P L D 1954 Federal Court 300 (PLP)

MUHAMMAD MUNIR, C. J.--‑Goman, Muhammad Hanif, Jan Muhammad, Majid and Nura who are all excepting Goman young men between 20 and 24 years of age took their trial on charges under sections 326 and 148 of the P. P. C. before the Sessions Judge of Montgomery. The learned judge convicted them all and sentenced each of them to transportation for life on the charge under section 326 and to two years' rigorous imprisonment on the charge under section

148. The convicted persons appealed to the High Court, and Rahman and Muhammad Jan, JJ. by their order of the 14th October, 1952, acquitted Muhammad Hanif and set aside the convictions of all under section

148. The convictions of the rest under section 326 were affirmed but the sentence was reduced to 10 years' rigorous imprisonment. This is an appeal by special leave by the four persons whose conviction was upheld by the High Court. The central figure in the case is a young girl Mst. Naziran who is a niece of Goman and a cousin of Jan Muhammad and Majid appellants. Nura appellant is a domestic servant of Mst. Gaman, a sister of Goman appellant. The person to whom grievous hurt was caused is Ramzan. Both parties are residents of village Ranjha but some time before the occurrence Ramzan had left the village and was residing at his well called Chah Dakhliwan, which is only two squares distant from the village. According to the prosecution Ramzan, complainant, who is a youth of 19, had abducted Mst. Naziran and taken her to a place in the Multan District where he married her. This elopement was resented by the girl's family and fearing some retaliatory measures Ramzan's father succeeded in persuading his son to restore Mst. Naziran to her family. Accordingly, on the day of the incident, Mst. Naziran was living with her own people in village Ranjha. On the night of 10th and 11th February, 1951, at about 9.0 p.m. Nura appellant brought a message to Ramzan to the effect that Mst. Naziran desired to meet him at a place on the bank of a canal which is not far from village Ranjah. Accordingly Ramzan accompanied Nura but when they both reached near the canal bank the four appellants and Muhammad Hanif came out of an ambush and attacked Ramzan. Hanif was armed with a gun, Goman with a sword, Majid with a knife and Jan Muhammad and Nura with sticks. Ramzan was felled on the ground and Majid gouged out both of his eyes with his knife. Ramzan cried and his father Raham, his uncle Ismail and two other persons Hanif and Noora were attracted to the spot and witnessed the assault on Ramzan. They, however, could do nothing because Hanif drove them away by firing his gun in their direction. From the place where he was assaulted Ramzan was taken to the well of the appellant called "Pawaewala" and from there to the house of Mst. Gaman in the village. Mst. Gaman is a widow and Ramzan's father is her husband's nearest reversioner. In the house of Mst. Gaman the assailants decided to set up the story that Ramzan had come to Mst. Gaman's house in order to attack her and had been wounded by Mst. Gaman's relations in self‑defence. At the trial the defence was that only Goman and Jan Muhammad were responsible for the injury to Ramzan and that this injury was caused when these two appellants came to the help of Mst. Gaman while she was engaged in a scuffle with Ramzan who was attempting to attack her. Apart from Ramzan the witnesses who gave direct evidence of the assault on Ramzan were Raham Din, Hanif and Noora. Their evidence was accepted by the learned Sessions judge, but on appeal the learned judges of the High Court thought that it was "open to doubt whether Ramzan's father (Raham Din) and other witnesses had run to the .pot as they assert and had seen the culprits with Ramzan at about 9 p.m." They were not, therefore "disposed to place much reliance" on the testimony of the eye‑witnesses other than Ramzan. They made a similar observation about Abdul Aziz who had given evidence about the delivery of the message to Ramzan by Nura on behalf of Mst. Naziran. Having come to this conclusion the learned judges proceeded to observe "we are then left with the statements of the victim Ramzan himself as against the counter‑version sponsored by two of the accused persons. The question for determination is which of the two stories is more probable and in accord with the circumstances of the case". Having made this general observation they relied on a piece of circumstantial evidence which supported Ramzan's version and contradicted the defence set up. This circumstance was deposed to by the investigating officer Fazal Dad A. S. I. and Ramzan's father Raham Din who had been examined as the 10th and the 4th witnesses for the prosecution, respectively. It may be mentioned here that on receiving information of the crime Fazal Dad had come to the village and found Ramzan lying in a wounded condition in the house of Mst. Gaman and all the five accused persons present, of whom Goman was wearing a bloodstained shirt and holding a sword in his hand: The investigating officer had then gone to the canal bank and from the place where Ramzan was alleged to have been assaulted picked up a purse which contained a writing evidencing Mst. Naziran's marriage with Ramzan and a button of the coat of Ramzan. Some earth and grass had also been taken into possession from the spot and according to the report of the Chemical Examiner both these objects were stained with blood. The