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Petitioner: BARKAT ALI AND Another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Tufail Ali A. Rehman Title: BARKAT ALI AND Another vs THE STATE Case No.: Criminal Appeals Nos. 420 and 421 of 1970 Date of Judgment:1973-04-08 Reported As: PLD 1973 Karachi 659 Result: Appeal accepted
JUDGMENT
JUDGMENT At the trial which was the origin of the present two appeals four persons were tried namely Barkat A.I, Iqbal Hussain. Moosa and Mehdi Hussain. Of these Mehdi Hussain was said to be father of Iqbal Hussain and himself was said to be son-in-law of Barkat A.I, the other person Moosa is not said to be related to them but has been working as a gold broker and was therefore known to the other three who are also said to be engaged in buying and selling gold and jewellery. Of these four persons Mehdi Hussain was discharged by the trial Magistrate and other three were convicted for an offence under section 167 (81) of the Sea Customs Act, 1878 read with section 212 of the same' and sentenced to suffer rigorous imprisonment for 5 years each. All of them have appealed and Criminal Appeal No. 420 is that of Barkat A.I and Iqbal Hussain who are represented by Mr. Hayat Junejo, before me Criminal Appeal 421 Bled by Moosa who is represented by Mr. Manzoor Hussain. 2. According to the prosecution case spy information was received by the Customs Authorities on 28th June of 1963 that there was soma smuggled gold in the House No. 130-T. Block No. 2, P. E. C. H. S. Karachi which was occupied by the appellants Barkat A.I, Iqbal Hussain and the discharged accused Mehdi Hussain. The Custom party headed by prosecution witness Sheikh Muhammad Hayat, Inspector of Customs, accordingly raided the house on that day. The party consisted of a number of customs officers; is only two who have been examined in the case are the said Sheikh Muhammad Hayat and Ghulam A.I a Preventive Officer in the Customs. Besides these two witnesses the prosecution examined only one Abdul Hafiz Sheikh who acted Mashir in regard to the Mashirnama of the various recoveries which were made and a Magistrate, one Mr. Abdul Razzak Puri, who later recorded confession of appellant Barkat A.I and Moosa. From various places in the house 44 bars of gold each weighing 10 Tolas were recovered and some of these had a marking
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"Johnson Mathey, London 9990, 10 Tolas" and some of these had a marking of "N. M. Rothschild & Sons R. M. R. 9990-10 Tolas." A sizeable sum of money in Pakistan currency amounting in all to Rs. 26,500 seas also recovered. This money has since been returned to the appellants who make no grievance before me that they have been unjustly deprived of this. Nevertheless it has been a matter of some surprise to me that this money should have been secured at all. The raiding party, consisting of Customs authorities, could neither have believed nor could it be their case that the money was smuggled. I asked learned counsel for the State If there was justification for this seizure but he frankly conceded that there was none. I really do not under stand that why Public functionaries like the Customs authorities In the performance of their public duties should have felt justified In seizing this money merely because it happened to have been found there. There was no question, then or later, of attempting to link of this money either with the purchase of smuggled gold or otherwise with any crime; the matter comes up only in passing and I make no comment upon It other than to say that no public servant should assume that merely because he is armed with a certain authority given to him for specific purposes, he may in the exercise of that authority do whatever pleases other than what he is properly authorised by the law to do. 3. In the course of the investigation two of the accused persons namely Moosa and Barkat A.I were sent up for the purpose of recording their confession. Their statement was indeed recorded upon the 6th of July 1963 and the 8th of October 1963, by Mr. Puri who is a witness in the case but whether or not they made a confession as a matter which I shall discuss latter in this judgment. Upon certain date which does not clearly appear but, according to the order-sheet must have been on or before 29th June 1963, the case was sent up before a Special Judge, Anti-Corruption, Karachi who proceeded with it up to the step of examining the entire prosecution evidence and re-- cording the statement of accused under section 342 and had also enquired from the accused person whether they meant to lay any defence evidence. By this time Ordinance No. 8 of 1963 was promulgated which amended sections 193-A and 193-B of the Sea Customs Act. The provision which now empowered a Magistrate to try offence under the Sea Customs Act in summary fashion now purported to empower him to try offences where value of the goods are in value of 500 rupees. At the same time and by the same Ordinance item 8-A of section 167-A was also amended. Section 193-B which till then envisaged appointment of Special Judges for trial of offences was wholly substituted by a new section which reads as under:- "193-B. Special Powers for Magistrate.-Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), any Magistrate of the First Class specially empowered by the Provincial Government in this behalf, may pass a sentence of imprisonment for a term exceeding two years and of fine exceeding one thousand rupees on any person convicted of an offence mentioned in items 8 and 81 in the Schedule to section 167;" Whether the not effect of this provision did indeed authorise the Magistrate to try this offence and if, so, whether the offences were covered is a matter upon which I entertained some doubts but the question was not raised during arguments before me and both counsel have proceeded upon the assumption, upon which I also mean to proceed that the trial before the learned City and Additional District Magistrate as conviction of the appellants is not upon that ground invalid. 4. I should have now normally proceeded to discuss the evidence and its effect but that question is materially affected by the applicability and effect of section 177-A of the Sea Customs Act which, in certain circumstances, casts upon the accused person an onus of proof. The nature of evidence in this case is such that I cannot adequately deal with that evidence until I first examine and determine the effect of that provision. Now sec--petition 177-A of the Sea Customs Act which was introduced by amending Act XXV of 1956 reads as follows:- "177-A. Burden of proof.-(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that an act to defraud the Govern--ment of any duty payable thereon or
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to evade any prohibition or restriction for the time being in force by or under this Act has been committed in respect of such goods, or that there is intent to commit such act, the burden of proving that no such act has been committed or there was no such intent shall be on the person from whose possession the goods were seized). (2) This section shall apply to such goods as the Central Government may, by notification in the official Gazette, specify in this behalf. (3) Every notification issued under subsection (2) shall be laid before the National Assembly as soon as may be after it is used." The question that therefore arises and has been argued before me is whether, in cases where this section applies and the Court, upon an examination of the evidence in the case as a whole, is still in doubt as to the guilt of the accused would it be bound to record a conviction or to give the benefit of doubt to the accused and to aquit him. Now although the usual and cardinal principle is that onus in criminal cases is always upon the prosecution and that the benefit of any reasonable doubt must accrue to the accused statutory provisions which places the burden of proof upon the accused in certain specified circum--stances are not entirely unknown to our law. The foremost example of this of course is to be found in section 105 of the Evidence Act and I reproduce it :- "When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances." The dual purpose of this reproduction is to enable a comparison of its language with that of section 177-A and of understanding the effect and meaning of the leading authorities upon the question. It will be noticed that the material words which impose the burden are in both provisions identical the being phrase "the burden of proof." The crucial difference however, between the two provisions is this, that while section 105 in fact merely assumes the absence of a variety of circumstances the absence of which it would otherwise be incumbent upon the prosecution to prove in each case, however far-fetched the possibility of its existence might be, section 177-A brings it into play a provision bearing upon something directly connected with the nature of the offence, which might conveniently, if not with strict legal accuracy, be described as smuggling. Another aspect of section 177-A to which I shall have occasion to refer again is that its applica-- petition does not depend upon any objective fact but on the reasonable belief in the mind of particular person however, untrue that belief might later turn out to be. It is not like a presumption which arises under section 4 of the Prevention of Corruption Act, 1947 which at least arises upon the objective fact that money has passed into the possession of the accused. In a case under that Act as soon as it is established that money did in fact pass a presumption arises and if, for any reason it is doubtful whether it did pass no presumption would arise. In a case under section 177-A, on the other hand the presumption arises as soon as goods are seized under the Act in the reasonable belief that an act of a kind contemplated has been committed even if thereafter it is established that that belief was entirely contrary to the fact it would be still reasonableness of the belief at the time of the seizure which is material and which would therefore continue to allow the presumption to operate. The Courts must of course observe the law and it would be a viola--petition of our duty to refuse to give effect to a statute merely because we think that the result would be an unjust one. Nevertheless when faced with a case where a doubt arises the fact that the belief, although originally held reasonably, has turned out to be erroneously held might, I think, have an effect upon the question as to whether there is a doubt upon the fact of tie case as a whole. It is therefore vital in the case of this kind to decide whether, if upon at, examination of the evidence as a whole at the conclusion of a trial a doubt still persists and the law permits the benefit of that doubt to be given to the accused or not. Plainly, in the circumstance that I contemplate, if the law does so authorise
