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Criminal Appeal No. 5 of 1952, decided at Dacca on 5th December 1952.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 13th June 1951, in Criminal Appeal No. 660 of 1950).
S. 105‑Object‑To relieve prosecution of necessity to prove absence of facts that might bring case under exception‑Burden of general issue always on prosecution ‑Accused's burden not as heavy as that on pro secution‑Accused failing to prove special pleading but succeeding in raising reasonable doubt, entitled to acquittal‑"Whole of the evidence" to be looked to in entirety and not merely special pleading of accused irrespectively of prosecution evidence‑No conflict between section 105 and principle laid down in Woolmington's case (L R 1935 A C p. 462).
‑Section 105 of the Evidence Act has been enacted in order to make it clear that it is not the duty of the prosecution to examine all possible defences that might be taken on behalf of the accused, and to prove that none of those defences would be of any assistance to him. The principles laid down in Woolrnington'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 pro secution has not proved its case beyond reasonable doubt.
The general observations made above shall not be taken to apply to any question relating to insanity as no such question arises in the present appeal.
‑Section 105 of the Evidence Act was enacted obviously to relieve the prosecution from the necessity of proving the absence of facts which might bring the case within a general or special exception. But the burden cast on the accused under that section cannot be as heavy as the burden that rests on the prosecution. The plea of the accused may not be established and yet it may create a reasonable doubt with regard to his guilt.
It cannot be said that because under section 105 the burden of proof is on the accused and he has not discharged that burden but has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such a doubt. The decision has to be taken on the entire evidence and not on the special pleading. The decision in Woolmington's case is, therefore, applicable in this country, and far from being inconsistent with section 105, it serves as a valuable guide for its interpretation.
‑The law as formulated (in Woolmington's case) has made material differences in more than one respect, Malice, as an ingredient of murder, will not be presumed except where the Crown establishes (a) 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.
Mere non‑acceptance of an accused person's special pleading will not justify his conviction of the offence charged, or such as might have been charged.
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 charged, 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 evident act of cruelty causing death, and need not necessarily be proved by direct evidence. Yet it must be admitted that where the only credible evidence of a direct nature, relevant to the determination of intention is' furnished by the accused person himself, who adduces facts in avoidance of the charge of murder, it requires very strong circumstances indeed of a nature sufficient to exclude the possibility of the defence plea being true; in order to provide the preponderance of probability necessary for a "prudent man" to act on the footing that the accused's act was performed with the sole intention of killing, or of causing a necessarily fatal injury.
It is, of course, not possible to arrive at any conclusion that the accused person acted as he alleges he did, on a con sideration 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 assessees the evidence and circumstances in relation to the charges preferred by the prosecution is precisely similar. Clearly it is as necessary to place the defence version and its suppor ting evidence and circumstances in juxta‑position 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.
Since the burden of the general issue is on the prosecution from beginning to end, the provisions of section 105. Evidence Act, must be understood in the special sense that while all the details of an alleged criminal transaction are relevant to the case for the prosecution as being part of the res gestae, and must be proved by the prosecution, yet the prosecution is under no duty to exclude defences which are open to the accused person, or to furnish proof of facts of a special nature having relevance only to a particular defence which the accused either sets up or may set up.
The fundamental principle is that the burden of proving the general issue of the prisoner's guilt lies, from first to last, upon the prosecution.
The statement of law as contained in Woolmington's case has no more important purpose than that of preserving this fundamental principle by correct practice.
Woolmington v. The Director of Public Prosecutions L R 1935 A C p. 462 rel.
In the case of Mahaleo A I R 1936 P C 242 ref:
Parbriu I L R 1941 All. 843 and Sakur A I R 1947 Bom. 38 examined.
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Evidence‑Conflict between Doctor's evidence and eye‑witnesses‑Non‑consideration of by Court Serious omission to consider material evidence.
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Contradictions affecting most important witnesses in murder case‑Conclusions of trial Court‑Appellate Court should be slow to upset.
Muhammad Ismail Bhatti, Advocate Federal Court, instructed by Amjad Hussain, Attorney for Appellant.
Abdul Aziz Khan, Advocate‑General of the Punjab, (C. M. Sharif, Advocate Federal Court with him) instructed by Ijaz Ali, Attorney for Respondent.
Dates of hearing : 3rd, 4th and 5th November 1952.
‑On the 13th of November 1952, we passed orders in this case, allowing the appeal and acquitting the appellant. It was said in our order that we will give reasons for our decision later on.
I have had the advantage of reading the judgment that my learned brother Cornelius proposes to deliver. I am in general agreement with him, and therefore, wish to add only a few remarks of my own.
I am of the opinion that the decision in the case of Woolmington v. The Director of Public Prosecutions (1) 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 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 my opinion, section 105 of the Evidence Act has been enacted in order to make it clear that it is not the duty of the prosecution to examine all possible defences that might be taken on behalf of the accused, and to prove that none of those defences would be of any assistance to him. 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.
The general observations made by me above shall not be taken to apply to any question relating to insanity as no suchl 4 question arises in the present appeal.
After an examination of the entire evidence including the statement of the accused, I have reached the conclusion that the defence put forward on behalf of the appellant might reason ably be true. The appellant is, therefore, entitled to an acquittal.
I am in general agreement with my learned brother Cornelius, J. and should like to add only a few observations.
It is the main principle of criminal law that an accused person must be presumed to be innocent unless and until it is established by the prosecution beyond reasonable doubt that he or she, as the case may be, is guilty. Section 105 of the Evidence Act has to be read not as contradicting this principle but consistently with it. That provision of law was enacted obviously to relieve the prosecution from the necessity of proving the absence of facts which might bring the case within a general or special exception. But the burden cast on the accused under that section cannot be as heavy as the burden that rests on the prosecution. The plea of the accused may not be established and yet it may create a reasonable doubt with regard to his guilt. It cannot be said that because under section 105 the burden of proof is on the accused and he has not discharged that burden but has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such a doubt. The decision has to be taken on the entire evidence and not on the special pleading. The decision in Woolmington's case (L R 1935 A C p. 462) is, therefore, applicable in this country, and far from being inconsistent with section 105, it serves as a valuable guide for its interpretation. In the present case, the question whether the accused acted in the exercise of the right of private defence arises on the case of the prosecution itself. To secure a conviction for murder, the prosecution had to establish in this case not only that the appellant inflicted on the deceased the injuries of which he died, but also that he was the aggressor and acted with the intention or knowledge requisite for the offence of murder. If in determining whether this burden was discharged by the prosecution the version of the accused appears to be reasonably possible, then a reasonable doubt pervades the whole case and the appellant becomes entitled to an acquittal.
