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Criminal Appeal No. 21 of 1957, decided on 9th April 1957.
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, at Peshawar, dated the 29th March 1956, in Criminal Appeal No. 52 of 1956).
S. 105‑Person accused of shooting dead his friend‑Plea of accident‑Burden lies heavily upon accused to prove that deceased met death by accident‑Mere fact that accused was friend of deceased no ground for rejecting theory that accused was hired assassin‑Penal Code (XLV of 1860), Ss. 302 & 304‑A.
Muhammad Shafi, Advocate Supreme Court instructed by Virasat Hussain Naqvi, Attorney for Appellant.
Faiz Muhammad, Advocate‑General West Pakistan (Abdul Qayyum, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State.
Date of hearing : 9th April 1957.
The appellant Munjawar stands convicted under section 302, P. P. C. for the murder by gunshot of a friend of his named Nawar Khan. The material facts are that shortly after sunset on the 22nd June 1955, Munjawar appeared in front of the deceased Nawar Khan who was sitting in the bed of a streamlet passing through their village Ismaila, armed with a gun. He declared he was going to shoot Nawar Khan, who asked what the reason might be. Without making a reply Munjawar aimed the gun at Nawar Khan, and fired a single shot. The pellets entered the chest on the right side. The indications derivable from the injury caused show that the range was sufficiently close for the charge of shot to enter the body almost en masse. Two pellets actually exited from the body through wounds at the back. In the circumstances, there need be no difficulty in believing the prosecution evidence to the effect that the shot was fired from a distance of seven yards.
Nawar Khan did not die on the spot. He was first taken to the thana where he made the initial report. In this he mentioned the names of three companions who were sitting with him in the khawar or streambed viz., Mukammil Shah, Said Quresh and Zainoor Shah, who got up to catch the assailant but the latter escaped. As regards the motive Nawar Khan said that he had no enmity with Munjawar, but the latter had been hired by his enemy Abdul Akbar to shoot him.
It may be mentioned that Abdul Akbar was put up for trial along with Munjawar, but was acquitted, for complete absence of evidence to connect him with the crime. Alam Khan P. W., father of the deceased, did indeed declare that Abdul Akbar had bribed Munjawar to shoot Nawar Khan, but no circumstances or evidence were adduced or mentioned to support his belief. The statement on the point in the initial report was based on mere conjecture, or so it seems.
Mukammil Shah, Said Quresh and Zainoor Shah gave evidence as eye‑witnesses of the occurrence. Of these, only Mukammil Shah mentioned the reply that Nawar Khan gave to Munjawar's threat to shoot. He abused Munjawar "telling him not to make jokes", and immediately the gun was fired. All these witnesses said that thereafter, the accused at once ran back to his own house which is some sixty yards away.
Each of these witnesses was cross‑examined and Mr. Muhammad Shafi, appearing for the appellant has attempted to argue that there are discrepancies between their statements which render it liable to doubt whether they were on the spot. We find that the ocular evidence in the case has been mentioned with approval in the judgments of both the Courts below, although neither individually nor collectively have the statements of these three witnesses been canvassed for credibility or otherwise. In the view which we take of the case, however, it is unnecessary that we should ourselves undertake this task. The case has been greatly simplified by the plea raised' in defence by the appellant Munjawar, and we pass on to the consideration of this plea after pausing to mention a single statement made in the cross‑examination by Mukammil Shah in the following words :‑ .
"Munjawar accused had not come to the spot without a gun sometime before the occurrence."
The case put forward in defence by Munjawar was that Nawar Khan deceased was "my friend" and in the streambed that evening Nawar Khan had asked him to fetch his (i. e. Nawar Khan's) gun from the house of Hamidullah. Munjawar went to Hamidullah's house and asked for the gun, but was told that there was no ammunition for the gun. (This was perhaps said in excuse for not handing over the gun at once.) Munjawar returned to Nawar Khan and told him the answer he had received and Nawar Khan asked him to fetch the gun saying that "he had cartridges with him" and accordingly Munjawar went to Hamidullan's house and brought the gun. The crucial statement regarding the killing appears on the record in the following words :‑
"I did not know that it was loaded. I aimed the gun at Nawar Khan from a distance of about thirty paces by way of joke, and told him "I am going to shoot you. When I pulled the trigger the gun went off and Nawar was hit."
