P L D 1949 Lahore 70 (PLP)

M. KHURSHID ZAMAN, J.-(7th October 1948) --The appellant, Muhammad Saddiq, son of Allah Ditta, was convicted by the Sessions Judge; Sialkot, under section 302, Indian Penal Code, for the murder of Muhammad Saddiq, son of Inayat Ullah and sentenced to death. The convict has appealed to this Court against his conviction and sentence. The prosecution case briefly stated is that on the 26th November 1947, at about 8 p.m. Muhammad Saddiq was going to the house of Haji Mehr Din to listen to the radio programme. He was met by the appellant in the bazar. The appellant told him that he had something important to tell him and suggested that they should go out for a walk. As there was still plenty of time before the wireless programme was to start, the deceased agreed to his proposal and they. both walked to wards Pasruri Gate. When they were at some distance from the Abadi of Killa Sobha Singh, the appellant brought out a pistol from a bag which he was carrying under his arm and offered to show to the deceased how wayfarers are held up by highwaymen in the United Pro vince. He pointed the pistol to the various parts of the body of the deceased, and eventually aimed straight at his neck and fired. The report of the discharge was heard by Muhammad Saddiq, son of Rahmat Ali (P. W. 2) at a distance of about half a mile from the scene of occur rence. The witness belongs to Khangarwali and was going to village Dupakmarali on a mare in connection with some business. On hearing the report of the explosion he rode in the direction from which it had proceeded. After travelling about half a mile he saw a man lying on the ground screaming for help. On being questioned by the witness the injured person told him that a Musalman had deceived him and shot him. On being further questioned he gave "Saddiq Butt" as the name of his assailant. The injured man then asked the witness to go to his father's house and tell him what had happened to him. The witness set out for Kiila Sobha Singh and traced the house of Inayat Ullah (P. W. 3), father of the deceased, with the help of Ghulam Muhammad (P. W. 4) and Ch. Abdul Sattar (P. W. 5) and gave him the news about his son. Inayat Ullah P. W. accompanied by Ch. Abdul Sattar P. W. and other villagers went to the scene of crime and found his son lying in an injured condi tion. The deceased was still conscious and was able to give the circum stances, in which he was shot, in some detail. He repeated that the man who shot him was Muhammad Saddiq Butt, the appellant. The deceased was then removed to the house of his father, and one Zia Ullah was sent to the Police Station to lodge a report at about 10- p.m. The Sub Inspector hurried to the house of Inayat Ullah and on reaching there he is alleged to have recorded the statement of Muhammdd Saddiq (deceased) Exhibit P. B. In this statement the deceased narrrated in great detail the circumstances in which he was fired at by the appellant. Among other things be stated that the accused was facing him when- he fired and the bullet hit his throat near Ghandi (Adam's apple). The injured man died two or three minutes after his statement was concluded. The post-mortem examination on the body of Muhammad Saddiq was performed by Dr. Faiz Ali Shah Assistant Surgeon, Narowal, on the 27th November, 1947, at 8 p. m. and he found the following injury :- A wound with rugged edges over the spine at the back at the root of the neck 1" x " and 2 " deep, wound deep to and involved the spinal column with the bones in its back splintered. The wound was directed downward, forward and slightly to the left. The doctor did not find any bullet in the wound and his theory was that after hitting the spinal column the bullet must have ricocheted and come out again though the entrance hole. In his opinion the injury was sufficient in the ordinary course of nature to cause death. The doctor was further of opinion that the deceased had died eight hours before the. post-mortem exami nation and four hours after he had received the wound. It will be