The learned Judges of the High Court do not appear to have treated the evidence in the case from this point of view. Nor, in relying on the spot witnesses whom the trial Court had declined to believe, do they appear to have noticed that an important part of their evidence conflicts with that of the doctor. If those witnesses are to be believed, the appellant ran away from the shop of the deceased and made good his escape though he was chased by at least two of the witnesses; but the medical evidence was that the appellant could not have run as swiftly as a normal man in view of the injury he had on the thigh. The nature of the injury was such that even apart from the medical evidence it is clear that the appellant could not have run so fast as to escape from persons who chased him. It is true that a contradiction in one part of their evidence does not necessarily falsify the rest of their evidence ; but it is significant that the learned Judges had already declined to believe the statement of these witnesses that the appellant while leaving the scene of occurrence was seen carrying a knife. In the circumstances, the above mentioned conflict between their evidence and that of the doctor was an important matter and the non‑consideration of it can legitimately be regarded as a serious omission to consider material evidence. Then again one of the grounds on which the learned Judges rejected the version of the appellant was that he went away from the scene of crime without raising a noise but his attention was not drawn to this point when he was questioned under section 342, Criminal Procedure Code. Had he been questioned in this respect he might have given a satisfactory explanation.
These circumstances clearly attracted our jurisdiction which we exercised to see if they had led to any miscarriage of justice. On a careful consideration of the entire evidence we come to the conclusion that the probability of the appellant having acted solely in the exercise of the right of private defence could not be reasonably excluded. We, therefore, allowed the appeal and acquitted the appellant.
‑The appellant Safdar Ali was brought to trial along with his brother Sher Ali before the Sessions Judge of Montgomery on the charge that they "both committed murder by intentionally causing the death of Abdul Halim, deceased by stabbing him with knives, P. 3 and P. 6 and thereby committed an offence punishable under section 302, P. P. C. read with section 34, P. P. C." At the conclusion of the trial, the four assessors who had assisted at the trial unanimously declared their opinion to be that "Safdar Ali accused gave injuries to the deceased to save his own life, which resulted in the death of the deceased, and Sher Ali accused was not present at the spot". The trial Judge in a considered judgment found that the evidence against Sher Ali was not sufficient to warrant his conviction, and accordingly acquitted him. With reference to Safdar Ali, the finding is as follows:‑
"Safdar Ali accused (for the sake of money or otherwise) attacked the deceased and himself received an injury either by the deceased in self‑defence or at the hand of his own companion. It cannot however be said that Safdar Ali accused had come with the intention of committing murder."
Disagreeing with the assessors, the Judge held Safdar Ali to be guilty under section 326, P. P. C. and sentenced him to undergo five years' rigorous imprisonment.
The convict did not appeal, but the Crown filed an appeal against Safdar Ali alone, 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, and was accepted, the conviction being altered from section 326 to section 302, P. P. C. and a sentence of death being imposed in place of the imprisonment awarded by the trial Judge. Safdar Ali's petition filed through the Jail for special leave to appeal was allowed by this Court on the 15th January 1952, and his case has been presented before us by Mr. Muhammad Ismail Bhatti, who was engaged at Crown expense for the purpose, and on the other side we have heard the Advocate‑General of the Punjab, in support of the judgment under appeal.
The facts as found by the Lahore High Court may be briefly stated. The learned Judges have expressly held that the First Information Report recorded at the thana three furlongs away from the scene of the occurrence at 10‑30 p.m., about half an hour after the alleged time of the occurrence was in so far a doubtful document, that it "was taken down in the Register of First Report after some preliminary investigation had been made by the police and Safdar Ali had been arrested." Briefly the report which was by a witness Nazar Muhammad was to the effect that on the night in question, he was in the vicinity of the shop of the deceased, Abdul Halim, when he heard a cry from inside, mar gas mar gas' and at once called out to certain persons namely, Charagh Din, Qutab Din and Muhammad Amin, with whom he had been just before, and who came to the spot. With their sight, the two accused persons both with blood‑stained clothes came out of Abdul Halim's shop and despite the efforts of the witnesses made good their escape. (In evidence it was clearly stated that the two alleged culprits escaped by running). Qutab Din and Nazar Muhammad entered the shop, to find Abdul Halim lying wounded on the ground, who told them that "Safdar Ali and Sher Ali had murdered him in order to get cash". Shortly after, Abdul Halim expired. At the close of the report Nazar Muhammad stated that he and his companions had seen "a blood‑stained screwed knife" in the hand of Safdar Ali accused when he was running away.
It is on the last‑mentioned point that the learned Judges of the Lahore High Court have based their conclusion that the report was not made at the thana, but was recorded at the spot after some "investigation". Their conclusion is stated in the following terms:‑
"We can believe that Nazar Muhammad, even though he had the lantern with him could have noticed that Safdar Ali, while he was running, had a "blood‑stained screwed knife" in his hand. As this claim of Nazar Muhammad is mentioned in the first information report, it must be held that the report was taken down in the register of first reports after some preliminary investigation had been made by the police and Safdar Ali had been arrested."
(The arrest of Safdar Ali was a simple matter. Very soon after the policy arrived on the spot, they noted a trail of blood leading away from the crime‑house, and following this trail, they found Safdar Ali lying severely wounded in the thigh, in an empty khola adjoining the house of a prosecution witness, Ibrar Hussain).
The trial Judge has not recorded any finding on this point, but it appears from his judgment that he found the four alleged spot witnesses, Nazar Muhammad, Charagh Din, Muhammad Amin and Qutab Din to be wholly unworthy of belief. He has not relied upon their evidence that Sardar Ali's companion was Sher Ali or their statements that Safdar Ali was carrying a blood‑stained screwed knife, and he has placed no reliance upon their evidence regarding the very important point of the alleged "dying declaration" made by the deceased.