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the benefit would have to go to the accused but, if it does not, however unjust the result might be in the opinion of the Court it would be bound to convict. 5. Now upon the effect of the section 105 of the Evidence Act there are a number of cases including the well-known Full Bench decision in I L R 1941 All. 843, but I do not mean to Burden this judgment with a recital of all of them. I propose to confine myself to the leading cases including the authoritative exposition of the Supreme Court of our own country. Before how--ever I refer to any of the decision in our own country I should like to quote the following passage from the well known case of Woolmington in L R 1935 A C 462 not only because of the high authority which it enjoys but because it was referred to with approval in the judgment of the Federal Court of Pakistan reported as Safdar A.I v. Crown (PLD 1953 FC 93) and indeed that judgment is substantially grounded upon the principles laid down in the English case. That passage is as follows:- "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) Inten--tional 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 circum--stances 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 e 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 tie acquitted. It is not the law of England to say, as was said in the summing up in the present case t if the Crown satisfy you that this woman died at the prisoner's hands then he bas to show that there are circumstances to be found in the evidence which has been given from the witness-box in this case which alle--viate the crime so that It is only manslaughter or which excuse the homicide altogether by showing it was a pure accident." 6. Both the cases of Woolmington and that of Safdar A.I were concerned with the effect of section 105 of the Evidence Act and the similar provision of the English law and would, in the nomenclature of the Pakistan Penal Code, be &scribed as cases of general or special exception. The main judgment of the case was delivered by Cornelius, J. As he then was, and after quoting the passage in Woolmington's case which I have just reproduced his Lordship goes on to observe that the Judicial Committee of the Privy Council itself had accepted in relation to the law of India the principle laid down in Woolmington's case and his Lordship with approval again quotes this passage from the judgment of the Privy Council which reads as under:- "The Attorney-General in his address and the Chief Justice in his observation to the assessors, appear bath 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 malice long found in textbooks but recently explained and largely qualified by the decision of the House of Lords in Woolmington v., rector of Public Prosecution." Before the Federal Court the case of the Crown was shat section 105 of the Evidence Act imposed the burden upon the accused and it was for him to establish all the circumstances which would bring his case within the particular exception. His Lordship then elaborates the arguments of the Crown in the following languages: "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 that the accused having pleaded self-defence, which is dealt within section 96 and succeeding sections of the Penal Code, in Chapter VI, which is headed "General Exceptions," the Court must
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hold that all the circumstances which may bring the case under this exception are not proved, unless and until the accused proves them. The standard of proof is that laid down in section 3 of the Evidence Act, viz. That the matter relied upon should be supported by evidence such that the Court either believes them to exit, or consider 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 probabi--lity such as would suffice to found a decision in a civil action (vide the case of Carr-Briaant, (1943) 29 Cr. App. R.76),. Support the ratio decidendi adopted by the High Court." It might be noticed in passing that the arguments against the appellant in that case were that the burden of proof is as heavy upon the accused in such case as ordinarily lies upon the pro-- secution and in that context he denied even the validity of the authority of the case of Carr- Barriant or at least its applicability in our country. I state this particularly because presently I shall be referring to that case as well. 6. His Lordship then proceeds to dispel this argument of the State in no uncertain terms observing: "After careful consideration of these arguments, which being based upon the words of statute have required very careful examination I feel satisfied that in cases like the present, there is no material difference between