P L D 1965 (W (PLP)

SAJJAD AHMAD, J.‑This is an appeal, by Muhammad Idris, who is under a sentence of transportation for life on conviction under section 302, P. P. C., as a result of his trial held by Mr. Shah Nawaz Khan, Additional Sessions Judges, Multan, with the aid of assessors, on the charge that he had, at 8 p.m., on the night between the 24th and 25th of October 1961, caused the death of Muhammad Bostan. The age of the appellant, Muhammad Idris, as stated by Dr. Muhammad Tufail (P. W. 2), who had examined him on the 26th of October 1961, for the injury that he bore on his person, was 16/18 years. In his own statement before the committing Magistrate during the inquiry the appellant gave out his age to be 151 years. The deceased Bostan, according to his post‑mortem examination report, was aged 40 years. The former had taken up employment in the Fazalabad Mill at Multan and‑ was residing in a tea shop belonging to Haji Muhammad Riaz (P. W. 11), while the latter was residing in a shop nearby, which was separated from the shop where the accused was residing by one intervening shop. The two had become very friendly with each other to the point of intimacy. It was alleged at the trial that on the night of the occurrence, after the deceased had got himself massaged by Mangta (P. W. 9) at about 11 p.m., he commissioned Mangta to call for the appellant from his abode. When the appellant got the message, he immediately joined the deceased in his room. Next morning, at about 4 a.m., while Insaf Ali (P. W. 12), an F. C. of the police, was on his routine patrol duty, he was informed that an injured man was sitting outside a shop. He went there and found the deceased Bostan sitting on the brick pavement on the roadside in front of the door of his shop, almost in agony of death. On inquiry, he could not elicit any information from him.' Insaf Ali went to fetch a tonga to take the injured to the hospital, but when he returned he found that the injured had, in the meantime, entered a nearby kotha. He went there and found the deceased lying dead on the ground. The matter was then reported to P. W. Muhammad Hassan, a Head Constable, who was on the routine gasht duty, and a report was taken down by him. He carried out the preliminary investigation and was joined by S. I. Abdul Rahim (P. W. 13), From the spot, besides the bloodstained earth and a dhoti belonging to the deceased, the pants Exh. P. 1, the wrist‑watch Exh. P. 2 and the chappal Exh. P. 3, belonging to the appellant and whose ownership he has not denied, were recovered from the room of the deceased. A letter (Exh. P. 8), addressed to the appellant, was found in one of the pockets of his pants, and that furnished a clue to the identity of the appellant who was searched for but was not traced. Besides the above articles, a bottle containing some liquid and a tumbler were found lying near the cot of the deceased in his room, which was taken into possession. The contents of the bottle were, however, not sent to any laboratory for analysis. The deceased at the time was wearing a bunian on his person and was naked on the lower part of his body.

2. On the 26th of October 1961, the appellant met Haji Muhammad Riaz (P. W. 11) on the early morning in the Electricity Sub‑Station, where he was working, and told him that he had injured Bostan deceased with a knife because the latter wanted to commit sodomy on him by force. He requested Haji Muhammad Riaz to arrange to get him the clothes which were lying in the shop of Haji Muhammad Riaz where the appellant had taken up his abode. Haji Muhammad Riaz promised to do so and told him to take the delivery of his articles at 11 a.m. the same day in the Electricity Sub‑Station. In the meantime Haji Muhammad Riaz came to Police Station, Multan Cantt., and informed the Sub‑Inspector about what he had been told by the appellant. The police party then apprehended the appellant, and, on interrogation, he produced a bloodstained knife (Exh. P. 12) from under the heap of truck tyres in the shop of the deceased. He was found to be injured on his right little finger, which the doctor subsequently described as a scabbed incised wound, 1/3' x 1/8", skin deep, on the inner side of the little finger. The injuries on the person of the deceased, as disclosed by his post‑mortem examination, were fourteen in number, thirteen being incised wounds, and the fourteenth a contusion mark, 4" x 3", on the top of the scalp, with a haematoma, which had caused fracture of the frontal, left parietal and occipital bones. The incised injuries, which were individually fatal, were caused on the abdomen and the chest of the deceased. According to the medical evidence, the death of the deceased had immediately followed the injuries caused to him.

