P L D 1954 Federal Court 29 (PLP)

ABDUL RASHID, C. J. AND CORNELIUS, J.

This is an appeal by special leave granted to the appellant Sultan Muhammad who has been convicted under section 302, Pakistan Penal Code and is under sentence of death. He was tried by a Sessions judge sitting with assessors, on the charge that at 4 a.m. on the 29th June 1951, he intentionally caused the death of one Pir Bux by means of a ''shot fired from a rifle. Sultan Muhammad and Pir Bux were both in a police guard posted in a house at Dad Leghari in Sukkur district. The exact purpose of the guard does not appear on the record, but it seems that the guard was supplied from a regular outpost some 200 paces away. The defence suggestion throughout was that this outpost is in Hur territory, where the danger of surprise attack by fanatics and outlaws might reasonably be assumed to exist. The importance of the subsidiary post appears from the- fact that an armed sentry was maintained there at night. From 12 mid-night until 2 a. m. on the morning of the 29th June 1951, sentry duty was performed by the witness Rehmatillahi who was relieved by Sultan Muhammad, and thereupon went to sleep on a mat some four paces away from th6 deceased Pir Bux, who also was sleeping on the floor on a farasi (i.e. a bed-carpet). Pir Bux was to relieve Sultan Muhammad at 4 a. m. The salient facts are that at 4 a. m. a gun-shot was heard, and Rehmatillahi woke up to see Sultan Muhammad bending over Pir Bux who was crying and struggling on the ground, Rehmatillahi asked Sultan Muhammad what had happened, and received the reply "Sabar kar " which can only mean " be patient " or " wait a little". Rehmatillahi immediately left the spot to call the head constable Ali Sher from the outpost, leaving Sultan Muhammad with Pir Bux. When Ali Sher and Rehmatillahi returned, Sultan Muhammad was still with Per Bux. Pir Bux was able to speak, but all he said was " Na haq mare vidho ", which may be translated " he has struck me (or killed me) without any fault on my part ". The Courts below have disbelieved the accused's allegation that at this time he declared that the shooting was accidental. Head Constable Ali Sher, as his duty required, immediately wrote out a report of the occurrence to be sent to the police station at Mirpur Mathelo, in the following words :- " The report of the informant is that at 4 a. m. a bullet of rifle struck Pir Bux through the hand of Sultan. Pit Bux is struggling and crying. Pir Bux cries that Sultan had shot him. He is dying". Later on the same day, the Sub-Inspector wrote out a ruqa which he sent to a First Class Magistrate, along with the ac cused Sultan Muhammad with the object of having the latter's statement recorded. The non-committal expression employed in the report is significant as is the action of the police in taking advantage, of Sultan Muhammad's offer to state the facts to a Magistrate. The relevant portion of the latter statement may be reproduced with advantage. "I am in service at Dad Leghari outpost (armed guard). Pir Bux police-constable was also in service there. We give wacth duty at night by turns. Pir Bux was on duty from 8 to 10, Muhammad Hazar was on duty from 10 to 12, Rehmat was on duty from 12 to 2, and from 2 to 4 was my duty. I woke Pir Bux at 4 a.m. because he was to resume duty . . . . The police man on guard duty had always. his gun loaded because it is thar (desert) territory. I told Pir Bux that all Government property was safe and all else was well. Then I began to unload my gun. Accidentally my hand struck the hammer (trigger) of the gun and the bullet went off and struck Pir Bux in the chest . . . . . Rehmat awoke on the gun report. I told him the facts of the ac cident. He and I went to Pir Bux but he could not speak and died. I asked Rehmat to bring Jamadar Ali Sher, who came with other policemen but Pir Bux could not speak and died. i told everyone that while I was unloading the gun, this shot went off. Pir Bux was my friend and on the previous evening we were walking together in the town. I had no dispute with him on that day or before that, nor was I angry with him, I have not intentionally shot at him. Had I shot him intentionally I would not have stood there. I was standing all the time over Pir Bux and except Rehmat, no other policeman came there for ten minutes". At the trial Sultan Muhammad admitted the truth of this statement, which was received as evidence. Two further facts of importance are, firstly, that the bullet entered Pir Bux's body between the third and fourth ribs on the front side of the chest and passing through the body in a downward direction, made its exit between the sixth and seventh ribs also on the right side, but there was no scorching or blackening of the clothes or the flesh, and secondly, that the bullet passed throught the farasi on which Pir Bux had been lying- and was found on the floor underneath. The evidence and the circumstances upon which the Courts were required to decide whether the prosecution case of intentional killing, or the defence case of accident was true, lie within a very narrow compass. The ocular evidence is A confined to statements by the deceased and the accused only. The physical circumstances having a bearing on the question are very limited in number. The principles governing the correct