' SH. IJAZ NISAR, J.---This appeal by leave of the Court is directed against the judgment, dated 24- 5-1993, passed by the Lahore High Court, Multan Bench, in Criminal Appeal No,72 of 1990.
2. The facts, in brief, are that Muhammad Arif appellant and his brother Muhammad Haroon, sons of Ahmad Khan, were tried for the murder of Farzand Ali deceased with fire-arms and a stick committed on 18-5-1998, at noon time, in the area of village Mahmoodabad, Police Station Saddar Arifwala, District Sahiwal.
3. The prosecution case is that on the day of occurrence Farzand Ali deceased accompanied by his brothers Muhammad Latif P.W. 1 and Rustam P.W.2 were proceeding towards their house on bicycles. On the way, Muhammad Arif appellant and Hassan accused (since acquitted) came in front of them. The appellant was armed with a gun while Hassan carried a sota. The latter inflicted a sota blow on the head of the deceased, as a result of which he fell down, whereafter he took out a pistol from his fold and fired at the deceased. Muhammad Arif appellant also fired at the deceased hitting him at his legs. On alarm of the brother of the deceased the accused ran away.
The deceased died of the injuries on the same day in the hospital. Muhammad Latif P. W.1 reported the matter to the police vide F.I.R. Exh.PA.
4. The motive for the offence was that about 2-1/2 years prior to the occurrence Farzand Ali deceased had injured Muhammad Arif appellant and was challaned alongwith his brother Rustam P.W.2, his father and others. They were convicted by the trial Court, but were acquitted on appeal.
5. The present occurrence had taken place three months after the acquittal of Farzand Ali (deceased) etc. ' During investigation, gun P.5 was recovered at the instance of Muhammad Arif, while stick P.4 was recovered at the pointation of Hassan accused. After the investigation both of them were challaned.
6. During the post-mortem examination 8 fire-arms and blunt weapon injuries were found on the body of the deceased. Muhammad Latif P.W.1 and Rustam P.W.2 furnished the ocular account as well as the motive.
7. The learned trial Court convicted both Muhammad Arif appellant and Muhammad Hassan, under section 302/34, P.P.C., and sentenced them to death plus a fine of Rs,20,000 each. The conviction was based on the motive and ocular evidence supported by the medical evidence. The recovery of gun from Muhammad Arif appellant was found to be insignificant as no empty had been recovered from the spot.
8. On appeal, the learned High Court maintained the conviction of the appellant but acquitted Muhammad Hassan giving him the benefit of doubt.
9. Leave was granted to consider as to whether conviction of the appellant was justified on the same set of evidence which had not been relief upon against the acquitted accused.
10. The learned High Court had observed in para. 10 of its judgment that: "Admittedly, the parties were inimical to each other. Earlier a case was registered against the deceased and others for causing injuries to the appellant but the deceased and his co-accused were acquitted at the trial."
11. As mentioned above, both the eye-witnesses are real brothers and had been tried for causing injuries to the appellant alongwith others and were acquitted in appeal about three months prior to the occurrence. In these circumstances, rule of caution requires that close scrutiny of the ocular testimony should be made so as to avoid any chance of false implication. According to the eye- witnesses, Muhammad Arif appellant had fired shots at the legs of the deceased. They stand corroborated by the medical evidence in this respect, as during the post-mortem examination injuries were found on his legs, only one shot is attributed to him and there is no allegation of the repetition of shots by him. According to the prosecution story, he had been injured by the deceased and others sometime prior to the occurrence, for which they were tried and convicted but acquitted on appeal. The fact that he did not target the vital parts of the body of the deceased, nor he repeated the shots, lends support to the contention of the learned counsel for the appellant that he might have attacked the deceased in retaliation to teach him a lesson, not intending his death.
12. In this view of the matter, we consider him entitled to leniency in the matter of sentence. We, therefore, while upholding his conviction alter his sentence from death to imprisonment for life with a fine of Rs,50,000, or in default to undergo 3 years R.I. With the benefit of section 382-B, Cr.P.C. The fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. The appeal is partly allowed With the above modification in the sentence.