' SAJJAD ALI SHAH, J.---This appeal with leave of the Court is directed against judgment dated 16-1- 1993 of Multan Bench of Lahore High Court, whereby criminal appeal filed by the appellant herein is dismissed and his sentence of death is confirmed as contemplated under section 374, Cr.P.C. He has been additionally sentenced by the trial Court to pay fine of Rs, 10,000 and in default of the payment whereof he is to suffer R.I. For two years. With the dismissal of appeal, this sentence is also upheld by the High Court. It would be pertinent to mention here that appellant and his father Rustam All were both put on trial for offence under section 302/109/34, P.P.0 for committing murder of Israr Hussain by fire-arm in furtherance of their common intention but Rustam Ali has been acquitted by the trial Court on the ground that there was no evidence to show that murder was committed at his behest except that gun used in the crime was licensed in his name.
2. Briefly stated the relevant facts in the background giving rise to this appeal are that Rustam Ali, who is father of Abid Hussain is uncle of complainant Singar Hussain and also his father-in-law.
Deceased Israr Hussain was brother of complainant whose other two brothers are Iftikhar Hussain and Sajjad Hussain. Complainant Singar has four sisters namely Mst. Maqsooda Begum, Mst. Safia Begum, Mst. Nasim Begum and Mst. Shamim Begum. Mst Maqsooda Begum is married to Muhammad Aqil and they have two sons Qaiser Nadeem aged 11/12 years and Nazim Waheed aged 9/10 years. This marriage did not succeed and differences arose between the spouses and on that account there was separation and Mst Maqsooda left the house of her husband and started living in the house of her father from the days of birth of second child. In exchange of marriage of Mst. Maqsooda Begum Nikah of Mst. Kausar Bibi daughter of Muhammad Ashiq and niece of Muhammad Aqil was performed with deceased Israr Hussain but Rukhsati had not taken place. Nikah of complainant Singar Hussain was performed with Mst. Zahooran Mai duaghter of Rustam Ali and in exchange thereof Nikah of Nasim Begum was performed with Abid Hussain but Rukhsati did not take place. Nikah of Mst. Safia Begum was performed with Talib Hussain son of Noor Muhammad brother of Muhammad Arif and in exchange Nikah of Iftikhar Hussain was performed with Mst. Azra Bibi daughter of Muhammad Arif but without Rukhsati.
3. Rustam All and Arif insisted that Mst. Zahooran be divorced by complainant so that her marriage be performed with Talib Hussain brother of Arif and likewise other Nikahs in which Rukhsati had not taken place as mentioned above, be .Broken and brought to an end because Mst. Maqsooda Begum did not settle down in the house of Muhammad Aqil. Father of complainant approached Rustam Ali with request that Rukhsatis in all Nikahs performed already be allowed but met with no success as Rustam Ali was adamant and insisted that deceased Israr Hussain should divorce Mst.
Kausar as Mst. Maqsooda Begum refused to live in the house of her husband Muhammad Aqil and that being starting point of controversy, all other Nikahs without Rukhsatis be broken and not finalised.
4. Incident took place on 28-1-1987 at 4-00 p.m. Deceased Israr Hussain had driven tractor No,3234 MNE for fill of diesel from Chah Karyanwala accompanied by his nephews Qaiser Nadeem and Nazim Waheed. Father of complainant and Rustam All lived in same Basti and departure of tractor was seen by Rustam Ali and his sons who were standing near their Dera. Abid Hussain took S.B Gun .12 bore of his father and went in the direction of Karyanwala. Muhammad Yousuf father of complainant asked him to go and find out why his brother Israr Hussain had not returned and taken so long. Complainant went in that direction and when he reached Canal Chit Branch Burji No, 38, he saw Israr Hussain coming in tractor from Head. Karyanwala alongwith his nephews and Abid Hussain came in front of the tractor and stopped it. Abid Hussain fired shot from his gun at Israr Hussain who was hit in the abdomen and lay down on the right side. Abid Hussain fired second shot which hit Israr Hussain on his left hip after which Abid decamped. Complainant went near and saw Israr Hussain dead with his intestines protruding from his abdomen. On the reports of gun fire Siddiq Khan, Haji Ghulam Mustafa and Jamal also came to the spot and saw the incident. Leaving other witnesses near the dead body complainant went to Police Station Kehror Pacca at a distance of 10 miles from the spot where F.I.R. Was registered at 7-15 p.m. On the same day.
