P L D 1973 Karachi 659 (PLP)

6. His Lordship then proceeds to dispel this argument of the State in no uncertain terms observing: "After careful consideration of these arguments, which being based upon the words of statute have required very careful examination 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 i.e. to support each ingredient by such evidence as would justify action by a prudent man, on the basis that such ingredient is established. I do not see any appreciable difference between this duty, and the duty of proving each ingredient beyond "reasonable doubt". If then an accused person is able to establish by evidence, or if the prosecution evidence itself presents such features as go to establish, the existence of a reasonable doubt regarding an essential ingredient of the offence charged, such as the requisite intention in a case of murder, then the prosecution must necessarily fail. Such in tention may, of course, be established by proof of circumstances surrounding any evident act of cruelty causing death and need not necessarily to be proved by direct evidence. Yet it must be admitted that where the only credible evidence of a direct nature, relevant to the determination of intention is furnished by the accused persons himself who adduces facts in avoidance of the charge of murder, it requires very strong circumstances indeed, of a nature sufficient to exclude the possi bility of the defence plea being true, in order to provide the preponderance of probability necessary for a "prudent man" to act on the footing that the accused's act was performed with the sole intention of killing; or of causing a necessarily fatal injury. In my respectful view his Lordship has summarised the entire position in the passage which I have just quoted and the following:‑ "It is of course, not possible to arrive at any conclusion that the accused parson acted as he alleges he did, ova a consideration of his statement alone. It is necessary to place his evidence alongside all the other evidence and circumstances appearing in the case, and only then can a Court be in a position to weigh the testimony and the probabilities with the requisite degree of thoroughness before reaching its conclusion. The process by which the Court at the close of the case assesses the evidence and circumstances in relation to the charge preferred by the prosecution is precisely similar. Clearly, it is as necessary to place the defence version and its supporting evidence and circum stances in juxtaposition to the prosecution case for the proper estimation of the extent to which the charge may be held to have been proved, as it is to examine the prose cution case side by side with the defence case, in reaching a decision on the accused's special pleading. That is what I conceive to be meant by the word of Viscount Sankey. L. C. already quoted:‑ "The verdict must be given not on any special pleading but upon and as the result of the whole of tae case."

7. Sir Abdul Rashid the Chief Justice generally agreed with the judgment delivered by Cornelius, J. and expressly added that the principles laid down in Woolmington's case were applicable in Pakistan with force in spite of the provision of section 105 of the Evidence Act. He then observed:‑ "After an examination of the entire evidence including the statement of the accused I have reached the conclusion that the defence put forward on behalf of the appellant might be true. The appellant is therefore entitled to an acquittal."

