P L D 1958 Supreme Court (Pak (PLP)

"We saw Allah Yar deceased in killa No. 13, nearby and heard a gunshot and after that heard and saw Allah Yar deceased raising. an alarm and running to killa No. 18." Anwar's statement is exactly similar. It is as follows: ‑ "Before we had started ploughing killa No. 23 we saw Allah Yar deceased in killa No. 13 and we also heard a gunshot being fired. The deceased raised an alarm saying that he had been shot at and after that he ran towards killa No. 18 and after reaching there fell down on the ground". Since the assailants were standing with their guns in the water channel dividing killa No. 18 from killa No. 13 and since Allah Yar had been standing in killa No. 13 when the shot was fired at him from the direction of killa No. 18, his conduct in running towards killa No. 18 after he had been hit full in the chest is entirely the contrary of what was to be expected in the natural course viz., that he would run away from the direction from which the attack was being made upon him. If indeed he moved in the direction of killa No. 18, and he did so after a shot or shots had been fired, that would support the statement of Shamla that he had bee In fired at and he jumped into the khal to conceal himself in it, and when his assailants came towards him, he fired from his place of concealment and hit both Allah Yar and Kamir. It is next necessary to consider certain circumstances which came to light in the course of the investigation. The incident having occurred at about sunrise, the report was made at the thana, which is about 11 miles away at 9 a.m., the police arrived in the village at 11‑15 a.m. and at 4‑15 p.m. both Chaughatta and Shamla were arrested from their houses, which are close to each other. Chaughatta produced a gun, a bandolier, a number of live cartridges and his gun licence. Shamla also produced his gun, a bandolier, a number of live cartridges and the gun licence. In addition, from a place of concealment in the floor of his ihata, he dug out two empty cartridges. It has been proved by means of scientific examination, that these empties were fired from Shamla's gun. Secondly, Shamla's gun, when inspected by the Police Officer who recovered it, was found to have some mud sticking to it; also, the barrels smelled as if the gun had been recently fired. On the other hand the barrels of Chaughatta's gun were clean and there was no mud on it. Nor did Chaughatta‑produce any fired empties. Both Chaughatta and Shamla were convicted at the trial, but in appeal the High Court acquitted Chaughatta for reasons which are not without significance in relation to the case against Shalma. They confirmed the conviction of Shamla to whom leave to appeal was granted by this Court on the following terms: ‑ "The whole question of self‑defence appears to have been disposed of by the High Court without examining the relevant evidence on the point. We consider that it is necessary in this case to examine the evidence relating to the place of occurrence, on which the question of the right of private defence turns." In the argument that was presented at the hearing of the appeal, no stress was laid upon the question of the exact location of the occurrence, but it was strongly urged that upon the facts and circumstances established by the evidence, for the prosecution itself, the plea of self‑defence was supported sufficiently to raise a reason?able possibility that it was true, and that this conclusion reacted upon the prosecution evidence, which itself had been disbelieved by the High Court in important respects, to such an extent as to render the conviction bad in law. We proceed accordingly to consider first the conclusions reached by the High Court in regard to the evidence of the alleged eye‑witnesess Akbar, Anwar, Kamir and Ahmad: The learned Judges have found that "Akbar, Anwar and Kamir are admittedly related to the deceased, Akbar and Anwar being his brothers while Kamir is the son of one Makha, brother of the deceased's paternal grandfather" and as regards the con?tention that Ahmad was completely, disinterested, they found it to be "clear that Ahmad is interested in the deceased's party and not well disposed to the appellants". They concluded that the "evidence of the witnesses must be examined with some caution". They next proceeded to find that on the evidence of these witnesses the guilt of Chaughatta was, not proved "beyond all reasonable doubt". They based this conclusion upon the admission of the prosecution that only two shots had been fired, taken with the proved fact that "two empty cartridges, presumably those used by the assailants, were recovered at the instance of Shamla and were proved by the evidence of Mr. Abdul, Majid to have been both fired from Shamla's? gun". They refused to accept the suggestion that, Chaughatta might have exchanged his gun with Sharnla before lie fired at Kamir, and they did so on the excellent ground that the prosecutidri witnesses saw no such transfer of weapons. They went on to conclude as follows: ‑ "While, therefore, we are, prepared to accept the statement of the witnesses that Chaughatta was accompanying Shamla at the time of the occurrence, there is no proof that he actually fired at Kamir, and the possibility cannot be excluded that the witnesses seeing him present at the spot and armed with a gun, may have exaggerated the case against him by attributing to him the shot fired at Kamir". The words underlined in the above passage clearly show that' in the view of the learned Judges, the statements of the witnesses that they had seen Chaughatta firing at and hitting Kamir amounted to "no proof". NOW; none of these witnesses had seen Shamla firing: They say, they heard the sound .of the gunshot, and looking up, saw Shamla and Chaughatta standing in the water channel, but their evidence gives no indication that they observed any movement by Shamla, such as that he had his gun to his shoulder, or that he was lowering the gun from his shoulder, which might