5. During the investigation blood was recovered from the tractor and the spot and one crime empty was also recovered which was put into a sealed parcel separately. Abid Hussain was arrested after two days on 30-1-1987 and while in custody produced gun .12 bore alongwith empty cartridge stuck in the barrel. Gun was licensed. Blood-stained earth and clothes of deceased were sent to Chemical Examiner while gun containing cartridge and empty cartridge recovered from the spot were sent to the Laboratory of Fire-Arms Experts. Report of Fire-Arms Expert Exh. PQ is positive showing that cartridge contained in the barrel and empty recovered from the spot were both fired from the same gun.
6. Prosecution examined 7 witnesses in support of its case in the trial Court. P.W.1 is Dr. Aqil Ahmed Khan, who conducted post-mortem examination on the dead body of Israr Hussain and found two fire-arm injuries from which one was on the abdomen and the other on left hip bone. Death was due to shock and haemorrhage due to both injuries which were sufficient in the ordinary course to cause death. P.W.12 is constable Ghulam Abbas, who is corpse-bearer and also delivered sealed parcels to the laboratories P.W.3 Ghulam Shabbir is Patwari and preparedsite plans Exhs.PD, PD/1 and PD/2. P.W.4 Niaz Ahmed is Muharrar Head Constable, with whom sealed parcels were deposited. Two eye-witnesses examined are P.W.5, Singar Hussain complainant and child witness P.W.6 Qaiser Nadeem, who was 11/12 years old at the time of deposition. P.W.7 is S.H.O. Ali Muhammad, who investigated the case.
7. In their statements under section 342, Cr.P.C. Both Rustam Ali and his son Abid Hussain denied prosecution allegations and pleaded false implication. Nikahs without Rukhsatis as claimed by the complainant have been denied and likewise demand for divorce is also denied. Rustam Ali admitted that gun P-5 was licensed gun which was taken from his house by the police and was not used in the occurrence. It was denied that cartridge was stuck in the barrel of the gun at the time of recovery. However, Abid Hussain admitted in his 342, Cr.P.C. Statement that Mst. Maqsooda Begum was separated from her husband alongwith her sons Qaisar Nadeem and Nazim Waheed.
He denied production of gun after arrest and claimed that same was recovered from the house of his father. He further stated that there was enmity between his father and uncle, who is father of complainant and deceased over landed property and family matters and for that reason he has been involved on suspicion. Both father and son further examined themselves as witnesses.
8. Learned counsel for the appellant Abid Hussain submitted before us at the very outset of the arguments that in this case appellant and his father. Rustam Ali were both put on trial but trial Court has acquitted Rustam Ali on the basis of same evidence, hence evidence is to be evaluated- with great care and caution. It is apparent that the trial Court has acquitted Rustam Ali on the ground and for the reason that there was no specific allegation by the prosecution that he was present at the spot at the time of incident and played any role except that crime weapon gun was licensed in his name which was used by his son Abid Hussain at the time of incident. Eye-witnesses deposing in the trial Court did not say that Rustam Ali was present at the spot at the time of incident. We have also noticed that in the trial Court from two child witnesses only P.W.6 Qaiser Nadeem was examined and his evidence was excluded from consideration by the trial Court on the ground that had both child witnesses been present in the tractor, they would have sustained.
Injuries or their clothes would have become stained with blood, which had oozed from injuries of deceased. In this context, trial Court was also impressed by the fact that P.W.6 Qaiser Nadeem had testified that he and his brother Nazim Waheed were sitting on the mudguards of the tractors and did not jump down when appellant fired two shots at deceased Israr Hussain who was driving the tractor. As against that P.W.5 complainant Singar Hussain stated in his deposition that .At the time when second shot was fired both child witnesses jumped down from the tractor.