8. The other learned Judge who heard the case, the late Mr. Justice Shahabuddin also expressed general agreement with the main judgment. The following passage from his judgment indicates clearly not only the purpose of section 105 of the Evidence Act but also the applicability of the principle underlying Woolmington's case notwithstanding section 105 indeed holding that that section has to be read not as contradicting tine principle but consistently with it: "It is the main principle of criminal law that an accused person must be presumed to be innocent unless and until it is established by the prosecution beyond reasonable doubt that he or she, as the case may be, is guilty. Section 105 of the Evidence Act has to be read not as contradicting this principle but consistently with it. That provision of law was enacted obviously to relieve the prosecution from the necessity of proving the absence of facts which might bring the case within a general or special exception. But the burden cast on the accused under that section cannot be as heavy as the burden that rests on the prosecution. The plea of the accused may not be established and yet it may create a reasonable doubt with regard to his guilt. It cannot be said that because under section 105 the burden of proof is on the accused and he has not discharged that burden but has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such a doubt. The decision has to be taken on the entire evidence arid not on the special pleading. The decision in Woolmington's case is, therefore, applicable in this country, and far from being inconsistent with section 105, it serves as a valuable guide for its interpretation. In the present case, the question whether the accused acted in the exercise of the right of private defence arises on the case of the prosecution itself. To secure a conviction for murder the prosecution had to establish in this case not only that the appellant inflicted on the deceased the injuries of which he died, but also that he was the aggressor and acted with the intention or knowledge requisite for the offence of murder. If in determining whether this burden was discharged by the prosecution the version of the accused appears to be reasonably possible, then a reasonable doubt pervade the whole case and the appellant becomes entitled to an acquittal." Now the case of Safdar Ali and as that of Woolmington no doubt were concerned with section 105 of the Evidence Act or the principle underlying and not to a specific statutory provision which applied in cases of a particular kind. Elaborating this principle Rex. v. Carr‑Briaant ((1943) 1 K B 607) however did deal with such a statutory provision That was a case under the Prevention of Corruption Act, 1916 which is in many ways similar to our own Prevention of Corruption Act, 1947 and section 2 of that act provided: "Where In any proceedings against a person for an offence under the Prevention of Corruption Act, 1916 . . . . . it is proved that any money, gift or other consideration has been paid or given to or received by a person In the employment of His Majesty or any Government Department or a public body by or from a person or an agent of person, holding or seeking to obtain a contract from His Majesty or any Government Department or public body, the money, gift, or consideration shall be deemed to have been paid or given and received corruptly as (an inducement or reward for doing or forbearing to do an act in relation to the affairs or business of that person's principal or showing or fore-bearing to show favour or disfavour m relation to his principal's affairs or business) unless the contrary is proved." The Court of Criminal Appeal in that case despite this provision held that that principle in Woolmington's case applies with full force. The learned Judges noticed an earlier case The King v. Ward ((1915) 3 K B 696), which might be construed as authority to the contrary and then observed.:- "That authority is, in our opinion inconsistent with the notion that words throwing the onus of proof of certain matters on the accused involve placing the accused In the same position as the prosecution in a normal case so as to require of him that he should prove his case beyond any reasonable doubt. Moreover, it seems to us to be in accord with the principle of our law expressed in the well‑known passage in the speech of Viscount Sankey L. C., in Woolmington v. Director of Public Prosecution: "No matter what the charge or where the "trial, the principle that the prosecution must prove the guilt" of prisoner is part of the common law of England and "no attempt to whittle it down can be entertained." We see no reason why the rebuttable presumption created by the section should not be construed in the same manner as similar words in other statutes or similar presumptions at common law, for instance, the presumption of sanity in the case of an accused person who is setting up lice defence of insanity. We agree with and adopt for the purpose of this judgment the language of Lord Hailsham L. C., in delivering the judgment of the Privy Council In Sodemari v. Regem where he said: "The suggestion made by the petitioner was that the jury may have been misled by the Judge's language into the impression that the burden of proof rearing upon the prosecution to prove the facts which they had to establish. In fact there was no doubt that the burden of proof for the defence was not so onerous . . . . . It was certainly plain that the burden in cases in which an accused had to prove insanity might fairly be stated as not being higher than the burden which rested upon a plaintiff or defendant in civil proceedings. That was the law was not challenged. "In so holding the Lord Chancellor was in agreement with the decision of the majority of the Supreme Court of Canada in Clark v. The King where Duff, J. in the course of his judgment, expressed the view that the necessity for excluding doubt contained in the rule as to the onus on the prosecution in criminal cases might be regarded as an exception founded on consideration of public policy. There can be no consideration of public policy calling for similar stringency in the case of accused person endeavouring to displace a rebuttable presumption." It is true that in this passage the learned Judges referred to the case of a defence of insanity which, even according to Safdar Ali's case, stands upon a somewhat different footing than other general and special exceptions. Even in relation to cases of insanity the learned Judge held clearly that the onus is not as heavy upon the accused as the onus upon the prosecution but no higher than the onus in civil cases. But the nature of that onus is one which the learned Judges describe in other passage:‑ "What is the burden resting on a plaintiff or defendant in civil proceedings can, be think, best be stated in the words of the classic pronouncement on the subject by Wiles, J., in Cooper v. Slade. That learned Judge referred to an ancient "proposition that in civil cases the preponderance of probability may constitute sufficient ground for a verdict." The authority in question was the judgment of Dyer, C. J. and a majority of the justices of the Commons Pleas in Newts v. Lark decided in the reign of Queen Elizabeth. The report contains this passage (2): "Where the matter is so far gone that the parties are at issue . . . . . so that the jury is to give a verdict one way or other, there, if the matter is doubtful, they may found their verdict upon that which appears the most probable and by the same reason that which is most probable shall be good evidence." Their final conclusion is admirably stated, as if I may say so with respect, in the last paragraph of the judgment which reads as under:‑ "In our judgment, in any case where, either by statute or at common law, some matter is presumed against an accused person "unless the contrary is proved, that the burden of proof required is less than that required at the hands of the pro secution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish."

