ABDUR RAZZAQ Versus STATE

MUHAMMAD AFZAL ZULLAH, J.‑ ‑This appeal through leave of this Court is directed against the judgment of the Lahore High Court, dated 16‑1‑1979; whereby the appellants' convictions and sentences for the offence of murder of their co‑villager Muhammad Akram and also for rioting were confirmed. Their co‑accused Muhammad Iqbal, who was charged of conspiracy to commit murder, was, however, acquitted. The sentence awarded under the charge of murder is imprisonment for life and fine. Compensation was also awarded.

2. The motive for the murder was that the deceased had allegedly abducted daughter of Abdur Razzaq appellant and married her. There was also a Court case for the abduction. However, prior to the occurrence, the abductee had returned to her father's house. Muhammad Munir appellant allegedly fired pistol shots (effectively) at the deceased while the other four appellants namely, Abdul Razzaq, Iftikhar Ahmed, Ahmad Ali, and Rashid Ahmad, caused him six injuries with hatchets.

3. The mainstay of the prosecution, after the elimination of certain less important items of evidence, now is the testimony of two eye witnesses, namely, Muhammad Muslim and Abdur Rehman. The former is the real brother of the deceased while the latter is stateo to be an independent person.

4. The appellants' plea was that of denial and false implication due to enmity. They produced, amongst others, two eye‑witnesses in defence. Both of them appeared to be not only natural witnesses but one of them. Ilam Din D.W, was also cited as an eye‑witness by the prosecution as the occurrence partly took place in his shop. He was, however, given up as won‑over by it.

5. The occurrence is of night but the prosecution witnesses identified the appellants in electric light. Ilam Din eye‑witness produced from the defence, however, has not identified the appellants as the culprits. They were not known to him. He also reduced the number of the culprits, who according to him were the real ones, to three.

6. If the prosecution witnesses, can be considered to have been present at the time of occurrence, the same would apply to Ilam Din D.W. the given up prosecution eye‑witness. It cannot be said that this defence witness was introduced at a later stage. He was mentioned in the police proceedings from the very beginning and he made also a statement under section 161, Cr.P.C. That being so, on general considerations, there was not much for preferring the prosecution eye witnesses over this defence by each set of witnesses in juxtaposition to the other, which has not been done by the learned Courts below.

7. Leave to appeal was granted to consider the effect of the defence evidence in the peculiar circumstances of the case.

8. We have gone through the statements of Abdul Rehman P.W. and Ilam Din the D.W. in reality a prosecution witness but given up for insufficient reason, he could as well have been a Court witness. It may also be mentioned that Ham Din is not one of those dishonest witnesses who make different statements at different stages or in the same deposition in examination‑in‑chief and under cross‑examination. He has through out made consistent statement namely, that one person fired the shots while two other caused hatchet blows.

9. He, however, has not identified the culprit because he did not know them and for reasons best known to the police he was not put in an identification test parade. Abdul Rehman who is also an independent person like Ilam Din gave the total number of the persons who caused hatchet blows, as four. This discrepency of number of this set of accused persons, on general principles governing administration of criminal justice, has to be resolved in favour of the accused. Therefore, it is held that one person shot fires while two caused hatchet blows.

10. The next question is about the identification of the three culprits. Munir who fired shots has been identified by Abdul Rehman in electric light. He has no animus against him he was, therefore, rightly found guilty and convicted.

11. Out of the remaining four sound corroboration, (the recoveries having been rejected by the lower Court) is available against Iftikhar Ahmad Javaid only, who according to the medical evidence had suffered injuries which are contemporaneous with the time of occurrence. He has also been named by Abdul Rehman the independent prosecution witness and Ram Din's statement does not favour him. It rather supports the prosecution to the extent that at least two persons in addition to Munir participated in the occurrence. Iftikhar has also rightly been found guilty and convicted accordingly.

12. There is no confirmatory evidence worth reliance against Razzaq, Amanat and Rashid. They are allowed benefit of doubt and while accept in their appeal, they are acquitted. They shall be released forthwith not required to be detained in any other matters.

13. The appeals of Munir and Iftikhar are dismissed.

M. I. Order accordingly.