3. There is no direct ocular evidence in the case to connect the appellant with the crime of murdering the deceased. As already indicated above, the evidence from the prosecu tion side, which implicates the appellant with the crime is, firstly, the statement of Mangta. P. W. that the appellant had gone to the residence of the deceased after about 11 p.m. on the latter's call; secondly, the recovery of the pants, the wrist watch and the chappals of the appellant from the shop of the deceased after the crime and, finally, the confessional statement made by the appellant to Haji Muhammad Riaz P. W., as stated by the latter. There is, however, no difficulty in fixing up of the responsibility of the appellant for causing the murder of the deceased as he himself admitted having done so in his statement at the trial. He admitted having caused the injuries to the deceased with his knife, but it was not brought out at the trial as to how the deceased sustained the blunt weapon injury on his head, which was also a fatal injury, and who caused it to him. The question; however, that arises for determination in the case is as to the circumstances in which the appellant caused the murder of the deceased. There is no evidence of motive from the side of the prosecution, but it had been supplied by the appellant by his description of the occurrence in the following manner, (to quote his own statement as made by him before the committing Magistrate, to which he stuck at the trials):‑ "At the time of incident, Bostan Khan who considered me as a son asked me to take wine which was in the bottle. I refused. He wanted to have sodomy with me. I refused, on which he forcibly took off my pants and threw it aside and threatened me that he would kill me. He pulled his knife against me and caused‑ me an injury with the same. I was thus frightened. Thereupon he started committing sodomy with me. I immediately took the same knife and caused injuries to Bostan Khan who was continuously trying to hold me for the purpose. Whatever I have done I did in defending myself and saving myself from being subjected to sodomy, to which I never agreed of my own free will. I had no intention to murder him."

4. The learned counsel for the State argued before us, in support of the view adopted by the learned trial Judge, that the relations between the appellant and the deceased being very friendly and the fact that the appellant had been with the deceased on the night of the occurrence in the latter's residential quarter, both together on the same cot right from 11 p.m. till 4 a.m. in the morning, and the further fact that the deceased was naked in the lower part of his body, the appellant had, also taken off his pants and had laid aside his wrist‑watch to be perfectly at ease, show that there could be no question of any forcible assault by the deceased on the appellant for the purpose of committing sodomy, and that if the deceased had wanted to commit that dirty act on the appellant, the latter would have been too willing to surrender his body. This plea is reinforced by a statement elicited from Abdul (Khaliq P. W. 10), who, on a question by the counsel for the appellant as to what did the people present at the spot say as to why the deceased had been murdered, answered that the persons present over there said that the appellant was a habitual catamite while the deceased was a habitual sodomist and that they had got unnatural connection with each other. He also stated that "when the bottle Exh. P. 14 was taken in possession the people present over there made guesses. Some said that it contained wine and some said that it contained syrup, but I could not make out myself as to what it contained." If the plea of the learned counsel for the State, which is in terms of the view adopted by the learned trial Judge, that the appellant would have been a willing passive agent for the unnatural lust of the deceased, be accepted, it is difficult to discover the reason of the murder. The learned State counsel then tried to draw his imagination by stating that the appellant may have demanded some money, or something else may have occurred between them to motivate this crime.

5. In the absence of any direct or indirect evidence from the prosecution side to prove the circumstances of this murder, we have per force to fall back on the statement of the appellant himself, which we have to accept unless we could find any evidence, circumstantial or otherwise, to negative or contradict that statement, in whole or in part. We are fully conscious that for proving that the appellant had acted in self‑defence of his person to avoid the assault on him made by the deceased for satisfac tion of his unnatural lust, the onus is on him (the accused person) to prove that plea, in order to derive benefit of the fourth exception as contained in section 100, of the Pakistan Penal Code, in terms of section 105 of the Evidence Act, which reads:‑ "When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances." The effect of this section in criminal trials on the question of the proof of the guilt of an accused including the proof of a special plea taken up by the accused in his defence has been considered in several authoritative decisions, including the decision of the Federal Court of Pakistan in the well‑known case of Safdar Ali v. The Crown (P L D 1953 F, C 93), followed in subsequent decisions by the same Court in Muhammad Aslarn v. The Crown (P L D 1953 F C 115) and Sultan Muhammad v. The Crown (P L D 1954 F C 29). In a nutshell, the legal position as crystallised in these decisions on the points in question is summed up by Justice Abdur Rashid, the then Chief Justice, in Safdar Ali v. The Crown in the following words: "Section 105 of the Evidence Act has been enacted in order to make it clear that it is not the duty of the prosecution to examine all possible defences that might be taken on behalf of the accused, and to prove that none of those defences would be of any assistance to him. The principles laid down in Woolmington's case are applicable with full force in Pakistan in spite of the provisions of section 105 of the Evidence Act