9. A case of corruption did come up for consideration before the Supreme Court in the case of Mir Ahmad v. State (P L D 1962 S C 489). Although the presumption under section 4 of the Prevention of Corruption Act, 1947 was not in question in that case, nevertheless the case is of value in a consideration of the question before me just now inasmuch as in that case the accused put up a defence of a positive character and of factual nature. Again the Supreme Court thought that the principle in Safdar Ali's case was applicable and their Lordships observed that:‑ "The case raised a familiar question namely, the question of the correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances. This matter received careful consideration by the Federal Court in the case of Safdar Ali v. The State where it was held that the decision in such cases must not be taken in relation to the accused's special pleading but must rest on examination of the entire evidence, and if thereafter the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true this opinion reacts upon the whole case, and the accused is entitled to the benefit of such doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt." Now it is true that there was in this case no question of the presumption but nevertheless the prosecution had put up a positive case as' of course it had to and, in answer thereto, the defence did not merely content itself with any weakness in the prosecution case but set up an independent case. Clearly the onus of establishing that independent case was on the accused. If that onus is to be regarded as heavy as that upon the prosecution then the defence must prove that case fully or fail in its defence. Nevertheless the Supreme Court held that any doubt which arose upon the case as a whole must be resolved in favour of the accused. I can see no reason therefore to distinguish between a case where the accused attempts to put up a positive case and on where the law presumes him guilty unless ha establishes the contrary or to hold that the duty of establishing that contrary case should be regarded as being any heavier than it would have been even in the absence of such a provision had he attempted to establish a positive case.

10. So far as cases under the Prevention of Corruption Act, 1947, which again provides for a presumption somewhat similar to that contained in the section 177‑A of the Sea Customs Act is concerned, two cases have been cited before me both of the Karachi Bench of the High Court of West Pakistan. The earlier one is the case of Ikramuddin v. The State (P L D 1962 Kar. 21). The following passage of the judgment of Mr. Justice Muhammad Bachal may I think be quoted with advantage:- "The presumption against the accused under this section is not to be drawn until the explanation of the accused is consideration of the case, the normal principle will apply: namely, that the accused is entitled to benefit of doubt and where reasonable explanation is offered, which is acceptable and raise a doubt, that the prosecution has not discharged the burden though the accused may not have proved the explana tion. It was enough for his purpose If he succeeded in raising a doubt as to whether or not the prosecution was true Rex v. Schana (1915) 84 L J K B 39 also Dr. Woolmington v. Director of Public Prosecution (1935) A C

462. But if the Court feels justified in drawing a presumption against the accused after due consideration of explanation, then the burden is on the accused to displace the presumption of criminal misconduct, always remembering as has been held in Rex v. Carr‑Barriant (1943) 1 K B 607, that the burden of proof on the accused in such cases is less than on the prosecution and that it is enough for the accused to make out the truth of his defence in all reasonable probability though not clearly beyond doubt."

11. The other Karachi case is that of Sultan Ali v. State (P L D 1971 Kar. 78), in which the learned Judge quoting the passage which I have just reproduced and other cases including that of Carr‑Barriant observed:‑ "When the law raises a presumption against the accused and calls upon him to prove the contrary, it is well settled that the e contrary can be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution." It will be noticed that in both the Karachi cases referred not only to Woolmington's case but also that of Carr‑Barriant equating the principle applicable in both kind of cases.

12. After a very careful consideration of the principle involved as also the authorities, which are at least binding on me, namely those of the Supreme Court I am of the clear view despite section 177‑A of the Sea Customs Act, if upon tile end of the evidence the Court is of the opinion that there is a doubt as to the guilt of the accused the benefit of that doubt must be given to him and he must be acquitted.

13. In the light of these principles I now proceed to examine all the evidence there is in the case. The gold that was found in the house of Barkat Ali was in the shape of gold bars. It is true also that ordinarily people do not keep gold in the shape of bars at home and such gold as most people possess would be in the shape of ornaments. That is not to say however that the keeping of gold as a means of savings is entirely uncommon. But in any case the strong fact in this case, undenied by the prosecution, is that both the appellants Barkat Ali and Iqbal are themselves gold merchants. Even if one ignores however that Iqbal Hussain had come to Karachi with a specific purpose of buying gold which was to be utilized for his forthcoming marriage, the mere fact that they were in possession of gold in the shape of bars is by no means in incriminating circumstances The entire gold consisted of only 440 tolas, certainly this is a heavy quantity for an ordinary man to possess but by no means out of proportion to the normal requirements of one engaged in the business itself. Now some of this gold was marked with the names of foreign companies and marked to be of a higher degree of refinement than that it is possible to obtain by means available in our own country, and therefore I am quite willing to believe that when the gold was seized the Custom Officers had by reason of these marking alone a reasonable belief that the gold has been smuggled into country. It is to be noticed however that this reasonable belief rests upon very a slender foundation. The mere fact that the gold was so marked is by no means proof, much less conclusive proof, that it was in fact brought in from outside or that it was in fact of a better degree of refinement that can be obtained in Pakistan. Indeed the defence asked for the examination of samples of this gold by an official of the Assayer Office of Pakistan Mint and the defence witness Abdul Hafiz, a Superintendent in that organization, gave evidence that the gold in question was of the refinement of 998.8 and 998.9 respec tively. Statement on the gold therefore that they were of the refinement of 999.0 was clearly false. That having been established to be false the reliance placed upon the fact that they were marked with the names of foreign companies loses importance. It requires little imagination to believe that gold was not of the requisite quality as so marked in order to be able to sell it better and at higher rate in the market and it would be childish, in the extreme, to assume that merely because the name of foreign company appeared thereon it must necessarily have been marked by the foreign company. A prosecution for cheating would appear to have been much more appropriate in this case. The witness Abdul Hafiz in fact stated that he could not really say whether the gold was of a foreign make though curiously enough this question was put to him and the answer elicited not in the examination‑in‑chief but in the cross‑examination. As I have stated before section 177‑A depends no doubt upon the initial reasonable belief of the Customs Officers and I have so far proceeded upon the assumption that that belief was reasonable merely upon the marking. It might be possible to question that Customs Officers experienced as they must be in these matters, were themselves so simple as to assume merely because of the markings that the gold was a foreign made. But be that as it may the objective fact of their having been smuggled as distinguished from the reasonable belief that they were so smuggled as now seem really not to be proved. While this makes no difference to the applicability of the section 177‑A it would as I have remarked before, make a difference as to the question whether there appears a doubt upon the case as a whole.

