1. MUHAMMAD YAQUB ALI, C. J.--Rehmat, appellant, who bears a number of aliases, was convicted by the Additional Sessions Judge, Lahore, on the 16th February, 1972, for the abduction, rape and murder of Mat.
2. Rashida Bano and sentenced under section 366, P. P. C. to 10 years' R. I., under section 376, P. P. C. to transportation for life and under section 302, P. P. C. to death. The appeal preferred by him was dismissed and on a reference under section 374 of the Code the sentence of death was confirmed by a Division Bench of the High Court of Lahore.
3. Leave to appeal was granted to the petitioner on jail petition on 2-9-1974.
4. The essential facts of the case may be briefly stated thus : On the 31st August, 1970, at about 7 a.m. the dead body of a young woman was discovered by Muhammad Shafi, P. W. 8, near the railway line, close to the residential quarter of A. W.
1. He gave this information to the Police at Shahdara Railway Station and lodged F.
5. I. R. (Exh. P. B/1) at Police Station Shahdara in which only the discovery of an unidentified body of a woman was mentioned. A case under section 302, P. P. C. was registered and photographs of the deceased were published in the newspapers to elicit information about the identity of the deceased.
6. On 11-9-1970, Faqir Muhammad, P. W. 9, appeared at P. S. Shandara and identified the photograph as that of his daughter Mat. Rashida Bano who was missing since about 12-8-1970. He also identified the clothes which Mat. Rashida Bano wore on the day she had disappeared from his house in Garb Maharaja, District Mang. By a sheer coincidence Faqir Muhammad had, on 31-8-1970, lodged a report at P. S. Garh Maharaja to the following effect That his daughter Rashida Bano was suffering from a prolonged illness and the parents suspected that she was under the influence of evil spirits. In order to rid her of this malady, the mother of Mat. Rashida Bano approached the appellant who, at the time, was living at village Sialkot, P. S. Garh Maharaja and posed as an 'Amir one who can rid persons of evil spirits. The appellant assured the mother that Mst. Rashida Bano was indeed under the influence of spirits and if she was not treated she would die. The appellant undertook to treat Mst. Rashida Bano and for this purpose shifted to the house of Faqir Muhammad. To allay his suspicions, the appellant swore on the Holy Qur'an that he looked upon the wife of Faqir Muhammad as his sister and Mst.
7. Rashida Bano as his own daughter. The appellant and one Ghulam who had accompanied him from village Sialkot, stayed at the home of Faqir Muhammad for a period of twenty-two data. To treat Mst. Rashida Bano, the appellant remained with her in a room in the house and recited Dam. The appellant also warned Faqir Muhammad that any adult person, who tried to look into the room while the treatment was being administered, would go blind. About a week later Faqir Muhammad enquired after Mst. Rashida's health and she told him that a strange thing had happened, she recounted how, while the appellant was standing beside her, some coins (raizagari) rained upon her. To dispel her father's doubt she produced a small bundle containing Rs. 10 in small change. Asked to explain this phenomenon, the appellant said that Mst. Rashida had found favour with the Jinnat (spirits). The following day Mat. Rashida Bano told her father. Faqir Muhammad, that while the appellant was reciting his '.Amal' over her she felt showers of currency notes which vanished as she opened her eyes. A few days later the appellant topped these performances by 'doubling' a ten-rupee note in Faqir Muhammad's presence who was now completely convinced of the appellant's power and gave the appellant Rs.3,100. His wife too gave all her jewelry for 'doubling'. Thereupon, in the presence of Faqir Muhammad and his wife, the appellant gave the money and jewelry to Mst. Rashida Bano with the direction to place them under the prayer mat in the room where Dam was recited. The appellant went into the room and re-appeared after a while to inform Faqir Muhammad that the Jins who are to double the money and jewelry have gone away to some other place and would only return in the morning, and advised that they should take back the money and jewelry. At this Faqir Muhammad was completely taken and told the appellant to keep the money and the jewelry with him.
