1. ' USMAN ALI SHAH, J.--Fayyaz Hussain petitioner was tried alongwith his brothers Manzoor Hussain and Altaf Hussain by the learned Additional Sessions Judge, Jhelum for an offence under section 302/34, P.P.C., for causing the death of their father Sain Khadim Hussain deceased. The petitioner was sentenced to death, while Manzoor Hussain and Altaf Hussain were sentenced to life imprisonment. The petitioner was also directed to pay a fine of Rs,5,000 or in default to suffer further R.I. For three years and Manzoor Hussain and Altaf. Hussain were directed to pay each a fine of Rs,2,000 or in default to undergo further R.I. For two years. On appeal before the High Court, Lahore , Rawalpindi Bench, filed by the petitioner and his brothers co-accused, a learned Division Bench acquitted Manzoor Hussain and. Altaf Hussain and the death sentence of the petitioner was maintained and his murder reference was confirmed, vide impugned judgment. Leave to appeal is sought by the petitioner from the said judgment of High Court.
2. ' According to the prosecution, on 7-9-1981 at 9 p.m. The petitioner alongwith his brothers Manzoor Hussain and Altaf Hussain acquitted accused in this case came to the house of Muhammad Azad (PW.9), their brother-in-law. Khadim Hussain (deceased) father of the petitioner and his Khalifa Noor Dad (PW.10) were already present there. They took the deceased inside the room on the pretext of discussion on some matter with him. Manzoor Hussain took the lantern inside the room.
3. The door of the room was bolted from inside by Altaf Hussain and abuses were exchanged in the room. The PWs saw through an open window that Manzoor Hussain and Altaf Hussain had caught hold of the deceased from his legs and Fayyaz Hussain petitioner fired at the deceased from his gun and hit him on the right side of his chest and arm as a result of which the deceased died on the spot. The accused were decamped from the spot on the hue and,cry of the PWs. This occurrence was witnessed by Muhammad Azad (PW.9), his wife Mst. Rahmat Noor (PW. 12) and Noor Dad (PW.10). Manzoor Hussain and Altaf Hussain accused were arrested by the police on 11-9- 1981, whereas the petitioner was arrested on 4-11-1981 about after two months of the occurrence.
4. ' Autopsy on the dead body of the deceased was conducted by Dr. Asghar Hamid Qureshi (PW.1) who found four fire-arm injuries on the dead body of the deceased. Third and fourth ribs were found fractured under injury No, 1, one deformed pellet was recovered from the chest wall and eight deformed pellets with one sma ll piece and six parts of card-board were also recovered from the dead body. The doctor opined that the death of the deceased was caused due to injuries Nos. 1 and 3 which were sufficient to cause death in the ordinary course of nature.
5. ' The motive for this occurrence according to the prosecution is that the deceased was living with the complainant who was his son-in-law and gave all of his earnings to him and was ignoring his sons, the present petitioner and the acquitted acccused. Both the deceased and his son-in-law refused to give the hand of the sister of the complainant for the accused. However, on the other hand the petitioner and his co-accused had denied the occurrence and motive to cause the murder of the deceased. They alleged that in fact, P.Ws., Noor Dad and Muhammad Azad had killed the deceased over the distribution of money collected by the deceased from his murids and made a false case against them in connivance of the police. The accused also denied the recovery of gun and cartridges from them. The learned trial Judge did not accept the defence version but relied upon the ocular testimony, motive and recovery made from Fayyaz Hussain, accepted the prosecuction version, convicted and sentenced the accused as stated above. On appeal before the High Court, the learned Judges of the Division Bench duly sifted and appreciated the entire evidence in this case, came to the conclusion that it was only the petitioner who had caused a fatal shot to the deceased from a very close range, inside the room. Therefore, his appeal was dismissed by the learned High Court and his sentence was maintained. As far as Manzoor Hussain and Altaf Hussain acquitted accused are concerned. The role attributed to them by the prosecution that they had held the deceased by his legs when Fayyaz Hussain petitioner fired a gunshot at him, was not felt by the learned High Court to be free from doubt and they were acquitted by giving them the benefit of doubt, vide impugned judgment. Hence, this petition for leave to appeal before us.
6. We have heard the learned counsel for the parties and gone through the evidence on record. Mst.
7. Rahmat Noor (PW.12) and Mst. Azmat Noor (CW.2) both daughters of the deceased and Muahmmad Azad (PW.9), husband of Mst. Rahmat Noor are the natural witnesses in this case. They were the inmates of the house in which the deceased was killed. They claimed to have been the eyewitnesses of the occurrence. Mst. Azmat Noor and Mst. Rahmat Noor are the sisters of the petitioner and the acquitted accused and if the accused had not committed the murder of the deceased, there is no reason to believe that they would have deposed against their brothers. All the witnesses in their statements have categorically stated that the petitioner Fayyaz Hussain had fired a fatal gunshot at the deceased. The only role attributed to Manzoor Hussain and Altaf Hussain acquitted accused in this case is that they had held the deceased by his legs and no injury or fire shot was attributed to them by any of the witnesses. The deceased was an old man and was confined before the accused, inside the room. The peititioner had a shot gun, there was no need to hold the deceased by his legs with the other two accused as the deceased was empty handed to retaliate. We agree that both the acquitted accused might have been present at the spot at the time of occurrence but they have failed to escape the deceased from the fire shot of the petitioner, therefore, the sharing of them in common intention with Fayyaz petitioner is not proved against them beyond any reasonable doubt. However, the otherwise version of the defence that the deceased was killed by the complainant Muhammad Azad and Noor Dad is not plausible as the deceased used to live with Muhammad Azad being his son-in-law and was quite happy with him.
8. This version, therefore, seems to be true. On the other hand the motive given by the prosecution in this case is a plausible one as the petitioner alongwith with his brothers were jealous of the deceased for liking of his son-in-law and giving all his earnings to him and refusing to give the hand of the sister of Muhammad Azad to the petitioner or his brothers.
9. ' We are, therefore, satisfied that the learned High Court was justified in facts and circumstances of the case to acquit Manzoor Hussain and Altaf Hussain of the charges of murder and dismiss the appeal of the petitioner in this case. As no rule or principle of law governing dispensation of criminal justice appears to have been violated in this case, the result is that the petition has no merits and is dismissed accordingly. Leave to appeal refused.