' MUHAMMAD RAFIQ TARAR, J.---Noor Hussain (hereinafter referred as the appellant) and acquitted accused Sher Muhammad were tried by a learned Additional Sessions Judge, under section 302/34, P.P.C. Acquitted accused Sultan, Allah Ditta, Muhammad Hayat, Zafar Iqbal and Muhammad Yousaf were also tried alongwith them under sections 120-B and 302, P.P.C. By his judgment dated 31-1-1982, the learned Additional Sessions Judge acquitted all the accused except Noor Hussain appellant who was convicted under section 302, P.P.C. And sentenced to death and a fine of Rs,3,000 with a further direction to pay Rs,5,000 as compensation to the legal heirs of the deceased. On appeal to the High Court, his conviction was upheld but his death sentence was reduced to imprisonment for life and with this modification his appeal was dismissed. He has challenged the impugned judgment through Criminal Appeal No,85 of 1989. Muhammad Hassan son of the deceased (hereinafter referred as the complainant) through Criminal Appeal No,86 of 1989 seeks enhancement of the sentence of imprisonment for life to death. Both these matters are being disposed of through this judgment.
2. The prosecution version in brief is that on the morning of 9-7-1980 Muhammad Hassan first informant and his father Ghulam Abbas deceased boarded a bus for coming to Joharabad.
Muhammad Nawaz P.W., Ujal Khan and Mian Muhammad (not produced) joined them on the way.
All of them alighted from the bus at Bus Stand Joharabad at about 7-30 a.m. And proceeded towards Tehsil Office from behind the office of Housing Department when all of a sudden Noor Hussain appellant armed with a pistol and acquitted accused Sher Muhammad armed with a Lathi emerged from a wooden cabin. Sher Muhammad raised a Lalkara that they had come to avenge the murder of Muhammad Feroze upon which Noor Hussain fired his pistol on Ghulam Abbas hitting him on the back as a result of which he expired when he was being taken to the hospital. In the F.I.R. It was stated that the murder was committed in pursuance of a conspiracy hatched by Sultan Mehmood, Allah Ditta, Muhammad Hayat, Zafar Iqbal and MuhammadtYousaf.
' Motive alleged by the prosecution was that Muhammad Feroze, brother of acquitted accused Zafar Iqbal and Muhammad Yousaf, was murdered about 8/9 years back for which Ghulam Abbas deceased and one Sanawal Khan were prosecuted and acquitted by the trial Court.
3. Muhammad Hassan reported the occurrence to Muhammad Saleem Khan, Sub-Inspector at 8- 30 a.m. Near Ittehad Chowk, Joharabad vide his statement Exh.P.E. On the basis of which formal F.I.R. Exh.P.E./1 was recoreded at the police station at 8-45 a.m.
4. After recording the statement of the complainant Muhammad Saleem Sub-Inspector reached the hospital. He prepared the injury statement Exh.P.F. And inquest report Exh.P.G. Of the dead body and despatched it to the mortuary for post-mortem examination. Then he proceeded to the spot and secured some blood-stained earth and a crime empty Exh.P.1 vide memo. Exh.P.B. The appellant was arrested on 15-7-1980. On 29-7-1980 a .12 bore pistol Exh.P.2 was recovered at his instance vide memo. Exh.P.C. After the usual investigation he and his aforesaid co-accused were challaned.
5. On 9-7-1980 Dr. Muhammad Afzal conducted the autopsy on the dead body of Ghulam Abbas deceased and found a fire-arm wound 3 c.m. x 3 c.m. x chest cavity with black margins on back left side of chest. According to the doctor injury had damaged the left lung and heart resulting in the death of the deceased.
6. In support of its case the prosecution examined two eye-witnesses namely Muhammad Hassan and Muhammad Nawaz and it also relied on the evidence relating to motive, recovery of crime empty from the spot and that of pistol from the appellant and the report of the Fire-arm Expert according to which the empty had matched with the pistol.
7. The appellant pleaded not guilty to the charge and denied the prosecution allegation against him. He stated that he had been falsely implicated due to enmity and in fact the murder was committed by one Mumtaz Machi. He examined Ch. Sultan Ahmed, D.S.P. And Malik Hakim Khan, Advocate in his defence. The former stated that the investigation of this case was entrusted to him by the D.I.-G. He examined many persons of the locality including Malik Hakim Khan, Advocate and after the completion of investigation he recorded his final report in the case diary to the effect that recovery of weapon of offence and crime empty was the result of police padding and the appellant and acquitted accused were not present at the place of occurrence. Malik Hakim Khan, Advocate stated that on hearing the fire report he rushed to the spot from its chamber and found a person running towards Railway Station. Abid Hussain Shah Sub-Inspector ran after him but he managed to escape.
8. After examining the evidence on the record, the learned trial Judge came to the conclusion that the recoveries were doubtful and even otherwise of no consequence "because the crime empty and the weapon of offence remained together in the custody of police for a pretty long time". He rejected the defence version and relying on the ocular evidence convicted and sentenced the appellant as mentioned above. His fmdings were upheld in appeal. However, the learned Judges of the High Court reduced the sentence of the appellant on the ground that so far as the facts of the present case are concerned, there is background of previous enmity and murder feud between the parties. Admittedly the Phuphi's husband of the appellant was alleged to have been murdered at the hands of the deceased and one could say that in the circumstances of the case when private revenge was being taken after the lapse of 8/9 years, we could still consider it as an extenuating circumstance.
9. Learned counsel for the appellant submits that there was background of enmity between the parties and in that view of the matter the evidence of two close relations of the deceased has not been appreciated in its true perspective. It is submitted that uncorroborated testimony of interested witnesses was not sufficient to warrant the conviction. The learned counsel for the complainant on the other hand submits that the conviction of the appellant is well-founded and he deserves capital punishment.
10. After minutely going through the evidence on the record we find that the findings recorded by the Courts below have the support of evidence and are well-reasoned. Learned Judges of the High Court took notice of the fact that the occurrence took place on a hot summer morning at 7-30 a.m., the statement of the complainant forming the basis of the F.I.R. Was recorded promptly at 8-30 a.m. On the same day and his version that the fire hit his father in the back was supported by the medical evidence. They further observed that it was a case in which a single person had been attributed a single shot in the broad daylight resulting in death of the deceased and they were convinced that 'substitution of a single accused is definitely a rare phenomenon'. The case of the defence was that one Mumtaz Machi had committed the murder. The learned Judges observed that had it been so this fact 'must have been known to numerous people who had been present at the time of occurrence in that area and also the complainant side would definitely have known that he was the real culprit'. The learned counsel for the appellant could find no fault with the above observation during his submission before us. There is no legal error in the appraisement of evidence and the Courts below on a detailed scrutiny of the evidence on the record have believed the ocular account for valid reasons.
11. As regards Criminal Appeal No,86 of 1989 the learned counsel for the complainant has not been able to make out a case for capital punishment. In addition to the ground which weighed with the High Court for withholding capital punishment, a period of more than ten years has passed since the conviction. We are, therefore, not inclined to interfere with the sentence passed by the High Court.
' For the foregoing reasons both the appeals are dismissed.