14. Upon the question whether this particular degree of refinement suffices to show that tile gold was of a foreign origin the case of S. A. Haroon reported in P L D 1957 S C 458 it appears was cited before the trial Court. Now in that case their Lordships of the Supreme Court rejected the evidence of the Assayer to the effect that the gold was of foreign origin merely because the witness which could be achieved in the private refinery an Pakistan was lower that that it was found in the gold in question. Earlier to its judgment Supreme Court quoted some one of its own previous case in the following passage:‑ "In so large a country as Pakistan, with a civilization going for several thousand year, it is very lively possibility that a considerable proportion of gold in circulation in the pre‑historic times. Gold ornaments have been discovered in excavations of cities which flourished as long as four thousand years ago. Moreover, the melting down of gold jewellery for conversion into other form of jewellery is a process, which is repeated over and over again through the centuries. It is quite possible that gold which was is circulation in this country at the period of, say, Alexander the Great, may have been since than melted down and re‑refined some two hundred times or more. In the process, the degree of purity must undoubtedly improve, and where the refinement is effective, there one would expect that over a number of centuries, the degree of purity achieved would improve to the point of almost perfection.'' In the present case the case of the defence was stronger inas much as even the Assayer thought that, upon the basis of the refinement of the gold, it could be stated that the gold was one or foreign origin. The learned Magistrate however, distinguished the Supreme Court case upon the mere ground that the gold in that case had not a foreign mark upon it and disposed off the whole argument in one sentence which is as remarkable for its superficial nature as it is for the disregard it shows for the pronouncement for the highest Court of the country: "In that particular case there was no foreign mark on the gold bars and as such the view of their Lordships that there was nothing to show that the gold was of a foreign origin was perfectly justified and I am in respectful agreement with that view." That really was all the evidence in the case. There were also of course what have been described as the confessions of Barkai Ali. The so‑called confession of Barkat Ali is entirely exculpatory. He merely states that there was no gold of any illegal type in his house and that he freely allowed a search to be made. He admits of course that 440 tolas of gold were recovered. He puts the blame really ore Iqbal Husain who according to him felt a little perturbed and whispered into his ear that he should not allow a search as there was some gold in the house. Nowhere does he admit that the gold was smuggled and indeed he states that gold in question was purchased by Iqbal Hussain from Moosa and implies that it was perfectly legal.

15. So far as Moosa is concerned it is his case that the confession had been taken from him under promise of snaking him an approver and this much at least appear on the record that on 10‑8‑63 he applied to the Court for a pardon stating Mat he had made a confession upon that promise being given to him. This application was rejected. The so‑called confession itself is dated the 6th of July 1963 but I look at it in vain to find any admission whatever that the gold was smuggled, He states that he was approached by the appellant Barkat Ali, whom he knew before, for arranging a supply of gold for some relations of Barkat who had come from Multan and who wanted three hundred or four hundred tolas of gold. It is true in this sentence he describes that the gold be the "Foreign gold" but the expression is immediately followed by the word i.e. Numberi. By the word Numberi is meant that the gold should have a marking on it showing the degree of refinement. It is impossible to read this as an admission that the gold was of foreign origin much less as an admission that he knew that it was of such origin.

16. Upon the whole therefore there is at least a reasonable doubt whether the appellants or any of them were in possession of or were concerned in keeping and concealing in smuggled gold and are therefore guilty of any offence. I therefore allow this appeal, set aside the conviction and sentence of the appellants and acquit them. They are on bail and their bail bond will be cancelled. K. B. A. Appeal accepted.