On the other hand, both the trial Judge and the High Court have declared that they believe that Safdar Ali had a companion. The trial Judge thought, but did not find enough evidence for holding, that the companion was Sher Ali. The prosecution had attempted to establish this fact not only by the statements of the spot witnesses but also by evidence of certain recoveries allegedly made from him some days after the occurrence, as well as by the aid of a muffler and a pair of shoes said to belong to him, which were alleged to have been left behind in the shop of the deceased, Abdul Halim. The trial Judge, after a careful analysis, found it impossible to believe this evidence. The judgment of the High Court contains no observations on this point, nor have the learned Judges indicated their opinion as to the identity of Safdar Ali's alleged companion. They have, however, used expres sions at certain places in their judgment which indicate that they have relied upon the spot witnesses, and the following observation, occurring at the close of their judgment, indicates that they were prepared to accept this evidence in proof of the alleged dying declaration as well:
"The deceased when questioned by the witnesses, alleged that the two men who wounded him had come to rob him of his money. Whether their primary object was to rob the deceased or not, from the fact that they were armed with long knives and killed the deceased in his own shop at night time, it must be inferred that they had come there to kill."
Two knives were recovered by the police, one allegedly from Safdar Ali's person, and the other at the instance of Sher Ali. As the High Court judgment does not expressly dis approve the trial Judge's conclusion that the latter recovery was doubtful nor does it find that Safdar All's companion was Sher Ali, the above conclusion should perhaps be read as referring not to two knives but to one knife. it is permissible also to observe that the present case was one to which Far greater importance should have been given than was actually given to the circumstances that the trial Judge had enjoyed the advantage of seeing and hearing witnesses, which was denied to the Appellate Court. The learned Judges of the High Court have themselves discovered in the initial report (itself a false document purporting to have been made at a place and time where and when it was not made) a falsity effecting the evidence of the spot‑witnesses, viz., that the appellant was seen to have blood‑stained screwed knife as he ran from the spot. In another important respect these statements are affected by the evidence of Sadiq Muhammad (P. W. 13) who made the following remarkable admission in cross‑examination:‑
"I reached simultaneously with the police. Nazar and other P. Ws. were relating the story to the S. I. when I came. The S. I. was not taking down their statements at that time. He was listening to them. Then they started o8 to catch the accused Safdar. (Then said) It was not then known whether one person had proceeded in the direction of the trial of blood or two."
The passage underlined places in doubt one of the major ingredients of the prosecution case, viz., that there were two culprits. When such contradictions, affecting the evidence of the most important witnesses in a murder case appear at the trial as clearly as they did in this case, an Appellate Court should be slow to upset the conclusions reached by the trial Judge who both saw and heard these witnesses, as well as all the other witnesses in the case. Questions of the highest importance turned on the conflicting testimony of these witnesses, and the extent to which it could be believed. The Appellate Court could not possibly recapture the initial M advantage of the Judge who saw, and disbelieved them. This is not to say that, in these or any given circumstances, the Appellate Court must concede finality to the Judge of first instance; the matter relates to the weight to be attached to the trial Judge's finding, and high authority is not lacking for the proposition that, in such circumstances, such a finding should not be disturbed unless it is manifestly wrong. See inter alia, the speech of Lord Sumner in Hontestroom (Owners) v. Sagaperach (Owner) ((1927)A C 37).
However, the case is not ended by the mere rejection of the evidence of the spot‑witnesses, for there was a complete case set up in defence by the accused Safdar Ali. His defence plea is contained in two statements, namely, a detailed state ment made before the Committing Magistrate, which con stitutes evidence in the case under section 287, Cr. P. C., and the statement made at the trial which "may be taken into consideration" under section 342, Cr. P. C. The material parts of these statements are reproduced blow.
In the Committing Court, Safdar Ali denied having "committed the murder of Abdul Halim in furtherance of the common intention" of himself and the co‑accused, and went on to say :‑
"Abdul Halim, deceased, gave me knife blow on my thigh and in self‑defence I gave him blows with my knife."
" In fact I was arrested from the baithak of Ibrar Hussain, P. W. I had no knife with him at that time."
"On the day of the alleged occurrence in the evening time I had gone to the play‑ground for playing football and returned after the play with Ibrar Hussain, P. W. and the deceased. We were discussing upon the fundamental principles of Jamat Islami and the Muslim League. Ibrar Hussain, P. W. and myself were advocating the cause of Muslim League. Abdul Halim deceased, was arguing for Jamat Islami. This dis cussion continued up to the shop of the deceased where he promised to show some books on the subject. We sat at the shop of Abdul Halim for a considerable period of time and kept on discussing the same topic. I said some insulting words which were derogatory to the position of Maulana Maududi the foun der of Jamat Islami. The deceased Halim was very much provoked on hearing these words. He then wiped out his knife, P. 6, from his‑pillow and aimed at my abdomen but I warded off the blow from the abdomen and received it on my thigh. The deceased aimed a second blow with Ex. P. 6, but in the meantime I got up and took out my own knife, P. 3, from the pocket of my knicker and injured the deceased with Ex. P. 3 my knife in self‑defence. I then left the shop of the deceased, P. W. Ibrar escorted me to his house from where I was arrested by the police. Sher Ali accused, left Haveli a day earlier for Pakpattan."
At the trial, he admitted having made the above statement in the Committing Court, and with reference to a statement made by Ibrar Hussain, P.W. that Safdar Ali went to him that night to ask for money, said:
"I did not go to Ibrar Hussain for money. I kept sitting in his baithak, from where I was arrested."
