1972 PLP 597 (SCMR)

SALAHUDDIN AHMED, J: This leave petition is from the order of a Division Bench of the Peshawar High Court accepting the appeal of respondent No. 1 Gulsher and setting aside his conviction and sentence under section 302 of the Pakistan Penal Code. The respondent had beer: tried for the murder of his aunt Mst. Bibi Rizwana by stabbing her and he was convicted and sentenced under section 302 of the Pakistan Penal Code to transportation for life by the learned Additional Sessions Judge, Mardan. Respondent Gulsher is the nephew of P. W. Zarid Khan (the petitioner), husband of Mst. Rizwans deceased. P. W. Zsrid had cultivated onions in his tobacco field, which is contiguous to the field of his brother Farid, father of respondent Gulsher. On the morning of the day of occurrence Zarid found some of his onions uprooted and missing. He suspected Gulsher and told him about it. This led to a grappling between the two. Later in the morning respondent Gulsher picked up a quarrel with P. W. Zarid and the latter's wife Mst. Bibi Rizwana deceased intervened and tried to separate the two. Gulsher give a chhuri blow meant fear his uncle but it accidentally hit and injured the aunt Mst. Rizwana deceased. Mst. Rizwana succumbed to her injury on way to the hospital. Dr. Abdul Hamid who held the autopsy found only one stab wound on the left lateral abdominal wall 1" x ", peritoneal cavity deep. The doctor gave the age of respondent Gulsher as 20/22 years. Although the prosecution relied upon the evidence of two eye‑witnesses namely, P. W. Zirid Kharr and P. W. Ali Sarwar, the High Court can31dered it safe to ignore the testimony of P. W. Ali Sarwar from consideration merely on the ground that he had turned hostile at the trial. This, in our opinion, was not a correct view of the matter. The entire evidence of the witness should have been taken into consideration to see whether any part of his evidence was worthy of belief in the light of other evidence. Nevertheless, the learned Judges of the High Court in effect found that P. W. Zarid Khan's evidence furnished reasonable ground for the likelihood that the petitioner accidentally caused the death of Mst. Rizwana in exercise ‑of his right of private defence. P. W. Zarid Khan admitted that when the accused was about to give a chhuri blow has wife was accidentally hit. Although he denied the suggestion that he had a chhuri with him and he proceeded towards the accused inflict the blow but missed him and that he was about to the accused another blow when the accused brought out chhuri, it appears that he did make a statement to that effect before the committing Magistrate. He stated before the committing Magistrate : it is correct to suggest that I was armed with a dagger and had gone after the accused and I gave a digger blow to the accused which was missed aid I was going to stab him again then tire accused took out his dagger and wanted to stab me, that in the meanwhile my wife Mst. Rizwana intervened and received injuries from the attack which seas directed against me. The learned Judges of the High Court accordingly held that the respondent was entitled to the right of private defence and therefore he committed no offence. 'it is thus evident that the High court's finding is not unreasonable. It has been contended that the onus was on the eefence to prove its right of private defence and the defence has failed to prove it. It has been held in the case of Safdar Ali v. Crown (PLD 1953 F C 93), that "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." It was further held "That provision of law (section 105, 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. 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". It is thus clear that the onus is entirely on the prosecution to prove its case beyond any reasonable doubt. If in the facts and circumstances of the case as in the present one, there appears a likelihood of the existence of a right of private defence, the accused is entitled to the benefit of this right, for, such a situation will react on the whole prosecution case and will lead the Court to hold that the prosecution has failed to prove its case beyond any reasonable doubt. There is no substance in this petition. It is accordingly dismissed. Leave refused.