1. ' ABDUL QADEER CHAUDHRY, J.---Leave to appeal has been sought against the judgment of the High Court dated 8-6-1993.
2. The facts of this case, as narrated by the High Court, are as under:- "According to the prosecution, the appellant and the deceased were living on Shah Risal Road in houses situate closeby Shah Risal Road from its middle had been dug up by contractors for laying sewerage pipes. In front of the shop of appellant some water had collected in a pit. 3 days before the occurrence the appellant made a cut in that pit for disposing of the water into the ditch dug up for laying sewerage pipes. Muhammad Akbar (deceased) took objection to it and restrained him from doing so. This led to a quarrel between them. The appellant, allegedly, left the place administering threat to deal with him later. On the fateful day at about 2-15 p.m. The appellant again started making a cut in the pit for disposing of the water into the said ditch and Muhammad Akbar (deceased) once again, prohibited him, from doing so. At this, the appellant entering his house brought out a gun. Meanwhile, P.Ws. Muhammad Asghar (brother of the deceased), Mst.
2. Bilqees (his mother) and Mst. Rashidan (his sister), who were sitting on a 'Tharra' in front of their own house and Salahuddin Ayyubi P.W. Standing in the gate of nearby Karbala Shah Risal, advanced towards the appellant beseaching him not to fire at the deceased. But the appellant paying no heed to their request loaded the gun and taking aim fired a shot which hit the head of the deceased, and as a result the deceased fell dead. Seeing the P.Ws. Advancing towards him, the appellant allegedly attempted to reload the gun but did not succeed and, therefore, ran away carrying his gun. However, his bandolier containing 5 live cartridges dropped there."
3. ' Salah-ud-Din Ayyubi P.W. 6 and Mst. Bilqees P.W. 7 have deposed against the petitioner. Their statements have been believed by the two Courts. The petitioner himself admitted the occurrence.
4. In reply to a question put to him, under section 342, Cr.P.C. He stated as under:-- "Q. Why this case against you?
5. Ans. The P.Ws. Have made a false statement in fact on the day of occurrence the dirty water had collected in front of my house in such a large quantity that I apprehended damage to my house. I started diverting this water into the drain of sewerage dug by the contractor to save my house when Ghulam Mustafa alias Mastoo armed with a gun, Muhammad Akbar deceased and Abdul Rashid alias Coke came there. They started abusing me and attacked me. Ghulam Mustafa aimed the gun at me. He was at a very short distance from me. I caught the barrel of the gun in order to save myself and in that scuffle the gun went on and the shot hit deceased standing nearby. The witnesses are closely related to each other and the deceased and they are notorious persons, everyone in the Mohallah is afraid of them."
3. The learned counsel for the petitioner has submitted that the prosecution witnesses are desperate persons, involved in a number of cases, therefore, their statements should not have been accepted. This argument has no force. The petitioner himself has admitted the occurrence.
6. He has not been able to displace the findings of fact recorded by the two Courts. None of the members of the complainant party was armed with any weapon. The petitioner, after altercation, went to the house and brought -a gun and fired at the deceased. There was no enmity between the petitioner and the complainant party. The learned counsel has referred to the following observations of the High Court:-- "This brings me to the question of sentence. It is pertinent to note that the parties live in each other's neighbourhood. There is no evidence that there existed any old and serious enmity between them. There is evidence that in a quarrel which ensued between the appellant and the deceased, 3 days earlier, over disposal of water into the ditch the appellant threatened the deceased to deal with him subsequently but there is nothing on record that the appellant had gone to the deceased's place for executing his threat. Contrarily it was the deceased who went to the appellant when the latter was trying to make a cut in the pit for draining out water collected in front of his shop. The prosecution is absolutely silent as to why the deceased objected to appellant's draining water into the ditch. It is quite clear that the incident had flared up all of a sudden and in the background of earlier quarrel it is quite possible that the deceased would have uttered something provocative during the altercation which disturbed the peace of mind of the appellant whereupon he in the heat of moment took out the gun from his shop and shot at him. The element of premeditation thus being absent and the appellant being a youthful person, I think that extreme penalty of death was rightly not exacted from him by the learned trial Court."
7. ' The points noted in the above observations were considered mitigating circumstances for not awarding the capital punishment.
8. There is no force in this petition. The same is dismissed and the leave prayed for refused.