondly, there was the receipt for his fees (Exb. D. 8) which the witness had proved. Thirdly, as the appellant had given full particulars of his alibi to the prosecution, it was the duty of the Investigating Agency to investigate the truth of the plea raised. Although several Police Officers were examined, it was not stated that the police had not investigated the appellant's plea, nor was it put to D. W. Dr. Zaidi in cross-examining that he had not cooperated with the police in investigations. In these circumstances, as the prosecution had nearly one year in which to verify the truth of the appellant's plea, I would presume that the police bad investigated the plea and that it did not produce any evidence in rebuttal, because there was none. As to the other reasons given by the High Court for its view, D. W. Dr. Zaidi had produced in the Sessions Court what he described as his case notes (Exh. D. 15) and because they were not entered in any register, the learned Judge observed that they "could have been made at any time." Mr. Brohi submitted that case notes are never entered in registers. Neither Mr. Shaukat Ali nor the learned Assistant Advocate-General were able to refer us to any evidence or to any medical treatise which could support the view that such case notes had to be entered in a register, and, as the witness was not examined on this allegation, with respect, the inference drawn by the learned Judges was not justified. But the learned Judges were also disturbed by the fact that the witness had stayed with a relation of the appellant "when he came to Peshawar for giving evidence at the trial" As the witness stayed with a relation of the appellant, his evidence had to be scrutinised carefully, but it could not be rejected as false on this ground. Finally, the learned Judges rejected Dr. Zaidi's evidence because when Dr. Athar Hussain was examined in the High Court he was not able to recognise the appellant. But Dr. Athar Hussain had examined the appellant about 2J years earlier and he did identify the letter written by him to Dr. Zaidi (Exh. D-14). Now, it is not the prosecution case that Dr. Athar Hussain knew the appellant, and he had seen him in October 1971 only for a few minutes, therefore, in my humble opinion, at the highest, the failure of Dr. Athar Hussain to recognise the appellant would cast doubt on Dr. Zaidi's evidence. And, as the appellant was not required to prove his alibi, this would not be material. In any event, the question is of the appellant's presence in Karachi, and his plea in this respect is supported by the evidence of the stamp vendor and D. W. Mansoor Ahmad. The Court rejected the stamp vendor's evidence on account of the discrepancies tin his register, therefore, I would not even refer to his evidence, But D. W. Mansoor Ahmad's evidence is sufficient to establish the appellant's presence in Karachi on 25-10-1971, and the only reason why his evidence was rejected was that he was a subordinate of the appellant's brother-in-law. But the witness was in Government Service, and, for the reasons which I have already given in my humble opinion, the evidence of the witness cannot be rejected merely because he worked under the appellant's brother-in-law in a Government Department. I am, therefore, not impressed by the reasons given by the High Court ;for its inference that Dr. Zaidi's evidence was not fit to be relied upon. However, my learned brother is of the view that the entry Exh. D. W. 3 about the appellant in the hospital register Exh. D. W. 2 invited suspicion because the entry "D. W. Z in the admission register shows the illness of Naimatullah as 'Abdominal Abcess' on the very date of admission namely .25-10-1971. Dr. Zaidi admitted, and this admission is supported by Exh. D-16 to D-16/2, that it was only on 27th October that Naimatullah was for the first time found to have developed abcess." I have examined the register and I may explain here that it is divided into several columns. Thus for example there is one column for the name of the patient. There is another column for the date of the admission of the patient and another, with the heading 'Disease'. The entry in the column for the date of admission as 25-10-1971 for the appellant and the entry in the column for 'Disease' for the appellant reads : "Abdominal Abcess." But these words 'Abdominal Abcess' do not bear any date. Similarly the entries in the register for other patients under the column 'Disease' do not bear any date, therefore, Mr. Brohi's explanation was that the entries in the column 'Disease were made as and when the ailment of the patient was diagnosed. In my humble opinion, this is a correct reading of the register, but if I am wrong, the question was of the manner in which Dr. Zaidi kept his register. As he was not cross-examined on the allegation that the entry in the column "Disease' was made on the date of admission of the patient into the Clinic, we would not be justified in holding that the words 'Abdominal Abcess' had been written in the entry Exh. D. W. 3 on the date of the appellant's admission to the Clinic. Accordingly, with the utmost respect and humility, I am unable to agree with my learned brother's view that the entry invites suspicion. I am also not able to agree with his view that an adverse inference should be drawn against the appellant's plea because the clerk who made this entry Exh. D. W. 3 was not examined. As the registers including this register have been proved under section 67 of the Evidence Act, the examination of this clerk was not necessary. However, my learned brother has further observed;

"It is curious that an eminent physician of the qualifications of Dr. Athar Hussain knowing that Naimatullah had been suffering from Appendicitis or Gastro-entritis, instead of referring him to the hospital or some eminent surgeon, referred him to Dr. Zaidi who admittedly was an Anaesthetist and not a Surgical Specialist, and did only minor cases of surgery. There were, therefore, several unsatis factory features in and about the register of admission and in the evidence of Dr. Zaidi which made both of them unreliable. In these circumstances, there did exist reasonable grounds for not relying on them by either Courts." In the opinion of my learned brother, the evidence produced by the appellant is inherently improbable and if that be so, the prosecution, as I observed earlier, was not required to produce evidence in rebuttal. However, with the utmost respect and humility, I am unable to agree with my learned brother's observations. In my opinion, both Appendicitis and. Gestro-entritis are minor ailments, for which people do not go to eminent surgeons in view of the high fees charged by eminent surgeons in Karachi. Further, although Dr. Zaidi was an Anaesthetist, the number of eminent surgeons who run hospitals in Karachi can be counted on one's fingers. On the other hand, operations are performed by eminent surgeons at hospitals and nursing homes. Finally, people living in Karachi might have given a further explanation. This was that Government Hospitals in the last quarter of 1971 were full on consequence of what had happened in the eastern wing of the country. I am aware that these are not matters of public knowledge of which judicial notice can be taken, but I have referred to them only in order to show that the appellant might have been able to give a satisfactory explanation about all these circumstances, if he had been questioned about them in his statement under section 342, Cr. P. C. As he was not, we would not be justified in holding these circumstances against him, x and for the same reason his failure to attend the ceremonies consequent on his father's death cannot be held against him, the more so, as it was not suggested to Dr. Zaidi that the appellant was in a fit condition to travel. Finally, my learned brother has not been impressed by the evidence of the appellants treatment in the Arshad Clinic, because the police were not able to serve the warrant of arrest on him, and from this my learned brother has inferred that the appellant had disappeared without leaving his whereabouts with his servants. Now, the witness examined by the prosecu tion on the question of abscondence was P. W. Ghulam Habib, F. C. to whose evidence I referred earlier. This witness only said that he had searched for the appellant Naimatullah at his village. But even according to P. W. Mst. Shirin Janan, the appellant's wife "stayed with us", whilst he lived in Islamabad, and the witness further said : "7-8 days prior to the occurrence the wife of the Naimatullah accused came to Peshawar because she was in the family way". As the appellant was thus not expected to be in his, village, inquiries about his whereabouts should have been made in Peshawar or Islamabad and not in his village. Nor is the appellant's plea of alibi unnatural or improbable because of his wife's pregnancy, and the concurrent finding against the appellant is based on the assumption that husbands do not abandon their wives who are about to deliver their first child. I agree with the assumption, but it is not supported by any evidence, because all that the appellant said was that his wife was in the family way when, he had left for Karachi. As P. W. Mst. Shirin Janan had also said that the appellant's wife was in the family way when she left for Peshawar, it is clear that this expression was adopted by the Court. But as the appellant was not expected to remain at his wife's bed-side throughout her pregnancy, the question was when the delivery was expected. Bat P. W. Mst. Shirin Janan remained silent on this aspect of the case, and the appellant was also not questioned about the date of his child's birth. In these circumstances, as the expression "in the family way" is completely vague, no adverse inference can be drawn against the appellant for having gone to Karachi at some unknown stage of his wife's pregnancy. In the result, the evidence in support of this appellant's plea of alibi is more than sufficient to show that this plea was a reasonable possibility. As this evidence reacts on the prosecution case and has to be assessed with the. prosecution evidence with all its infirmities, in my humble opinion, the prosecution has failed to prove this appellant's guilt also. In the result I would give the benefit of doubt to both the appellants, allow their appeals, and set aside the convictions and sentences passed against them. The appeal by both Aminullah and Naimatullah is dismissed. The appeal by Aminullah is dismissed by majority view of the Court. The appeal by Naimatullah is dismissed as the Judges are equally divided on the question of his guilt with the result that the judgment delivered by the High Court K on the 25th of April 1974, maintaining his conviction and confirming the R sentence of death awarded to him by the Sessions Judge under section 302 of the Pakistan Penal Code remains in the field. MUHAMMAD ARRAM, J.