8. The appellant and Mat. Rashida Bano, thereafter, entered the room and were not seen again.
9. The appellant was arrested on the 18th December, 1970, by Muhammad Yusuf, S. I., P. W.
13. An identification parade was held on the 22nd December by Mr. laved Ahmad Mufti, P. W. 3, Magistrate 1st Class, at which Faqir Muhammad correctly identified the appellant. A pair of shoes (P/2), left behind by the appellant were recovered from the house of Faqir Muhammad. The recovery was proved by Muhammad Siddique, P. W. 11, and Muhammad Hassan, P. W.
12. In their presence the appellant was made to wear them, the shoes fitted him. It was noticed that a cut in the left shoe corresponded to a corn on the toe of the appellant Muhammad Siddiq, P.
10. W. 11, and Muhammad Hassan, P. W. 12, also deposed that in their presence the appellant had led the police to the house of Faqir Muhammad.
11. The medical evidence revealed that the injuries on the deceased consisted of multiple contusions over the cheeks, lips, nose and chin and also a ligature all around her neck. Death was caused by asphxsia due to strangulation. Two vaginal swabs sent to the Chemical Examiner were found to be stained with semen. As a result of investigation, the appellant was charged for the abduction, rape and murder of Mst. Rashida Bano.
12. At the trial the prosecution also produced Chiragh Bibi, P. W. 10, who deposed that in the month of December, 1970, the appellant had, on a pretext of curing her son of evil spirits taken her to Khanna Dogran and kept her there for seven days, during which period he committed sexual intercourse with her. She also identified the appellant in Court.
13. The appellant in his statement under section 342 of the Cede denied the charge and stated that he had been falsely implicated. No evidence was led or explanation rendered in support of his innocence.
14. In the High Court, the learned Judges observed that the entire evidence against the appellant was circumstantial but they were satisfied that 1-- "Since the deceased was last seen in his company before they disappeared from the house of Faqir Muhammad P.W. 8, ... it must have been the appellant who subsequently subjected her to sexual intercourse and eventually murdered her."
15. In this view the appeal by Rehmat was dismissed and the sentence of death was confirmed. The sentences awarded under the charges of abduction, rape and causing the disappearance of the evidence of crime were maintained.
16. Leave to appeal was granted on 2-9-1'74 on a jail petition to consider whether the evidence on record, which is wholly circumstantial, was sufficient to warrant conviction in the case.
17. Learned counsel for Rehmat has urged before us that the circumstances on which both the Courts below have relied is the evidence that the deceased was last seen in the company of the appellant. It was contended that this circumstance, by itself was not sufficient to sustain conviction on the charges of murder and rape. He cited some reported cases in support of this proposition.
18. In Besant Singh v. Emperor, the accused was one of two persons in whose company the deceased was last seen alive, subsequent to his dis appearance, the accused led the police to the place where the deceased was buried. It was held that though 'grave suspicion' attached to the accused the circumstances were not sufficient to establish his guilt because of the possibility that the deceased may have been murdered by another person.
19. There were three accused persons in the case out of whom two had been acquitted by the trial Judge.
20. In Siraj v. The Crown, there was no direct evidence of the murder, the evidence against the accused was, inter alia, that he was the last person seen with the deceased. His conviction was set aside because the deceased's payment diary indicated that two other persons had visited the deceased after the accused had called on him.
21. In Karamat Hussain v. The State, the conviction was set aside because; in the words of Hamoodur Rahman, C.
22. J. :-- If the extra-judicial confession is disbelieved, and the recoveries are not connected with the crime in question, then it is clear that, in a case of this nature, where the motive is of an extremely weak nature, no conviction can be based merely on the evidence of the fact that the deceased was last seen together with the appellant."
23. On the other side the learned counsel for the State referred us to a number of decisions in which conviction was maintained on the evidence of the accused having been last, seen with the deceased and the failure of the accused to give a satisfactory explanation of how the deceased happened to be killed.
