AJMAL MIAN, J.-1(a) This is an appeal filed by the two appellants namely, Meenhon son of Chutto Machi and Mumtaz son of Ismail Machi, against the conviction under section 302/34, P. P. C.
Sentencing them to death for the murder of deceased Ghulam Hyder son of Darhoon and against the imposition of compensation under section 544-A, Cr. P. C. Amounting to Rs. 2,000, on each of the accused to be paid to the legal heirs of the deceased and in default to suffer 6 months' R. I.
There is also reference from the Sessions Judge, Dadu for the confirmation of the above death sentence awarded to the two appellants.
The brief facts leading to the filing of the appeal as disclosed in the F. I. R. Are that on 25-6-76 the deceased, Ghulam Hyder was returning with the complainant, Nabibux son of Ahbux Machi and Khairmohd Machi from Tharri Mohabat at about Neri Tripahri time to their village, namely, Nawab- jo-pat, Taluka Mehar. Ghulam Hyder was a little ahead of the two P. Ws. Nabibux and Khair Muhammad when he reached near the land of Ibrahim Bhand, the two persons, namely, appellants Meenhon son of Chutto and Mumtaz son of Ismail alias Dingo, by case Machis, who were having hatchets in their hands came from the side of the road and surrounded him. Thereupon, the deceased Ghulam Hyder started running towards West. P. Ws. Nabibux and Khairbux saw both the accused inflicting injuries to the deceased with the sharp side of hatchets, consequently, Ghulam Hyder fell down. On their cries P. Ws. Alianwar, Moharram and other persons came running, who also witnessed the accused giving injuries to the deceased. P. Ws. Nabibux, Khairmohd, A.I Anwar and Moharram and others surrounded the accused and caught them. They saw that the dead body of the deceased Ghulam Hyder was lying in the land of Ibrahim Bhand and his head was lying separate. There were hatchet injuries on the body of the deceased. The motive disclosed in the F. 1.
R. For the murder of the deceased Ghulam Hyder was that about 4 years back Chutto alias Pato was murdered and that the complainant Nabibux, the deceased Ghulam Hyder, Darhoon and Kassim were challaned for the above murder, but 2 years back the above four alleged accused were acquitted from above murder case. The deceased, Chutto was the father of accused Meenhon, whereas accused Mumtaz is maternal nephew of the aforesaid accused. The F.
1. R. Was lodged on 25-6-76 at 3 p. m. On the same day at Thana Tharri Mohabat, District Dadu, which was situated 3 miles from the place of wardat. The date and time of the occurrence disclosed in the F. 1.
R. Was 25-6-76 at Neri Tripahri time.
(b) The above complaint was recorded by P. W. 8 Muhammad Juman A.S.I.P. Of the aforesaid Police Station at the relevant time. P. W. Muhammad Juman after recording the F. I. R. Accompanied the complainant alongwith P. W. 9, Constable Rustam Khan and proceeded to the place of wardat. At the pointation of the complainant in the presence of Mashirs Gbulam Hussain and Ghulam Rasul saw the place of wardat and noticed that the dead body of the deceased, Ghulam Hyder was lying, his head was severed from the body and was lying at a distance of about 3 ft. From the body. The deceased had hatchet injuries on his person. From a distance of about 100 paces from the dead body, P. W. Muhammad Juman secured one piece of loin-cloth, chappal, one Sindhi cap, one Angocha. He also secured blood-stained earth and sealed it on the spot and prepared mashirnama Exh.