procedure for appraisement of the evidence and cir cumstances, and the requirements for a conclusion adverse to the accused, in cases of this kind have been stated with clarity in the well-known case of Woolmington (L. R.1935 A C 462), which this Court has considered and approved in the recent cases of Safdar Ali v. Crown (P L D 1953 F C 93) and Muhammad Aslam v. Crown (P L D 1953 F C 115). In such` a case, even if an act by the accused resulting in death is admitted, there can be no presumption that the act was voluntary and intentional, and these elements must be estab lished by the prosecution, like any other element of the offence charged. Further, it is not correct to say that the accused must be found guilty if he fails to show the circu mstances necessary to establish the accident pleaded by him. The final question for the jury, and equally for a Court which has to decide the matter without the aid of a jury, is not whether the accused has established his plea, but is the fundamental question whether the Crown has succeeded in establishing the general issue of the accused's guilt, For this purpose, it is necessary that the whole case namely all the facts and circumstances adduced for the prosecution and the like facts and circumstances adduced for the defence, should be placed side by side, and after full consideration' of their effect 'upon each other, if there still remains a reasonable doubt whether, even if the accused's special pleading be not accepted, the act of killing might be unintentional, the benefit of suchl reasonable doubt must go to the accused person. These principles have been stated at some length in the two recent judgments of this Court mentioned above. It does not appear that they were present to the mind either of the Sessions judge or of the learned judges in the Chief Court, in deciding the case: In addition, both Courts appear to us to have proceeded upon a partial examination of some only of the relevant circumstances, and to have been content to base their conclusions thereon. In neither case do we find that balanced appreciation of all the relevant circumstances without which it is impossible to arrive at a just decision in cases of this 'kind. The learned Sessions Judge's conclusion that the killing was intentional is based on the following considerations viz., firstly, that when Rehmatillahi asked Sultan Muhammad why "he had killed Pir Bux" the accused replied "be silent" secondly that there was no occasion for Sultan Muhammad to load his rifle and the fact of its being loaded conclusively shows an intention to kill, and thirdly that if the accident had occurred in the course of handing over charge, Pir Bux would necessarily be standing up and in that case the bullet would not have been found to have gone through the farasi and been found on the floor underneath. The words "sabar kar" do not mean "be silent", but as the Chief Court has rightly pointed out, their true meaning is "wait a while" but the learned judges concluded at the same time that Sultan Muhammad's failure to declare at once that there had been an accident militated agains accepting the plea he had taken up. A bona fide explanation of the accused's conduct in saying "be patient" or "wait a little" might be that being shocked at what had happened, he wished to ascertain what damage had been done and what could be done to remedy the damap before thinking of setting up a defence. There is no doubt that Rehamatillahi left the spot almost immediately to call the head constable, and even if it be believed that this was not done at the instance of. Sultan Muhammad, it was undoubtedly a practical step of a nature which might have been effective had the injury not been so immediately dangerous to life. It is axiomatic that in estimating the weight to be attached to specific conduct in given circumstances, any reasonable explanation which favours the presumption of innocence must be considered with the same care as other explanations having the effect of implicating the accused in a crime. The Chief Court have accepted the Sessions judge's second reason also but in doing so they have ignored a very important piece of evidence given by the Constable Muhammad Hazar, who has been mentioned in the accused's statement reproduced above. This man made an admission in the Com mitting Court as follows :- "We load our guns when on duty. We unload our guns while handing over charge to the successor". This contradicts the statement of Ali Sher head constable that there were orders (which he had never seen in writing) that rifles were never to be loaded on' guard duty. At the trial Muhammad Hazar tried to make out that the orders applied only to 410 bore rifles such as Sultan Muhammad was carrying, but he himself carried a '303 rifle, and kept the magazine charged while on duty. As the guard duty was being performed in a dangerous area, the probability would rather be that at least at night, a sentry would be required to keep his weapon ready for instant use. The point is indeed rendered of crucial importance by a circumstance clearly appearing from Rehmatillahi's statement that nine live cartridges were recovered from Sultan Muhammad's hand by the head constable. Cartridges are not normally carried in the hand bandoliers or pouches for the convenient carriage of cartridges form