the application of the standard of proof required under Pakistan law and that which underlies the rule of "reasonable doubt" which obtains in the English Courts. It is undeniable that finally the burden lies upon the prosecution to prove each ingredient of the offence charged i.e. To support each ingredient by such evidence as would justify action by a prudent man, on the basis that such ingredient is established. I do not see any appreciable difference between this duty, and the duty of proving each ingredient beyond "reasonable doubt". If then an accused person is able to establish by evidence, or if the prosecution evidence itself presents such features as go to establish, the existence of a reasonable doubt regarding an essential ingredient of the offence charged, such as the requisite intention in a case of murder, then the prosecution must necessarily fail. Such in--tention may, of course, be established by proof of circumstances surrounding any evident act of cruelty causing death and need not necessarily to 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 persons himself who adduces facts in avoidance of the charge of murder, it requires very strong circumstances indeed, of a nature sufficient to exclude the possi--bility 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 parson acted as he alleges he did, ova a consideration of his statement alone. It is necessary to place his evidence alongside all the other evidence and circumstances appearing in the case, and only then can a Court be in a position to weigh the testimony and the probabilities with the requisite degree of thoroughness before reaching its conclusion. The process by which the Court at the close of the case assesses the evidence and circumstances in relation to the charge preferred by the prosecution is precisely similar. Clearly, it is as necessary to place the defence version and its supporting evidence and circum--stances in juxtaposition to the prosecution case for the proper estimation of the extent to which the charge may be held to have been proved, as it is to examine the prose--cution case side by side with the defence case, in reaching a decision on the accused's
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special pleading. That is what I conceive to be meant by the word 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 tae case." 7. Sir Abdul Rashid the Chief Justice generally agreed with the judgment delivered by Cornelius, J. And expressly added that the principles laid down in Woolmington's case were applicable in Pakistan with force in spite of the provision of section 105 of the Evidence Act. He then observed:- "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 be true. The appellant is therefore entitled to an acquittal." 8. The other learned Judge who heard the case, the late Mr. Justice Shahabuddin also expressed general agreement with the main judgment. The following passage from his judgment indicates clearly not only the purpose of section 105 of the Evidence Act but also the applicability of the principle underlying Woolmington's case notwithstanding section 105 indeed holding that that section has to be read not as contradicting tine principle but consistently with it: "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 arid 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. 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 pervade the whole case and the appellant becomes entitled to an acquittal." Now the case of Safdar A.I and as that of Woolmington no doubt were concerned with section 105 of the Evidence Act or the principle underlying and not to a specific statutory provision which applied in cases of a particular kind. Elaborating this principle Rex. v. Carr-Briaant ((1943) 1 K B 607) however did deal with such a statutory provision That was a case under the Prevention of Corruption Act, 1916 which is in many ways similar to our own Prevention of Corruption Act, 1947 and section 2 of that act provided:-- "Where In any proceedings against a person for an offence under the Prevention of Corruption Act, 1916 . . . . . It is proved that any money, gift or other consideration has been paid or given to or received by a person In the employment of His Majesty or any Government Department or a public body by or from a person or an agent of person, holding or seeking to obtain a contract from His Majesty or any Government Department or public body, the money, gift, or consideration shall be deemed to have been paid or given and received corruptly as (an inducement or reward for doing or forbearing to do an act in relation to the affairs or business of that person's principal or showing
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or fore-bearing to show favour or disfavour m relation to his principal's affairs or business) unless the contrary is proved." The Court of Criminal Appeal in that case despite this provision held that that principle in Woolmington's case applies with full force. The learned Judges noticed an earlier case The King v. Ward ((1915) 3 K B 696), which might be construed as authority to the contrary and then observed.:- "That authority is, in our opinion inconsistent with…
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