9. Evidence brought on the record has been properly assessed and evaluated by the High Court which has agreed with the fmding of the trial Court about exclusion from consideration evidence of child witness P.W.6 Qaiser Nadeem. High Court has further concluded that evidence of single eyewitness P.W.5 complainant Singar Hussain which is corroborated from other sources is sufficient to warrant conviction for offence under section 302, P.P.C. Ocular evidence is corroborated by motive which is partly admitted by appellant Abid Hussain in his 342, Cr.P.C. Statement to the extent of admitting the close relationship between the parties in spite of the fact that Nikahs without Rukhsatis as claimed by the complainant and stated in F.I.R. And his deposition have been denied. It is admitted by him that Mst. Maqsooda Begum, sister of complainant and deceased was married to Muhammad Aqil and was living in the house of her parents alongwith her sons Qaiser Nadeem and Nazim Waheed as a result of estrangement with her husband. In question as to why there was case against him and why witnesses deposed against him, appellant replied that there was background of enmity between his father and uncle over landed property and family affairs he was made scapegoat on account of suspicion. Appellant examined himself as defence witness and stated on oath that he had not murdered Israr and was falsely implicated. His examination-in- chief came to an end with one sentence and in the cross-examination he denied all suggestions put to him.
10. Now question arises as to why complainant Singar Hussain who is cousin of appellant should falsely implicate him in the case when both parties reside in the same neighbourhood and there is no other specific enmity apart from controversy with regard to the inter se marriages as is alleged.
In the trial Court complainant was subjected to very lengthy and rigorous cross-examination, most of which appears to be in connection with denial of alleged Nikahs without Rukhsatis and insistence of complainant party that Rukhsatis should take place of marriages already arranged. It appears from the deposition of the complainant that houses of both parties were about two acres away from each other and both parties could see each other in their houses at such short distance. According to the complainant, on the day of incident his brother Israr Hussain left in tractor alongwith Qaiser Nadeem and Nazim Waheed to get diesel and immediately after that appellant was seen going armed with gun of his father in the. Same direction. Father of complainant asked him to go and see why his brother was late. After a short while he saw the incident. Complainant asserted positively that both boys were sitting on the mudguards of the tractor when first shot was fired by Abid Hussain at Israr Hussain who was driving the tractor. Before second shot was fired, boys jumped down from the mudguards. Here complainant is contradicted by P.W.6 Qaiser Nadeem who stated in his deposition before the trial Court that they did not jump down. Apart from this discrepancy, there is nothing adverse in the cross-examination of the complainant to suggest that he has not seen the incident or that he has falsely implicated the appellant.
11. Ocular testimony is also corroborated by medical evidence to the extent that injuries were fired from the gun and seats of the injuries were same as alleged by the complainant. There is also corroboration in the finding of the Ballistic Expert to the effect that crime empty recovered from the spot and one found stuck in the barrel of the gun at the time of recovery had been fired from the gun. There appears nothing in the cross-examination of I.O. To suggest that he had conducted investigation dishonestly and it is clear that in this case since both parties are related to each other very closely, other persons did not come forward to give evidence. There is no enmity between the parties and also there appears to be no room for false implication of appellant. Since gun is licensed in the name of father of appellant, its ownership is not denied but only manner of recovery is denied as claimed by the prosecution.
12. We are satisfied with the manner in which High Court has appraised the evidence brought on the record. Both the Courts below have excluded from consideration evidence of child witness P.W.6 Qaiser Nadeem who was present in the tractor all the time before the incident. The other child eye-witness Nazim Waheed was not examined in the trial Court. Complainant Singar Hussain did not see the beginning of the incident and could not say what transpired between appellant and complainant before shots were fired because admittedly complainant claims to have reached the spot and saw appellant firing at the deceased. In such circumstances it can be said that there is no evidence with regard to prelude or exchange of conversation between appellant and deceased before the shots were fired. Something must have happened before the incident otherwise in the normal course the parties resided in the same area and incident could have taken place earlier in point of time as well but it did not take place and this clearly shows that some exchange of harsh words must have taken place before the act of shooting. We, therefore, dismiss the appeal and uphold conviction but reduce sentence from death to life imprisonment.