As regards his subsequent conduct, he said that through fear the gun fell from his hands and he did not know who took it away. He went up to Nawar Khan and told him that he was not to blame, because he did not know that the gun was loaded.
He then brought a cot and put Nawar Khan on it. He denied the presence of the three eye‑witnesses on the spot.
The statement contains sufficient material, in the shape of circumstances and conduct which it was possible for the defence to establish by production of evidence, to raise a possibility that the plea of accident taken by the accused was true. It furnished ample material on the basis of which the eye‑witnesses could have been cross‑examined. By this means, and by putting forward relevant suggestions elsewhere in the course of the presentation of the prosecution case, the defence might have brought upon the record material to sustain a doubt as to the malice of the act i.e. whether it was performed with inten tion. It was possible also for the accused to procure direct proof of his alleged visit to Hamidullah's house and of what transpired there. If the defence hid taken such steps, there might have been some material on the record to sustain the belief that when Munjawar aimed the gun at Nawar Khan and deliberately pulled the triggar, he believed that the gun was in fact not loaded, and was only aiming and pretending to shoot in order to frighten his friend, or by way of a joke.
But it appears only too clearly from the record that these details were not adduced with any intention of establishing them by evidence in Court. They were mentioned at the very close of the trial, and the statement was followed immediately after by a declaration that no defence evidence would be produced. The only indication to be found in the prosecution evidence which is at all relevant to the defence plea of accident is the single sentence from the cross‑examination of Mukammil Shah which has been reproduced above, and which contradicts the defence suggestion that shortly before the occurrence, Munjawar had been present in the company of Nawar Khan, and that he was then unarmed.
That would have been the commencing point of the story of his going to Hamidullah's house at the request of Nawar Khan, to fetch his gun, but a great deal more would have been necessary before it could be said either that the full story of this errand by Munjawar had been established, or even that its possibility had been rafted to any appreciable extent. The point was not pursued further in the cross‑ examination of any witness, and the position is that the Court was left entirely in the dark as to who Hamidullah is, where he lives, whether he was a likely person to have possession of Nawar Khan's gun, and as to the events which led to the accused being asked to fetch the gun, and his ultimate appearance on the spot, carrying the gun.
The three assessors opined at the conclusion of the trial that Munjawar was guilty of causing death by a rash and negligent act, punishable under section 304‑A, P. P. C. The learned Sessions Judge did not accept this opinion. He thought Munjawar's explanation that he did not know that the gun was loaded was "absurd" on the face of it. Noting that the accused had not produced either Hamidullah or any member of his family to speak about the taking away of the gun, the learned Sessions Judge cast doubts on the entire story, saying there was no reason why request to fetch the gun should have been made and that it was unbelievable that Munjawar would have been trusted with the gun and even if it had been given to him; there was no reason why he should not have opened the gun to see if it was loaded. Again, whereas the shot was clearly fired from a short range, Munjawar had said that he fired from thirty paces, and he had also made the "obviously preposterous" statement that he had dropped the gun on the spot and left it there. Therefore, while holding that no personal motive for the murder had been shown, the learned Sessions Judge was unable to "exclude the possibility of his being a hired assassin."
In the High Court judgment the discussion of the question whether the killing was deliberate or accidental commences with the statement that there was "no dispute that the accused has shot at the deceased in a manner related by the deceased himself in his dying declaration and the three eye‑witnesses". The learned Judges go on to mention the allegation that Abdul Akbar instigated the murder and conclude that this "may be true" and further remark as under
"The mere fact that the accused was a friend of the deceased was not a sufficient ground for rejecting the theory that he was hired, because we know from our experience that in many cases hired assassins are the friends of the victims."
