1985 PLP 1810 (SCMR)

"I and my co‑accused Muhammad Ramzan son of Nur Ahmad, Ramzan son of Jam Ali and others were present in our land, in Khasra No. 2912 alongwith others when we were attacked by the complainant party. They committed trespass on our land demolished our Chhappar and took away its superstructure alongwith our other belongings including my gun. I, Muhammad Ramzan son of Nur Ahmad and Muhammad Ramzan son of Jam Ali were beaten with Lathis and our companions Muhammad Ramzan son of Jam Ali, Mushtaq and Ahmad fired in self‑defence. The complainant party has also been challaned." Ramzan son of Nur Ahmad also made a similar statement. The others denied their presence or participation. The trial Court examined the two versions of the same occurrence, considered the prosecution evidence to be interested and looked for corroboration. The recovery of the fire‑arms attributed to the respondents and licensed guns in the name of Jam Ali and Muhammad Yar and matching of the crime empties were considered to provide the necessary corroboration. So did the injuries to Ramzan and Muhammad Yar. The trial Court held that offence under section 302/34, P.P.C. was proved against the respondents and sentenced Jam Ali and Azmat to death subject to confirmation of the sentence of death by the High Court and the other two to life imprisonment. For their conviction under section 307/34, P.P.C. they were sentenced to 7 years' R.I. as well as a fine of Rs.500 each. Compensation was also ordered to be paid to the heirs of the deceased and the injured. The other nine were acquitted. While seized of the appeal filed by the convicts and the confirmation of the death sentence awarded to Jam Ali and Azmat, the High Court re‑examined the entire evidence and recorded the following positive conclusions:‑ (i) The genesis of the prosecution story is highly unnatural and improbable. (ii) The prosecution case that four persons armed with Sotis were able to ward off thirteen persons nine of whom were armed with fire‑arms and were actually firing indiscriminately was unnatural, improbable and unbelievable. (iii) The persons allegedly armed with Sotis could not have approached the gunmen and engaged themselves in a hand to hand fight running the risk of their lives. (iv) There was &, obvious improvement in the prosecution case with regard to the handling of a rifle by Azmat respondent. (v) The recoveries from the spot of guns and empties did not advance the case of the prosecution and it was not safe to rely upon it by way of independent corroboration. (vi) The plea of alibi of Jam Ali and Azmat found support from the fact that even after repeated investigations they were placed in column No. 2 and the charge under section 16 of the Arms Ordinance framed against Jam Ali by the prosecution was in fact in furtherance of that plea. (vii) The defence version was reasonably possible or probable. On these findings the High Court by the impugned judgment accepted the appeal and set aside the conviction and sentence of the respondents. The learned counsel for the appellant contended that there were certain hard facts established by evidence and those facts should have been given due recognition while appreciating the prosecution case and its rejection should not have taken place on the theoretical discussion of the probabilities and possibilities of the situation. The recovery of the fire‑arms from the spot, the empties and the licences in the names of Jam Ali and Muhammad Yar all linked the weapon with the respondents and the damage to one of the guns showed that it was involved in the occurrence. The large number of injuries received by the complainant and others related to him as against the injuries received by the respondents which was fully explained established the prosecution case. There was, therefore, no occasion for doubting the case as set out by the prosecution. We find that the origin or the cause of the entire dispute was possession over land. At the stage of arguments, the case of the complainant was that they were in peaceful enjoyment of 168 Kanals out of 800 Kanals of Shamlat land and they were ploughing it when they were attacked. They do not lay claim to any other portion of the land. The land in the adjoining rectangle 2912 is admittedly of the respondents and according to the evidence which has come on the record a hand‑pump had been installed on it by the respondents and the Investigating Officer also found a Chhappar there demolished when he made a spot inspection. The Patwari stated about the plan prepared by him in the following words:‑ "Point No. 1 in the site plans falls in Khasra No. 2912. It is at a distance of about 53 Kerams from the boundary line of Khasra Nos. 2912 and 2911 towards its north. There was a Jai tree towards south‑west of point No. 1 at a distance of 30/35 Karams. This tree fell in Khasra No. 2912. I found under the aforesaid Jai‑tree a raised earthen platform having all round it dug‑up portion in a circle and I guessed from it that probably there was same sort of a Chhappar over it. This platform was towards the south‑west of the aforesaid Jal‑tree. There was also installed a hand‑pump towards the south‑west of the aforesaid platfrom at a distance of 30/35 Karams." The Investigating Officer Muhammad Shah (P. W. 14) made the following statement on the same subject:‑ "As a result of the measurements made by the Patwari at the spot, I found the hand‑pump as shown in the site plans located in Khasra No. 2912. I found signs of recently demolished Chhappar, in between the spot and the aforesaid hand‑pump in Khasra No. 2912. This Chhappar was stated to be owned by Jam Ali accused. I had shown both, hand‑pump and the Chhappar at point No. 4 in red ink in the site plans." As against this the complainant Sultan made the following statement:‑ "All the accused except Ata Muhammad and Muhammad Bakhsh have got their names entered in the register of Khasra Girdawari in collusion with the revenue staff showing their possession over some parts of Khasra No. 2911 and 2912 but in fact none of them is in actual possession of that land. The hand‑pump shown at point No. 4 (in red ink) in the site plans is in Khasra No. 2911 and belongs to us. It is incorrect that this hand‑pump was installed in Khasra No. 2912 by Jam Ali accused. There was no Chhappar near the hand‑pump in Khasra No. 2912 and it is incorrect that any such chhappar was raised by Jam Ali accused and was occupied by his relatives prior to this occurrence." The statements made by these witnesses with regard to the possession clearly show that the genesis of the dispute was indeed not free from doubt. The complainant party had not identified that portion of 168 Kanals out of 800 Kanals in rectangle 2911 which was in their possession and in respect of which as alleged by them aggression was committed. On the other hand the defence version does get support from the fact that the property of the respondents had been subjected to damage. In the case of Abdul Majid v. Supdt & Remembrancer of Legal Affairs, Government of East Pakistan P L D 1964 S C 422 this Court held that:‑ "In considering a crime of violence a Court is well‑advised to examine the circumstances of the act and its result, for the purpose of gauging the natural probabilities." It is exactly this exercise which was undertaken in great detail by the learned Judges of the High Court when they examined the attack by four initially unarmed persons who got Jall Sotis from the spot and were able to make their armed opponents to run away from there. Such a hostile and effectively armed group could not be put off in the manner alleged by the prosecution witnesses. The defence version had come promptly. On the basis of it a cross‑case was registered. During the investigation substance was found in it and it received physical support also from the damaged gun and the recoveries made at the spot. In such circumstances, the High, Court was justified in examining the two versions in juxtaposition and coming to the conclusion that the defence version was probable and possible and in view of the weaknesses of the prosecution case, justifiably extended the benefit of doubt to the respondents. It has been held by this Court in Bashir Ahmad v. Muhammad Azam and another P L D 1969 S C 469 that a reversal of acquittal does not take place even if another view of the evidence is possible, There has to be a legal error in admitting evidence or in ignoring it or in misreading it or drawing by conclusion in defiance of law. We find that the well‑established principles' for the safe administration of criminal justice do not justify interference with the order of acquittal recorded by the High Court. Hence this appeal is dismissed. M. I. Appeal dismissed.