-I have gone through the separate judgments proposed for announcement by my learned brothers Salahuddin Ahmed, J. and Dorab Patel, J., in these two connected appeals. While in the opinion of the former, for the reasons elaborated by him in his judgment, both these appeals should be dismissed, the latter in differing with him has held that the two appeals should be allowed for almost exactly opposite conclusions recorded by him. I have, therefore, ventured to deal with the two appeals in my own humble light with due deference to both of them. These are two appeals by special leave separately filed by two brothers, Aminullah Khan and Niamatullah Khan from the judgment of a Division Bench of the Peshawar High Court at Peshawar upholding their convictions under section 302/34, P. P. C. and confirming the death sentences imposed on them for the murder of their own father. Briefly stated the relevant facts are these. Haji Muhammad Yousuf Khan deceased was retired Superintending Engineer of the Electricity Depart ment in the N. W. F. P. He was a Khan of village Charsadda owning extensive landed and house properties in Charsadda and the surrounding mahals. He had four sons, namely Aminullah Khan and Niamatullah Khan (the two accused-appellants), Hakimullah Khan and Masoodullah Khan and a daughter Mst. Dilshad Begum by his first wife who died some 25 years back. About two years after her death, be contracted a second marriage with Mst. Jannat Bibi (P. W. 2) and had two daughters, namely Mst. Farasat Yasmin and Mst. Nuzhat Begum (P. W. 3) from her. Mst. Farasat Yasmin is married and was living separately, while Mst. Nuzhat Begum is unmarried and was living with her father at the relevant time. Mst. Shirin Janan (P. W. 1) is the unmarried sister of the deceased. She also used to live with her brother in his house. According to the F. I. R. lodged at the Police Station Parang by Mst. Shirin Janan (P. W. 1), during the month of Ramazan, on 26-10-1971, at about 4 a.m., she along with her brother Yusuf Jan deceased were taking their sehri meals in the kitchen of his house, when suddenly the two appellants, Aminullah and Niamatullah armed with topaks (guns) in their hands appeared at the door of the kitchen. They were at the time accompanied by two other unnamed and unidentified persons who were also armed with topaks. Aminullah fired the first shot and Niamatullah fired the second shot at the deceased who died at the spot because of the injuries sustained by him. The two also fired some more shots in the house and thereafter all the four bolted away The occurrence was witnessed by Mst. Jannat Bibi, the wife and Mst. Nuzhat daughter of the deceased who were present at the spot. It is alleged that both the appellants had a grudge against the deceased and" disputes with him over property which led to his murder at the hands of his two sons and their two accomplices. Mst. Shirin Janan (P. W. 1) left by car for the Police Station Parang situated at a distance of 2 furlongs, to lodge the First Information Report there at 4-30 a.m. which was recorded by the S. H. O., Muhammad Arif (P. W. 4). The Investigating Officer is stated to have left the Police Station at 5-15 a.m. and arrived at the spot at 6 a.m. in the morning to start his investigation. He prepared the injury sheet (Exh. P. B ) and the inquest report (Exh. P. C.) of the death. He seized the blood-stained earth, blood-stained mazrimat, a blood-stained darri and a blood-stained carpet from the place of occurrence in the kitchen of the house of the deceased. He also extracted and took into possession a pellet (Exh. P-2) found embedded in the back wall of the . kitchen. In addition to those he recovered three pellets, one '303 bore empty shell (Exh. P. 4), one '12 bore empty shell (Exh. P-3) and one '12 bore missed cartridge (Exh. P. 5) from the spot. He recovered two more pellets and a lead bullet from under the mazri mat. He also prepared the site plan (Exh. P. M.) of the place of occurrence. At the time Dr. S. Rafiuddin (P. W. 5) was posted at the Civil Hospital, Charsadda. He performed the post-mortem examination on the dead body of the deceased. According to him the death of the deceased had occurred as a result of the injuries sustained by him. The two accused could not be found readily in spite of search and the warrants of arrest issued against them under section 204 of the Code of Criminal Procedure were returned unserved. Thereafter, proclamations under section 87 of the Code were also issued against them. On the 12th November 1971, Aminullah Khan appellant appeared before the S. H. O. for the first time. But then he could not be arrested as he had already been allowed bail before arrest Even after the rejection of his bail, he did not surrender and was arrested at Rawalpindi only on the 26th March 1972. Niamatullah appellant appeared before the S. H. O. at the police station on the 6th November 1971. He too could not be arrested in the presence of an order for bail before arrest passed in his favour. His bail was however, not confirmed and he appeared before the S. H. O. on the 29th December 1971, when he was arrested. At the trial the prosecution relied on the ocular evidence of three of its witnesses namely Mst. Shiriq Janan complainant, Mst. Jannat Bibi and Mst. Nuzhat Begum. P. W. 1, Mst. Shirin Janan deposed that they were taking their sehri meals at about 4 a.m. in the kitchen. At the time the electric light, a 50 candle power bulb was on in the kitchen. She was present in the kitchen along with Nuzhet Shaheen and Jannat Bibi. The two appellants entered the kitchen armed with topaks fired one shot each at the deceased from a distance of about three feet. All the four then bolted away with their topaks. According to Mst. Shirin Janan P. W. the deceased had transferred 68 jaribs of land in favour of Nuzhat Shaheen and Farasat Yasmin about two months prior to the occurrence. The two accused were annoyed with him on that account and this was the immediate motive which impelled them to murder the deceased. Soon after the occurrence the witness himself lodged the report at the Police Station, Parang, at 4-30 a.m. P. W. 2, Mst. Jannat Bibi and P. W. 3 Mst. Nuzhat Shaheen have both added that at the time of the occurrence they, along with Mst. Shirin Janan and the deceased were sitting in the kitchen taking their sehri meals together and corroborated P. W. 1 Shirin Janan in her testimony. Aminullah fired the first shot into his chest. Niamatullah then fired the next shot hitting him on his right thigh. They then came out of the kitchen and fired some shots in the courtyard. At the time of the assault they were accompanied by two other unknown and unidentified persons who bad topaks with them. However, they did not enter the kitchen and stood outside in the courtyard. The recoveries already, noted above, were made by the Investigating Officer from the place of occurrence on 26-10-1971 and were witnessed by P. Ws. Amir Muhammad Khan and one Sher Ali Khan. As already stated about, the post-mortem examination of the dead body .was performed by P. W. 5, Dr. S. Rafiuddin at 8-00 a.m. on 26-10-1971 in the house of the deceased and not in the mortuary. According to his report 4Exh. P. B/1), the deceased had the following injuries on his dead body :

(1) One fire-arm entrance wound 2' x 1 ' on the inner side of upper part of right thigh with five exit wounds x ' each on the outer aspect of right buttock. Bones of right hip joint were fractured. (2) One fire-arm entrance wound" x ' on the front of chest one inch from the left of midline and two inches above the nipple ; (3) One fire-arm exist wound 1 " x 1 ' on the left side of back 3' below the lower angle of left shoulder blade. On internal examination the Doctor found one distorted pellet removed from the fractured bone of the right thigh of the deceased. His left chest cavity was full of blood and the upper chambers of the heart and the left lung were pierced through with their coverings. The stomach was full. In the opinion of the Doctor, the probable duration between the injury and death was 0-30 minutes. The shirt and the shalwar, worn by the deceased at the time of his death, were bearing corresponding holes and charring marks for injury No.