observed that according to medical evidence the seat of the wound was "the spine at the back at the root of the neck". The dying man him self stated that he was fired at from front and was hit in the throat near Ghandi, (Adam's apple). Curiously enough all the prosecution witnesses including the investigating officer stated that they found the wound in front of the neck near the Ghandi (Adam's apple). The witnesses may have honestly thought that the wound was .in the front part of the neck as the whole neck was covered with blood and no one cared to look at the wound carefully, but it 'is difficult to explain the dying man's statement on this point. I am, however, in some doubt as to the genuineness of the alleged dying declaration as embodied in Exhibit P. B. Even if the deceased was alive at about 10-30 p.m. he must have been considerably weakened by the loss of blood which must necessarily have resulted from the pistol shot wound in the neck, and in that condition I consider it to be highly unlikely that he could matte a detailed statement such as is incorporate' in this document. My doubts are further confirmed by the fact that, contrary to the medical evidence, both in the alleged dying declaration and in the statements of the prosecution witnesses, the front part of the neck is given as the place where the deceased received the fatal injury. I have already. observed that the doctor found only one injury on the body of the deceased and that injury was at the back of the neck. In these circumstances I do not consider it safe to rely on the dying declaration embodied in Exhibit P. B. The motive alleged by the prosecution is that sometime before the crime, the appellant was accused of theft of some tobacco belonging to one Raja Faqir Ullah. Hs was challaned for the theft, but it does not appear from the record how the case ended. For some reason or other the appellant was under the impression that either the deceased or his father Inayat Ullah was responsible for his prosecution. There is, however, no evidence on the record to show that Inayat Ullah or his son had anything to do with the prosecution of the appellant. On the other hand there is evidence to the effect that Inayat Ullah P. W. intervened in this affair on behalf of the appellant and tried his utmost to persuade Raja Faqir Ullah not to prosecute the appellant. I agree with the finding of the learned Sessions judge that the prosecution has failed to prove any motive for the crime. Indeed, it is admitted that the appellant and the deceased were friends and they both belonged to the Muslim National Guard. I have already expressed may doubts as to the genuineness of the dying declaration, Exhibit P. B., and have excluded it from consideration. There is, however, unimpeachable evidence of Muhammad Saddiq (P. W. 2) to the effect that shortly after the crime the deceased named the appellant as the person who had shot him. He is a wholly disin terested witness and there is nothing in his cross-examination to show that he had any motive to implicate the appellant falsely. The evidence of Ch. Abdul Sattar (P. W. 5) is to the same effect. This witness is a respectable resident of Kila Sobha Singh and is the President of the Small Town Committee of that town. He stated that Inayat Ullah (P. W. 3) on reaching the spot questioned the deceased in his presence as to who had shot him. The deceased replied that it was the appellant who had fired at him. Then there is the evidence of Allah Ditta (P. W. 7) who saw the deceased and appellant near the Jumma Mosque at about 8-30 p.m. on the night in question. Mushtaq Ahmad (P. W. 8) a resident of Killa Sobha Singh also saw them together in the Chowk of the main bazar between 8 and 8-30 p.m. Nothing could be said against these witnesses. On the morning of the 27th November, 1947, the appellant told the Sub-Inspector that he had buried the pistol in a field. On the same day he led him (Sub-Inspector) to a field some 200 paces from his house and after removing some earth from a spot, produced the pistol, Exhibit P.