Ibrar Hussain was found in his own house by the police that night, and although he has denied those portions of Safdar Ali's statement which indicated his presence at and escape from the crime‑house, yet in many important respects he has supported Safdar Ali. He admitted that Safdar Ali and he were together at the football ground that evening, but said that he himself went home directly from the ground, and did not visit Abdul Halim's shop. He admitted that the deceased was also a football player, but did not expressly support Safdar Ali's statement that the deceased also had been playing football with himself and Safdar Ali that evening. He admitted that Safdar Ali came to his house that night, but denied seeing that he was wounded and bleeding. His admission that when the police came a little later, they found a pool of blood outside his door, sufficiently establishes that at the time of this visit Safdar Ali had already been wounded, and cannot be reconciled with his assertion that Safdar Ali came to ask for a loan of money.
The Courts below have not considered these aspects of Ibrar Hussain's evidence. The substance of his statement is reproduced in the judgment of the High Court, but it is not specifically relied upon as a ground for rejecting Safdar Ali's plea of self defence. The trial Judge in two places refers to Ibrar Hussain's denial that he was with Safdar Ali at the material times, but a serious misapprehension, affecting his appreciation of Ibrar Hussain's evidence, appears at the close of his judgment, where he describes Ibrar Hussain as "(his i. e. Safdar Ali's) witness". The fact that Ibrar Hussain appeared as a prosecution witness makes a difference, upon the importance of which it is not necessary to enlarge.
It will be convenient at this stage to set out the injuries sustained by Abdul Halim and Safdar Ali. It does not appear that any other person was injured in the incident. Abdul Halim had a wound 1 " x " on the left chest, penetrating down to the upper surface of the 7th rib, and three incised wounds on the abdomen, namely, a wound 1 " x " on the middle portion of abdomen, superficial, another 2" x 1" on the upper of the abdomen, also superficial, and a very large incision 6" x 3" on the upper part of the middle of the abdomen, vertical in direction, letting out the intestines and other internal organs.
A point of some interest is that the stomach was empty. The time given for the occurrence i. e., 10 p. m. is long after the usual evening‑meal time observed in villages. This circum stance indicates a considerably earlier hour for the occurrence than 10 p. m., and to that extent, may support the story of Safdar Ali that the incident occurred in the evening, not long after the conclusion of a football game. The defence case that Abdul Halim's death was only discovered after a longish interval, by Nazar Muhammad who, arriving by a late train from Lahore, had occasion to go to Abdul Halim's shop to fetch his bedding which was admittedly kept in an almirah there, also receives support. Consequently, the defence denied the presence of the alleged spot‑witnesses at the material time, and their case was that Safdar Ali was neither observed nor pursued when he went away from the crime‑house.
Doctor Iqbal Hussain, who performed the post‑mortem exami nation was closely questioned regarding the injuries of Abdul Halim, and declared that they were all struck by an assailant from the front, and with the exception of the fatal injury, which was vertical, the rest were oblique directed from above downwards. After the receipt of all these four injuries, Abdul Halim could not, in the doctor's opinion, have inflicted the hurt found on Safdar Ali's person, but he could have caused this hurt before he had himself been injured.
Safdar Ali had a single injury which was nevertheless of a very serious nature, and has been described as grievous by the doctor. It was a punctured wound high up on the left thigh close to the hip, caused with a knife similar to one of the knives produced in Court. The weapon had passed through the thigh close to the femur bone. The wound of entry measured 1 " x " and the wound of exit " x ". Main blood vessels had been ruptured and at 10‑30 a. m. on the morning after the occurrence the doctor found Safdar Ali to be cold and pale and bloodless, and unable to answer questions. He was clearly of the opinion, which even to a layman seems inescapable, that after having received so severe an injury on the thigh, where muscles, tissues and even blood‑vessels had been ruptured. Safdar Ali "could not have run as swiftly as a normal man". That is a circumstance which affects the credibility of the spot witnesses who allegedly saw two culprits running away, so fast that two of the witnesses who gave chase were unable to overtake them.
The question of the manner in which Safdar Ali's injury could have been caused was naturally one of great importance to the case and of peculiar difficulty, in view of the absence of any direct evidence except that constituted by Safdar Ali's statement, to prove the manner in which it was inflicted. The interest of the prosecution was to establish either that it was caused by a person other than Abdul Halim, or that, if caused by Abdul Halim, it was caused in self‑defence, after Abdul Halim had himself been attacked and wounded. The latter alternative is excluded by the doctor's evidence, with which it seems difficult to disagree. The four injuries found on the deceased could a have been struck, and in view of their close proximity to each other, were probably all struck within a very short space of time. In order to provide a basis for the former theory, certain hypothe tical questions were put to the doctor, to which he gave answers as below :‑
"If two persons were attacking the deceased and if one of them held firmly the head of the deceased and the body of the deceased within his knees and the deceased put up resistance, then it is possible that the blow which was directed towards the abdomen of the deceased would have struck the left thigh of one of the assailants. And that injury could be the one which was found on the person of Safdar Ali accused.
Q. If two persons armed with knives, P. 3 and P. 6 are mak ing a murderous assault on Abdul Halim and one of them who may be holding the deceased down between his knees stabs him and by resistance of the deceased the blow falls on the left thigh of the assailant, could a wound like the one described by you in the report, Ex. P. L. result
A. Yes. It was possible that such a wound would have been caused in the manner alleged.
My reason for saying that the injury on the thigh of Safdar Ali, could be caused in the manner alleged in the question asked in examination‑in‑chief is that the resistance of the deceased could divert the blow aimed at the abdomen of the deceased to the thigh of the accused.
If the man was holding with full force using his both bands in holding down the deceased then in that case it was not possible for him to have inflicted the wound himself.
Q. If under the circumstances one man holds the deceased down and there is another assailant also, one who holds him down would use all his force to keep the deceased down, then it won't be possible for the deceased to move so as to change the direction of the blow aimed at his abdomen
A. The deceased would have put up all resistance to save his life, specially when he was well developed man, so as to change the direction of the stab.
These opinions have received no consideration at the hands of the trial Judge, who, however, as already noted, thought that Safdar Ali might have been injured by "his Own companion."