1. From the cross-examination of the Doctor, it was elicited that the post-mortenm report was drawn on a plain paper, as according to him, be had no regularly printed forms for the purpose available in Charsadda at the time. In his opinion, if a man was fired at while sitting, injury No. 1 was possible in the manner in which it was found on the deceased, depending upon the angle of the muzzle of the gun used for the purpose. According to him, the stomach of the deceased was full with food but the actual stage of digestion was not noticed by him. However, he was not able to contradict the suggestion that the food was in semi-digestion stage. He stated that the food had not started passing into the intestines. The food starts passing to the intestines when digested and the state of food changes in the stomach with the passage of time. He admitted that the charring noted by him was found on the shirt and shalwar of the deceased and in his opinion the charring with an ordinary cartridge was possible up to a distance of 4 feet. The Doctor stated in his cross-examination that he examined the dead body of the deceased in his house with the permission of the Investigating Officer. According to him the Investigating Officer was there at the spot and his permission was verbally taken by him. He also stated that the relatives of the deceased had also requested him for the post-mortem examination at the house and that he did it as a favour because an old lady present at the spot bad requested him for it. According to the witness he had done post mortem examination in a number of cases in private houses in Charsadda and that it was not an uncommon practice there. In roof of the motive, the prosecution relied on a copy of the mutation No. 33 proof of P. N.) entered on the 28th July 1971, and sanctioned on the 28th September 1971, showing that Haji Mohammad Yousuf Jan deceased had made a gift of his land measuring 275 kanals 12 marlas situated in Mauza Sor Khatki. Tehsil Charsadda, District Peshawar, in favour of his two daughters, Farasat Yasmin and Nuzhat Shaheen. Aminullah Khan appellant appeared before the Revenue Officer to object to the attestation of the: mutation. In spite of the objection, Fazal Hamid (P. W. 8) Naib Sadar Qanuneo, Charsadda attested the same. In this connection Shirin Janan (P. W. 1) and Mst. Jannat Bibi (P. W. 2) have both deposed that the accused were annoyed with the deceased on account of this mutation sanctioned in favour of the two daughters. Exh. P.Z/1 is a certified copy of an undated application made by Aminullah Khan accused, addressed to the Member Board of Revenue, Government of N.-W. F. P., Peshawar against his father, Mohammad Yousuf Jan. It is alleged in the application that his, father is a leading landlord of the area owning about 1200 kanals of agricultural lands and house properties, having an income of Rs. 65,000 per annum approximately. But that he was too old and mentally infirm to manage his properties. He is also under the influence of his second wife and has turned hostile towards them. He was out to dissipate and squander away his properties. He had made a gift of the lands in favour of his daughters for which proceedings for the attestation of mutation No. 335 were pending with the Revenue Officer. It was, therefore, prayed in the application that a Court of Wards may be appointed in respect of the proper ties held by his father and that the proceedings before the Revenue authorities for the attestation of mutation No. 335 in favour of the two daughters may be stayed. Aminullah Khan appellant in his statement at the trial before the Additional Sessions Judge admitted having made the application to the effect that his father was insane and his properties may be placed under then Court of Wards. In defence the two appellants produced oral and documentary evidence in support of their respective pleas of alibi, they also produced certified copy of mutation No. 853 (Exh. D/4) entered on the 7th September 1971, for gift of the land measuring 240 kanals 2 marlas by the deceased in favour of his, other two sons, Haktmullah Khan and Masoodullah Khan. But the muta tion was eventually rejected on the 9th March 1974, and it could not be sanctioned after the death of the donor. By means of another mutation No. 4023 (Fxh. D-5) entered on the 3rd October 1971, sanctioned on the 25th October 1971, the deceased also gifted 32 kanals 10 marlas of land in favour of Mst. Dilshad Begum, this daughter from the first wife. Niamatulla, appellant, in his statement before the committing Magistrate, supplemented by his statement made at the trial, denied the allegations that he had murdered his father as alleged by the prosecution. He stated that Mst. Shirin Janan was a helpless lady dependant for her livelihood and shelter on his step-mother. Mst. Jannat Bibi, and that is why she was made to depose against him. He denied that he had absconded from his village. He pleaded alibi in defence and explained that be was in Karachi, at the time of the occurrence. On the 25th October 1971, at Karachi, he executed a power of attorney (Exh. D-6) in favour of Major Sikandar Hayat Khan Durrani, which was also attested by a Notary Public. On the same day in the evening, he fell ill and was admitted as an indoor patient in Arshad Clinic at Karachi. He remained there under treatment for about 3 weeks. In support of his statement in this behalf he produced documentary evidence (Exh. D-7 to D-10) to prove that while admitted in the Clinic he was actually operated upon on 27-10-1971 and was eventually discharged therefrom only on 13-11-1971 on payment of Rs. 1215 as charges for his treatment. The accused further denied that be had any motive to kill his father and added that his relations with him were all along pleasant He denied that he was annoyed with his father due to the transfer of properties made by him. He stated that his father gave him the highest and best possible education abroad for ten years in Europe. He then induced him to come back to Pakistan in 1967 and got him married. He gave 30 jaribs of land, a serial and a pakka house to his wife and also used to maintain him throughout. During this period he returned to Europe and then the deceased sent his wife after him with Rs. 10,000 to persuade him to come back to the country They continued 3o live with the deceased till about 8/10 days before the occurrence, when his wife went to Peshawar to her mother's house because she was in a family way. Even the medical expenses for her stay in Peshawar were borne by the deceased. Similarly, Aminullah accused in his statement before the committing Magistrate, supplemented by his statement made at the trial, denied that he had murdered his father as alleged by the prosecution. According to him, Met. Shirin Janan is a helpless lady, depended for her livelihood and shelter on his step-mother, Mst. Jannat Bibi and that is why she has deposed against him. He denied that he had absconded from his village and explained that on the 25th October 1971, he had left for Lahore to purchase an electric cane crusher and from there he had gone on to Bahawalpur to repay some money due to his brother-in-law, Lt-Col. F. G. Khattak, who had been recently posted at Bahawalpur on transfer from Quetta. He at first went to his Regiment Headquarter in Bahawalpur and met a Sub-Major and a clerk to enquire about the exact place of residence of his brother-in-law. While there he entered his name and other particulars in his own hand in a register main tained by the army during the emergency prevailing at the time. From there he was then conducted to the house of his brother-in-law. He stated that he had no motive or ill-will to kill his father. He brought about his marriage at huge expenses about 15 years back and also mach gift of his entire landed estate at Baly Koroona, a halmett owned by him. He stated that since then he was residing there with wife looking after agriculture. He added that in fact his deceased father had mutated some lands in favour of his other two brothers, namely Hakimullah Khan and Masoodullah Jan, about a month prior to this occurrence and that this had annoyed his step-mother and she was responsible for his murder through hired assassins. The above are the broad features and is certain respects a bare outline of the material placed on the record by the parties. On 9-2-1972, the Additional Sessions Judge, Peshawar convicted the two accused under section 302/34, P. P. C. and sentenced them to death for the cold blooded murder of their real father. He was not impressed by the pleas of alibi set up by the two accused in defence and relied on the ocular evidence of the three eye-witnesses. In his opinion Mst. Shirin Janan P. W. was a natural witness and he had no ill-will or motive against the appellants, who are her real nephews, to falsely implicate them. In the opinion of the Court the testimony of the eye-witnesses was sufficiently corroborated by the medical evidence. The deceased was taking his sehri meal along with his other members of the family at the time and was shot dead in the kitchen. On post mortem examination of the dead body, the stomach of the deceased was full with food at the time. Inter alia, the recoveries of the earth, mazri mat, dart and carpet all stained with blood (proved to be of human origin) from inside the kitchen amply supported the prosecution version that he was shot dead in the kitchen while he was taking his sehri meal. In the opinion of the Court the two accused were annoyed with their father on account of the gift of the land that he had made in favour of their two step-sisters. They entertained this grudge against him and had motive to kill him. These findings were