part of the uniform of armed personnel. Therefore, it is necessary to discover a reason for the presence of nine cartridges in the accused's hand immediately after the occurrence. Neither the Sessions judge nor the learned judges in the Chief Court have adverted to this matter, which appears to us to lead almost conclusively to the inference that the accused was in the process of either loading his gun or unloading it when he, either voluntarily or accidentally, fired the shot which killed Pir Bux. There is nothing on the record to show the size of the magazine of Sultan Muhammad's rifle. It is not impossible that its capacity is ten cartridges but the exact figure is not material for the purposes of the argument. If the rifle was being loaded when the shot went off, the conclusion of intentional killing might be favoured, although even in that case it would be strange to find the assailant embarrassing himself in the act of shooting by carrying nine cartridges in one hand while holding his rifle with the other. If it went off when the weapon was being unloaded, intentional killing becomes much less probable, This latter alternative is in direct accord with two other matters, viz., that the incident occurred precisely at the time when the guard was due to be changed and that certain evidence shows that rifles were unloaded when the sentries went off guard duty. The Sessions judge's conclusion from the medical evidence is wholly dependent on the assumption that Pir Bux must have stood up. There is nothing to suggest that Pit Bux did stand up. If it be assumed that he merely sat up on the farasi, the circumstances of the bullet passing through his body in a downward direction would sufficiently explain that it passed through the farasi behind Pir Bux and was found on the floor. This particular circumstance has not been considered by the learned judges in the Chief Court, who on the contrary thought that the medical and other evidence indicated that " Pir Bux was shot while lying on his cot while his assailant stood over and behind him". It is quite clear that Pir Bux was not lying on a cot and that he was shot from the front and not from behind. The double misconception regarding the circum stances in which the incident occurred detracts greatly from the value to be attached to the conclusion reached by the Chief Court. Moreover had the assailant stood just over Pit Bux when the shot was fired, there would inevitably have been blackening and possibly scorching of the entry wound, and these were not found. The deceased's dying words "Na hag mare vidho" have been interpreted by the learned judges as not being consistent with accidental firing, but, with respect, the conclusion cannot be supported. The emphasis in the words is on the lack of fault (e.g., provocation) on the part of the sufferer. The words do not, at the same time, levy a charge of malice against the person at whose hands the suffers had been undergone. If indeed Pir Bux had felt that Sultan Muhammad had shot him through enmity or ill-will, he would undoubtedly have used some more positive form of words, and it is, therefore, necessary to allow that, at the very outset, having the opportunity', Pir Bux did not impute malice to his assailant. This fact is cor roborated by the completely non-committal nature of the report recorded on the spot within ten minutes of the occurrence by Ali Sher. A motive for Sultan Muhammad to kill Pir Buz has been found by the Courts below in the statements of Rehmatillahi and Muhammad Hazar that Pir Bux and Sultan Muhammad had been gambling on the evening before the occurrence and Sultan Muhammad had lost his clothes to Pir Bux whereupon they had quarrelled. Even if this evidence be accepted, we are unable to attach any great substance to it as a circum stance which would drive Sultan Muhammad to cause the death of Pir Bux. For the same evidence shows that they had been gambling in this manner for about five months without their personal relations being affected thereby. For instance, they had been seen walking out together. When the evidence and the circumstances are thus analysed it becomes plain that while factors favouring the possibility of intentional killing are not entirely absent, there are many, circumstances which go to support the specific plea of accident, which was set up at a very early stage by the accused person. Two of these circumstances which appear to us to carry very great weight, have not received any attention from the Courts below. These are firstly the coin cidence of the occurrence with the change of the guard, and secondly the finding of nine live cartridges in the hand of the accused at the time of the occurrence. At the very least, when these circumstances are taken into account along with all the other facts and circumstances of the case, it becomes necessary to hold that, even if the plea of accident be held not to have been affirmatively established, there is still left, on an examination of the whole case, a reasonable doubt whether the act of the accused might not have been devoid of inten tion, that is to say a pure accident and in that state of affairs also, the accused is entitled to acquittal. We accordingly allow this appeal and acquit Sultan Muhammad. AKRAM, J.--I agree in the order allowing the appeal A. H. Appeal allowed.