In the High Court, the doctor's evidence to have attracted greater attention, for, although it is not expressly mentioned Or relied upon, certain conclusions reached by the learned Judges are apparently based upon the doctor's hypothetical views. These conclusions may be reproduced in full :‑
"The second circumstance that goes against the defence contention is that, while Safdar Ali had only one injury, Abdul Halim deceased had as many as four incised wounds all in front of the trunk. If the deceased had a knife, he must have been in a position to cause some more injuries to Safdar Ali, besides the one on the thigh. The position of the injury on the thigh itself indicates that it must have been caused accidentally by a companion of Safdar Ali. That injury was a punctured wound with entry on the outer aspect of the left thigh and a corresponding opening on the inner aspect. Safdar Ali could not have caused this injury to himself by a missed blow. The deceased, of course, could have caused it, provided he had a knife but since we have found that he had knife it follows that this injury must have been caused by a third person."
Now, it may be conceded that ft is possible (though speaking for myself I should consider it a remote possibility) that if the stabbing of a victim were entrusted to one assailant while the other had mounted on top of the victim and was holding his body between his thighs, and strongly pressing his arms and head against the floor, the former might well be able to deliver a blow, directed at the exposed side of the prostrate man. Such a blow would necessarily be directed at a considerable angle from the vertical line. It is possible that such a blow through misdirection might pierce one of the thighs of the assailant who was holding the victim down. But in such an eventuality, certain other consequence would be expected. Assuming approximate equality of strength, as both were young men and sportsmen besides, there would certainly be a struggle and both parties would be expected to bear marks of such struggle. The doctor was perfectly clear that there were "no signs of struggle on the neck, face or head of the deceased" and none were found on the person of Safdar Ali This is a point of major importance which appears to have been overlooked. Secondly, if the necessary degree of determination, which goes with an intention to kill, be assumed, one would naturally look for some signs of injury on the exposed side of the victim at which the knife blows were directed. In the present case, the four injuries of the deceased were all concentrated on the front of the body and about the middle, and moreover, all were struck from above downwards and none by means of a horizontal blow. The hypothesis placed before the doctor may be conceded to be not wholly impossible, but it must be admitted that the physical results are more convincingly explained by the story of Safdar Ali that while he was sitting, he was attacked and wounded in the thigh by Abdul Halim with a knife, and when another blow was aimed at him, he got up and taking out his own knife, gave blows in self‑defence to Abdul Halim who was also standing at the time.
As has been seen, the trial Judge found that the offence of causing grievous hurt with a sharp weapon had been committed. He reached this conclusion after considering and rejecting the defence plea on the following grounds, viz., (1) that as no knife was found in the shop, it could not be believed that the deceased also had a knife ; (2) that the deceased had more injuries than Safdar Ali, showing that the latter was the aggressor ; (3) that if Safdar Ali acted in self‑defence "Why did he not raise a noise, but merely slinked away into an empty khola away from his house" ; and (4) that "his witness Ibrar Hussain" had not supported his story. In repelling the defence plea, the High Court judgment adopts the first three of these grounds. The argument was advanced that the investigating police may have concealed the recovery of a knife from the crime‑house, and shown it later as recovered from Safdar Ali. The learned Judges rejected the argument, for lack of support by evidence, and because they could not "imagine the police to have acted so stupidly and dishonestly." With great respect to the learned Judges, their conclusion as to the necessary dishonesty cannot be readily reconciled with their finding regarding the falsity in important respects of the initial report prepared in the case. As to the requirement of stupidity for such an act, it is evidently possible to hold more than one opinion.
Having rejected the defence plea, the learned Judges concluded that Safdar Ali (with a companion) went to Abdul Halim's shop in order to kill him. On this point, a relevant extract from their judgment has already been quoted. In another place, the judgment says :‑
"The circumstances and the evidence make it perfectly clear that Safdar Ali with another man came to the shop of Abdul Halim deceased on the night of 10th April and without any such excuse as reduces the offence of murder to that of culpable homicide, killed Abdul Halim by repeatedly stabbing him in the abdomen and the chest."
It is against this finding, and the manner in which it has been reached that the main argument of learned counsel for the appellant has been directed. Before proceeding to state and consider the argument. I pause here to point out that Safdar Ali was never asked to explain why he behaved, after the occurrence, in the manner which the learned Judges below have held to be indicative of guilt. If either the trial Court or the High Court wished to make use of it as a ground for convicting the accused, it was their duty to allow the accused person an opportunity to explain his behaviour. Moreover, the use of this circumstance against the accused by the High Court appears to be fn conflict with the finding of the High Court, that the four spot witnesses are disinterested, and may be believed, for these witnesses had stated that Safdar Ali fled from the spot like a common criminal. The possibility cannot be ignored that, had Safdar Ali been asked for an explanation of his conduct, as a matter "appearing against him", in the manner required by law, he may have been able to furnish a reasonable or plausible explanation.
Much of the argument for the appellant was addressed to the manner of treatment of the defence plea by the High Court, and the consequential conclusion that the appellant's act constituted murder. It was pointed out that certain matters which were germane to the question of the probabilities, such as the previous friendly relations between the deceased and the appellant and the complete absence of any indication that robbery was the motive, had been ignored in excluding the plea that the deceased was the first to attack, having been provoked by an abusive word care lessly used by the appellant. In the light of the doctor's evidence, two conclusions were clear, viz., firstly that in all probability, Safdar Ali's own injury was not caused in the manner suggested to the doctor by the prosecution, and secondly that if Abdul Halim struck at all, he must have been the first to strike. Consequently, the defence plea needed re‑consideration, and, moreover, it did not follow that if Safdar All's story was disbelieved, a case of murder was made out. It would still be necessary for the prosecution to establish that, taking all the circumstances into account, including the previous friendship between the two men, the absence of motive, and the every serious injury sustained by Safdar Ali himself, the only conclusion that could reasonably be reached was that there was intention to kill, or to cause such injury as is sufficient in the ordinary course of nature to cause death. It was argued that, at the highest, the case was one of culpable homicide not amounting to murder, but if it were looked at as a whole, and due weight were given to all the circumstances, in the light of the plead ing of self‑defence, the appellant was entitled to acquittal.