12. He also held inquest over the dead body and prepared inquest report Exh. 13.
He sent the dead body to the Medical Officer, Mehar, P. W. 7 Dr. Khan Muhammad for post-mortem examination through P. W. 9 Rustam Khan. He also examined P. Ws. Moharram and A.I Anwar, who were sitting at the wardat. P. W. Khair Muhammad was also available at the wardat, but he was not in the state of mind to give a statement being the real brother of the deceased. P. Ws. Anwar, Moharram and Khairmohd, produced before the P. W. Muhammad Juman both the accused Meenhon and Mumtaz, who were sitting tied at the wardat. The aforesaid P. Ws. Also produced before P. Ws. Muhammad Juman two hatchets, out of which one of them was blood-stained, and the other was washed and had some dust on its blade. It may be noted that according to the Chemical Analyser's report, both the hatchets were stained with human blood. Thereupon, he secured the hatchets and sealed the same separately. He prepared mashirnama in respect thereof Exh. 14 in the presence of the aforesaid mashirs. P. W. Juman also noticed that accused Meenhon had Lathi blows on his back whereas accused Mumtaz had one injury on the back side of his head with a Lathi. Both the accused were wearing blood-stained clothes at the time of their arrest, which were also secured and sealed separately. P. W. Juman returned to the Police Station at 1-00 p. m. On 26-6-76, when accused Meenhon wanted to lodge his report for injuries on his person and that on the person of accused Mumtaz, he reduced the same into writing and entered into station diary as non-cognizable offence under sections 323, 504 Exh.
19. On 26-6-76 P. W.
Juman examined P. W. Khairmohd. On 30-6-76 he got the statements under section 164, Cr. P. C.
Recorded of P. Ws. A.I Anwar, Moharram and Khair Muhammad in the Court of Mukhtiar kar and F. C.
M., Mehar. Upon the completion of the investigation, he handed over the papers to the S. H. O. Who challaned the case. He had also sent blood-stained articles to the Chemical Examiner who submitted his report in affirmative Exh. 20.
2. (a) The prosecution has examined 9 witnesses, namely, P. W. 1 Wahidbux Tapedar of Thana Tharri Mohabat, complainant P. W. 2 Nabibux, P. W . 3 Khairmohd, P. W. 4, A.I Anwar, P. W. 5 Moharram who had arrested the accused at the place of wardat immediately after the incident. P. W. 6 Ghulam Hussain one of the Mashirs, P. W. 7 Dr. Khan Muhammad, the Medical Officer, at Mehar Hospital, who carried out the post-mortem examination, P. W. 8 Muhammad luman A. S. 1. P., who recorded the F.
I. R. And investigated the case and P. W. 9 Rustam Khan, Police Constable, who took the dead body to the hospital. In addition to the above ocular evidence the prosecution also produced the articles recovered, comprising of blood-stained clothes of the accused, and two hatchets etc. And mashir- -namas in respect thereof Exhs. 12 and 14, Inquest Report Exh. 13, post-mortem report Exh. 16, Chemical Analyser's Report Exh.
20. The accused also made statements before the Sessions Judge, Exhs. 23 and 24.
(b) The accused have not denied the factum that they had caused the death of the deceased Ghulam Hyder nor they have denied the factum that they were caught by P. Ws. 2 to 5 at the place of wardat immediately after the incident. However, they have come out with the plea or self- defence. Accused Meenhon in his statement before the Sessions Court had stated that the deceased Ghulam Hyder had old enmity with his family. He and others killed his father Chutto and that the deceased Ghulam Hyder attempted to kill him on the day of the incident, when he and Mumtaz were passing near the place of wardat and that Ghulam Hyder and P. Ws. Anwar and Moharram, who were his friends attempted to murder him. He had further stated that the deceased Ghulam Hyder was armed with a hatchet and caused them injury with the blunt side of the hatchet and P. Ws. A.I Anwar and Moharram, who were armed with lathis caused them injuries with lathis and that in self-defence he caused injuries to the deceased Ghulam Hyder. He also stated that at the time of the incident complainant Nabibux and P. W. Khairmohd were not present, but they were called afterwards, and that P. W. Anwar and Moharram washed the blood-stained hatchet of the deceased Ghulam Hyder and wanted to destroy the evidence, but afterwards produced his hatchet and washed hatchet of the deceased Ghulam Hyder to the Police. He went on to state that the Police was biased against them from the very start and did not record his report. It may be observed that the above accused in reply to an earlier Court's question admitted the factum that he and the accused, Mumtaz were arrested on the spot by the complainant, Nabibux and P. Ws. Khairmohd. Moharram and A.I Anwar. It may be advantageous to reproduce the aforesaid Court's question and reply thereto: "Q.-It is also alleged that you were caught red-handed on the spot by complainant Nabibux and P.
Ws. Khairmohd., Moharram and A.I Anwar and others and were produced before the police on their arrival at the wardat. What have you to say?
A.-Yes Sir."
An identical reply was also given by the other accused Mumtaz in reply to an identical question.