24. In Abdus Samad v. The State, the evidence against the accused, charged with the offence of raping, and murdering a little girl, was that she was last seen in his company and he had also led to the recovery of her body from a remote place exclusively within his knowledge. There was also an incriminating recovery from the spot where the deceased was found which implicated the accused. On this evidence, conviction was maintained and the appeal dismissed with the observation: "....two circumstances mentioned above ('Last seen' and knowledge of place 'where body found') were in my opinion, sufficient to establish the charges of kidnapping and murder against the accused, being sufficient to exclude all possibility of his being innocent of the death of the child."
25. Learned counsel for the State also referred us to The State v. Manzoor Ahmad. In this case the deceased and accused were last seen entering a room in a building in Mohalla Krishan Nagar, Lahore, at 11 a.m. The room was in the exclusive possession of the accused. Half an hour later, the accused was seen leaving the building.
26. At 10 p.m. on the same day, the body of the deceased was found in the same room. It was observed that en such circumstances which are not readily capable of any explanation consistent with the innocence of the accused, then a heavy onus rests upon the accused to furnish an adequate explanation for such evidence.
27. In R. v. Nash, a woman was seen standing near a well with her child. She made some false statements regarding the whereabouts of the child. Later the child's dead body was recovered from the well. Affirming her conviction, Lord Coleridge, C. J., said: "The facts which are proved called for an explanation".
28. On a balance of the decided cases it appears that the circumstance of the deceased having been last seen in the company of the accused is not b itself sufficient to sustain the charge of murder. Further evidence is require to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of the accused, a strong motive or the proximity of the time when they were last seen together and the time when the decease was killed. Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company.
29. Having considered the relevant authorities, we may now examine the evidence in the case.
30. The statements of all the P. Ws. establish that the appellant stayed a the house of Faqir Muhammad and that he absconded with Ms. Rashida Bano on or about the night of 12th August and 13th August, 1970. Th appellant1 2 3 4 5 6 also took away with him the cash amount of Rs. 3,100 given to him by Faqir Muhammad and old pieces of jewelry entrusted to him by the wife of Faqir Muhammad. The manner In which he tricked the witnesses to part with their valuables indicate the ingenious character of the appellant The evidence of Chiragh bibi, P. W. 10, that the appellant fraudulently personated as an 'Amil' undertook to cure her son, who was suffering from some malady and on this pretext took her away to his house and committed sexual intercourse with her for several days, is relevant as evidence of the appellant's conduct but not of the murder of Mst. Rashida Bano. Beyond this it does not further the prosecution case that the appellant is responsible for the murder of Mst. Rashida Bano or for committing rape on her shortly before she was strangulated at a place nearly 100 miles away fro: village wherefrom she had been adbucted 20 days earlier.
31. On the other band there are one or two circumstances which favour the appellant. Firstly, Ghulam, the Chela of the appellant, had accompanied him and Mat. Rashida Bano on the night when they disappeared from the house of Faqir Muhammad, He was present in the house on the evening of the 12th August and neither Faqir Muhammad nor his wife have made any mention of him thereafter. Secondly, there is a distance of space and time between the point where they were last seen together and the recovery of the dead body of Mst. Rashida Bano on the morning of 31st August.
32. And finally there is no apparent reason why the eppellant should have murdered Mst. Rashida Bano who had come under his spell completely and had eloped with him taking with her the money and the jewelry which belonged to her parents. It is obvious, therefore, that some other events had taken place which culminated in the death of Mst. Rashida Bano which the prosecution has failed to unearth. If a proper investigation had been undertaken and the movements of the appellant traced from the time he had left the house of Faqir muhammad till the time of his arrest, some valuable evidence may have come to light as to where Mst. Rashida Bano was lodged and where she was last seen by the neighbours in the company of the appellant. Nor were any efforts made to trace Ghulam, the Chela of the appellant. His interrogation too, might have yielded some clue to the whereabouts of the deceased after she had left the house of her parents. Thus there are missing links in the case which do not warrant 376, P. P. C.