substantially affirmed by a Division Bench of the Peshawar High Court at Peshawar in dismissing the two appeals filed by the appellants and the death sentences against them were confirmed. The High, Court disbelieved the alibi evidence produced in defence. In the opinion of the Court the ocular evidence of the three ladies was disinterested. They had: no ill-will towards the accused and had no motive to falsely implicate them The Court repelled the suggestion as simply preposterous, made to the effect that most probably it was the wife who got the deceased murdered through hired assassins. According to the High Court there wag a strung motive for the accused to have murdered the deceased and in that connection he Court observed that "it is common knowledge that though shari`at has been enforced: for a long time yet Pathani of this part of the country have not been able to adjust themselves to it. Nobody allows landed property to go to females ands most of the family troubles and consequent murders result from these types, of disputes." Only a few days before the occurrence, the deceased transferred 275 kanals of land in favour of his two daughters who were the step-sisters of the accused and this must have annoyed the accused. This could as well be gathered from the fact that Aminullah Khan accused himself appeared before the Revenue Officer to object to the attestation of the mutation of the land. He even submitted an application (Exh. P-Z/I) before the Member Board, Board of Revenue for appointment of a Court of Ward for the estate of his own father on the ground that he had become mentally deranged and was not capable of managing his properties. In the opinion of the High Court, the three ladies were the most natural witnesses of the occurrence. Their testimony was sufficiently corroborated by the medical evidence of the. Doctor and the recoveries made at the spot from inside the kitchen. In his proposed judgment, my learned brother Salahuddin Ahmad, J. has, observed that the trial Court as well as the High Court have held that there was motive on the part of the two appellants to commit the crime. Apparently, they could not bear the transfer of 68 jaribs of land in favour of their step sisters, Mst. Farasat Yasmin and Mst. Nuzhat Shaheen P. W. The prosecu tion succeeded in proving motive attributed to the two accused for this murder. In his opinion, of the three eye-witnesses, undoubtedly Mst. Shirin Janan P. W. is the most important witness, and not a single question was put to her to suggest that she was inimical or ill-deposed towards the appellants. The two appellants in the course of their examination under section 342 of' the Code of Criminal Procedure suggested that Mst. Shirin Janan was a helpless lady, was dependent on and under the influence of their step-mother. But this was not even put to her in her evidence. In the opinion of my learned brother, there was absolutely no reason why the aunt would falsely implicate her two nephews, whom she might have helped in bringing up after the death of their mother, in a charge of murder. He has held that the three eye-witnesses were natural, disinterested and reliable witnesses. The trial Court as well as the High Court has relied upon their testimony and my learned brother did not see any reason to disagree with them. Their evidence was amply and adequately supported by other reliable evidence. Besides the evidence of motive the medical evidence and injuries found on the person of the deceased sufficiently lent support to their version and time of this occurrence. In addition to this, the evidence of the recoveries from the spot in the kitchen not only fixed the place of occurrence but also gave full support to the manner of occurrence as to the nature of the crime weapons and the injuries caused on the deceased. For these reasons my learned brother has held that these appeals should be dismissed. On the other band my learned brother Dorab Patel, J., has laid bare loop-holes and cracks in the structure of this case built up by the prosecution. He is not impressed by the evidence of the three eye-witnesses. He agrees, that they were natural witnesses because they were living with the deceased in his house and that the appellants have failed to establish that they were inimi cal witnesses. However, in his opinion, their evidence suffered from material discrepancies and infirmities pointed out by hire. In. the circumstances, he found it unsafe to uphold the conviction of the two accused in the absence of independent corroboration of their testimony forthcoming on the record to, inculpate them. He has, therefore, allowed the benefit of doubt to the appellants and accepted both the appeals. It has, therefore, devolved on me to closely scrutinise the ocular evidence of the three ladies. Of these undoubtedly P. W. Mst Shirin Jan m complai nant is the most important eye-witnesses of the occurrence. She was residing in the house where the occurrence took place and her presence in the house at the time of occurrence is but natural and could not be doubted. She herself lodged the first information report (Exh. P 1) at the Police Station Parang immediately after the occurrence at 4-30 a.m. According to the F.I.R. at about 4 a.m. she along with bar brother (deceased) were taking their sehri meals in the kitchen of the house. All of a sudden the two appellants appeared outside the door of the kitchen with topaks in their hands and fired at the deceased. P. W. 4 Mohammad Arif Khan, S. H. O. Police Station Parang, arrived for his necessary investigation at the spot at 6-00 a.m. and prepared the site plan Exh. (P. M.). Aminullah and Niamatullah are alleged to have fired at their father from points 5 to 6 indicated in the plan. In the plan, these points are clearly shown outside the door of the kitchen and are respectively situated at a distance of 7 feet and 9 feet from the place inside the kitchen where the accused was taking his meal and was shot dead. Even in his cross-examination Mohammad Arif P. W. the witness, at first unequivocably admitted that both these places (points 5 & 6) were situated outside the kitchen. But then he soon turned round in an obvious attempt to improve upon the prosecution case by stating that these points are in the door of the kitchen. The witness was, however, definite that these points shown in the plan were mentioned by the witnesses from where the accused had fired at the deceased. In this connection it is also necessary to mention another significant fact. According to the memo. (Exh. P J.) on 26-10-1971, the Investigating Officer recovered from the spot and took into his possession one empty shell (Exh. P-3) of '12 bore, one empty shell (Exh. P-4) of '303 bore and a missed cartridge (Exh. P-5) of '12 bore. This memo, however, is silent as to whether these recoveries were made from inside the kitchen or outside it. Nor the exact places of these recoveries were specified in the plan. But P. W. 4 Mohammad Arif is definite that he made these recoveries from points Nos. 5 and 6, indicating the places from where the two assaillants had fired at the deceased. As already stated above the post-mortem examination on the dead body' was performed by P. W. 5 Dr. S. Rafiuddin at the house of the deceased at 8 a.m. on the same day on 26-10-1971. It transpired from his examination that the shirt and shalwar worn by the deceased had corresponding holes and charring marks for one of the injuries on his body. This disclosure must have forwarded the prosecution and put them on alert because this charring by fire-arm would be possible upto a distance of four feet only. This was even afterwards confirmed by P. W. 5 Dr. Rafiuddin in his evidence that this, charring by ordinary cartridge by fire was possible upto a distance of 4 feet A only. The prosecution was, therefore, faced with this snag in its original version contained in the F. I. R. and supported by the site plan (Exh. P. M prepared during the course of the preliminary investigation of the case and ir.' an attempt to explain away the discrepancy gave a definite twist to the ease before it by improving upon the statement of the eye-witnesses, who proved to be readily pliable in their hands. With this background, P. W. 1 Mst. Shirin Janan in the course of her examination-in-chief at the trial, stated that the two accused, "having entered the kitchen", had fired at the deceased. In her cross-examination she went all out for the prosecution to depose that both the accused had entered the kitchen and the distance between the deceased and the barrels of the topaks held by the accused, at the time of the occurrence, was about 3 feet. She was definite that she had seen the two accused entering the kitchen. But in this she was confronted with her own statement before the committing Magistrate where it is recorded that she had not seen the accused when they entered the kitchen and that they had fired at the deceased from such range that the barrels of their guns were at a distance of a foot or so from him. According to the F. I. R. read with the site plan (Exh. P. M.) the two accused had fired from points 5 and 6 from opposite the door of the kitchen and they had nowhere entered the kitchen. The distance of point 5 from where Aminullah fired at the deceased was given as 7J feet from him and similarly the distance of point 6 from where Niamatullah had fired was given as 9 feet from the deceased. It is only by this machination and adroit handling of the situation by the prosecution that these distance appear to have disappeared and shrunken down to between into 3 feet only. From all this the conclusion seems to be inescapable that Mst. Shirin Janan P. W. had made this deliberate departure in her evidence