MANZOOR AHMAD MALIK, J.---Arshad Beg (appellant) was indicted in case FIR No.194/2001 dated 26.09.2001 offence under section 302, P.P.C., registered at Police Station Tanda, District Gujrat. After trial he was convicted under section 302(b), P.P.C. and sentenced to death. He was also ordered to pay compensation amount of Rs.100,000/- (rupees one lakh only) to the legal heirs of Sharif Beg (deceased) and in default thereof they were ordered to undergo simple imprisonment for six months.
2. Feeling aggrieved of the judgment passed by the learned trial court the appellant filed Criminal Appeal No.389 of 2003 whereas the learned trial court sent Murder Reference No.46 of 2004 for confirmation or otherwise of the sentence of death awarded to Arshad Beg (convict). Both these matters were heard together by a learned Division Bench of Lahore High Court and through the impugned judgment, appeal filed by the appellant was dismissed. Murder Reference sent by the learned trial court was answered in the affirmative and the sentence of death awarded to the appellant by the learned trial court was confirmed.
3. Feeling still dissatisfied with the impugned judgment Arshad Baig (convict) preferred Criminal P.
No.722-L of 2009 wherein leave was granted vide order dated 24.09.2009. Hence this appeal with leave of the Court.
4We have heard learned counsel for the appellant as well as learned Additional Prosecutor General Punjab for the State and have also examined the available record with their able assistance.
5.This occurrence which took place in the broad daylight occurrence was reported to the Police with due promptitude as the FIR was got registered just after one hour of the occurrence. The ocular account was furnished by brothers of the deceased namely Afzal Beg complainant (PW.6) and Muhammad Ashraf Beg (PW.7). They were cross-examined by the defence at length but they remained consistent on all material aspects of the case. Even otherwise this is a case of single accused and substitution in such like cases is a rare phenomenon as normally kith and kin of the deceased (in this case real brothers) would not implicate an innocent person by letting off the real culprits. Therefore, we hold that both the witnesses of ocular account were present at the spot and had witnessed the occurrence. Ocular account furnished by these witnesses is substantially supported by medical evidence as three firearm injuries were observed on the person of Sharif Beg (deceased) out of which only one was exit would whereas two were entry wounds. Therefore, the prosecution case stood proved against the appellant beyond any shadow of doubt and conviction of the appellant under section 302(b), P.P.C. is fully justified. But it was not a case of capital punishment because a vague motive was set up in the FIR. While appearing before the learned trial court the evidence of motive was furnished only by the complainant. He was cross-examined on this aspect of the case and relevant extract from his cross-examination is as under:- ..Before this occurrence, we had no enmity with the accused. Motive incident did not take place in my presence. That was witnessed by so many persons at Adda. I cannot tell the name of any person. I do not remember that who told me about the said motive incident. It is incorrect that we have concocted motive incident."
6.In view of the above, since there was no previous enmity between the parties and a vague motive set up by the complainant could not be proved at the trial, therefore, taking it as a mitigating circumstance, we partly allow this appeal. While maintaining conviction of the appellant under section 302(b), P.P.C., his sentence of death is altered to imprisonment for life. The amount of compensation and the sentence of six months simple imprisonment in default thereof as ordered by the learned courts below are maintained. Benefit of section 382-B, Code of Criminal Procedure is also extended to the appellant.