1. MUSHTAK ALI KAZI, J.----The appellants have been convicted by the I-Additional Sessions Judge, Hyderabad for offences under sections 302 and 323, P. P. C. Respectively and they have been sentenced to undergo trans--portation for life and fine of Rs. 1,000 or in default R. I. For one year for the offence under section 302, P. P. C., and R. I. For one year for the offence under section 323, P. P. C.
2. The incident occurred at village Kot Jan Muhammad, near Math in Hyderabad District on 19-2-1970 at about 2 p.m. Deceased Muhammad Amin came out from his house for going to Digri on business. At that time appellant Jamil also came out from his adjoining house and he abused Muhammad Amin for creating mischief and dealt him a danda blow hitting Muhammad Amin on his eye. On the cries of Muhammad Amin his nephew complainant A.I Ahmed came out. Leaving Muhammad Amin, Jamil inflicted danda blows on A.I Ahmed on his back and occipital region of his head. Appellant Shaukat then came out to assist Jamil. Shaukat and Amin then grappled with each other. P. W. Wasand was already standing there while Mst. Rashidan Bibi wife of deceased Amin also came out on noise and witnessed the incident. Meanwhile a small pistol which was carried by appellant Shaukat inside his trousers belt fell down on the ground from the bottom of his trousers.
3. Deceased Muhammad Amin on seeing the pistol tried to get hold of it. Appellant Shaukat on the other hand tried to pick ;this pistol himself. This resulted in further struggle between deceased Muhammad Amin and appellant Shaukat and they rolled on the ground, each attempting to get hold of the pistol. Ultimately there was report of firing of the pistol and a cry from deceased Muhammad Amin, who fell down with a bullet wound on his abdomen and died on the spot. On seeing this, com--plainant A.I Ahmed ran for his life and concealed himself in the house of Jan Muhammad. Appellants Shaukat and Jamil then ran away with the pistol. Complainant A.I Ahmed lodged report of this incident on the same day at Tando Ghulam A.I Police Station, 10 miles away, at about 8 a.m.
4. A.S.I. Muhammad Khan registered the F.1. R. And then visited the scene of offence at village Kot Jan Muhammad in presence of Mashirs Fateh Muhammad and Ghulam A.I. The dead body of the deceased Muhammad Amin was lying at the scene. An empty crime bullet fired from the pistol was found lying near the dead body and was secured and sealed in presence of the same Mashirs. The dead body was forwarded to Medical Officer, Tando Muhammad Khan for post-mortem examination. S. H. O. Aziz Ahmed then arrived at the scene and took over charge of investigation. He examined P. Ws. Mst. Bashiran, Mst. Rashidan and Wasand. On 20-2-1970 he arrested appellant Shaukat at about 10 a.m. And interrogated him. Appellant Shaukat led the police party to a sugar- cane field and dug out from the ground the pistol and 5 live cartridges and produced these before the S. H. O. The pistol and the cartridges were secured and sealed. The S. H. O. Then arrested appellant Jamil. Azmatullah father of appellant Shaukat produced a licence on which the pistol in question was entered. Azmatullah also produced 17 cartridges of this pistol. The pistol and 5 cartridges produced by appellant Shaukat and the crime bullet were sent for opinion of the ballistic expert. He sent his report that the crime empty had been fired from the pistol in question.
5. Appellants were then sent up in Court.
6. The version of the appellants in their examination in the-lower Court as well as in the Court of Session has been, a bare denial of the incident. Appellant Shaukat even denied having produced the pistol and 5 cartridges before the police. Appellant Jamil also denied having taken part in any such incident and stated that no witness had implicated him.
7. It appears that the parties and witnesses being related, have resiled from the original F. I. R. And the section 164, Cr. P. C. Statements. They have deposed in respect of the incident in the course of which deceased Muhammad Amin sustained bullet injury and died, but they have not stated in so many words that appellant Shaukat fired at Muhammad Amin with the requisite intention.
8. There can however be no doubt regarding the fact that Muhammad Amin died on account of this bullet injury and simple hurt was caused to com--plainant A.I Ahmed. The medical evidence of doctor Haji Hussain Bux Exh. 36 shows that deceased Muhammad Amin had the following external injuries: ---
(i) Wound of entrance --" x --" on the left side upper part of abdomen 2" above and to the left of umbilicus with blackening around.
(ii) An abrasion --" x --" with echymossis of left lower eye lid on left cheek oblique. On internal examination following was found:
(i) Left rectus muscle alongwith the sheath was punctured under entry No. 1.
(ii) Paritoncum was cogested and punctured at the site of external injury No. 1 and the abdominal cavity was full of blood.
(iii) Small intestine was punctured at two places. Each puncture 1" x --".
(iv) Third lumber vertebra was fractured in the middle and the bullet was present jusE near the spine.
9. Doctor Ghulam Qadir Exh. 39 examined injured A.I Ahmed and found abrasion on back of occipital region measuring 3/4" x 1/8" x 1/8". The nature of the injury was simple and it could be caused by a lathi.
10. It is thus clear that Muhammad Amin died as a result of pistol firing and he and A.I Ahmed had also sustained simple injuries caused with stone or lathi.
