1980 P Cr (PLP)

Muhammad Akram P. W. son of Allah Ditta said that he came to the place of occurrence after hearing some noise and saw Fateh Muhammad going toward kikkar trees. When he was close to the kikkar trees there emerged five persons. Those were the respondents. They came forward and when they reached near the Wali, then shouted "we will teach you a lesson for taking away the animals", The witness then described how the accused were armed and his version was the same as that of Allah Ditta. According to Muhammad Akram, his father was then goading the animals to Kot Jafar. When he was near the Awi of Kumhars, Anwarul Haq shouted and fired at him. He received injuries and fell down. In the meanwhile Aslam turned up and told the accused that their animals had damaged the crop and they had beaten Allah Ditta. Wali Muhammad fired at Aslam, who fell down. Tape accused then ran away. The witness also said that Muhammad Ahmad, Sharif, Taj, Mushtaq and Jamal Din also came to the spot. Jamal Din P. W. noticed Allah Ditta taking the animals towards Kot J afar near the Awi of Kurnhars. He saw Fateh Muhammad running towards the kikkar trees. When Fateh Muhammad overtook Allah Ditta near the tries, he was then accompanied by the accused. The accused party had come out from behind the grove of kikkars. Muhammad Hussain was armed with a sofa, Anwarul Haq and Wali Muhammad with guns and the rest with pistols. The witness said that Fateh Muhammad was also armed with pistol. The accused party sat near the Nali and then stood up, walked forward, raised lalkara and said that they would teach Allah Ditta a lesson for taking away the animals Anwarul. Haq fired at Allah Ditta. He was hit and fell down. Aslam came running and when he was at a distance of 3/4 karams he told the accused not to kill and also said "you have damaged his crop and now you were going to kill him." Anwarul Haq stepped forward and fired at him. He was fait and injured. Wali Muhammad also fired at Aslam. The last witness is Muhammad Ahmad, brother of the deceased. He said that Allah Ditta was hit by a shot fired by Anwarul Haq and Aslam was hit by Waii Muhammad. Then the accused party fired. Taj, Jamal Mushtaq, Akram came to the spot. They were injured and so was his brother Shafique. However, Muhammad Ahmad escaped because he took shelter behind a khurli. '

8. Mst, Ghafuran and Shafique were examined as court witnesses. Mst. Ghafuran, aged 10/12, resident of Rakh Bharoke said that at about leudewela, she was returning from the fields after serving meals to her brothers who were working there. When she reached near the garden, she saw Muhammad Ahmad beating Fateh Muhammad respondent with fists. Shafique, Akram and Aslam also arrived there armed with longs. They started beating Fateh Muhammad. He was injured. When other people came to the spot, they separated and. rescued Fateh Muhammad, Fateh Muhammad started walking to the village. It was then that Aslam arrived from the school. He had a gun. He fired his gun. Fateh Muhammad took shelter behind the Awi. The shot hit Mst. Ghafuran. She was injured. She fell down and became unconscious. The utensils which she was carrying, fell on the ground. She did not see anything, else than that. She said that she did not see any animal nor did she see anybody with gun firing till the time she became unconscious. Shafique brother of the deceased was present in his baithak when he heard some noise from the school side. He went to that side and saw Anwarul Haq holding a single barrel gun and, Wali Muhammad a double barrel. Iqbal had a pistol and other Iqbal a pistol. Fateh Muhammad had a pistol and Muhammad Hussain a sofa. These persons were standing near the Aad. Allah ‑Ditta was standing near the Awl at a distance of 12/ 13 karams. Anwarul Haq fired at Allah Ditta. Muhammad Aslam was coming from the school to the Awi. He was fired at by Wali Muhammad. Then all the accused started firing as a result of which, Shafique, Akram, Jamal Din, Taj Din and Mushtaq were injured. Thereafter they left the spot raising lalkara. The witness said that he did not see Mst. Ghufuran but he saw 4/5 animals there.

9. Learned counsel appearing on behalf of the State argued that all the four eye‑witnesses implicated the accused respondents. He submitted that at least presence of three witnesses cannot be doubted under any circum stance, because they were injured. Hence there was no reason to disbelieve them. Learned counsel submitted that if some corroboration was required that was available from the recoveries made at the spot, which according to Sh. Muhammad Din P. W. 12, Examiner Fire Arms, Forensic Science Laboratory matched with the respective weapons recovered from the accused. Learned counsel further submitted that it was a broad daylight occurrence. There was no possibility of mistaken identity or of substitution. It was submitted that even the venue was admitted by both the parties.

10. Mr. Batalvi appearing on behalf of the complainant supported the counsel for the State. He submitted that the defence version was not plausible. He further submitted that if the same was to be rejected, then the Court has no option but to accept the prosecution story which had been proved beyond any doubt by the ocular evidence. For this submission learned counsel pressed into service the doctrine of juxtaposition. Learned counsel submitted that the evidence of the eye‑witnesses was so "strong and independent" that it did not require any corroboration. Never theless, if the rule of prudence was to be applied then there was sufficient corroborative evidence on the record. In support of this reliance was placed on Syed Ali Bepari v. Nibaran Mollah and others (P L D 1962 S C 502).