4. On the evidence discussed above I am satisfied that the deceased received the fatal injury as the result of a discharge from the pistol Exhibit P. 4 which, at the critical time, was held by the appellant. The question, however, still remains whether the appellant deliberately aimed at and shot the deceased with the intention of murdering him, or whether the pistol went off accidentally while the appellant was demon strating to the deceased how people could be robbed with the help of a~ pistol. It is true that the appellant has neither raised nor proved the plea of accident in this case. It is, however, the primary principle of Criminal Law that the onus of proving the general issue, i.e., ever thing essential to the establishment of the charge against the deceased, rests upon the prosecution and never shifts, and it lies upon the prosecution to establish, on the whole case, and beyond reasonable doubt, the guilt of the accused. Before the appellant can be convicted under section 302, Indian Penal Code, it is the duty of the prosecution to prove such intention or knowledge as is mentioned under section 300, Indian Penal Code. In my opinion the proved facts in the case are inconsistent with such intention or knowledge. The appellant and the 'deceased were friends and it is not shown on this record that they ever had a serious quarrel. Moreover, there is no evidence that the appellant was used to the handling of fire-arms. In these circumstances the possibility that the pistol went off accidentally is not excluded. I would, therefore, give the appellant the benefit of doubt and acquit him on the charge of murder and set aside his sentence of death. I am, however, of opinion that the appellant was grossly negligent and rash in using a loaded pistol in the manner in which he did and, therefore, he is guilty of an offence punishable under section 304-A, Indian Penal Code. I would accordingly alter his conviction from that under section 302, Indian Penal Code, to one under section 304-A, Indian Penal Code, and sentence him to two years' rigorous imprison ment. The appeal. is accepted to the extent indicated above. MUNIR, ACTG., C. J.-(7th October, 1948).-I agree that this con viction must be altered from one of murder to that of causing death by negligence. The case is reminiscent of the facts in the House of Lords case in Woolmington v. Director of Prosecutions, 1935 A C 462, and the state ment in that case by Viscount Sankey L. C. of the law, relating to murder and the burden of proof in criminal case. On the evidence, I think it must be held that the death of the deceased was due to the gunshot wound caused by the explosion of the pistol held by the appellant. This finding, however, is not sufficient of murder. The appellant denies having had the pistol or being in the company of the deceased when he was injured, and under section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian! Penal Code, or within any special Exception or proviso contained in any' other part of the same Code, or in any law defining the offence, is upon the accused. Notwithstanding this statutory provision, however, the finding on the facts of this case must be that of not guilty of murder. In the language of section 300 of the Indian Penal Code the prosecution must prove that the act by which death is caused was done with a certain intention or knowledge. As long as the prosecution does not prove such intention or knowledge, the accused is entitled to acquittal, and there is no onus on him to take or prove any special plea of accident or necessity. Where, as in the offence of murder, intent or knowledge is an ingredient of a crime, there is no onus on the accused to prove that the act was accidental Rex v. Davis 29 T L R

350. And where death is caused by injuries from a firearm the prosecution has to show not only that the firing was intentional or voluntary but also that the firing was prompted by any such intention or knowledge as is mentioned in section 300 of the Indian Penal Code. If either of these ingredients is not proved, the offence committed is not murder, whatever else it may be. In a trial for murder by a firearm the first question is whether the firing was intentional and on this issue the accused is under no obligation to prove that the firing was not intentional but only accidental, the initial onus of proving the intent being always on the prosecution. If, con sidering every relevant fact, the theory of accidental explosion remains as likely as that of intentional firing or even reasonably possible the accused must be acquitted on the ground that the prosecution has failed to prove one of the essential ingredients of the offence of murder. In such a case it is wholly incorrect to say that the burden of proof that: the firing was accidental is, by reason of section 105 of the Evidence Act or on some general principle, on the accused and that the accused must take a special plea to that effect and prove it in the same manner as the prosecution is required to prove a fact. It is not and has never. been the law in this country that if the Crown satisfied the Judge that the deceased died at the prisoner's hands then the prisoner has to show that there are circumstances to be found in the evidence produced by the prosecution or by the prisoner which alleviate the crime so that it is only culpable homicide not amounting to murder or which excuse the! homicide altogether by showing that it was a pure accident. The learned Sessions judge has referred to the rule that when there are more than one possible alternatives, if all except one are shown to be impossible, the remaining one, however improbable, must be the truth, but he has overlooked that there is in this case another alternative, not suggested in the lower Court or here, but not shown to be impossible, namely, that the pistol was not intentionally fired by the appellant but exploded by accident in handling it. The appellant had not only no motive to kill or injure the deceased, but the evidence shows that he and the deceased were friends and that the appellant, by bringing the pistol into different positions, was demonstrating to the deceased how highway men hold up wayfarers in Hindustan in order to rob them. This makes the hypothesis of accidental explosion of the pistol much more likely than that of intentional firing and as this hypothesis is compatible with the innocence of the appellant so far as the charge of murder is con cerned, he must be acquitted of that charge. A. H. Conviction altered.