have indicated that Shamla had used his gun at all. The only evidence which they gave to connect Shamla with the fatal injury caused to Allah Yar is that of the dying declaration which they allege they heard from Allah Yar. So far as their own occular observation went, therefore, both shots might very well have been fired by Chaughatta, but that possibility was excluded, in their evidence, by their reproduction of the dying words of Allah Yar. As regards this dying declaration, it is of importance to note that the doctor who performed the post‑mortem examination had found that a big pellet had penetrated the right pleura and the lobe of the right lung; be declared these injuries to be "fattal in the ordinary course of nature" and that death "was almost instantaneous". This statement was made at the trial, but the doctor was recalled at the hearing of the appeal and lie then expressed the opinion that Allah Yar might, despite his injury have been able to speak for a minute or two, and might have moved for a distance of about 10, yards, or even as much as 40 or 50 yards, if he were carried forward by his own momentum. Although support was thus afforded to the statements of the eye‑witnesses that Allah Yar spoke to them, yet it is significant that nowhere in their judgment, do; .the learned Judges rely upon the dying declaration as evidence against Shamla. Their conclusion on the case against Shamla is contained in the following words: ‑ "The case against Shamla appellant, on the other hand, appears to us to be satisfactorily proved. Since Shamla admitted before the committing Magistrate having fired at and hit Allah Yar deceased and Kamir P. W., the only question for decision is whether his story that he did so in self‑defence, or the version of the prosecution, is correct. Mr. Saleem stressed that no blood was recovered at the spot, and contended that the prosecution witnesses had given a false account of the scene of the occurrence, but he was unable to show what advantage the prosecution could, have gained by such a manoeuvre". It is also very unlikely that if, as alleged by Shamla, he was attacked by eight or nine people armed with rifles, he should have escaped scot‑free, and taking all the facts into consideration, we see no reason to disbelieve the statements of the prosecution witnesses that Shamla was the aggressor." The reference to the change of the scene of occurrence in the above quoted passage is one, which we have not been able to appreciate. It does not appear to us that the "manoeuvre" of changing the scene of occurrence had been imputed to 'the prosecution at all, or that the plea of self‑defence was in any way connected with the incident having occurred at any other place than that specified by the prosecution. Therefore; it seems clear that Shamla's plea of self‑defence was excluded by the learned Judges on the single ground that ‑.he received no hurt from the rifle shots: allegedly fired at him. Since the learned Judges had already accepted the truth of Shamla's plea that he alone, and not both he and Chaughatta as the prosecution alleged, had fired and since Shamla's gun by its Condition offered proof that the gun, Itself had been in mud and perhaps in water, thus supporting Shamla's statement that he had jumped into the khal along with his gun to save himself from the attack upon him, the mere absence of injury on, Shamla's person was obviously not a sufficient reason for discarding his defence altogether. There was also the clear admission that Allah Yar was running towards the khal separating killa No. 13 from killa No. 18 when he fell As a result of a shot fired by a person standing inside the khal. That could not possibly be the case if he had been hit before he started running, for the natural instinct in that case would have been to run in the opposite direction. It cannot be denied that this piece of evidence strongly supports Shamla's version, and equally strongly goes to the discredit of the prosecution story. Finally there is the circumstance appearing from what has already been said, namely that relations between the two parties had reached a stage at which any resort to violence would have been expected to start from 'the side of the complainants who had been visibly defeated in regard both to the woman as well as to the land, in their two disputes. A true appreciation of Shamla's plea of self‑defence could only have been reached upon a proper evaluation of each of these matters, in relation to the proved facts and circumstances, and no proper result could have been reached in the case unless the defence plea and its supporting evidence and circumstances had first been placed over against the prosecution evidence and such circumstances as could be adduced in support, and then, the question had been asked whether, despite the fact that no evidence had been led to prove the plea of self‑defence, yet it received support to the extent of being reasonably possible, and whether that conclusion did not react upon the prosecution case sufficiently for holding that It had not been established beyond reasonable doubt. This process in the determination of such pleas raised in cases of the present kind was the subject of careful examination in the well known case of Safdar Ali (PLD 1953FC93). It is desirable that we should recall in this judgment the relevant observations made upon the point in that judgment. Sir Abdul Rashid. C. J. 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". The opinion of Shahabuddin, J. on the same point is contained in the following words:? "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 and not on the special pleading". The question was dealt with in greater length in the judgment of Cornelius, J. from which the following passage may be quoted: ‑ "It is, of course, not possible to arrive at any conclusion that the accused person acted as he alleges he did, on a conside?ration of his statement alone. It is necessary to place his evidence alongside all the other evidence and circum?stances appearing in the case, and only then can a Court be in a position to weigh the testimony and the pro?babilities 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 charges preferred by the prosecution is precisely similar. Clearly, it is as necessary to place the defence version and its supporting evidence and circumstances in juxta‑position to the prosecution case for the proper estimation of the extent to which the charges may be held to have been proved, as it is to examine the prosecution 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 words 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 the case." L R 1935 A C