33. There is, however, ample evidence of abduction of Mst. Rashida Bano and misapprapriation of the sum of Rs, 3,100 and the jewelry belonging to the wife of Faqir Muhammad by the appellant. It is deposed by Faqir Muhammad that the deceased and the appellant entered a room in his house for reciting Dam as usual. He left his shoes outside the room to indicate that both he and Mst. Rashida Bano were still inside, Consequently Faqir Muhammad and his wife believed the following morning that the appellant was inside the room although he had left with Mst. Rashida Bano during the night. Faqir Muhammad identified the appellant at a parade held by a 1st Class Magistrate on 22-12-1970. It is also in evidence that after his arrest on 18-12-1970 the appellant led the police to the house of Faqir Muhammad at Garh Maharaja. This corroborated the statement of Faqir Muhammad that the appellant had resided in his house until he eloped with M. Rashida Bano on the night of 12- 8-1970. In the light of the circumstances narrated above, we see no reason to differ with the appraisal of evidence by the Courts below on the charge under section 366, P. P. C.
34. In the result the appeal by Rehmat is partly allowed. His conviction and sentences under sections 302 and 376, P. P. C. are set aside but the conviction and sentence of 10 years R. I. under section 366 is maintained.
35. Order accordingly.
36. Qaiser Khan, J.--- I agree.
37. MUHAMMAD AKRAM, J.--I have the advantage of having gone through the judgment proposed by my Lord, the Chief Justice. I respectfully agree with his conclusions that while maintaining the conviction and sentence awarded to the appellant under section 366, P. P. C. his conviction and sentence under section 302 and 376, P.
38. P. C. be set aside. I would however, like to add my reasons for it.
39. In this case the essential facts have already been adequately stated by the Chief Justice in his judgment and it is unnecessary for me to burden this record in recapitulating them in extenso. Suffice it to mention here that according to the evidence on or about the night between the 12th and 13th of August 1970, Rehmat appellant and ,'list. Rashida Begun deceased were last seen entering one of the rooms in the house of her father, Faqir Ahmad P. W., situated in village Garh Maharaja District Jhang and they disappeared from there during the darkness of the night. She remained all along missing from her parents' house and was neither seen nor heard of until on 31st August 1970, at about 7-00 a.m. her dead body was discovered lying near the railway line, close to the residential quarter of A. W. 1, in the area of Police Station, Shandara, at a distance of more than 100 miles away from the house of her parents. According to the medical evidence the dead body bad multiple contusion marks on the cheeks, lips, nose and chin and also had a ligature mark round her neck showing that the death was caused by asphysia due to strangulation. Her two vaginal swabs sent to the Chemical Examiner were found to be stained with semen.
40. The High Court upheld the conviction and sentence of the appellant on all the three counts and confirmed the death sentence awarded to him under section 302, P. P. C. In coming to this conclusion the High Court was satisfied that o "Since the deceased was last seen in his (appellant's) company before they disappeared from the house of Faqir Muhammad, P. W. 8 . it must have been the appellant who subsequently subjected her to sexual intercourse and eventually murdered her".
41. The question, therefore, arises as to whether the convictions of the appellant by the High Court on the three counts could be justified on the basis of the solitary circumstance that the deceased was last seen in the company of the appellant before they disappeared from the house of her father, Faqir Muhammad P. W.
42. In addition to the decided cases noticed by my Lord, the Chief Justice in his judgment, in Alu v. Emperor, Chidda v. Emperor and in Ali Sher v. The Crown it was generally held that in a murder case the solitary evidence of the deceased having been last seen with the accused, by itself, was not sufficient to parse his complicity beyond reasonable doubt. Similarly, in Ahmad Khan v. State a Division Bench of the Lahore High Court has held that the last seen evidence can at best serve as a piece or corroborative evidence but cannot, by itself, form the basis of conviction of the deceased.
