' ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances.
' Sikandar Hayat respondent No,1 and Lal Khan respondent No,2 were tried alongwith Rab Nawaz under sections 302/34 and 307/34, P.P.C. By the learned Additional Sessions Judge, Sargodha. Vide order, dated 2-5-1984 Rab Nawaz was acquitted, Sikandar Hayat and Lal Khan were convicted under section 302/34, P.P.C. The former was sentenced to death and a fine of Rs,5,000 in default two years' R.I. And the latter sentenced to imprisonment for life and a fine of Rs,5,000 in default two years' R.I. Both were convicted under section 307/34, P.P.C. And each sentenced to ten years' R.I. And a fine of Rs,1,000, in default six months' la Fine under section 302/34, P.P.C., if recovered, was to be given to the heirs of the deceased and fine under section 307/34, P.P.C. To the injured P.W. All the sentences were to run concurrently. Convicts filed Criminal Appeal No,341 of 1984 in the Lahore High Court and the matter was before it for confirmation of the death sentence given to Sikandar Hayat vide Murder Reference No,84 of 1984. Complainant also filed a revision petition against the acquittal of Rab Nawaz. The learned High Court altered the conviction of Sikandar Hayat and Lal Khan under section 302/34, P.P.C. To sections 304, Part 11/34, P.P.C. And sentenced them to ten years' R.I. Each, maintaining the fine imposed by the learned trial Court. Their conviction under section 307/34, P.P.C. Was altered to section 308/34, P.P.C. And they were sentenced to seven years'
R.I., each, maintaining fine imposed by the learned trial Court. The sentence were directed to run concurrently. The appeal was thus allowed declining to confirm the sentence of death. Revision petition against the acquittal of Rab Nawaz was dismissed. This is vide order of a learned Division Bench of the Lahore High Court dated 9-3-1987. The complainant filed two petitions one (Criminal Petition No,110 of 1987) against the acquittal of Rab Nawaz. That was not pressed and dismissed.
However, the second petition No,109 of 1987) for enhancement of sentences of the two respondents Sikandar Hayat and Lal Khan was accepted and the leave to appeal was granted, with the, observation that "the reason given by the High Court whereby conviction and sentence of respondents Nos.1 and 2 was altered from sections 302, P.P.C. To 304, Part II, P.P.C. Requires detailed examination so as to make sure whether there was any legal justification for such an alteration and reducing the sentence when the same is not warranted by law." This is vide order dated 15-4- 1989. Hence this appeal.
2. Learned counsel for the appellant has read out the judgment under appeal from para. No,12 onwards which are to the following effects; "We have thoroughly considered and minutely analysed the contention raised on behalf of the parties, with reference to the evidence and circumstances available on the records of the case.
Except the motive, as alleged in the F.I.R. No previous enmity between the parties has been proved.
It is broad daylight occurrence. There was hardly any occasion for the complainant to substitute the appellants for the real culprits. Injuries on the person of Ghulam Murtaza P.W. Cannot by any stretch of imagination, be said to have been self-suffered. His injuries do furnish corroboration to the testimonies of the eyewitnesses. In this view of, the matter, we find that the appellants are liable for causing the death of Pervaiz Iqbal deceased and injuries to Ghulam Murtaza P.W.13.
' However, we have noticed that the appellants were allegedly armed with guns at the time of occurrence. The shot was fired at the deceased by Sikandar Hayat from a very close range, but the injury was caused at the non-vital part of the body, although on account of damage of femoral bone and artery it proved to be fatal. Injuries to Ghulam Murtaza P.W. Were also on the non-vital part of the body and simple in nature. The appellants did not repeat the shot. They allegedly fired one shot each. This shows that they had no intention to cause the murder of the deceased or that of Ghulam Murtaza P.W.13. In the circumstances of this case, as detailed above, we are inclined to conclude that the offence committed by the appellants amounts to culpable homicide not amounting to murder, punishable under section 304, Part II, P.P.C."
3. Learned counsel for the appellant has submitted that the eye-witness account given by P.W.12 Muhammad Ali, P.W.13 Ghulam Murtaza and P.W.14 Khuda Bakhsh, as accepted by the learned High Court was that Pervaiz Iqbal was fired while he was driving motor-cycle by Sikandar Hayat who was injured on the thigh, fell down and died on the spot. Ghulam Murtaza P.W. Was fired at by Lal Khan and hit at the thigh. Contention of the learned counsel for the appellant is that when the respondents fired with their respective .12 bore guns while the deceased and Ghulam Murtaza P.W.
Were riding on a motor-cycle there could be no doubt that the assailants intended to kill. The fact that the shots fired hit on the thigh was just a matter of chance. Sikandar Hayat fell down and died of the injury on the spot.
4. Learned counsel for the respondents submitted that since the injuries were on non-vital part, the thigh, there was no intention to kill but to cause injury.
5. After hearing the learned counsel for the parties and perusing the record we are of the view that there was no doubt about the intention of the accused/respondents that they fired to kill. It was just a matter of chance that the shots fell on the thighs. Pervaiz Iqbal who was driving the motor-cycle fell and died of the injury on the spot. In this view of the matter, we set aside the order of the learned High Court and restore the conviction and sentences awarded by the learned trial Court to the respondents, except to the extent that Sikandar Hayat respondent instead of death shall suffer the alternate sentence of imprisonment for life. The sentences shall run concurrently. The respondents shall be given the benefit of section 382-B, Cr.P.C. The respondents are said to be out and on bail. They shall be taken in custody to suffer their sentences.