Accused Mumtaz in his statement stated that he was innocent and that the aforesaid prosecution witnesses had only produced the hatchet of accused Meenhon and washed hatchet of the deceased Ghulam Hyder. He also stated that he had injuries on his person given by the deceased Ghulam Hyder and P. Ws. Anwar and Moharram. He further stated that the prosecution witnesses were interested, hostile, false and friends of the deceased Ghulam Hyder. He also adopted the remaining statement of the accused, Meenhon.
(3)(a) Since both the accused admitted the factum of causing the injuries to the deceased Ghulam Hyder and the factum of having been caught at the spot, the sole question which requires consideration is, as to whether there is reasonable or otherwise possibility that the defence put forward by the two accused might be true. There are four eye-witnesses, namely, complainant Nabibux, who has reiterated the facts disclosed by him in the F. I. R. Lodged by him with slight variation. He has deposed that he, deceased Ghulam Hyder and P. Ws. Khair Muhammad had left their village for Tharri Mohabat to make purchases at noon time and that after purchasing, they were returning to their village at Tripahri time. Deceased Ghulam Hyder was about 100 ft. Ahead of them. When they were passing near the land of Jalbanis they heard cries of Ghulam Hyder.
Thereupon, they ran towards Ghulam Hyder, A.I Anwar and Moharram who were working in their field also came running towards Ghulam Hyder. They saw accused Meenhon and Mumtaz with hatchets in their hands running after Ghulam Hyder. He has further deposed that Meenhon first gave hatchet blow on his back and another hatchet blow with sharp side on his neck severing it corrtpletely from the body and that Mumtaz also gave blows with sharp side to Ghulam Hyder on his neck and that the head of Ghulam Hyder was thrown away from his body at a distance 3'. After that the accused tried to run away towards the eastern side. But he, Khairmohd., Moharram and A.I Anwar captured the accused alongwith the respective hatchets. He also stated that 5-6 persons from the surrounding lands also came out. P. W. Khairmohd., has corroborated the statement of P.
W. Nabibux. However, according to him Ghulam Hyder had left the village for Tharri Mohabat ahead of him and Nabi Bux. He has also deposed that they left Tharri Mohabat village in-between noon and Tripahri time after making purchases and that Ghulam Hyder was about 100 paces ahead of them. When they had covered about 2 miles from Tharri Mohabat and were passing near Maso Jalbani village, they heard the cries. He and Nabibux went running towards Ghulam Hyder, and that Moharram alongwith some other persons also came running from the surrounding lands on hearing the cries. They saw accused Meenhon and Mumtaz armed with hatchets each giving hatchet blows to Ghulam Hyder. The neck of Ghulam Hyder was severed from his body due to the injury given by the accused and fell at a distance of 2' from the body.
(b) Whereas P. W. A.I Anwar had deposed that at late Tripahri time he and Moharram were standing in their fields and upon hearing the cries they went there. Nabibux and Khairmohd. Also came running. Many other people also collected. They saw that accused Meenhon and Mumtaz were caught hold by the entire party including himself. Both of the accused were armed with hatchets and that they were caught because they had committed the murder of Ghulam Hyder.
Hatchets and clothes of the accused were blood-stained and that the dead body of Ghulam Hyder with the neck severed from the rest of the body was lying there. P. W. Moharram corroborated the testimony of P. W. A.I Anwar on all material facts.
(c) P. W. 7 Dr. Khan Muhammad who had carried out the post-mortem, has deposed that on 26-6- 76 he was Medical Officer of Mehar when Tharri Mohabat Police referred the dead body of Ghulam Hyder through Constable P. W. Rustam Khan for post-mortem examination and report at 7-30 a. m.
He performed the post-mortem examination at 8-00 a. m. And finished at 9-30 a. m. On the same day and on external examination, he found the following injuries:- "(1) An incised wound on the neck posteriorly cutting all the underlying structures 5' x 2' x 3'.
(2) An incised wound on the neck anteriorly cutting all the underlying structures 5" x 2' x 4'. Head of the body was separated from its body.
(3) An incised wound on the left thigh near hip joint cutting muscles, vessels femur bone 5' x 3' 1- 2/3".
(4) An incised wound on the right thigh near hip joint cutting muscles, vessels and femur bones'5' x 3' x 1-2/3'.
