' ABDUL QADEER CHAUDHRY, J.---The petitioners seek leave to appeal against the judgment dated 13-5-1989 of the Lahore High Court, Rawalpindi Bench, whereby the appeal preferred by the petitioners against their conviction and sentence was dismissed.
2. According to the prosecution case, Mohammad Zamir and his brother Mohammad Ajaib deceased had constructed a Kotha in their own land about six months prior to the occurrence. On its eastern side there was Shamilat land which was in possession of Mohammad Roshan and his brother Abbas. A spout was kept on the eastern side of the Kotha. Mohammad Roshan accused and his family objected to the fixing of the spout towards their land. The petitioners alongwith their co-accused Mohammad Roshan came empty handed on the day of occurrence and began to dismantle the spout by their hands. The sound of dismantling was heard by Mohammad Zamir who came out of the Kotha. He objected, whereupon all the five accused made an assault on Muhammad Zamir. Ali Asghar petitioner hurled a stone which hit on the arm of Mohammad Zamir.
Imdad felled Zamir on the ground. Thereafter all the accused pelted stones hitting him at his back.
Zamir PW raised alarm. Ajaib deceased also came out of the Kotha. In order to rescue his brother, Ajaib deceased hurled stones towards Asghar hitting him at his leg. Asghar accused shouted that both the brothers should be done away with. Asghar accused hurled a stone on Ajaib deceased which hit him at his temporal region. In the meantime Sher Wali P.W. 12 and Aslam P.W. 13 also arrived at the scene of occurrence. Aslam P.W. Caught hold of Ajaib accused into his embrace and Sher Wali PW snatched the stones from his hands. On receiving the injuries at his temporal region, Ajaib accused fell on the ground. Imdad accused hurled another stone on Ajaib deceased hitting him at his eye-brow. Sher Wali and Aslam PWs saw that the blood was coming out of the mouth and nose of Ajaib deceased and shouted that he had died. On hearing this, the accused left the place of occurrence and went to their house.
3. At the trial, the prosecution examined 14 witnesses. The petitioners did not plead guilty. However, Asghar admitted his presence at the Wardat. He made the following statement before the committing Magistrate:-- "On the day of occurrence, Muhammad Zamir P.W. And Ajaib deceased, unlawfully entered upon the land in occupation of my cousin and brother-in-law Zarait. I was present there and when I heard them declaring their intention to make further construction on the land in occupation of Muhammad Zarait, I asked them not to get encouragement from their previous unlawful act of constructing the spout and restrain from making further encroachment upon the land in possession of Muhammad Zarait. Both Muhammad Zamir and Ajaib deceased, who were armed with sticks attacked me and caused me injuries. On my alarm, large number of persons including women were attracted to the place of occurrence. My women-folk threw stones on Muhammad Zamir and Ajaib deceased in order to save me and the women-folk of the complainant party also came there. There was confusion and in that confusion somebody's stones hit Ajaib deceased and Zamir P.W."
4. The trial Court found the petitioners guilty and convicted and sentenced the petitioners under sections 147, P.P.C. To six months' R.I., under section 323/149, P.P.C. Six months' R.I. And under section 325/149, P.P.C. To five years' R.I.
5. The appeal was dismissed by the High Court. However, sentence of fine of Rs, 200 under section 325, P.P.C. Was imposed upon each of the accused or in default to suffer two months' S.I. Each. The concluding paragraphs of the judgment of the High Court read as follows:-- "Ali Asghar and Muhammad Imdad appellants are on bail. They shall be arrested forthwith, and sent to prison to serve out the unexpired portion of their sentence.
' Muhammad Ajaib appellant is stated to have undergone the sentence of imprisonment. This submission of Muhammad Ajaib is borne out from the record of this Court because he was not allowed bail by this Court during the pendency of his appeal. The trial Court before issuing warrant shall verify this fact. In case, he has already undergone the sentence of imprisonment, then there is no need to issue warrant for his arrest. He is, however, afforded two months' time to deposit the fine before the trial Court."
6. We find that the direct evidence was furnished by Muhammad Zamir (P.W. 11), Sher Wali (P.W. 12) and Aslam (P.W.
13.). They have consistently stated about the actual incident. The presence of Muhammad Zamir (PW. 11) cannot be disputed as he had received the injuries. Similarly, Muhammad Aslam was an independent witness. Their statements have been scrutinised by the two Courts below and they have rightly come to the conclusion that the petitioners had committed the offence.
7. There is no force in this petition and same is accordingly dismissed. The petitioners who were admitted to hail by this Court shall be arrested forthwith for undergoing the remaining period of sentence.