1. MUKHTAR AHMED JUNEJO, J.---Appellant Khalil Ahmed and Muhanunad Yasin have filed this appeal with permission of this Court against a judgment of the Lahore High Court by which their conviction and sentence under section 302 of P.P.C. Were maintained. Leave to appeal was granted against said judgment by a learned Bench of this Court on 15-1-1994 on the ground that the main eye- witness and complainant Muhammad Ibrahim had during trial denied certain facts which were prima facie established by documents filed by defense with regard to previous implication of deceased Muhammad Amin alias Munshi in certain cases and enmities. Another ground for grant of leave was, that the medical evidence was not in conformity, with the ocular evidence and the recoveries of seven empties from the spot. Under the same order, complainant Muhammad Ibrahim's petition for leave to appeal against acquittal of co-accused Muhammad Hussain was dismissed as time-barred.
2. ' The appellants with co-accused Muhammad Hussain were tried in the Court of Sessions Judge, Vehari on the charge of having committed murder of Muhammad Amin alias Munshi and Muhammad Shafi on 21-12-1986 at 4 or 5 p.m. In the area of Chak No,173/WB, District Vehari.
3. Appellant Khalil Ahmed was also charged with having removed from the Ward at deceased Muhammad Amin's .12 bore gun which was recovered by police, at his instance. Co-accused Muhammad Hussain was also charged for being in possession of deceased Muhammad Shari's motor-cycle Honda CD-70 which was secured by Police at his instance. As per the F.I.R., at the relevant time complainant Muhammad Ibrahim P.W.1, his brother deceased Muhammad Amin alias Moshi, his father Shona P.W.2, and his father-in-law Haji Samna P.W.5 while returning from Khanewal to their house in Chak No, 169/WB met on the way deceased Muhammad Shari and his father Glulam Husain having a motor-cycle and stopped for a while at bank of Pakpattan where they exchanged Salams with them. In the meantime, appellant Khalil Ahmed emerging from bushes fired his gun which hit Muhammad Shari, who fell down. Thereafter his son Muhammad Yasin (appellant) and Muhammad Hussain co-accused also came there with guns. Muhammad Basin fired his gun which hit Muhammad Amin over his face and he fell down. There was further firing by the assailants. Muhammad Amin's head and face received serious injuries to which he succumbed. The eyewitnesses took shelter under bushes. The assailants left by the motor-cycle of Muhammad Shafi, who succumbed to his injuries while being taken away from the Ward at.
4. Leaving dead body of Muhammad Shari in latter's house and dead body of Muhammad Amin with Haji Samna and others, the complainant went to Police Station Metro and lodged F.I.R. At 5-45 p.m.
5. The motive for the offence, as per the F.I.R., was quarrel over irrigational water between appellant Khalil Ahmed and deceased Muhammad Amin, which took place 8/9 months prior. During the trial the prosecution led inter alia ocular evidence of Muhammad Ibrahim P.W.1, Haji Samna P.W.5 and Sohna P.W.2. Juma Din P.W.6 was examined on motive. At conclusion of the trial, the appellants and Muhammad Husain were convicted for the offence punishable under section 302 of P.P.C. Read with section 34 of P.P.C. Khalil Ahmed and Muhammad Husain were awarded death penalty while Muhammad Basin was sentenced to suffer imprisonment for life. Each of them was also sentenced to pay fine of Rs,5,000 or to suffer R.I. For two years. Khalil Ahmed was also convicted under section 411 of P.P.C. And he was sentenced to suffer R.I. For two years.
6. ' The appellants and the co-accused challenged their conviction and sentence under Criminal Appeal No,18/1990 before the Lahore High Court. Under the impugned judgment, a learned Division Bench of the High Court maintained conviction and sentence of the appellants and confirmed the death sentence of Khalil Ahmed but acquitted co-accused Muhammad Hussain and the Murder Reference in his respect was answered in the negative.
7. ' Mr. Sh. Khizar Hayat, learned counsel for the appellants argued that both the deceased had received injuries on left side of their bodies although they were fired at from right side and that appellant Khalil Ahmed had allegedly emerged from the southern side. Learned counsel posed a question as to, why Muhammad Shafi should have been the first victim if the motive was to kill Muhammad Amin. It was also argued that the witnesses were interested as Haji Saman was father-in-law of the complainant and Shona was father of Munshi, while Ghulam Hussain, father of Muhammad Shafi, could not be examined because he died natural death. It was also argued that the recovery of gun was affected from Khalil Ahmed on 9-1-1987 and the empties recovered from the scene of incident were sent to the expert after arrest of the appellants and not soon after recovery. Learned counsel further argued that the prosecution story was improbable and the motive was shrouded in mystery.
8. ' None appeared to represent the State. Dealing with the ocular evidence the High Court observed as below:--- "No doubt there are some minor discrepancies and contradictions in the depositions of the P.Ws.
9. But those are not so fatal to make them not worthy of belief. In our view the eye-witness account rendered by P.W.1, P.W.2 and P.W.5 is quite cogent, consistent and natural. The medical evidence is in full accord with the ocular account furnished by them. P.W.9 the Medical Officer noticed one lacerated fire-arm wound on the person of Muhammad Shari deceased and two lacerated outbids on the person of Muhammad Amin alias Munshi deceased. During cross-examination the eye- witnesses have inflated the injuries on the person of Muhammad Amin alias Mushy deceased but we do not attach much importance to this in an occurrence where the fire-arms are used the eye- witnesses are not expected to give the minute details regarding the pellets which hit the deceased persons: However, the eye-witnesses in this case during cross-examination have tried to clarify that how both the deceased received the injuries and to which side they were facing at ' the time of attack. We find that Haji Saman P.W.5 has fully corroborated the testimony of Muhammad Ibrahim P.W.1 and Sohna P.W.2 on the point of injuries caused by the appellants to both the deceased."
10. There is no misreading or non-reading of evidence by the High Court. Cogent reasons have been advanced by the High Court for relying on the ocular evidence which does not appear to be in conflict with the medical evidence. At the time of incident the victims may not have remained in the same position on seeing the assailants, and there is no substance in the argument that the deceased should have received the injuries on their right side, because in such a situation a human being does not remain static and the same can be said in respect of the two deceased.
11. ' There is, however, force in the contention of the learned counsel for the appellants that there is no evidence, as to, why Muhammad Shafi should have been fired at. The fatal injury on Muhammad Shafi is attributed to Khalil Ahmed who has been awarded capital sentence. The sentence awarded to Khalil Ahmed requires to be altered because while firing the gunshots, Khalil Ahmed may have targeted Muhammad Amin and it appears that the gunshots have hit Muhammad Shafi due to mistake in judgment. For this reason, we are of the view that the ends of justice would be met if Khalil Ahmed is sentenced to life imprisonment instead of suffering the death penalty.
12. ' For the foregoing reasons, conviction of the appellants is maintained and so also their sentence except that appellant Khalil Ahmed's sentence is altered from death to imprisonment for life.
13. Needless to add that the appellants shall be entitled to the benefit of section 382-B of Cr.P.C. The appeal is disposed of accordingly.