(5) An incised wound on the left arm anteriorly 1/2' x 1/4" x 1/4"."
P. W. 7 Dr. Khan Muhammad also found that the stomach contained the semi-digested food.
According to his opinion the death was caused due to shock and haemorrhage consequent upon the injuries and that the injuries 1, 2, 3 and 4 were individually sufficient in the ordinary course of nature to cause the death and that the death was instantaneous. He also opined that the time between the death and the post-mortem examination was about 18 hours.
4. (a) Mr. Junejo, learned counsel for the appellants has urged the following points:- (!) That there are material contradictions in the statements of P. Ws. 2 to 5 and, therefore, their testimony cannot be relied upon, in order to sustain conviction under section 302/34, P. P. C. ;
(ii) that the P. Ws. 2 and 3 Nabibux and Khairmohd. Were not present at the time of the incident but came later on, and, therefore, were not eye-witnesses;
(iii) that the reason disclosed for visiting Tharri Mohabat by P. Ws. Nabibux and Khairmohd. And the deceased is highly improbable and, therefore, the prosecution version cannot be relied upon;
(iv) that the accused's' plea of self-defence cannot be ruled out in view of the fact that the injuries on their person have not been explained by the prosecution;
(v) that the offence falls under section 304(11) and, therefore, the awarding of capital punishment was not justified.
(b) Reverting to the first contention that there are material contradiction on the material facts between the statements of the P. Ws. 2 to 5, it may be observed that the learned counsel for the appellants have invited our attention inter alia to the following contradictions:
(i) That P. W. 2 Nabibux in the F.
1. R. Had stated that the deceased Ghulam Hyder had gone to Mehar with his work and from where he came to Tharri Mohabat and that he and Khairmohd. Had also gone to Tbarri Mohabat with some work whereas before the Sessions Court, he deposed that the deceased Ghulam Hyder and Khair Muhammad had left their village for Tharri Mohabat to make purchases at noon time;
(ii) that P. W. Khairmohd. Has deposed before the Sessions Court that the deceased Gbulam Hyder had left the' village for Tharri Mohabat ahead of him, whereas in his statement under section 164, Cr. P. C. Before the Mukhtiar kar and F. C. M., Mehar on 30-1-76, he had stated that he and his maternal uncle Nabibux had come to Tharri Mohabat and deceased Ghulam Hyder had gone to Mehar and that at Tripahri time Ghulam Hyder also came to Tharri Mohabat.
(iii) P. W. 2 Nabibux before the Sessions Court has stated in the cross--examination that he and P.
W. Khairmohd. Had purchased articles at village Tharri Mohabat and had put the articles in one bundle and that this bundle of articles was with them when the incident took place, and that Ghulam Hyder had not purchased anything and was not carrying any bundle whereas P. W. 3 Khairmohd. Has deposed before the Sessions Court that at Tharri Mohabat be made purchases separately and the complainant made purchases separately and that they tied the articles in two separate bundles and that at the time of the incident they were in possession of the above bundles of articles. But P. W. 8 Muhammad Juman A. I. S. P. Has deposed that there was no bundle of articles when he visited the place of wardat.
It is true that there are discrepancies in the statements of P. Ws. 2 and 3 on the question as to bow the deceased Ghulam Hyder had reached Tharri Mohabat. However, there is unanimity on the question that they were returning- together with the deceased. This fact stands corroborated by the evidence of P. Ws. 4 and 5 A.I Anwar and Moharram. Furthermore, this fact has also been corroborated by the affirmative reply given by the two accused to the Court's question to the effect that they were caught red-handed on the spot by the complainant Nabibux and P. Ws. Khairmohd., Moharram and A.I Anwar and others. In our view the above contradictions in the statement of P. Ws.
2 and 3 do not disprove the case of the prosecution, nor it create doubt in favour of the accused.
Since the statement before the Sessions Judge was made nearly after about two years, there was bound to be some contradictions. The Court is to sift grain from chaff:
(c) Reverting to the second contention that P. Ws. 2 and 3 had not in fact witnessed the incident, it may be observed that Mr. Junejo has urged that there was delay in lodging of the complaint inasmuch as the incident had taken place at about 4-00 p. m., whereas the F. I. R. Was lodged at 8- 00 p. m. And, therefore, the defence plea that the above P. Ws. 2 and 3 had not witnessed the incident gets supports from the factum of the delay in lodging' the F.