11. Mr. D. M. Awan, learned counsel for the respondents contended that the mere fact that three of the eye‑witnesses were injured, was no guarantee of their being truthful witnesses and their evidence was still subject to the test of credibility and veracity. Learned counsel argued that if from the other evidence on the record it was proved that the witnesses had not told the truth then their evidence was to be outright rejected. It was submitted that once the eye‑witnesses were disbelieved then there was not sufficient evidence in law to justify : he conviction of the respondents. Regarding the doctrine of juxtaposition, Mr. Awan contended that no doubt the prosecution case is to be examined side by side with the statements of the accused, but that did not mean that the prosecution is entitled to fill in lacunae in its case by utilizing the statement of an accused to the extent to which it is helpful to the prosecution. He submitted that still the onus remains on the prosecution to prove its ease beyond reasonable doubt. In support of the aforesaid contention, reliance was .placed on Safdar Ali v. Crown (P L D 1953 F C 93), where it had been observed :‑ "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 us the burden that rests on the prosecution. The plea of the accused may 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 lie 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 not on the special pleading. The decision it) Woolmington's case L R 1935 A C 462 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 pervades the whole case and the appellant becomes entitled to an acquittal." Reliance was also placed on the following observation in .Sultan I1uhammad v. The Crown (P L D 1954 F C 29) "The principles governing the correct procedure for appraisement of the evidence and circumstances, and the requirements for a conclusion adverse to the accused, in cases of this have stated with clarity in the Nvell known case of Woolmington L R 1935 A C 462 which this Court has considered and approved in the recent case of Safdar All v. Crown P L D 1)53 F C 93 and Muhammad Aslant v. Crown P L D 1953 F C'.

115. In such a case, even in 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 established by the prosecution, like any other clement of the offence charged, Further; it is not correct to say that the accuscd must be found guilty it' he fails to show the circumstances necessary t 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 riot accepted, the act of killing might be unintentional, the benefit of such reasonable doubt must go to the accused person." Learned counsel then cited Muhammad Fazlul Karim v. The State (P L D 1964 S C 792) where it was observed :.- "But it must be remembered always that in a criminal case, the onus is on the prosecution to prove their case, and that the accused cannot be convicted merely on proof of his having told an untruth in relation to one or more of the facts alleged against him." Learned counsel also cited Rehmal v. The State (P L D 1977 S C 515), where while dealing with section 106 of the Evidence Act, it was observed :- "Section 106 must be considered in a common sense way ; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the case with which the accused could prove them, are all matters that must be taken into consideration. This section cannot be used to undermine the well-established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts."

12. Learned counsel then referred to the evidence of Mst. Ghafuran and Shafique C. Ws., and submitted that the latter was the real brother of the deceased, yet he was not examined by the prosecution. This created a great deal of doubt about the prosecution story and the only legitimate inference which could be drawn from his absence was that his statement did not suit the prosecution or that the prosecution story was different than the one told by the eye-witnesses. Learned counsel submitted that Mst: Ghafuran was a disinterested witness. Her statement completely falsifies the entire prosecution case. According to the learned counsel there was not another important flaw which was fatal to the prosecution and that was that was that none of the prosecution witnesses explained the injuries of Mst. Ghafuran C. W., Fateh Muhammad and Muhammad Iqbal accused respondents. Learned counsel contended that there was no explanation of the file as to what was the reason for not examining Mst. Ghafuran and Shafique by the, prosecution.

13. First of all, we would like to deal with' the contention of Mr. Batalvi pertaining to the principle of juxtaposition. We are unable to agree with him that if a specific plea is taken by an accused and that is not established or accepted by the Court, then the accused must be made to suffer for that. If this interpretation is to be accepted then it would rum the centuries old- principle of administration of criminal justice that the onus lies on the prosecution to prove its case beyond reasonable doubt. The principle laid down in Safdar Ali s case has been consistent, observed by the Courts. It is still the law of the land. So a question arises what is the effect of a plea taken by the accused. The answer to that is to be found in the dictum of the Supreme Court in Sultan Muhammad's case and that is: "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 such reasonable doubt must go to the accused person". So it is in the light of the above that we would examine the entire case.

14. No doubt, three of the eye-witnesses were injured, which prima facie is proof of their presence at the spot, but this fact alone does .not guarantee that they were telling the truth, unless their evidence is considered along 4th the other relevant testimony. In this sequence we do not think the evidence of Mst. Ghafuran and Shafique can be ignored. Mst. Ghafuran was a child aged about 10/12. She was injured. She gave evidence with full confidence and also stood the test of cross-examination very well. We are much impressed by her testimony. Her version alone falsifies the ocular testimony and is sufficient in law to disbelieve the prosecution story. Shafique is real brother of the deceased. His version is also different to that of the eye-witnesses. Whatever little is left with the prosecution, stands completely demolished by the fact that none of the eye-witnesses mentioned about the injuries of Mst. Ghafuran, Fateh Muhammad ands Muhammad Iqbal. In such state of affairs we arc of the view that the prosecution story is not trustworthy. The result is that both the appeal and the revision must be dismissed and we order accordingly. Appeal dismissed.