43. In Barkati v. Emperor, on a difference of opinion between Agha Hyder and Broadway, J. The case was referred to Fforde, J. for his opinion. In that case Barkati, appellant, was convicted by the trial Judge for the murder of one Narain Singh and sentenced to death. In the absence of any direct evidence as to the actual murder, the prosecution relied on the evidence of the approver in the case and the question arose as to whether it was materially corroborated by other independent and reliable evidence on the record. Narain Singh deceased was last scan in the company of the approver and Barkati accused later in the evening of the 22nd of February 1926 and on the next morning his dead body was found lying on railway line. Agba Harder J, relying on Chhidda v.
44. Emperor held that the evidence of the accused having been last seen with the deceased was not sufficient to lend the requisite support to the evidence of the approver. He observed that after all the case for the prosecution was perhaps on the border line and he would better leave it there without taking the risk of a leap in the dark. At best, it was a doubtful case and therefore, he allowed benefit of doubt to Barkati. But Broadway, J. disagreed with the finding. In his opinion the prosecution evidence clearly connected Barkati with the murder of Narain Singh. On this difference of opinion, Fforde, J. observed:-- "In the present case, also, the independent evidence standing by itself is obviously quite insufficient to support a conviction. The mere fact that an accused was last seen in the company of a man shortly prior to his murder, even coupled with a strong motive for that murder, is obviously not sufficient proof of guilt. In Chhidda v.
45. Emperor cited by Agha Hyder, J. all that was decided was that evidence of the general unpopularity of an accused, coupled with the fact that he was seen in the company of a person on the evening before the latter's death, added to the fact that no explanation is given by the accused regarding the death, was not enough to justify a conviction. There was no approver in that case."
46. Nonetheless in his opinion all that was required under the law was that only some relevant and material part of the approver's story incriminating the accused should have support from an independent source and in the circumstances of that case the approver's narrative of the crime was corroborated in particulars "tending to connect" the appellant with the crime. On this ground, therefore, he agreed with Broadway, J. in maintaining the conviction.7 8 9 10 11 In Hayat v. Emperor, Muhammad Khan deceased was seen alive for the last time in the company of Hayat Appellant and in the opinion of the Sessions Judge some sort of onus rested upon him to give an explanation of the disappearance of the accused. He, therefore, convicted the accused under section 302, P. P. C. and sentenced him to death. On appeal Agha Haider, 3, in his leading judgment did not subscribe to this view. In his opinion the onus all along rested on the prosecution to prove the guilt of the accused. In this connection he observed :-- "Furthermore, I cannot subscribe to the view expressed by the Sessions Judge, that when two persons are seen together and shortly afterwards one of them is found to have been murdered, then the survivor has to give an explanation as to how the deceased met his death. And the fact that the accused denies all knowledge of the crime or of the circumstances connected therewith cannot be treated as any evidence whatsoever of his guilt.
47. The burden of establishing the guilt of the accused is throughout on the prosecution and they must prove every link in the chain of evidence against him, from the beginning to the end. These are elementary matters which need not be discussed at any length." A somewhat similar view was taken by a Division Bench of the Sind & Baluchistan High Court in Gulab Khan and another v. The State. In that connection the Court remarked :-- "The conviction of appellant Ali Akbar rests on the circumstantial evidence of Mst. Namoi and her husband Gulab alias Motan, the judicial confession and his pointation of the place from where the dead body was dug up.
48. The testimony of Mst. Namoi and Gulab alias Motan is to the effect that at *hart' time the deceased had accompanied All Akber from their house of village Kchri. This is an incriminating circumstance, upon which the prosecution relies to establish that the deceased was last seen alive in the company of appellant All Akbar.
49. Village Kohri is about 3 miles away from Ratodero. The presecution has not collected any evidence to show that the deceased after leaving the house was seen alongwith the appellant Ali Akbar either in Ratodero town or on the way leading to that village. The possibility of Ali Akbar having separated from the deceased soon after leaving the house has not been altogether excluded. Even though this appellant has denied having visited Ratodero and has accordingly not explained this piece of circumstantial evidence against him yet the onus is still on the prosecution to exclude all doubts. On an examination of this piece of circumstantial evidence we are inclined to feel that the plausibility of an innocent possibility such as the one pointed out above has not been excluded. For this reason not much weight can be attached to this piece of evidence."