1. R. In our view the factum that the P. Ws. Nabibux and Khairmohd. Were present at the time of the incident has been proved not only by the aforesaid witnesses, but their testimony stand corroborated by P. Ws. 4 and 5 A.I Anwar and Mobarram, who do not belong to the same case as P. W. A.I Anwar is by the case `Bhand', whereas P. W. Moharram is by case `Jalbani' the complainant party belongs to Machi case.
Furthermore, as pointed out hereinabove that the two appellants in reply to the Court's question quoted hereinabove in para. 2(b), admitted the fact that they were caught immediately after the incident by P: Ws. 2 to 5. In view of the above fact I Ws,. 2 and 3's presence at the time of the incident cannot be doubted.
Even otherwise, if it is to be conceded that above P. Ws. 2 and 3 had not witnessed the incident, in our view apart from their testimony, there is still other sufficient evidence. On the record to sustain the conviction.
Reverting to the question of delay in lodging of the F. I. R., it may be observed that the incident had taken place at Ned Tripahri time which is late afternoon in the month of June and, therefore, the time could be 4 to 5 p. Not The complainant P. 8V. 2 Nabibux was one of the persons who chased and caught the accused apt the place of wardat. This must have taken sometime. The police station as pier F. I. R. Was situated about 3 miles and, therefore, it must have taken sonic time to reach the police station.
(d) With reference to Mr. Hayat's contention that the reason disclosed for visiting Tharri Mohabat by P. Ws. Nabibux, Khairmohd, and the deceased is highly improbable, it may be observed that Mr. Hayat Junejo has invited our attention to P. W. 2 Nabibux's statement made by him in the cross-- examination to the effect that, "the articles which we purchased at village Tharri Mobabat consisted of spices and salt. It worth about 2 or 3 rupees. There are about 5/7 shops in our village also." It has been vehemently urged that in the month of June, nobody would like to go at a distance of a few miles, for purchasing spices and salt worth Rs. 2-3, at the time disclosed when there were 5/'7 shops in the complainant's village. In our view the above P. W. Nabibu.x has given a plausible reason for purchasing the above articles from Tharri Muhabat by stating that "the spices and salt are also available in our village on the shops, but these articles at Tharri Mubabat are cheaper.
(e) Reverting to the learned counsel for the appellant's contentions that the plea of self-defence cannot be ruled out and in fact the offence falls within the ambit of Exception 2 to section 300, as the injuries on the accused persons have not been reasonably explained by the prosecution, it will be necessary to examine as to whether the plea of self defence set up by the accused is plausible in the circumstances of the instant case. It is true that the Investigating Officer P. W. 8 Muhammad Juman did not refer the two accused to the Medical Officer for getting their injuries examined after arresting them. However, it is an admitted position that the two accused had some injuries on their person. This factum has been admitted by the prosecution witnesses as well as the same is indicated from mashirnama of arrest of the two accused dated 25-6-76 Exh.
14. The above marhirnama gives the description of the injuries of the two accused as follows :- "Injuries
(1) Accused Minhoon son of Chutto alias Palo is having a danda blow on the back side of head blood oozed from it. A swilling on the right side of back.
(2) Mumtaz son of Ismail, case Machi, President of Radham Station is having blow on the back side of head blood oozed from it, seems, to be caused by danda."