The argument was supported by reference to the well‑known case of Woolmington (L R 1935 A C 462) and in particular to the much‑quoted passage in which Viscount Sankey, L. C., has laid down the law which has since been followed in England :‑
"When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or pro voked, the prisoner is entitled to be acquitted. It is not the law of England to say, as was said in the summing‑up in the present case : "if the Crown satisfy you that this woman died at the prisoner's hands then he has to show that there are circumstances to be found in the evidence which has been given from the witness‑box in this case which alleviate the crime so that it is only manslaughter or which excuse the homicide altogether by showing it was a pure accident."
With reference to this passage, it should be noted that it purports to amend a long‑accepted dictum of the learned writer Sir Michael Foster, passed in the year 1762, expressed as follows :‑
"In every charge of murder the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner unless they arise out of the evidence produced against him; for the law presumeth the fact to have been founded in malice, until the contrary appeareth."
The law as formulated by the learned Lord Chancellor ha made material differences in more than one respect. Malice, as an ingredient of murder, will not be presumed except where the Crown establishes (a) 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 while 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. See on this point the explanation of the Woolmington s case by Viscount Simon, L. C. in the case of Mancini, L R 1942 A C 1. The re‑statement of the law on the important subject of presumptive malice in cases of homicide by the learned Lord Chancellor was approved as long ago as the year 1936 by the Judicial Committee of the Privy Council, in the case of Mahadeo (A I R 1936 P C p.242) where Sir Sidney Rowlatt delivering the judgment of the Board observed "The Attorney‑General in his address and the Chief Justice in his observations to the assessors, appear both of them to have treated this case as one of murder or nothing, on the footing that homicide being proved malice was presumed. Upon the facts of this case there is revealed affirmatively no more than a case of manslaughter. The view taken by the Chief Justice was based upon a statement of the law as to the presumption of malice long found in textbooks but recently explained and largely qualified by the decision of the House of Lords in Woolmington v. Direc tor of Public Prosecution (L R 1935 A C 462).
And the learned Judge proceeded further to make the following observation, which is also of some relevancy in the present case:
"But apart altogether from that case, it could never be maintained that where the evidence for the prosecution points affirmatively no further than manslaughter, the law would enlarge the proof and transform the case into one presumptively of murder."
It will be of advantage to cite another short passage from the speach of Lord Sankey L. C. on a point of some important arising in the present case as well, namely, that mere non‑acceptance of an accused person's special pleading will not justify his conviction of the offence charged, or such as might have been charged. The passage reads as follows:-
"In Hawkins Pleas of the Crown. It is also agreed, that no one can excuse the killing another, by setting forth in a special plea, that he did it by misadventure, or se defendendo but that he must plead 'not guilty' and give the special matter in evidence,' This points to the facts that the verdict must be given not on any special pleading given by the prisoner but upon and as the result of the whole of the case, and it nowhere suggest that the burden of proof either at the beginning or at the end of a case is not on the prosecution.."
The reply to the appellant's argument is that under the law of Pakistan, when a general exception such as self‑defence is pleaded by an accused person, the burden is placed upon him to establish all the circumstances which will operate to bring his case within the exception. Reliance is placed upon the terms of section 105 of the Evidence Act, 1872 which reads as follows :‑
"When a person is accused of any offence, the burden of proving the existence of circumstances bring the case within any of the general exceptions in the Pakistan Penal Code, or within any special exception or proviso contained in any other part of the Code, or in any law defining the evidence, is upon him and the Court shall presume the absence of such circumstances."
This is sought to be read with the definition in section 3 of the expression "proved" and the provision in section 4 that a direction in the Act that a Court "shall presume" a fact means that the Court shall regard that fact as proved, unless and until it is disproved. The argument simply put is that the accused having pleaded self‑defence, which is dealt with in section 96 and succeeding sections of the Penal Code, in Chapter VI, which is headed "General Exceptions", the Court must hold that all the circumstances which may bring the case under this exception are not proved, unless and until the accused proven them. The standard of proof is that laid down in section 3 of the Evidence Act, viz., that the matters relied upon should be supported by evidence such that the Court either believes them to exist, or consi ders their existence so probable that prudent man ought, in all the circumstances, to act upon the supposition that such matters do exist. It is further urged that as nothing in the laws of Pakistan has the effect of laying upon an accused person a lighter burden of proof than that which lies upon the prosecution to prove the crime charged against him, no reliance can be placed upon the English rule that while the prosecution must prove its case beyond reasonable doubt, the accused can displace the burden lying upon him by evidence raising a probability such as would suffice to found a decision din a civil action (vide the case of Carr‑Briant, [1943] 29 Cr. App. R 76). It was on these grounds that the Advocate‑General relied to support the ratio decidendi adopted by the High Court.
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. G 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 charged, such as the requisite intention in a case of murder, then the prosecution must neces sarily fail. Such intention may of course, be established by proof of circumstances surrounding an evident act of cruelty causing death, and need not necessarily be proved by direct evidence. Yet it must be admitted that where the only credible evidence of a direct nature, relevant to the determination of intention is furnished by the accused person himself, who adduces facts in avoidance of the charge of murder, it requires very strong circumstances indeed, of a nature sufficient to exclude the possibility of the defence plea being true, in order to provide the preponderance of probability necessary for a "prudent" to act on the footing that the accused's act was performed with the sole intention of killing, or of causing a necessarily fatal injury.
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. On the facts alleged by the accused, he was so placed when the deceased delivered his opening blow, that evasive action would have been futile, and he had instantaneously to meet knife with knife if he was to come out of the encounter alive. In such circumstances, intention to kill would be wholly negatived by the instinctive reaction of self‑preservation. The law grants immunity to the extent that such reaction is not disproportionate to the immediate danger. (There are, of course, other qualifications as well, which are specified in the Pakistan Penal Code.) A similar immunity is granted where the act is induced by "grave and sudden provocation", and for a similar reason, namely, that under the stress of human feeling, an emotional reaction takes place which temporarily occludes the formation of intention. As was observed by Viscount Simon, L. C. in his speech in the case of Holmes (L R 1946 A C 588) :‑
"The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self‑control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived."
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 alongside all the other evidence and circum stance 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 asses ses the evidence and circumstances in relation to the charges preferred by the prosecution is precisely similar. Clearly, it is as 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 pro secution 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."