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." In the same case Shahabuddin, J., observed as follows:‑ "Section 105 of the Evidence Act 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." Mr. Justice Cornelius, the present Chief Justice of the Supreme Court of Pakistan, succinctly summed the position thus:‑ "Since the burden of the general issue is on the prosecution from beginning to end, the provisions of section 105, Evidence Act, must be understood in the special sense that while all the details of an alleged criminal transaction are relevant to the case for the prosecution as being part of the resgestae, and must be proved by the prosecution, yet the prosecution is under no duty to exclude defences which are open to the accused person, or to furnish proof of facts of a special nature having relevance only to a particular defence which the accused either sets up or may set up . . . . The fundamental principle is that the burden of proving the general issue of the prisoner's guilt lies, from first to last, upon the prosecution. .......... 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 person himself, who adduces facts in avoidance of the charge of murder, it requires very strong circumstances indeed, of a nature sufficient to exclude the possibility 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."

6. Keeping these observations in view in their application to the present case, we find that while there is a complete lack of evidence by the prosecution providing the basis for conviction of the appellant for willful murder of the deceased, we have, in the appellant's own statement, an explanation for the offence, admittedly committed by him, for which there is no apparent contradiction from the prosecution side, and although there are what may appear to be weak links in that version, creating a hurdle in the positive establishment of the plea of the appellant to be true, the version of the appellant in its overall effect reacts on the prosecution case to assail it with a doubt on the one hand and to create a feeling on the other, that the version of the appellant may probably be true. The argument raised on behalf of the State that the long stay of the appellant in the company of the deceased during the night of the occurrence negatives the theory of assault on him by the deceased for committing sodomy can be construed against the prosecution. The appel lant may have been in the company of the deceased innocently, responding to his affection or regard, because according to his own statement he looked upon him as a father, but when he sensed his foul motive by some overt act on his part, it provoked him to violence, and there is no other hypothesis to explain this outburst of violence on the part of the appellant in the face of the very friendly and intimate relations that he admittedly had with the deceased. It was also argued that the plea of the appellant that the deceased was drunk is falsified by the fact that the bottle recovered from the spot was not proved to contain liquor. Unfortunately, the contents of the bottle were not sent for chemical analysis, and we do not know what it contained. It may have contained liquor, or it may not have, and the benefit of the doubt must go to the appellant. Again, in spite of the allegation of one of the P. Ws. that the appellant was a catamite, no effort was made by the prosecution to prove this fact, although they had him medically examined. We can only say that in the absence of any proof that the appellant was a habitual catamite, we are to accept the opposite inference that he was not, and, therefore, he must have resented the dirty design of the deceased to commit sodomy on him. The fact that no sodomy was actually committed, is a further proof that the appellant had not yielded to it. But a mere assault by the deceased, such as may have been apprehended by the appellant, towards the commission of that act, would justify the killing of the deceased under section 100, Exception Fourth, Pakistan Penal Code, already referred to above. We are thus forced to the conclusion that the version of the appellant has to be accepted; and the question then arises whether he has, in defending himself from the unnatural lust of the deceased, exceeded his right. As the injuries caused to the deceased were fourteen in number, it apparently creates the impression that he has caused to him greater harm than was actually necessary, which is not permitted in view of the restrictions on the right of self‑defence as contained in section 99 of the Penal Code. We have given an anxious thought to this aspect of the case and find that in the context of the circumstances of this case, it is not possible for us to fix the stage or the point of time at which the appellants should have stopped causing further harm to the deceased, depending on the consideration as to when did the appellant find himself immune from the lustful assault of the deceased. According to the evidence the deceased had come out of his residential quarter, although he was gravely injured, and was able to go back to it, and it is not possible to say at what point in the course of the infliction of the injuries on him he was rendered helpless and ineffective. In a situation like this, it is too much to expect from an accused person in. a fit of agitation and provocation to weigh in golden scales the amount of harm which he should cause to his assailant, and even if there be some excess, more often than not, it has to be condoned, because of the difficulty in assessing the extent of the excess committed, in measured scales.

7. The result is that we have to give the benefit of the doubt to the appellant. He is, therefore, acquitted and shall be set at liberty forthwith. K. B. A. Appeal accepted.