50. On the other hand, in Fazal Wahl alias Sojawal v. The Crown the Federal Court observed :-- "For, while the fact of an accused person being the only person in the company of the deceased within a very short time of his death may be almost conclusive, in the absence of explanation from the accused, for holding him to be responsible for the death, should it have been the result of violence, prolongation of the interval generally tends to weaken the inference very greatly. In certain circumstances, as much as an hour's extention may suffice to avoid even the duty of furnishing an explanation. This is the more so if there be no reason shown which would oblige the two men to remain in each other's company."
51. In that case the Court found that the evidence of Jamal Din deceased being last seen Ave in the exclusive company of the accused suffered from such a degree of vagueness, both as to time as well as place, as excluded the possibility of Any inference of guilt being based thereon.
52. In The State v. Manzoor Ahrrad on appeal against acquittal, in the absence of any direct evidence available for the murder, this Court on appraisal of the evidence found that on the fateful day the respondent accused was in exclusive occupation of the room in Siraj Building, Krishin Nagar, Lahore, He called Shirin Khan deceased from the home, of his maternal uncle and was seen entering Siraj Building at about 11-00 a.m,, alongwith the deceased. After about an hour the respondent was seen leaving the building alone. Shirin Khan was last seen alive in the company of the respondent when they entered the building. Thereafter at about 10-00 p.m. the dead body of the deceased with marks of violence on it, was found locked in the zoom in the occupation of respondent. The respondent absconded from Lahore leaving his belongings in the room occupied by him, He remained absconded for over two years for which he had no satisfactory explanation. In these circumstances, in the opinion of this Court, the inference was legitimate that the deceased met his death at the hands of the12 13 14 respondent, for they could not be explained away on no other hypothesis consistent with the total innocence of the respondent. In conclusion the Court further observed that "This evidence clearly cast a heavy onus upon him which he could hardly expect to discharge merely by hinting at bare possibilities or suggesting some remote hypothesis. Thus the onus lay heavily upon him to explain what happened in the room where they were last seen together and why be remained absconding for over two years."
53. The two last mentioned authorities discussed above go to show that there can be no hard and fast rule and that the evidence of last seen carries weight depending upon the varying degree of probity and the facts and circumstances in each case, remembering always the golden rule applicable where in the absence of direct evidence, the conviction is based solely on the circumstantial evidence. Before the guilt of the accused can be inferred merely from inculpatory circumstances, these circumstances must be found to be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. (See State v. Manzoor Ahmad). All the cases discussed in the final analysis rest on the application of this rule which is the only safeguide for the disposal of such like cases.
54. In Abdus Samad v. The State the child was last seen alive in the company of the accused and he had exclusive knowledge of the place where his remains were enventually found. In the opinion of this Court these two circumstances taken together were sufficient to establish the charges of kidnapping and murder against the accused, being sufficient to exclude all possibility of his innocence.
55. In Muhammad Nazi, Hussain Sarkar and another v. The State, the prosecution case against the appellants was that they had seen the deceased, Imam Ali, murdered by unknown persons. The only evidence available in the case was that a day before his body was found, the deceased was taken away by one Hazrat Ali on a false pretext to a place where among others, the two appellants were present. Imam All never returned home and his body was found on the following day bearing marks of violence. The Sessions Judge try lug the accused convicted them under section 302, P. P. C. real with section 109, P. P. C. The order was maintained in appeal rejected by the High Court. But the Supreme Court accepted the appeal of appellants and set aside their convictions and sentences. The Court observed that the evidence in the case was entirely circumstantial, and it is a fundamental rule in such cases that an accused person cannot be found guilty unless all reasonable hypotheses, which are consistent with his innocence, have been excluded. In the opinion of the Supreme Court the hypotheses that the deceased was murdered by some one else, who' had nothing to do with the appellants, was clearly a reasonable possibility.