as a witness and that she was too willing to be used as a tool in the hands of the prosecution to make these improvements in the case at the cost of truth. The trial Court did not scrutinize the evidence of Mst. Shirin Janan P. W. from the point of view of this improvement noticed in her statement. It has merely observed that the blackening and charring noted by the doctor was possible in the circumstances explained by the eye-witnesses and held that there was no reason to doubt her. The High Court has, however, referred to this improvement made by the eye-witnesses in the prosecution case. But then in the opinion of the High Court it was not a "major improvement but a very minor one not at all affecting the merits of the P. Ws.". In that connection the Court observed if persons were to come from outside to the threshold of the door of a small room like a kitchen, then there would be no contradiction in it if it is said that he had entered the kitchen. The Court further added that a man may be standing a few inches inside the threshold or few inches outside it and describe him as having entered the room. Proceeding further the High Court observed that this slight improvement in the statement of the eye-witnesses could not be said to have been done for the purpose of explaining the charring, because the charring on the clothes could have been there even if the shot had been fired with a shot-gun from the door of the kitchen. The kitchen was only 10 feet wide and the deceased was sitting about the middle, a little towards inside. His distance from the door according to the site plan prepared at the instance of the P. Ws. was 71 feet. Taking into consi deration the length of a shot-gun the barrel of which is generally 30 to 32 inches, the distance of deceased from the mouth of the barrel could hardly be 3 feet and charring on the clothes could have been caused even by a shot fired from the door. Moreover, in the opinion of the High Court, under the circumstances under which this assault was actually made, it would not have been possible for them to have noted exactly as to whether the culprits were a pace inside or a pace outside the kitchen and the probability of their having entered the kitchen could not be com pletely ruled out. But in coming to this conclusion, in my opinion, the High Court missed the real issue and the criticism levelled against the statements of the eye witnesses. Nobody doubts the charring noticed by the doctor on the clothes of the deceased. It may as well have been caused by and was possible while firing the shot from the topak from outside the threshold of the door of the kitchen. But the real point that I have endeavoured to make out is the gullible case with which and the extent to which P. W. Mst. Shirin Janan was prepared to mould her stand as a tool, in the hands of the prosecution. She has nowhere explained that to her a pace inside or a pace outside the kitchen ` did not make any difference and that she had laboured under a genuine bona fide mistake while narrating the facts to the police officer at the time of the F. I. R. or the preparation of the site plan. In my humble opinion, and I say so with respect, the attention of my learned brother Salahuddin Ahmed, J. was not at all drawn to this aspect of the case discussed by me. He has simply noticed in his judgment that the doctor had found charring marks on shirt and shalwar of the deceased corres ponding to the injuries on his body and that those injuries and the charring noticed by the doctor were consistent with the evidence of P. W. Mst. Shirin Janan that the distance between the deceased and the barrel of the gun of the accused at the time of the occurrence was almost three feet only. But the cause and the reasons for this shift in the statement of Mst. Shirin Janan P. W. were not examined by my learned brother. I will now refer to another circumstance. Mst. Shirin Janan in her cross- examination admitted that Yousuf, a tenant of the deceased, had gone with her to the Police Station to lodge the report and that she had told Yousuf about the occurrence. The F. I. R. (Exh. P. A.) also shows that she had gone to the Police Station along with Mohammad Yusnf son of Laiq Mir Jan resident of Bhosa Khel, Charsadda. He was cited as a witness but was then given up by the prosecution as unnecessary. However, at the instance of defence, he was examined as a Court witness (C. W. 1) in the trial Court. He admitted that he accompanied Mst. Shirin Janan in a car to lodge the report at the Police Station. He deposed that on the way to the Police Station she had disclosed to him that the deceased was killed by the two accused. In that connection he further deposed that she had not told him that the present two accused were also accompanied by any other person at the time of the occurrence. Shad Mohammad (P. W. 9) and Yusuf Khan deceased were cousins. The deceased was his paternal uncle's son. He was living at the time in village Rebiwa at a distance of 7 miles from Charsadda. He was informed of the occurrence on telephone after the morning prayer. So he came to the house of the deceased in his own car. In the hujra of the deceased there were about 10/12 persons sitting there and they were saying that the deceased was killed by the two accused who had a third person with them standing in the lane. The evidence of these two witnesses more particularly that of C. W. 1,' Muhammad Yusuf Khan considerably reflects against the F. I. R. registered at the instance of Mst. Shirin Janan P. W. She seems to have indulged in exaggerating the prosecution case against the two appellants by introducing the version that at the time of the occurrence they were accompanied by two other unnamed and unidentified a persons who were also armed with topaks and had remained outside the B kitchen in the courtyard of the house of deceased. Although, according to this version, the two unnamed persons also shared the common intention and were equally responsible for the murder of the deceased under section 302/34, P. P. C., yet the prosecution failed to make any efforts in tracing the culprits. Indeed to me it appears that even the prosecution itself was not at all convince ed about it and did not attach any importance to this part of the case and made no serious enquiries into it. Nor did the complainant at all pressed for it. Except for the bare statement of the three eye-witnesses there is nothing to inculcate those unnamed persons. Soon after the occurrence Mst. Shlrin Janan P. W. left by car to lodge the report at the Police Station at 4-30 a m. In her cross-examination she stated that the Investigating Officer came to his house after her return from the Police Station. But Mst. Janat Bibi P. W. admitted in her cross-examination that Mst. Shirin Janan had gone to the police station in a car and the Investigating Officer came with her to the spot in the same car. Even P. W. 4 Mohammad Arif Khan, S. H. O., in his cross-examination admitted that Mst. Shirin Janan had accompanied him to the spot from the police station. What prompted Mst. Shirin Janan to suppress this fact, it is not easy to say. The F. I. R. was ostensibly recorded at the police station at 4-30 a.m. It is a short document and its recording could not have taken more time than is necessary. But the Investigating Officer did not leave the police station until 5-15 a.m. The two then took another three quarters of an hour to cover a distance of two furlongs from the police station to reach the place of occur rence by car at 6 a.m. What transpired between them during all this period, it is difficult to guess. P. W. Mst. Shirin Janan had gone to the police station in her own car but she refused to disclose the name of the driver by saying that she did not know him. Similarly. C. W. 1, Muhammad Yusuf who had accompanied Mst. Shirin Janan to the police station suppressed the name of the driver. He stated that he did not know the name of the driver who drove the car to the police station. According to this witness at the time she was also accompanied by another person in the car. He was a shopkeeper belonging to village Charsadda but his particulars were not disclosed. It is difficult to swallow that Mst. Shirin Janan did not in fact know the names of those persons who were so mysteriously introduced into the picture. More over, in the F. I. R., it is alleged that at the time of the occurrence at about 4 a.m., Mst. Shirin Janan along with her brother Yusuf Jan deceased were taking their meals in the kitchen when the accused arrived at the scene and fired at him and that occurrence was witnessed by Mst. Jannat Bibi and Nuzhat Shaheen who were present at the spot. But in the evidence of the three eye-witnesses before the committing Magistrate and at the trial, a discernible improvement was made in the prosecution case in that, according to them, all of them were sitting with the deceased taking their meals together at the time of the occurrence. The above discussion has left a strong impression on my mind that Mst. Shirin Janan has made exaggerations in the prosecution case, tried to improve upon it and also indulged in suppression of facts. Even though her statement may not be rejected outright because of these infirmities, yet it must be taken with the necessary caution and not without sufficient independent corroboration in material particulars. Of the other two eye-witnesses Mst. Jannat Bibi P. W. is the step-mother and Mst. Nuzhat Shaheen is the step-sister of the two accused. It is the case of the prosecution that they were annoyed with their father and the immediate motive for the murder was the gift of 275 kanals 12 marlas of land male by the father in favour of their two step-sisters (Vide mutation