11. The prosecution evidence in this case given at the trial is scanty and not conclusive. It consists of the ocular testimony of complainant A.I Ahmed P. W. Wasand hari of deceased Muhammad Amin and Mst. Rashida Bibi wife of the deceased Muhammad Amin. Then there are circumstances regarding production of the pistol and cartridges by appellant Shaukat before the police and evidence of D. S. P. Ghulam Abbas that the crime bullet which was recovered from the scene had been fired from this pistol. There is also the evidence that the pistol was borne on the licence of Azmatullah father of appellant Shaukat.
12. The quarrel according to complainant A.I Ahmed, was a petty one, in the course of which appellant Jamil struck deceased Muhammad Amin with a wooden stick. A.I Ahmed intervened and caught hold appellant Jamil when appellant Shaukat came out and grappled with the deceased Muhammad Amin. By chance the pistol fell on the ground and both Shaukat and the deceased Muhammad Amin struggled to get hold of that pistol. The witness does not say, who actually had the pistol and how it went off. He only heard report of firing and found that Muhammad Amin had received the pistol shot.
13. Then there is evidence of P.W. Wasand Exh.
17. He merely states that deceased Muhammad Amin had called him at about 2 p.m. As he was to go to Tando Ghulam A.I. While going towards deceased Muhammad Amin he found appellants Jamil and Shaukat fighting with him.
14. Complainant A.I Ahmed then came out from his house. He then heard report of firing and saw that deceased Muhammad Amin had fallen down. He did not see the pistol near the dead body, nor did he see any body firing it. The witness has been cross-examined by the prosecution as a hostile witness.
15. Lastly there is ocular evidence of Mst. Rashidan Bibi wife of the deceased Exh.
19. It is remarkable that even this lady who was wife of the deceased has been cross-examined by the prosecution as a hostile witness. The lady has deposed, that after the departure of her husband Muhammad Amin from the house she heard report of firing of pistol. On going out she saw her husband lying dead.
16. Regarding the production of the pistol with 5 cartridges by the appellant Shaukat from the sugar- cane field, there is evidence of S. H. O. Aziz Ahmed only. He has produced the Mashirnama Exh. 14.
17. Lastly D. 'S. P. Ghulam Abbas Exh. 26 has in his evidence pointed out that the empty cartridge found on the scene, was fired from the pistol produced by appellant Shaukat.
18. The learned Additional Sessions Judge, while discussing the above evidence came to the conclusion that the shot which hit the deceased was fired from the: pistol in question which only appellant Shaukat could have carried from the house of his father. That this circumstance therefore led to the inference that deceased Muhammad Amin was shot dead by appellant Shaukat. He has accordingly convicted appellant Shaukat, for an offence under section, 302, P. P. C.
19. On the basis of this presumption only.
20. The learned counsel for the appellants has raised the plea that admittedly the appellant and the deceased had struggled to catch hold of the pistol and in the course of that struggle the pistol went off, hitting the deceased. That the possibility of the pistol having gone off accidentally cannot be excluded. The learned Advocate has also pointed out that there could be no intention on the part of appellant Shaukat to cause death of Muhammad Amin or to cause any such bodily injury likely to cause death. If he wanted to cause death or grievous hurt he could very easily fire the pistol at Muhammad Amin when he came out from his house. That it was only after the pistol had fallen out from the bottom of his trousers that he and Muhammad Amin tried to get hold of the pistol. It is possible that both of them had reasonable apprehension that if the pistol fell into the hands of the other, he would not spare him.
21. We have accordingly carefully considered the version of the prosecution and .The defence. We entirely agree that at the beginning of the incident appellant Shaukat had no intention to use the pistol as it was a petty alterca--petition. By accident, the pistol fell down from his trousers. It was then that both Shaukat and deceased Amin struggled to catch hold of the pistol. How the pistol went off has not been explained by the prosecution. The pistol however could not have gone off by accident. These colt type pistols are generally provided with a safety device so that the round from the magazine goes into position only with the pulling of the barrel. We cannot therefore accept the possibility of accidental firing. The facts and circum--stances are however to be examined from both the angles to see whether the pistol was fired by appellant Shaukat at the moment under the apprehension that his adversary would otherwise snatch this pistol from him and fire it at him. It is true that such plea of right of private defence has not been raised by the appellant and he has flatly denied that he fired that pistol. It is however open to the Court to assess the evidence regarding such possibility. If there is no positive indication from evidence that the appellant had fired the pistol in exercise of right of private defence but even if there is a probability or even remote possibility of his having done so, then the benefit of reasonable doubt has to be given to the appellant. For the burden in criminal cases never shifts from the prosecution. The prosecution has affirmatively to prove not only that pistol was fired by the appellant but that) it was fired with the requisite intention, namely, to cause death of the victim or to cause an injury likely to cause death or sufficient in the ordinary course of nature to cause death.
