' CH. EJAZ YOUSAF, J.--- This appeal by way of leave is directed against the judgment dated . 22-5- 2003 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby appeal filed by the appellant against his conviction and sentence recorded by the learned Additional Sessions Judge, Mianwali, vide judgment dated 10-9-1999, was dismissed.
2. Facts of the case in brief are that on 19-2-1994 at about 10-00 a.m. Complainant Muhammad Sher along with his brother Khan Baig, nephew Zafarullah and one Muhammad Aslam Khan were on their way to village Nari Miana. When they reached near the tube-well of Muhammad Akbar, Muhammad Latif accused armed with .303 rifle and acquitted co-accused Muhammad Khan armed, with a .12 bore gun fired at them but luckily they were escaped. However, a bullet fired by the present appellant allegedly landed on the forehead of the complainant's brother, namely, Khan Baig who as a result of the injury dies instantly. The accused persons thereafter fled away. A case was registered under section 302/34, P.P.C, investigations was accordingly carried out and on completion of investigation, the accused persons were challaned to the Court for trial. It would be pertinent to mention here that after the occurrence since, the appellant was at large therefore, initially co-accused namely, Muhammad Khan was tried, however, was acquitted vide judgment dated 30-7-1996. The appellant was proceeded against under sections 87 and 88, Cr.P.C. After his arrest on 8-7-1998, the appellant was challaned to the Court for trial. At the trial, the prosecution, in order to prove charge and substantiate the allegation levelled against the appellant, produced eleven witnesses in all, whereafter the appellant was examined under section 342, Cr.P.C. In his above statement the appellant denied the charge and pleaded innocence. While denying the allegation regarding his abscondance the appellant stated that since he was away to Karachi in connection with earning of his livelihood, therefore, he could not appear before the Court however, no sooner he came to know about the case against him, then he surrendered before the police. He also denied the recovery of gun etc. And pleaded that in fact the deceased and his companions were the aggressors and that the deceased had received injuries during cross-firing which was made in their defence by those persons who exchanged firing with the deceased. He did not appear as his own witness in terms of section 340(2), Cr.P.C. In disprove of the allegations levelled against him, however, tendered in Court a copy of the judgment dated 30-7-1996. He also made an application for summoning of Farhat Mehmood Investigating Officer as a Court witness. The application was allowed and the said Investigating Officer was summoned and examined as C.W.1.
Thereafter, the appellant was again examined under section 342, Cr.P.C. But he stuck to his previous statement and added nothing. After hearing the learned counsel for the parties, the learned trial Judge convicted the appellant under section 302(b), P.P.C. And sentenced him to death. He was also directed to pay a sum of Rs,25,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. On in default to suffer six months' S.I. Being aggrieved the appellant approached the Lahore High Court by way of an appeal which was dismissed vide the impugned judgment, hence this appeal with leave of the Court.
3. Learned counsel for the appellant has contended; that since, on the same evidence earlier Muhammad Khan co-accused was acquitted of the charge, hence the appellant's conviction too, was bad in law; that since medical evidence was at variance with the ocular evidence therefore, prosecution version of the incident could not have been believed, alternatively it was pleaded that since the Investigating Officer in his statement had found that the instant was a case of cross- firing therefore, extreme penalty of death could not have been inflicted on the appellant.
4. Ch. Munir Sadiq, learned Deputy Prosecutor-General, Punjab, on the other hand, while controverting the contention raised by the learned counsel for the appellant submitted that it was broad day light murder and specific roles were attributed to the accused persons hence, it was not a case mistaken identity or substitution of the accused. Further, the F.I.R. Was lodged promptly. He added that since both the eyewitnesses, namely Zafarullah and Muhammad Sher had unequivocally charged the appellant for murder and their testimony find support from the medical and other evidence therefore, the impugned judgment was unexceptionable. In reply to the query so to how on the basis of same evidence, co-accused Muhammad. Khan was acquitted, he replied that in the previous trial since another eye-witness, namely, Aslam was examined by the prosecution whereas, in the instant case ocular account of the incident was furnished by P. Ws Muhammad Sher and Zafarullah therefore, it was not the " same evidence".