No. 335 attested on 28-9-1971). Aminullah even appeared before the Revenue Officer to object against the mutation. It cannot, therefore, be held that they had no enmity towards the accused. Their evidence also suffers from the infirmities discussed above and some of the above criticism is mutatis mutandis applicable to them as well. Therefore, for reasons of my own, I respectfully agree with the conclusion by my learned brother Dorab Patel, J. that it would not be safe to accept the evidence of Mst. Shirin Janan and of P. Ws. Mst. Jannat Bibi and Mst. Nuzhat Shaheen without sufficient corroboration on material ,aspects of the prosecu tion case. I shall now endeavour to look for the necessary corroboration of the testimony of the eye-witnesses before the conviction of the two accused can be sustained. In this connection there is hardly any doubt that the death of the deceased was caused by firearm injuries found on his body by D. W. 5 Dr. Rafiuddin in the course of the post-mortem examination conducted by him at 8-00 a.m. on the 26th October 1971. On internal examination, he found that the stomach of the deceased was full and this fact sufficiently corroborates the testimony of the eye-witnesses to the effect that he was taking his sehri meal when he was done to death. According to the doctor, the probable duration between the injury and the death was 0-30 minutes and between the death and the post-mortem 3 to 6 hours. This evidence does not exclude the possibility that the deceased had died instantaneously on receipt of the fatal injuries as deposed to by the eye-witnesses. There is nothing positive on the record to conclude that the actual death was not instantaneous or that he actually died only after half an hour. On opening the chest, the doctor found that the upper chambers of the heart and lung of the deceased were pierced through with their covering. According to Modi in his `Medical Jurisprudence' on page 263, the bullet wounds of the heart are commonly instantly fatal from shock and haemorrhage. At any rate, the doctor was not specifically cross-examined on the point and it wag never elicited in his cross-examination that the death of the deceased was not instantaneous. My learned brother, Dorab Patel, J. has disbelieved the doctor and not relied on his testimony. The doctor had conducted the post-mortem exami nation on the dead body of the deceased in a private house rather than in the mortuary and his report was also on plain paper and not in the prescribed form meant for the purpose. He had also failed .to notice the stage of digestion of the food in the stomach of the deceased. This in the opinion of my learned -brother was a serious and inexcusable lapse on the part of the doctor. In so doing the doctor failed to provide a sufficient clue to the Court to enable it to form a fair idea as to the actual time to this occurrence. My learned brother had his own doubts that the deceased must have been murder ed after sehri, unseen by the eye-witnesses after the inmates of the house had gone to sleep. According to report (Exh. P. B.) addressed by the Investigating Officer, ' the dead body of the deceased was despatched under escort for past-mortem)p examination. But admittedly, according to the doctor, the post-mortem examination of the dead body was conducted in the house of the deceased with the permission of the Investigating Officer verbally taken by him. It is in the evidence that he conducted the post-mortem examination while the Investigating Officer was still at the spot in connection with his pre liminary enquiries. It appears that the Investigating Officer had tacitly permitted the doctor to conduct the post-mortem examination in the house. In this connection the doctor frankly admitted in his cross -examination that he had performed the post-mortem examination on the dead body at the house a9 a matter of favour because an old lady present at the spot had requested him for this. I am particular impressed by this candid and forthright statement and his) conduct appears to be above board. He further stated that he had done post-mortem examination in a number of cases in private places in Char3addal and that it was not an uncommon practice there. His statement on the point was not doubted and the doctor was not subjected to further test b pursuing the cross-examination and asking him to actually cite the instances According to Modi on `Medical Jurisprudence' at page 58, ordinarily a dead body is sent to the morgue but in exceptional cases the Medical Officer may be taken to the place where a dead body is lying. It was perhaps in deference to the sentiments of the old lady who was an inmate of the house (presumably Mst. Shirin Janan P. W.) that the doctor had agreed to conduct the post mortem examination at the house in sympathy with the bereaved. The doctor explained that he gave his report on plain paper because there were no printed forms available at Charsadda at the time. According to the doctor, the stomach of the deceased was full with food but the stage of digestion was not noted by him. He was not able to con tradict the food found in the stomach of the deceased was in a semi-digested form. He however, added that the food had not started passing to the intestines while it starts passing to the intestines when digested. In his opinion the state of food changes in the stomach with the passage of time. According to the learned Judges of the High Court, the sehri time during the days of occurrence lasted upto about 5 a.m. The occurrence is alleged to have taken place at about 4 a.m. while the First Information Report about the occurrence was lodged at the police station at about 4-30 a.m. Even assuming that the deceased had taken his sehri at any time between 4 a.m. and 4-30 a.m. or even at 5-00 a.m. which was the closing time for the sehri, it would be hardly possible for a doctor of any experience to notice any appreciable changes in the state of digestion of the food in this case and hazard a guess on the point. There is also ample corroboration forthcoming on the' record in the form of recoveries to establish that the deceased had died in the kitchen. According to the site plan (Exh. P. M.), the deceased was done to death while he was sitting at point 1 in the kitchen. The Investigating Officer had recovered and took into his possession the blood-stained earth, blood-stained marry mat, blood-stained darn and blood-stained carpet from the place of occurrence in the kitchen of the house. On examination these were found to be stained with blood of human origin. The Investigating Officer also found a pellet (Exh. P. 2) embedded in and extracted from the wail of the kitchen behind the deceased where he was sitting. He also recovered three pellets, one '303 empty shell, one .12 bore empty shell, and one .12 missed cartridge from the spot. From underneath the mazzy mat two pellets and a lead bullet were also recovered by him. These recoveries were witnessed by Shad Mohammad (P. W. 9) related to the deceased and there could be no doubt about them. There is thus sufficient corroborative evidence to hold that the deceased had died of the injuries suffered by him in the kitchen at about 4-00 a.m. while taking his sehri meal. That he was shot dead while he was sitting finds support from the testimony of P. W. 5 Dr. S. Rafiuddin who deposed that if a man was sitting and fired at, injury to the thigh was possible in the manner in which it was found on the person of the deceased. But these recoveries and injuries do not carry the case of the prosecution any further and connect them with the accused sufficient to inculpate them. No firearms recoveries could be made from the accused at their instance to incriminate them and evidence so far discussed on the point is not conclusive. Now coming to the motive for this crime. According to the three eye witnesses, the deceased has transferred 68 jaribs of land in favour of his two daughters, Mst. Nuzhat Shaheen and Mst. Farasat Yasmin, about two months prior to the occurrence and the accused were annoyed with him on this account and had killed him. Indeed in this connection mutation No. 335 (Copy Exh. P. N.) proves that the deceased had made a gift of 275 kanals 12 marlas of the land in favour of his two daughters, Farasat Yasmin and Nuzhat Shaheen. This mutation was entered by the revenue patwari on the 28th July 1971, and attested by the Revenue Officer on the 28th September 1971. The mutation proceedings go to show that Aminullah accused appear ed before the Revenue Officer to raise objection to the attestation of the mutation. But despite his mutation was attested on 28-9-1971. In the meantime Aminullah accused addressed a letter (Copy Exh. P-Z/ 1) to the Member, Board of Revenue Government of N: W. F. P., Peshawar. In this letter he severely criticised the conduct of his own father and alleged that he was mentally infirm and was dissipating his property with the sole object of depriving his legitimate heirs from inheritance. He has already got a mutation No. 335 entered for transfer of 275 kanals 12 marlas of land by way of gift in favour of his two daughters and has turned hostile towards his sons under the influence exercised by their step-mother. He further complained that his father did not even contribute a single penny towards the marriage expenses of his third son, Hakimullah Jan, and did not participate in his marriage for no fault on his part and that there were several other instances of maltreatment meted out by his father towards the other family members. He, therefore, prayed for the appointment of a Court of Ward for his properties and also for a stay of proceedings before the Revenue Officer for It the attestation of mutation No.