462. The process is one of peculiar necessity in cases of the present kind, where the decision turns on probabilities based almost wholly on circumstances, adduced by the contesting parties. In such cases, the fairly common practice of dealing with the prosecution and defence cases as if they were totally distinct from each other, and as if the decision turned on whether one or the other can be wholly accepted or wholly rejected, may easily lead to an erroneous decision. For ultimately, a single question falls to be decided by the Court. What was the intention with which the accused person acted??????.This single question as to a single matter In issue can only be properly decided upon the "whole of the case", in which expression must be included such factors as the interaction upon each case of the facts and evidence upon which the opposing case proceeds and the considerations and probabilities arising thereout". The case of Safdar Ali was also one in which a plea of self‑defence was raised, and was sought to be supported by reference to a number of circumstances, in the absence of anything beyond the accused's own statement as affirmative evidence in support. It was found that in the Courts below, the two distinct cases for the prosecution and defence had been examined separately, and the Courts had "primarily considered whether the accused had established his pleading by affirmative evidence", The following passage from the judgment of Cornelius, J. indicates, what in the view of the Federal Court was the principal error which the Court was concerned to correct:???? "But in the present case the Judges below have adopted an approach, and a method of appraisement of the rival cases, which are apt to lead to error. They have examined the two contesting cases separately, and have primarily considered whether the accused had established his pleading by affirmative evidence, Their duty was to find an answer to the single question of the intention underlying the fatal attack, and to find it upon "the whole of the case": That duty is based upon the fundamental principle that the burden of proving the general issue of the prisoner's guilt lies, from first to last, upon the prosecution. The statement of the law and of the right approach to the pleadings and evidence In cases of the present kind by Viscount Sankey, L. C., has no more Important purpose than that of preserving this fundamental principle by correct practice. There has been a departure from this practice in the present case, constituting a violation of a substantial rule of judicial procedure, and as 1 am satisfied, after a careful consideration of the case, that there has been a consequent failure of justice as well, the special jurisdiction of this Court in criminal cases is clearly attracted". It appears to us that there is a similar error appearing in the judgment under appeal. The learned Judges have been content to declare that the plea of self‑defence raised by Shamla was not reasonably possible upon a single consideration, namely that despite having been fired at, he himself "escaped scot‑free", We have ourselves enumerated a number of circumstances which go to support the possibility of Shamla's plea of self‑defence being true. Bearing m mind these circumstances, when we place Shamla's statement of the facts in juxta‑position to the facts, which the learned Judges have been able to hold upon the statement of the prosecution witnesses, it becomes apparent that the prosecution must fall upon the general issue of Shamla's guilt. For upon the one significant act which the eye witnesses declared that they had seen, namely the shooting at Kamir by Chaughatta, the learned Judges were quite clear that the statements of the witnesses to this effect constituted "no proof". They have not chosen to mention the dying declaration narrated by witnesses in support of the case against Shamla and wear inclined to agree that, when witnesses are totally disbelieved as t facts which they declare they saw with their own eyes, they should clearly receive no higher credence in respect of what they say they heard from one of the injured persons, the more so as the possibility of that person having died almost instantaneously, and therefore having not survived long enough to make the alleged dying declaration is only too plain. Thus analysed, the question arises‑what is left of the prosecution evidence upon which the accused can, beyond reasonable doubt, be found guilty? And ‑ further when the plea of Shamla, supported as it is by a number of pieces of evidence and by' significant circumstances is placed in juxta‑position to this residue of the prosecution evidence, can It be said that the prosecution has discharged the general issue of the appellant's guilt ? We entertain no doubt that the answers to these questions must be that the evidence of the prosecution in this case was of highly doubtful character,‑and that when the acceptable balance of that evidence, assuming that there was such a balance, is se against the case of self‑defence raised by Shamla, the conclusion is inescapable that on the general Issue the prosecution had completely failed. Accordingly, we allow this appeal and setting aside the conviction hereby acquit the appellant Shamla. A. H. ?? ??????????????????????????????????????????????????????????????????????? Appeal allowed.