56. There appears to be a certain amount of confusion prevailing about the burden of proof in such like cases. As already mentioned above in Hayat v. Emperor it was categorically laid down that the burden of establishing the guilt of the accused is throughout on the prosecution and the fact that the accused denies all knowledge of the crime or does not give any explanation as to how the deceased met his death, cannot be treated as any evidence whatsoever of his guilt. But in Munshi and another v. The State a Divison Bench of the Lahore High Court observed that this view has undergone some modification anti in that connection remarked :- "But it is not difficult to conceive of a case where the circumstance that the deceased was last seen alive in the company of the accused, may raise reasonable presumption against the latter and he may, justifiably, be expected to give an explanation, e.g., where a person, who is seen visiting the accused in a room, in the sole occupation of the latter, is found dead shortly thereafter, with signs of violence on his person. In such a case the onus of displacing the presumption of guilt shall in our view shift on the accused and he shall be under an obligation to furnish a reasonable explanation as to how the deceased met his death "
57. In support of this view the High Court purported to rely on the observations of the Federal Court in Fazal Elahi v.
58. The Crown reproduced above in extenso. At the same time the High Court further observed that as a measure of abundant caution the Courts in Pakistan have tended not to base conviction on the solitary circumstance that the deceased was last seen alive with the accused, and have always sought some additional corroboratory circumstance, like the discovery of dead body from the place pointed out by him, or the recovery of clothes which the deceased was wearing or the articles which he was carrying at the time from the possession of the15 16 17 accused. Presently, I shall show that the view formed by the High Court in the case under discussion that in such a case the onus of displacing the presumption of guilt at any stage shifts on to the accused, is not warranted by law. Nor does the observations by the Federal Court in Fazal Elahi v. The Crown lend support to the inference drawn by the High Court.
59. Section 106 of the Evidence Act lays down that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. It seems to me that this section operates as an exception to the general rule embodied in section 101 of the Evidence Act read with Illustration (a) to the effect that the burden of proof lies on the prosecution to bring the guilt home to the accused who is presumed to be innocent. indeed as observed by Best in his Principles of the Law of Evidence (section 277 at page 267 Eighth Edition) the Courts have felt difficulties in the application of this principle to criminal charges. However, the purpose of this section is discernible from the two Illustrations below it. In accordance with the first Illustration where a person does an act with some intention other then that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. The second Illustration provides that where A is charged with travelling on a railway without a ticket, the burden of proving that he had a ticket is on him. As observed by M. Munir in his Law of Evidence (page 1041 Pakistan Edition) this section is designed to meet certain exceptional owes in which it would he impossible or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. In explaining the application of the principle underlying this section Best in his Law of Evidence (Eighth Edition) section 275 at page 266 has observed "And in R. v. Burdett (4 B & A 95. 140), Holryd, J., states in the most explicit terms that the rule in question "is not allowed to supply the want of necessary proof, whether direct or presumptive, against a defendant of the crime with which he is charged but when such proof has been given, it is a rule to be applied in considering the weight of the evidence against him, whether direct or presumptive, when it is unopposed, unrebutted, or not weakened, by contrary evidence which it would be in the defendant's power to produce, if the facts directly or presumptively proved were not true."
60. In this connection the following observations in Isarsing Sawansing v. Emperor are also of great practical importance in their application to such like cases :- "It is urged on behalf of the accused that he owes no duty to the prosecution and is under no liability to give any explanation. If no prima facie case had been made against the accused it is open to the accused to rely safely on the presumption of innocence or on the infirmity of the evidence for the prosecution. But when a prima facie case is made out and the presumption of innocence is displaced, then as said by Wills, J., in his work on Circumstantial Evidence, at p. 97, 'the force of suspicious circumstances is augmented whenever the party attempts no explanation of facts which he may reasonably be presumed to be able and interested to explain'."
61. Needless to emphasise that in spite of section 106 of the Evidence Act in a criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to , mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence.
