Law: Evidence Act, (1 of 1872)

Section: 105

Law: Pakistan Penal Code, 1860

Section: 84

(a) Evidence Act (1 of 1872), S. 105-Burden of proof----­General or special exceptions in Pakistan Penal Code or other offences-P L D 1952 Lah. 502 (Lal Khan v. Crown) and P L D 1953 F C 35 (Safdar Ali's case) fully discussed­---Former not overruled by latter----Whether mere reasonable possibility that defence put forward by accused may b-, true enough to discharge burden. Per Kayani, J-----I should not hesitate to admit that the first impression which I had of the s in Safdar Ali's case was that they had overruled the decision in Lai Khan v. Crown but the more I have tried to understand them-and I confess I Was slow to understand the more I have become convinced that the only point their Lordships wish to emphasize is that you must have the entire evidence in your mind, the evidence for the accused and the evidence for the prosecution, and allow the one to face the other squarely, that you should not be too pedantic about the burden of proof. In my original belief I had a vague feeling that these learned s would have the effect of repealing section 105 pro tanto, but that feeling has ceased to harass me, as I now believe that apart from their main theme, incidental pronouncements therein may be classed with the "generality of expressions" of which Lord Halsbury spoke in Quinn v. Leathem, and which "are not intended to be exposi­tions of the whole law". I, therefore, do not find it possible to accept Mr. Manzoor Qadir's argument that Safdar Ali v. Crown has altered the burden of proof. The Federal Court is not a legislative body, and it could not have intended to lay down a principle repugnant to section 105. Further, the learned Judges have made no reference to Lal Khan v. Crown, a circumstance which indicates either that they do not disapprove of the views contained therein or that they regard that case as distinguishable on the ground of insanity. Then it is to be noticed that their Lordships have fully approved of the principles involved in Woolmington's case, and in that case itself it has been recognised that the "golden­ thread" rule of English law is not applicable to "insanity" and to "statutory exceptions". Now since under our own law the plea of…

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