335. These facts and circumstances show that Aminullah appellant was greatly annoyed with his father and had lost all respect for him, if indeed he had any. He entertained a deep seated grudge towards him. His relations with him were not only but definitely inimical. He tried his level best to prevent the attestation of the mutation for the gift of the lands made by him in favour of his two daughters who were his step-sisters. He even applied for the appointment of a Court of Ward for his properties lest he may not further alienate them at the cost of his chance to succeed to them. He was definitely annoyed with his father after the mutation No. 335 was sanctioned in spite of his objections, on 28-9-1971. This shows that he had a strong motive to get rid of his father who was dissipating his properties and against whom he way nursing grievances. In my opinion the prosecution has successfully prove:: the motive attributed to Aminullah appellant for the murder of the deceased. This clear proof of motive lends added support and sufficiently corro borates the ocular evidence supplemented by the medical evidence and the recoveries so as to bring home the guilt as far as he was concerned and lay it at his door steps beyond any reasonable doubt. In Ately v. State (AIR 1955SC831), the Supreme Court of India held that where if there is a clear proof of motive for the crime that lends additional support to the finding of the Court that the accused was guilty. Now let us turn to the case of Niamatullah appellant. Apart from the statements of the three eye-witnesses generally to the effect that the two brothers were annoyed with his father on account of the gift made by him in favour of his two daughters, there is no other reliable evidence brought on the record against him. There is nothing to show that he had associated himself with his brother Aminullah either in the objection against the attesta tion of the mutation for gift or in that nasty letter written to the Member, Board of Revenue against his father. In his case it was even admitted by Mst. Shirin Janan P. W. that he was educated for ten years in Europa by the deceased who then persuaded him to come back and got him married in Charsadda. He stayed with the deceased for six months after the marriage and again went back to Europe. The deceased then gave a sum of Rs. 10,000 to his wife to bring him back from Europe. On return from Europe, he joined service at Karachi. The deceased gave 30 Jaribs of land, a serai, and a pakka house to his wife in lieu of dower. His wife used to stay with the deceased. It was only about 7/8 days prior to the occurrence that his wife came to Peshawar as she was in a family way and the deceased gave money to her to cover her expenses of the hospital. All this is sufficient to show that the relations of the deceased with the Niamatullah accused and his wife were cordial till about 7/8 days before the occurrence. There is nothing on the record to suggest that he at any time fell out with his father. In these circumstances, it is difficult to believe that Niamatullah appellant had any motive attributed to him to kill his father, with whom he had no animosity or ill-will towards him. Therefore, in his case the motive attributed to him by the prosecution was not only not proved but definitely disproved. It is, therefore, inconceivable that be should have murdered his father for nothing and the necessary corroboration of the evidence on the record is lacking in his case. There is no doubt that in Atta Mohammad v. The State (1968SCMR502), this Court observed that motive is after all a matter of speculation for what moves a person to take the life of another is within his special knowledge and does not constitute a necessary ingredient of the offence of murder. In this connection in Habibullah and others v. The State (PLD1969SC127), this Court also observed that in ordinary human conduct where killing takes place by design it is not without a motive strong or weak. This is not to say that murders are not committed wantonly without any motive whatsoever and the motiveless murders do occur owing to mad or reckless acts of inhuman nature. Some times, a motive lies mysteriously hidden in the mind of the killer with no means to dig it out on the surface. At the same time the Court significantly went on to add that it may be stated as a rule of prudence in judging human conduct that "where a motive is alleged by the prosecution which is found to be false, it becomes all the more necessary to scrutinise the credentials of the witnesses who by their evidence direct or indirect speak about the guilt of an accused person on the premises of a false motive. Where, therefore, the alleged motive was found to be absent being untrue it was held that the Court should have been very much on their guard to accept the story of the prosecution of which the motive was an important constituent". These observations are aptly applicable to the case of Niamatullah appellant before us. Before us at the hearing reliance was also placed on the circumstance that the accused had absconded after the murder of their father. It does appear that the conduct of the two accused immediately after the occurrence was not above reproach. Surely they must have learnt about the death of their father immediately on the 26th October 1971. In spite of this they did not turn up in Charsadda not even to join his funeral and to condole his death. In spite of the search they could not be traced and warrants of their arrests had to be issued under section 204 of the Code of Criminal Procedure. Even proclamations were issued against them under section 87 of the Code. In these circumstances, Aminullah for the first time appeared before the S. H. O. only on the 12th November 1971 after having first obtained an order for his bail before arrest. After the rejection of his bail, he did not surrender himself and was arrested at Rawalpindi only on the 26th March 1972. Similarly, Niamatullah accused appeared before the S. H. O. at the police station for the first time on the 16th November 1971 having already obtained an order for his bail before arrest. The bail was, however, not confirmed and he appeared before the S. H. O. only on the 29th December 1971, when he was arrested. As Munir in his Law of Evidence (1974 Edition on page 61, under section 8 of the Act), has observed that the conduct of person in absconding after the commission of the offence is evidence to show that he was concerned in the offence, but it is usually a very small item in the evidence on which g conviction can be based. Absconding is equally consistent with innocence and guilt. It is well-known that different persons are differently constituted, and that some accused persons, though innocent, deliberately abscond rather than to face the ordeal of a criminal trial. I must now deal with the alibis respectively pleaded by the two accused in their defence. According to Aminullah appellant he had left his village on 25th of October 1971, and had gone to Lahore to purchase an electric cane-crusher, and from there he proceeded onward to Bahawalpur on the same day to repay a loan which he had taken from his brother-in-law Lt.-Col. F. G. Khan who was at the time posted there. In support of his plea he examined D. W. Subedar Major Adalat Ali Khan and also produced an extract from the Guest Register 76 Field Regiment, Bahawalpur Cantt. The trial Court as well as the High Court were not impressed by this evidence adduced in defence of the plea of alibi. Likewise my learned brother Salahuddin Ahmed, J., on a 'careful consideration of the evidence, was not satisfied with it. In his opinion, Aminullah appellant did not adduce the best available evidence to prove his plea of alibi and that the evidence pro duced by him in this connection was unsatisfactory, unconvincing and of a dubious nature. He, therefore, did not feel any difficulty in rejecting the same. I respectfully agree with his treatment of the evidence on the point. In my opinion the evidence adduced by Aminullah appellant, taken singly or collectively with the rest of the evidence on the record, was not sufficient to establish that he was at Bahawalpur at the time and date of the occurrence. But this finding by itself is not sufficient to establish his participation in the crime for which the onus rests on the prosecution. Similarly according to Niamatullah appellant, he was in Karachi at the time and date of the occurrence. His case in defence is that on the 25th of October 1971, he purchased a non-judicial stamp from D. W. Asghar Ali, Stamp Vendor at Karachi and executed a power of attorney (Exh. D. 6) in favour of his brother-in-law, Major Sikandar Hayat Durrani at Karachi. On the same day he fell ill and was admitted in Arshad Clinic, Karachi and remained there till his discharge on 13th of November 1971. He produced oral and docu mentary evidence in support of his plea. But neither the trial Court nor the High Court were satisfied with, the evidence. In this Court, my learned brother Salahuddin Ahmed, J. has exhaustively dealt with the evidence and was not satisfied with it. In his considered opinion the accused did not produce best available evidence in defence of his plea of alibi. The evidence produced by him did not inspire confidence and was unconvincing. The entry for the purchase of non judicial stamp paper for the execution of the power of attorney did not appear to be genuine. The evidence on the point of Niamatullah's illness and his admission into the Clinic was considered to be not worthy of credit and highly improbable. I respectfully agree and in conclusion hold the at from the evidence on the record, Niamatullah Khan has failed to establish that he was at Karachi on the date and time of the occurrence and his plea of alibi consequently fails. But this finding by itself is not sufficient to prove his participation in the crime for which the onus all along rested on the prosecution. According to. Wigmore on Evidence the theory of alibi is that the fact of presence elsewhere is essentially inconsistent with the presence at the place and time alleged and, therefore, with personal participation in the act. Under section 11 of the Evidence Act, facts not otherwise relevant are relevant, (1) if they are inconsistent with any fact in issue or relevant facts; or (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. The evidence in support of the plea of alibi in defence is admissible under this section. According to Professor Wigmore, the defence of an alibi, if clearly established by unsuspected testimony is most satisfactory and conclusive. If the plea is founded in truth, it is the best negative evidence that can be offered. "It is really positive evidence which in the nature of things necessarily implieth a negative" (Foster's Discussion on the Crown Law). Ameer Ali in his Law of Evidence (11th Edition), Volume I, at page 327, in discussing the "General Features of alibi evidence" rightly observed that the presence of the accused at the scene of the crime at the time it was committed is an essential factor in proof of his guilt and the burden is upon the prosecution to prove such an act. If the accused raises an alibi he in effect is denying the claim