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case minutely, with their assistance.
6. Prosecution case rests on the statement of eyewitnesses, namely, Muhammad Sher and Zafarullah, who are real brother and son of the deceased, the medical evidence, abscondance of the appellant and the motive. Testimony of both the aforementioned witnesses cannot be doubted because they being close relatives of the deceased would not like to let go the real offender of substitute him with the appellant just to take revenge. Their presence at the place of occurrence was also natural. The evidence of both the eye-witnesses is corroborated by the medical evidence in all material particulars. Further, F.I.R. In the case was promptly lodged, wherein not only the names of the accused persons were given but specific roles were also attributed to each of them. It was a broad day light murder. The accused persons were previously known to both the eyewitnesses hence, the possibility of mistaken identity has to be ruled out. It is also an admitted fact that after the occurrence, the appellant remained at large for about 4 1/2 years and his abscondance was taken as an incriminating piece of evidence. Though the recovery of .12 bore gun from the possession of the appellant, after his arrest, was not found to be of any use by the trial Court, in view of the fact that the appellant at the time of occurrence was allegedly carrying a rifle and the injuries sustained by the deceased were of bullet yet, the .Rest of the evidence was found sufficient by both the Courts below to base conviction thereon, and we see no reason as to why a different view may be taken.
7. Adverting to the next contention of the learned counsel for the appellant that since at the earlier*trial co-accused Muhammad Khan was acquitted on the same evidence hence, conviction of the appellant was also bad in law, it may be pointed out here that firstly as pointed out by the learned Deputy Prosecutor General, it was not the same evidence because at the previous trial one Aslam was examined whereas in the instant case Zafarullah was examined and secondly co- accused Muhammad Khan was primarily acquitted by the trial Court for the reason that as per allegation contained in the F.I.R, he was allegedly carrying a .12 bore gun, whereas as per Exh.P.B. a .7 mm rifle was recovered from his possession which was a licensed gun and that the alleged recovery was also in violation of section 103, Cr.P.C. Therefore, the contention is devoid of force.
8. As to the contention regarding motive that since brother of the deceased was killed by the appellant party at Lorry Adda Wanbachran about three years prior to the occurrence and it was apprehended by the appellant party that the deceased and his relatives would, in order to take revenge of Saeed Ullah, retaliate and therefore, the assault was made, it may be pointed out here that the contention raised on its face appears to be misconceived, because it could not have been a reason for the appellant party to launch an attack rather it was a strong motive for the complainant party. Be that as it may, it is settled law that motive, proved or otherwise, is immaterial in presence of ocular evidence and murder may be committed even for no motive or on a minor pretext. What to speak of proving motive, in certain cases where the motive was shrouded in mystery or was no alleged, conviction was maintained and absence of motive was not taken, as a mitigating circumstance even.
9. However, the submission made by the learned counsel for the appellant regarding reduction in quantum of sentence of the appellant appears to have force in it, because according to the eyewitnesses, the appellant at the time of occurrence was present at the roof of a tube-well, wherefrom he had allegedly fired at the deceased, whereas P.W.9 Dr. Muhammad Khan, had, keeping in view the direction of firing, opined that at the time of firing the assailant and the victim were at the same level. Further, in view of the fact that no empty was recovered from the place of occurrence and Investigating Officer of the case i.e, C.W.1 Farhat Mehmood had, at the trial opined that it was a case of cross firing, we feel that instant case is not a case of capital punishment and ends of justice would be met with, if sentence of death inflicted on the appellant is reduced to that of life imprisonment.
10. Upshot of the above discussion is that this appeal is partly allowed, conviction recorded the appellant under section 302(b), P.P.C. Is maintained however, the sentence of death inflicted on him thereunder is reduced to that of imprisonment for life. The amount of compensation of Rs,25,000 to be paid to the legal heirs of the deceased shall remain the same as ordered by the learned trial Court. Benefit of section 382 B, Cr.P.C. Is also extended to the appellant.
' These are the reasons for our short order of the even date announced in open Court.