The version given by the defence is that when the two accused were passing by the road near the place of wardat, the deceased Ghulam Hyder who was armed with hatchet and P. Ws. 4 and 5 armed with Lathis carne out and attacked them, and, thereupon, the accused in self-defence inflicted the injuries on the deceased. In our view the above version is belied from the evidence and the circumstances of the case. We have no doubt that the instant case is a case of premeditated, cold-blooded murder. The absurdity of the aforesaid defence plea is inherent inasmuch as if in fact the deceased Ghulam Hyder and P. Ws. Anwar and Moharram had waylaid the accused with the intention to kill, it is not understandable as to why the deceased Ghulam Hyder had not attacked the accused with the sharp side of the hatchet; as according to the statement of the accused Meenhon before the Sessions Court, Ghulam Hyder had caused the injuries with blunt side of the hatchet. Furthermore, in the alleged encounter P. Ws. Anwar and Moharram had received no injury, whereas Ghulam Hyder was inflicted such savage injuries that his head was chopped off from the body and was thrown away at a distance of 3 feet. Admittedly the accused had motive to kill the deceased Ghulam Hyder because he was an accused alongwith his brother and other relations for the murder of the father of the accused Meenhon and in which case they were acquitted two years back before the incident. The deceased Ghulam Hyder could not have any motive to kill the two accused. The injuries received by the accused described in the mashirnama of arrest Exh. 15 clearly indicates that they were the injuries which the two accused received during the process of their being arrested. Both the accused had lathi injuries on the back side of their head. Accused Meenhon had also swelling on the right side of back. It is true that the prosecution witnesses have denied the factum of causing the injuries on the persons of the accused in the process of catching them. However, there is sufficient indication on the record that this was so caused. P. W. Khairmohd. In his statement under section 164, Cr. P. C. Bad stated that the accused had intended to attack them and that they were having lathis in their bands with which they gave blows to the accused. Similar statement was made by P. W. A.I Anwar under section 164, Cr. P. C: in which he stated that they in order to chase the accused surrounded them, and as the accused intended to attack them, they caused lathi blows to the accused while catching them. P. W.
Nabibux before the Sessions Court has deposed in the cross-examination that the police also secured lathis and sticks from the wardat. The above statement of P. Ws. A.I Anwar, Moharram and Nabibux clearly indicates the fact that the accused were given lathi blows during the process of chasing and catching them. The nature of the injuries described in the mashirnama of arrest corroborates the above fact as they were on the back side of the head of the accused (i. e. One each of the accused). Accused Meenhon had also a swelling on the right side of the back.
Furthermore, it was highly improbable to arrest the two accused, who had already brutally murdered the deceased Ghulam Hyder without the help of lathis etc. From the evidence on the record it is patent that the accused had waylaid the deceased. They have not explained as to why they happened to be present at the place of wardat.The defence plea of self-defence is also belied by the fact that the accused were not contented to chop off the head from the body, but also inflicted other grievous injuries on the other part of the deceased' body. This could have been done by the persons with full vengeance and not by the persons, who in self-defence wanted to ward off an attack.
We are not unmindful of the fact that under section 105 of the Evidence Act, the onus of proof on an accused person that the case falls within general or special exception cannot be equated with the burden of proof on the prosecution in a criminal case. Whereas in the former an accused person need not prove the plea beyond reasonable doubt, whereas in the latter case the prosecution is to prove the commission of offence by the accused person concerned beyond reasonable doubt. But it does not mean that if an s accused person raises a plea, which is absurd or is belied by the evidence and the circumstances of the case, it should be held that he has discharged the burden Basted on him by section 105 of the Evidence Act. The Court is to satisfy that the defence plea is such, the possibility of which cannot ruled out or in the words of Abdur Rashid, C. J. In Safdar A.I's case referred to hereinbelow in para. (5)(b), there is a reasonable possibility of the defence plea being true.
5. (a) Mr. Junejo in support of the plea of self-defence has referred to the celebrated case of Safdar A.I v. Crown PLD1953FC93 wherein Cornelius, J. (as his Lordship then was) gave the leading judgment The facts of the above case were that Safdar A.I was charged alongwith his brother Sherali for the murder of one Abdul Hakim by stabbing him with knives. Safdarali raised the plea of self-defence. The four assessors who had assisted the trial declared that in their opinion the accused gave the injuries to the deceased to save his life which resulted in the death of the deceased and that the other accused Sherali was not present at the spot. The trial Court acquitted Sherah, but convicted Safdarali under section 326, P. P. C. And sentenced him to under go R.
1. For 5 years. The Crown filed the appeal against Safdarali praying that the accused may be convicted and sentenced under section 302, P. P. C. The appeal was heard by a Division Bench of the Lahore High Court, which accepted the same, and, thereby, the conviction was altered from section 326 to 302, P. P. C. And death sentence was awarded. Safdarali filed an appeal before the erstwhile Federal Court of Pakistan which was allowed. The plea of self-defence was maintained. It may be observed that in the above case it was found by the Federal Court that the prosecution witness P.