They held the story that the gun was fetched from Hamidullah's house to be false, for the reason that the defence had not produced Hamidullah or any other witness in support. They found upon scrutiny of the entire evidence as under
"Not only the defence plea is incorrect but the conduct of the accused immediately after the occurrence is also incompatible with his plea of accident."
The particulars of conduct upon which they relied were that if it had been an accident, then the deceased being his friend, the accused would have remained on the spot to render assistance, and would have informed his relations. On his own admission he and the deceased were alone together in the streambed and "yet he ran away after the deceased was shot at, remaining in hiding the whole night, and appeared before the investigating officer on the second day." (It has been overlooked that in the accused's admission, he does say he attended to his injured friend.)
Disbelieving the accused's statements that the shot was fired from 30 paces, and that the gun was left on the spot, the learned Judges held the defence plea of accident was "no more titan a cock and bull story." they said that under section 105 of the Evidence Act, the burden lay heavily upon the accused to prove that the deceased met his death by accident and .he had failed to discharge that burden. They declared that they had been ,unable to find any material whatsoever on the record to support the defence plea.
Leave to appeal was granted in this case to consider whether the High Court had correctly applied the provisions of section 105 of the Evidence Act in the light of the principles laid down by the Federal Court of Pakistan in a series of cases. After hearing Mr. Muhammad Shafi on behalf of the appellant however, we are entirely satisfied that the learned Judges in the High Court are right in saying that there is no material upon the record which can support the plea of accident raised by the defence.
This is not a case of the weapon being accidentally directed so as to produce a fatal result. There was a nothing involuntary about the action of the accused when he deliberately aimed, the gun at the body of Nawar Khan, and pulled the trigger. He admits that he prefaced this action by the declaration that he was going to shoot Nawar Khan. Mr. Muhammad Shafi relied upon the statement of Mukammil Shah that Nawar Khan asked Munjawar not to joke with him, when the latter made this declaration. That reflects Nawar Khan's state of mind and furnishes no indication of the state of Munjawar's mind.
The circumstance upon which the defence exclusively relies for securing exoneration from the consequences which followed namely that the gun went off and Nawar Khan was hit, is that Munjawar believed the gun was not loaded and that it could not go off in that way. In the absence of such belief, the action of deliberately taking aim and shooting at Nawar Khan would necessarily be, at the least, an act so imminently dangerous as to result, most probably, in Nawar Khan's death, and there being no excuse for taking such a risk, the offence would be one of murder. The defence gave circumstantial reasons for this belief, of a nature which admitted of direct as well as indirect proof. As has been seen already, the defence made no attempt to furnish proof to support this belief, whether direct or indirect. Some advantage might also have accrued to the defence if it had been proved, or even if the possibility had been raised that the gun itself was the property of the deceased. It was in the best interests of the defence to produce Hamidullah or the person at Hamidullah's house whom the accused alleged he met, in order to establish these matters. The gun itself has not been recovered, nor is there any proof that Nawar Khan had any cartridges with him at the time.
Thus, on the crucial point of Munjawar's belief as to whether the gun was loaded or not, there is absence of such proof as was within the power of the defence to lead. The burden of proving facts necessary to establish such a plea as that of accident is placed by the law (section 105, Evidence Act) upon the person who raises the plea. In this case, not only has Munjawar made no attempt to discharge that burden, but he has also made it impossible for that plea to be investigated at any stage of the case, by raising it at the very last stage of the trial and declining to produce any evidence. The consequence is that there is no indication to be found anywhere in the record outside the mere statement of the accused made at the very close of the trial, of the existence of any such belief as that upon which the plea of accident is based. The mere facts the Munjawar and Nawar Khan were friends, and that no motive to kill has been shown against‑the accused are wholly insufficient to prove, or even to raise the possibility of there having been any such belief.
The plain facts established by the prosecution evidence, and supported by the accused himself are that he deliberately aimed and fired the gun at Nawar Khan after declaring that he was going to shoot him, and as Nawar Khan died in consequence of the shot, there can be no plainer case conceived of intentional killing. The view taken by the assessors does not appear to us to be sustainable, in the state of the evidence on record.
For these reasons, we dismiss the appeal.
Appeal dismissed.
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