The process is one of peculiar necessity in cases of the present kind, where the decision turns on probabilities based almost wholly on circumstances, adduced by the contesting parties. In such cases the fairly common practice of dealing with the prosecution and defence cases as if they were totally distinct from each other, and as if the decision turned on whether one or the other can be wholly accepted or wholly rejected, may easily lead to an erroneous decision. For ultimately, a single question falls to be decided by the Court‑What was the intention with which the accused person acted It is not easy to conceive of a person being actuated by more than one intention ‑as the term is understood in criminal jurisprudence‑in relation to a single act, and in the circumstances alleged by and against the appellant Safdar Ali, duplicity of intention may be ruled out altogether. This single question as to a single matter in issue can only be properly decided upon the "whole of the case" in which expression must be included such factors as the interaction upon each case of the facts and evidence upon which the opposing case proceeds ‑ and the considerations and probabilities arising thereout.
The answer is simple enough if the Court finds it possible to believe the case for one side and disbelieve the case for the other, but ordinarily, in human affairs such as give rise to cases of this kind, things are much more evenly divided. The Court must then resort to the alternative test viz., such a preponderance of probability as will suffice to found action by a prudent man. The same test may be put as a negative proposition, viz., absence of reasonable doubt such as would restrain action by a prudent man, and it is in this sense that I understand the words of Viscount Sankey, L. C. :‑‑
"If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted."
I take this passage to mean that the jury are not satisfied, beyond reasonable doubt, either that the act was intentional and unprovoked, or, on the other hand, that it was either unintentional or that it was provoked. The doubt, so to speak, cuts both ways, as indeed it must, where a single matter, such as the intention immediately underlying the delivery of a fatal blow, is in dispute.
The same proposition may be translated into the term used in the Pakistan laws in the following way. The question being whether the Court should hold that the defence plea is untrue, it is necessary to ascertain whether on taking a balance of the evidence and probabilities in the "whole of the case", the falsity of the defence case is so probable, that a prudent man would act on that supposition, i.e., setting the defence case aside, he would proceed to consider whether the charges preferred by the prose cution were established on "the whole of the case". But sup posing that the result of striking such a balance is different : the truth of the defence case may be questionable, but at the same time, its falsity is not probable in the degree necessary for a prudent man to found action on the basis that it is false. This is precisely the state of "reasonable doubt" referred to be the learned Lord Chancellor in the short passage quoted above. In such a state of mind, the prudent man could not set aside the defence case, and the stage for considering the opposite case for the prosecution in relation to the evidence would not be reached.
This conclusion seems to me to be so clearly inescapable that I consider it unnecessary to deal in detail with certain cases decided in the Indian High Courts notably those of Parbhu (I L R 1941 All. 843) and Sakur (A I R 1947 Bom. 38) where the view appears to have been taken by certain of the Judges who participated in these decisions, that to transplant the statement of the law from Woolmington's case (L R1935 A C p.462) into Indian law would, in effect, be to allow that an accused person may satisfy the statutory requirement of section 105, Evidence Act, by merely raising a "reasonable doubt" regarding the existence of matters upon which he rests his special plea in avoidance of the charge against him. The "reasonable doubt" on which the learned Lord Chancellor had laid stress is one going to the very root of the matter, viz., malice in a case of murder, and the references to the accused's special pleading are not addressed to the proper mode in which it is to be proved, but are confined to the statement that, if it is proved to the satisfaction of the jury, the accused is entitled to be acquitted, but even if it is not accepted, the supporting circums tances and evidence must still be considered along with the rest of the evidence and circumstances in the case, for deciding the general issue of the accused's guilt or innocence. I do not read the Indian and Pakistan laws in any different sense. Since the burden of the general issue is on the prosecution from beginning to end, the provisions of section 105, Evidence Act must be understood in the special sense that while all the details of an alleged criminal transaction are relevant to the case for the prosecution as being part of the res gestae, and must be proved by the prosecution, yet the prosecution is under no duty to exclude defences which are open to the accused person, or to furnish proof of facts of a special nature having relevance only to a particular defence which the accused either sets up or may set up.
For these reasons, I am fully persuaded that, for the proper dispensation of justice, the present case should be re‑examined on the lines laid down by Lord Sankey, L. C. in Woolmington's case (supra). This Court does not ordinarily re‑examine evidence in criminal cases. But in the present case, the Judges below have adopted an approach, and a method of appraisement of the rival cases which are apt to lead to error. They have examined the two contesting cases separately, and have primarily considered whether the accused had established his pleading by affirmative evidence. Their duty was to find an answer to the single question of the intention underlying the fatal attack, and to find it upon "the whole of the case". That duty is based upon the fundamental principle that the , burden of proving the general issue of the prisoner's guilt lies from first to last, upon the prosecution. The statement of the law and of the right approach to the pleadings and evidence in cases of the present kind by Viscount Sankey, L. C. has no more important purpose than that of preserving this funda mental principle by correct practice. There has been a departure from this practice in the present case, constituting a violation of a substantial rule of judicial procedure, and as I am satisfied, after a careful consideration of the case, that there has been a consequent failure of justice as well, the special jurisdiction of this Court in criminal cases is clearly attracted.
I propose first to consider what presumption as to the intention underlying the fatal attack may be drawn from the facts and circumstances of the case, irrespective of the accused's special pleading, for the purpose of founding a charge. The trial Judge raised a presumption that the intention was to cause grievous hurt, a view whose leniency would have been more commend able if it had been furnished with any basis in reason. In the High Court, the learned Judge derived an intention to kill from two circumstances, viz. the lateness of the hour and the employ ment of "long knives". That inference would indeed be difficult to avoid if the hour were in fact 10‑0 p.m. and if the culprits were persons who were either strangers or enemies to the deceased. It appears plainly that Safdar Ali (and possibly also his brother Sher Ali, the co‑accused) bad previous association with the deceased of a character such as makes for friendship and mutual support, viz., they played football together in a local club. Not the smallest indication appears of any difference between them prior to the occurrence. Another evident fact is the probability that the deceased was killed before he ate his evening meal, i.e. at a much earlier hour than 10‑0 p.m. The motive of robbery being excluded, these circumstances, coupled with the patent fact that Safdar Ali's injury was a part of the res gestae, which the prosecution could not ignore, furnish strong grounds of persua sion that no charge higher than one of culpable homicide not amounting to murder could be preferred against him. Clasp knives with blades measuring as much as 5 or 5J inches are so commonly sold and carried that the use of such knives in the circumstances of the case does not, in my view, disturb the conclusion reached above, and any higher charge could not escape the criticism that it rested on enlargement of the evidence by presumption.