W. Abrar Hussain corroborated the statement of Safdarali on certain material points.
(b) While discussing the plea of self-defence Abdul Rashid C. J. Observed as follows:- "Abdul Rashid, C. J------------------------------ I am of the opinion that the decision in the case of Woolmington v. The Director of Public Prosecution is in no way inconsistent with 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 prosecu--petition 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.
Woolmington's case are applicable with full force in Pakistan in spite of the provisions of section 105 of the Evidence Act."
Whereas Cornelius, J. Observed as follows:- "Cornelius, J.---------------------------------------------- After careful consideration of these arguments which being based upon the words of statute, have required very careful examination, I feel satisfied that in cases like the present, there is no material difference between the application of the standard of proof required under Pakistan law and that which underlies the rule of "reasonable doubt" which obtains in the English Courts. It is undeniable that finally the burden lies upon the prosecution to prove each ingredient of the offence charged, i. e. to support each ingredient by such evidence as would justify action by a prudent man, on the basis that such ingredient is established. I do not see any appreciable difference between this duty, and the duty of proving each ingredient beyond "reasonable doubt". If then an accused person is able to establish by evidence, or if the prosecution evidence itself presents such features as go to establish, the existence of a reasonable doubt regarding an essential ingredient of the offence charges, such as the requisite intention in a case of murder, then the prosecution must necessarily fail. Such intention may, of course, be established by proof of circumstances surrounding an evidence act of cruelty causing death, and need not necessarily be proved by direct evidence- It is, of course, not possible to arrive at any conclusion that the accused person acted as he alleges he did, on a consideration of his statement alone. It is necessary to place his evidence along side all the other evidence and circumstances appearing in the case, and only then can a Court be in a position to weigh the testimony and the probabilities 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 a3 necessary to place the defence version and its supporting evidence and circumstances in juxtaposition 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.
Applying the criteria laid down by their Lordships in the above case we are clearly of the view that from the evidence on the record and the circum--stances of the case the intention to kill on the part of the accused is manifest. In our view, there is no reasonable possibility of the defence plea being true.
(c) Mr. Junejo has also referred to the case of Abdul Rehman v. The Pakistan State (1), the case of The State v. Khair-ur-Rehman (2), the case of Bahadur v. The State (3), the case of Muhammad Nawaz v. The State (4).
(i) Reverting to 1959 Peshawar, it may be observed that in the above case it was held that when an accused person is found to have been injured in a fight which the prosecution witnesses claiming to have seen the occurrence tried to suppress, it will be reasonable to presume in the absence of any plausible explanation to the contrary that the accused person was injured by the deceased and that it would also be doubtful as to which of them attacked first and that the benefit of doubt would go to the accused person. The plea of self-defence was accepted and the accused was acquitted by accepting his appeal. Similar view was taken in the aforesaid subsequent Peshawar case of 1960. In our view the above two cases have no application to the instant case inasmuch as the injuries on the persons of the two accused in the instant case are explainable, namely, that the same were received by them during the process of being caught.
(ii) With reference to 1959 Karachi case, it may be stated that in the above case the motive given by the prosecution as well as by the accused were disbelieved, the accused was given benefit of doubt and the sentence of death was reduced to transportation for life. In our view the above case has no application to the instant case inasmuch as in the instant case very strong motive on the part of the accused has been proved, namely, to take revenge for the murder of the accused, Meenhon's father.
(iii) In aforesaid 1967 Lahore case, it was held that when it is not clear as to what exactly preceded the incident, awarding of transportation for life was the proper sentence and not the capital punishment. The present case is distinguishable from the above case inasmuch as the two accused I question had pre-planned the commission of the murder of the deceased.
(1) PLD 1952 Pesh. 74 (2) PLD 1960 Pesh. 50
(3) PLD 1967 Lab, 425(4) 1978 P Cr. L J 641
(iv) Reverting to 1978 P Cr. L J, it will suffice to observe that m the above case, it has been held that the absence of premeditation in committing the murder on the spur of moment and in the heat of passion lesser punishment under section 302 is proper and not the capital punishment In the instant case the crime was committed not at the spur of the moment but in cold blood with premeditation and, therefore, the above case is not) applicable.
6. In view of the above discussion we do not find any force in the appeal, and therefore, the some is dismissed. We also accept the reference made by the Sessions Judge and confirm the death sentences awarded to both the accused.