22. The law as to burden of proof in cases of this nature has undergone a drastic change. It is no longer considered necessary for the appellant to plead expressly that his case falls under any of the exceptions to section 300, P. P. C. Nor is the burden of proving an exception on the accused. The prosecution has to affirmatively prove the circumstances under which the act was committed and the, burden never shifts from the prosecution to the defence even in respect of an exception. The accused is entitled to benefit of doubt though he may have failed affirmatively to establish from the evidence, the existence of the circumstances bringing his case within such exception, but may have only suggested reasonable possibility. In the case of Safdar All (PLD 1953 F Q 93), it was observed by Abdul Rasheed, C. J. That "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 decision Shahabuddin, J. Observed that "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." The observations of Cornelius, J., in the same case are as under:- "The law as formulated by the learned Lord Chancellor has made material difference in more than one respect. Malice, as an ingredient of murder, will not be presumed except where the Crown establishes (n) a voluntary act of killing, (b) intention to kill, and (c) absence of provocation. Even where these conditions are satisfied, the Court will not judge the case for the defence (e.g. Of accident, self defence, provocation) and the case for the prosecution irrespectively of each other, but the whole of the evidence will be regarded, and if then there be reasonable doubt as to whether the act of killing was either unintentional or provoked, the benefit will go to the accused person."
23. His Lordship accordingly observed that it was the duty of the prosecution to prove each ingredient beyond any reasonable doubt. If the prosecution failed to prove the requisite intention in a case of murder, then the prosecu--petition must necessarily fail. Such an intention may of course be established by proof of circumstances, but they should be so strong as to exclude the possibility of the defence plea. The plea of self-defence of the person, in a case of the present kind is founded on the actuation of the accused by a totally different intention viz., to save his own life from imminent danger of extinction. The Court has to weigh the probabilities with the requisite degree of thoroughness before reaching its conclusion. It is 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, as observed by Viscount Sankey. The verdict must be given not on any special pleading but upon and as the result of the whole of the case.
24. Similar view was taken by the Federal Court in the case of Muhammad Aslarn (PLD 1953F C 115). It was observed by Cornelius, J., as under:- "The essential consideration underlying this conclusion is that the accused person cannot be regarded as having acted in the ordinary case (to which category the present case belongs) with more than one intention. Either he must be deemed to have acted with the intention to save himself, or with a criminal intention such as constitutes murder. For the determination of this question it is necessary that the Court should take into account fully all the facts and circum-- stances appearing on the entire record, including such portion of the evidence led for the defence as the Court finds worthy of belief, for even though such evidence may be insufficient to establish the special pleading, it cannot be without effect in relation to the opposing evidence led for the prosecution, since exhypothesi, it relates to the same incident. The effect, in such a case, may be to create the state of reasonable doubt indicated above, of which the Court is bound to give the benefit to the accused."
25. The principle laid down in Safdar A.I's case and Muhammad Aslarn's case, has been reiterated in the later decision of the F. C. In Sultan Muhammad's case (PLD 1954 FC 29). It was held in that case, that the "evidence and the circumstances upon which the Courts were required to decide whether the prosecution case of intentional killing, or the defence case of accident was true, lay within a very narrow compass. The ocular evidence was confined to statements by the deceased and the accused only. The physical circum--stances having a bearing on the question were very limited in number; then if 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 elements of the offence charged. Further, it is not correct to say that the accused must be found guilty if he fails to show the circumstances necessary to establish the accident pleaded by him. The question for the Court is not whether the accused has established his plea, but the fundamental question is whether the Government 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 circum--stances 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, even if the accused's special pleading be not accepted, the act of killing might be unintentional, and the benefit of such reasonable doubt must go to the accused person.
26. The learned Additional Sessions Judge should not therefore have acted merely on the presumption that since death resulted from the firing of the pistol and the pistol belonged to appellant Shaukat, therefore the murder was committed by appellant Shaukat. Such a presumption cannot arise in a case of murder. On the other hand the version of the defence is one of accidental death or death caused in the exercise of right of private defence. The probabilities are that, if the weapon had fallen into the hands of the deceased, he might in that moment of excitement have fired the weapon at the appellant. Appellant fearing such a contingency might have fired the pistol, when he succeeded in getting hold of it, in order to prevent the pistol from being snatched away from him by the deceased. The act of killing would in that case be unintentional. In such a moment the appellant could not be expected to fire the pistol at the lower part of the body of the deceased, so as not to cause more harm than necessary for the purpose of disabling his adversary. The question of exceeding the right of private defence does not therefore arise under the circumstances. Even if this plea be not accepted, the benefit of reasonable doubt must go to the appellant, when the prosecution has failed to establish the requisite intention.
27. We accordingly allow the benefit of reasonable doubt to appellant Shaukat, accept his appeal and acquit him. He may be forthwith released if not required in any other case. We also find that appellant Jamil had just caused a simple abrasion in the course of a petty quarrel and he has already remained in jail as under trial prisoner for a considerable time, and after his conviction he has remained in jail for about 9 months. Therefore maintaining his conviction for an offence under section 323, P. P. C., we reduce his sentence to that already undergone. Appellant Jamil is on bail.
28. 1iis bail bond is hereby discharged and he need not surrender.
29. MUHAMMAD HALEEM, J.----I agree.
30. S. A. H.