learned Judges of the High Court believed the evidence of the recovery of these articles and held that it corroborated Ramzan's version that he was attacked in the place from where these articles were recovered. After finding that Ramzan was attacked near .the canal bank as deposed to by him they went on to deal with the case of each appellant and held that while there was some doubt in the case of Hanif the other appellants were rightly named by Ramzan as his assailants. Special leave to appeal was granted in this case on the following grounds: (1) "Whether the learned Judges of the High Court have looked at the case from a correct point of view in stating that the question for determination is which of the stories, i.e., the one for the prosecution or the one for the defence is more probable ; (2) Whether the participation of all the four petitioners in the crime has been established." In the arguments before us Mr. Nasim Hassan attempted to take us through the whole evidence and to argue the case as if we were hearing a regular appeal without any limitations and we had constantly to remind him that in order to succeed he had to make out a case on the lines indicated in the order granting special leave. We made it clear to him that if he could show that the learned judges in recording their findings. on the two essential points in the case, viz., whether Ramzan was attacked near the canal bank or in the house of Mst. Gaman and whether all the four appellants took part in the assault on him, had merely been influenced by the proba?bilities of the case, we would have little difficulty and no hesitation in reversing the judgment of the High Court because in judicial proceedings no person can be convicted merely on the ground that the case for the prosecution is more probable than that of the defence or because the defence theory is less likely than the prosecution case. Learned counsel relied on the words "the question for determination is which of the two stories is more probable" and completely ignored the subsequent words "and in accord with the circumstances of the case" in the same sentence in the judg?ment of the High Court. After carefully perusing the judgment of the High Court and analysing the reasons for the findings recorded, we are quite satisfied that in fact the learned judges did insist on the usual degree of proof which is required in a criminal case to convict and that they were satisfied beyond all reasonable doubt that Ramzan's allegation that he was attacked near the canal bank and not in the house of Mst. Gaman and that among his assailants were the four appellants was true. In considering the corroborative value of the circumstance that a button of the coat of Ramzan and his purse which contained a writing about his marriage with Mst: Naziran were found on the alleged scene of crime they have actually said that this evidence "provides strong circumstantial refution of the accused's version". The test applied by them to this part of the case is therefore one of incompatibility with the defence, and where the version of an accused person is held to have been refuted by circumstantial evidence, the inference can only be that the circumstances relied upon are inconsistent with the version of the accused and that therefore I such version is false and not merely that it is less likely than that of the prosecution. We cannot therefore construe the judgment of the High Court as having proceeded on any erroneous principle in recording the finding that the assault on Ramzan took place near the canal and not in the house of Mst: Gaman. Mr. Nasim Hassan asked us to examine the evidence relating to the recoveries but we declined to do so because it is not the usual function of this Court to examine the credibility of witnesses who have been believed by then High Court. The same degree of certainty seems to have been required by the learned Judges in the second question, viz., whether the participation of the four appellants in the crime was proved. The learned judges have given reasons for distinguishing the cases of the four appellants from that of Hanif and have held that the appellants "must have participated in the occurrence". They have observed that since Ramzan accused only Majid of having taken out his eyes with a knife, the allegation must be true because there was no reason for Ramzan to name Majid if the author of this singularly brutal act had been Goman and Jan Muhammad as alleged by the defence: In the case of Goman and Jan Muhammad they have acted upon the admission of these two appellants, while in the case of Nura they have observed that this man could not have been named as one of the assailants if in fact he had taken no part in the crime because he is a mere servant of a relative of the other appellants and no reason for implicating a mere servant is apparent from the evidence. It is impossible to say that the reasons given by the learned judges of the High Court were obviously untenable, such as no prudent man could have based his decision on, and if on the strength of these reasons they arrived at the finding that all the four appellants "must have participated in the occurrence" it cannot be said that they have held the participa?tion of any one of the appellants proved only because it was more likely. For these reasons, we cannot interfere with the judgment of the High Court and dismiss this appeal. A. H. ?????????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.