It is necessary next to find answers, on the whole of the case to one or more of the following questions, viz.
(i) has the plea of self‑defence been established
(ii) if not, then is there a preponderance of probability in favour of the view that Safdar Ali's act was without excuse i.e. that the homicide was not excusable
(iii) if the answer to question (ii) be in the negative, is there a preponderance of probability that the act was excusable, or is there at any rate, deficiency or absence of such preponder ance in favour of either view to such an extent as to leave it in doubt whether the act was attended by circumstances rendering the homicide excusable
A governing factor in relation to the acceptance or other wise of Safdar Ali's plea is the credilibity of his statement as a whole, and this must be judged against all the relevant circums tances. In one respect, viz., his movements after leaving the crime houses, the truth of his statement is hardly deniable. He went to Ibrar Hussain's house, and he went walking, not running, for his leg was very severely injured, and in all probability, he needed support, such as he says he got from Ibrar Hussain. There was no chase. From the fact that he went to Ibrar Hussain's house, and not to his own house, direct from the spot, au inference arises favouring the truth of his statement that his companion was Ibrar Hussain. The latter's evidence suffers from such patent improbabilities in certain respects that his mere denial of Safdar Ali's statement on this point cannot exclude the inference drawn above. Then, as regards events prior to the incident of killing, the probability that it occurred before evening‑meal time supports Safdar Ali's statement that his visit to Abdul Halim was paid just after the conclusion of a football game, that is, presumably, just after dark. And the existence of previous friendly relations, with no hint of any difference, much less animosity, favours his statement that the affair arose suddenly.
These aspects of Safdar Ali's statement have received no consideration at the hands of the learned Judges of the Courts below. Take together with the circumstance that Safdar Ali made no attempt to escape, in the sense of putting of pursuit or seeking to conceal himself, but placed himself entirely in the hands of Ibrar Hussain, who proved in the event to be doubtfully well‑disposed towards him, they create a strong impression that Safdar Ali's was not a fabricated statement, such as criminals commonly put forward to escape the just punishment of their deeds. A foundation of truth, in several important respects, is clearly perceptible.
An impression of this kind, if imported into the considera tion of Safdar Ali's statement regarding the acrual encounter, may lead to its being too readily accepted, without sufficient scrutiny of the relevant circumstances. But, it seems to me that however critically the matter is examined; the version of Safdar Ali's better in accord with the physical facts as deposed to by the doctor than any of the hypotheses suggested by the prosecution the absence of marks of struggle which was not noticed by the learned Judges of the High Court, is fatal to these speculations, some of which are mutually self‑contradic tory. They are also inconsistent with the concentration of the deceased's injuries about the middle of the front of his body. On the other hand, these features are fully in accord with the statement of Safdar Ali, that without any preliminary coming to grips, Abdul Halim suddenly aimed a knife blow at his abdomen, which he received on his thigh, being then in a sitting pasture, and he immediately stood up and facing Abdul Halim, who was about to deliver another blow, he quickly got in a number of blows on the front of his body; in a desperate effort to save his own life.
Consistency with the physical facts found is a strong circumstances in favour of Safdar Ali's statement, but it is, of course, not conclusive, and it is therefore necessary to examine the case from all aspects, so that no matters may be overlooked which may singly or collectively either negative the statement itself, or deprive it of such features of support as have been discovered. Such a matter, which has been relied upon by the learned Judges below, is the non‑recovery of a knife from the crime house which might have been believed to be the knife which Abdul Halim used. Now, with great respect to these learned Judges, their insistence on Safdar Ali's statement being supported by this circumstance shows an inconsistency with their findings regarding the falsities appearing in the initial report, for which the investigating police‑officers must obviously be responsible. If deliberate preversion of the truth by these police‑ officers, at the very earliest stage of the investigation be believed to have occurred, can the accused person be justly required to explain the absence of concrete circumstances, such as a weapon lying at the scene of the crime, over which after leaving the spot, he had no control whatsoever
The other circumstances relied upon in the judgment of the High Court may be dealt with quite briefly. That Safdar Ali struck four times while he was himself only struck once is not by itself a sufficient ground for believing that he was the aggressor. A person instinctively reacting to a physical assault constituting a grave threat to his own life may well strike out impulsively and repeatedly until he senses that the danger is past. In the eye of law, he commits no excess, if in so doing he causes death, provided the probable danger to himself was grievous hurt at the least, and in this case, actual grievous hurt was sustained by Safdar Ali. Finally, Safdar Ali's conduct after the occurrence, when examined in relation to all the facts and circumstances appearing in the case, does not justify the conclusion that it was the conduct of a guilty person. If such a conclusion were permissible, it could not be used as the solitary circumstance to prove a guilty intention against Safdar Ali, for the reason that he was not allowed an opportunity, as required by law, of explaining it in the course of the trial.
It is now possible to furnish answers to the questions formu lated above. My answer to the first question would be that, in all the circumstances, the plea of self‑defence has been estab lished. The other questions are expressly conditional upon a negative answer being furnished to the first question, and there fore need not be answered, but, if the condition be ignored, it is obvious that the first answer necessarily includes a negative reply to the second question, and an affirmative reply to the first part of the third question. The second part of the third question would thus be rendered otiose, but as the underlying principle has required to be closely examined in this judgment, I think it is right that I should ex‑express the following opinion. I think that the circumstances appearing in favour of the plea of Safdar Ali are so strong that, even if the evidence of the spot‑witnesses for the prosecution had been markedly more free from defect than it is, there would still, in my opinion have been left such a degree of doubt as to Safdar Ali's intention in striking the deceased as to justify his acquittal.
A. H. Appeal allowed.
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