62. In Attygale v. The King in a case arising under a similar provision in force in Cylon, their Lordships of the Privy Council held that-where a judge in his charge to the jury stated that the burden of proving certain facts, which were within the special knowledge of the accused and which the accused alleged did not amount to an offence, was on them and the effect of direction was that jury might be misled by thinking that the burden was on the accused of proving that no crime was committed, the direction did not correctly state the law and amounted to a misdirection. In this connection Viscount Hailsham who delivered the judgment of the Board observed:-18 19 "Their Lordships are of opinion that that direction does not correctly state the law. It is not the law of Ceylon that the burden is cast upon an accused person of proving that no crime has been committed. The injury might well have thought from the passage just quoted that that was in fact a burden which the accused person had to discharge. The summing-up goes on to explain the presumption of innocence in favour of accused persons, but it again reiterates that the burden of proving that no criminal operation took place is on the two accused who were there. If their Lordships thought that the refusal of leave to appeal in this case could be construed as an acceptance of that doctrine, they would be very slow to reject the petition which has been brought before them."
63. In another case under a similar provision in Ceylon, in Stephen Seneviratne v. The King the Privy Council held that the law did not affect the onus of proof and it did not throw upon the accused persons the burden of establishing their innocence.
64. In Shewaram Jethanand Shivadasani and another v. Emperor the Court held that section 106 of the Evidence Act was never intended to be used to place upon the accused the burden of proving their innocence. Section 106 is not a Proviso to the rule that the burden of proving the guilt of the accused is upon the prosecution but on the contrary, the section is subject to that rule. The burden of proving a particular fact or a particular defence is a different matter. Section 106 does not enable the Judge to say to the jury that the accused must explain this and that he must satisfy him on this point or that or be found guilty. In Emperor v. Santa Singh a Full Bench of the Lahore High Court has held that section 106, Evidence Act, applied to cases similar to the two cases given in the illustration to that section and does not affect the onus of proving the guilt of an accused. That onus rests on the prosecution and is not shifted on to the accused by reason of that section. Section 106, Evidence Act, cannot be used to strengthen the evidence for the prosecution. The prosecution must stand or fall on the evidence adduced by it. In Shambhu Nath Mehra v. The State of Ajmer the Supreme Court of India has observed that section 106 of the Evidence Act is an exception to section 101. The latter with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially' stresses that it means facts that are pre-eminently or exceptionally within his knowledge. In this connection the Court further observed that if knowledge of certain fats is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused, Section 106 must be considered in a commonsense 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. The 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.
65. In the instant case beyond the evidence that on or about the night between 12th and 13th of August 1970 the appellant was last seen with Mst. Rashida Begum deceased entering one of the rooms in the house of her father, situated in Garb Maharaja, District Jhang and that they had disappeared therefrom in the darkness of the night, there is nothing to hold that he was responsible for the murder of Mat. Rashida Begum deceased or for committing rape on her shortly before she was strangulated. Her dead body was discovered long afterwards on 31-84970 lying near the railway line in the area of Police Station Shandara at a distance of about 100 miles from the house of her parents from where she was abducted by the appellant. In the circumstances the possibility cannot be altogether ruled out that at some point of time she had parted company with the appellant and had met her unfortunate end at the hands of some others not connected with him. The prosecution has failed to bring home to the appellant the offences under sections 302 and 376, P. P. C. But I find no reason for interfering with his conviction and sentence to 10 years' R. I. under section 366, P. P. C. AIR 1927 Lah. 54120 21 22 23 1 PLD 1956 FC 123 1972 SCM R 15 PLD 1964 SC 167 PLD 1966 SC 664 (1911) Cr, App. Rep. 255 AIR 1922 Lab. 181 AIR 1922 All. 340 PLD 1955 B J 1 1974 P Cr. L J 463 AIR 1927 Lah. 581 AIR 1932 Lah. 243 PLD 1971 Kar. 299 P D 1953 FC 214 PL D 1964 SC 167 1969 P Cr. L 1 956 PLD 1971 Lab. 781 AIR 1914 Sind 111 AIR 1936 P C 169 A R 1936 P C 2 89 AIR. 1939 Sind 209 AIR 1944 Lab. 339 A R 1956 SC 404
…and 47 more citing cases