of the prosecution that he was at the scene of the crime at the time the crime was committed. Therefore, while it is the burden of the prosecution to prove beyond reasonable doubt that the accused was present at the scene of the crime at the time of its commission, the burden of going forward with the evidence in regard to a fact which is specially within his knowledge, the accused has got to show that he was elsewhere at the moment of the crime and that he remained there for such a period of time as will reasonably exclude the probability that he was in the place of the crime when it was committed. The prosecution cannot be legitimately saddled with the burden of proving this negative. It is now well-settled law that in regard to this burden of going forward with the, evidence to be discharged by the accused if he raises a reasonable doubt of his presence at the scene of the crime at the time that it was committed, it is not incumbent upon the accused to prove his alibi beyond a reasonable doubt or by a preponderance of evidence. An accused is entitled to an acquittal if the Judge has a reasonable doubt upon consideration of the evidence, viz., that offered by the prosecution to show the accused presence' and participation in the alleged crime and that offered by the accused to prove his presence elsewhere. Both aspects should be considered together. The Judge must not weigh merely that relating to the alibi and determine p from that alone whether he has reasonable doubt of guilt. On the other hand he must acquit even though the evidence to prove the alibi must be insufficient of itself to establish the same affirmatively as a separate factor if when considered with all other evidence it raises a reasonable doubt. Conversely the Judge cannot also acquit the accused on the ground that the alibi evidence considered by itself raises the doubt. The defence of alibi is a legitimate defence and in fact is often the only evidence of an innocent man. In my respectful opinion this is a most realistic and practicable approach warranted by law suggested by the learned author on the subject. In this connection Chamberlayne on Evidence, section 973 (reproduced on pages 125-126 of the Law of Evidence by N. D. Basu--Fourth Edition) has drawn the distinction, that is so often confused, between the burden of proof and the burden to go forward with the evidence, while the burden is on the accused to introduce evidence on his plea of alibi sufficient to raise a reasonable doubt, the burden of proof nonetheless continues to be on the prosecution to prove its case. In this connection I might as well reproduce the following observations on the defence of alibi, which, to me appears to be greatly instructive ;

"It is essential that the Government show, by the required preponderance, that the accused was present at the place where his act was done at the time when he is said to have done It. The defendant may properly attempt to show that he was somewhere else at that time- not for the purpose, primarily of establishing that he was at the special .place at that particular time but with the object of throwing doubt upon the truth of the Government's contention that he was where he must have been in order to have committed the offence. Evidence of alibi is, therefore, in the nature of an argumentative traverse. It is not an affirmative defence as to which the defendant has assumed the burden of proof. In a majority of jurisdictions, the correct rule is adopted-that it is a necessary part of the Govern ment's case to show, when disputed, that the defendant was present at the scene of the doing of the alleged act at the time when he is claimed to have done it. Consequently, it has been held that, while the burden is on the defendant to introduce evidence sufficient to raise a reasonable doubt, the burden of proof still continues to be on the prosecution as to this necessary element in its case and that, if a reasonable doubt is left in the minds of the jury as to whether the accused actually was present at the scene of the crime at the time when he must have been there in order to have committed it, he is entitled to an acquittal. Other Courts confusing the burden of proof with the burden of evidence treat alibi as if it were an affirmative defence in a civil action on which he has the burden of proof and require that, in order that the defence should succeed, the defendant should establish affirmatively by a fair preponderance of the evidence, the fact that it was impossible for him to have reached the scene of the crime at the time when it must have been committed. Naturally, in any case, the evidence of alibi is of weight in proportion to the weakness of the incriminating evidence which tends to bring the crime home to the accused." It is an elementary principle of criminal law that in all cases the burden of proof lies upon the prosecution to bring the guilt home to the accused. This general principle does not admit of any exception, even though negative averments be involved. In this connection, a reference to the provisions of section 103 of the Evidence Act, in the context means that it shall be p on the person who wishes the Court to believe in the existence of a particular P fact within his knowledge to go forward and introduce the evidence in proof thereof in his possession. The term "burden of proof" has two distinct meanings which are often confused. The burden of proof as a matter of law and pleadings is different from the burden of proof in the sense of introducing the evidence. It was rightly remarked in R. v. Lobell (1957 All. E R 734) relied upon by my learned brother Salahuddin Ahmed, J. that "there is a difference between leading evidence which would enable a jury to find an issue in favour of the defendant and in putting the onus on him. The truth is that the jury must come to a verdict on the whole of the evidence that has been laid before them." In my respectful opinion in the reported case of Mukshad Mulla and others v. The Crown (P L D 1957 Dacca 503), noticed by my learned brother, Salahuddin Ahmed, J., the Court failed to bear in mind this difference and I am, therefore, unable to approve of some of the observations made on reference to section 103 of the Evidence Act in that case. Similarly on principle, I am unable to appreciate the observations in the reported case of Sunj Baksh Singh v. Emperor to the effect that because there is satisfactory evidence that "a man committed a crime at a certain place and at a certain time, a Court will never find any difficulty in rejecting an alibi he may seek to establish, even if that alibi be supported by what, on the surface would appear to be satisfactory evidence". There is always a rational approach in all cases to the entire evidence viz. that produced by the accused in support of his plea of alibi and that by the prosecution in support of his conviction. The conclusion as to the guilt or innocence of the accused must rest on the basis of the entire evidence considered and weighed as a whole for and against the prosecution. If in the process a reasonable doubt is raised as to the complicity of the accused the benefit of doubt must be allowed to him. I am also not impressed by the ratio laid down in Surat Chandra Dhupi v. Emperor (A I R 1934 Cal. 719) to the effect that: "whenever a defence of alibi is set up and that defence utterly breaks down it is a strong inference that if the accused was not in fact where he says he was then in all probability be was where the prosecution says he was." The failure on the part of the accused to substantiate his plea of alibi does not give rise to the inference that he was necessarily present at the place and time where the offence is said to have taken place and it does not give rise to a presumption as to his complicity in the crime which has to be proved independently. In this connection, it was authoritatively held by this Court in Ilahi Bakhsh and another v. The State (1969 S C M R 584) that;

"The failure of accused to prove his plea of alibi does not recoil to his disadvantage. If an accused person in his defence is entitled to take up whatever plea he likes, true or false, the fact that he fails to establish all or any one of them, should not recoil to hill disadvantage for the drawing of any inference regarding his guits which has to be clearly and satisfactorily established by the prosecution. In criminal cases, the onus always, remains on the prosecution to prove this case." And the view expressed in Surat Chandar Dhupt v. Emperor was not approved. Before parting with this case, I must dispose of an objection pressed before us on behalf of the respondents. In this connection reliance was placed on Noora v. State (P L D 1973 S C 469) to the effect that : "As an ultimate Court, we must give due weight and consideration to the opinions of the Courts below, and normally we should not interfere with their findings." Therefore, the mere fact that this Court might have taken a different view of the evidence, is no ground for our interference in the instant case with their assessment of the evidence. In this connection, this Court in granting leave to appeal, inter alia, observed that in assessing the evidence of motive, the learned Judges of the High Court had also imported their own personal "common knowledge" into it. This Court further observed that "there are certain features in this very unusual case of patricide which need examination, particularly with regard to the mode of assessment of the alibi evidence and the judicial notice taken of alleged common knowledge on which the learned Judges have relied without any further proof." In yet another portion of the judgment the High Court repelled the contention that the deceased was all alone in the kitchen and that the ladies were sleeping at the time. In doing so the learned Judges of the Court remarked:- "It is common knowledge that at least in this part of the country ladies generally get up a bit earlier than the males for the sehri." In yet another portion of the judgment the learned Judges have also made use of a proverbial course in Pushto language to justify the post-mortem examination of the dead body of the deceased conducted by the medical officer in a private house and not in the mortuary. In explaining an apparent inconsistency in the injury sheet. (Exh. P. B.) prepared by the Investigating Officer, the learned Judges of the High Court took it for Q granted that he belonged to Kohat and that in Koliati language "Dola". means the upper part of the back of the thigh. Moreover, in this case the learned Judges of the High Court have throughout proceeded on the assumption that Niamatullah Khan had a common motive with Aminullah Khan to murder the deceased. It is because of these conjectures, unwarranted assumptions and the approach made in this case that the findings by the High Court cannot be treated as sancrosant before us. In my opinion, as a result of my above discussion, the appeal of Aminullah Khan has no force and ought to be dismissed. While the appeal of Niamatullah Khan is bound to succeed and should be accepted. His conviction and sentence set aside and he be released from custody if not required in any other case. S. A. H. Appeal dismissed.