' ABDUL QADEER CHAUDHRY, J.---Leave to appeal has been sought against the judgment of the Lahore High Court, Lahore, dated 8-12-1993.
2. According to the prosecution, the complainant party was in possession of the joint property owned by them and the accused. The accused had been demanding the possession, but the complainant party did not agree to that. On 19-10-1986, at about 10 a.m. Faiz Ahmed complainant P.W.12, Ahmed P.W.13, Ihsan Ullah and Muhammad Ashiq (not produced) were grazing their cattle, while Muhammad Ashraf, Sultan and Ghulam Rasool deceased were ploughing their field. Bashir Ahmed, Ali Hussain and Zulfiqar armed with guns, Muhammad Ashraf armed with a rifle and Muhammad Sharif carried a Dang came there. Ali Hussain raised a Lalkara whereupon Bashir Ahmed fired a shot hitting Muhammad Ashraf deceased in the chest and neck. Zulfiqar fired a shot hitting Sultan on this buttocks Ali Hussain fired a shot hitting Ghulam Rasool deceased on his hand and right wrist. Muhammad Ashraf fired from his rifle hitting Sultan deceased on his ear.
Muhammad Sharif gave a Dang blow to Ghulam Rasool on his head and arm.
3. The trial Court recorded the following conviction arid sentences against the accused "(a) Each of them is sentenced to death with a fine of Rs,10,000 in default of payment of which each of them shall undergo. R.I. For further two years.
(b) Each of them shall pay a compensation of Rs,10,000 to the heirs of each deceased, in default of payment of which each of them shall undergo R.I. For further six months. As accused Ali Hussain died, proceedings against him had abated. Accused Muhammad Sharif was acquitted."
' The High Court maintained the conviction and sentences of Muhammad Ashraf and Bashir Ahmed petitioners. Zulfiqar-accused's appeal was partly allowed and his sentence was reduced from death to imprisonment for life.
4. To bring home the charge against the petitioners, the prosecution relied upon the ocular evidence of two eye-witnesses, recovery of 7 empties of .12 bore and 2 empties of 7 MM from the spot. Zulfiqar and Bashir Ahmed produced the guns on 23-11-1986. Muhammad Ashraf produced 7 MM rifle on 16-11-1986. The crime empties, guns and line were sent to Forensic Science Laboratory and crime empties of .12 bore were found to have been fired from the gun recovered from Ali Hussain, Bashir Ahmed and Zulfiqar accused. However, the Examiner of Fire Arms expressed his inability to say something definite about the crime empties of rifle allegedly recovered from Muhammad Ashraf petitioner.
5. The two Courts have relied upon the ocular testimony of the two witnesses. The recoveries have been disbelieved by the trial Court, but the learned High Court has relied upon the recoveries as corroborative piece of evidence and observed that the crime empties were recovered from the spot on the day of occurrence and their matching with the guns of Zulfiqar and Bashir Ahmed provided good corroboration to the testimony of the eye-witnesses. The defense has denied the occurrence and it is stated that the occurrence had taken place in the small hours of the morning and was not witnessed by anybody. This contention has been rightly rejected by the two Courts.
The occurrence has taken place in broad day. The witnesses are natural.
6. The learned counsel for the petitioners has submitted that the property was joint and the same was in possession of the accused at the time of occurrence. This fact has not been established through any evidence. The place of occurrence is admittedly in Khasra No,1353, which was in the cultivating possession of Ghulam Rasool deceased. The deceased and the P.Ws. Were unarmed.
The accused came there to take the possession forcibly from the complainant party. They had no right to do so under the law. Ghulam Rasool deceased was plugging the land in question when the accused attacked him and the other deceased persons. P.W.12 Faiz Ahmed and P.W.13 Ahmed had seen the occurrence while grazing their cattle near the place of occurrence. They have fully supported the prosecution case. There is no reason to falsely implicate the accused. The evidence has been properly appreciated by the two Courts below. Learned counsel for the petitioners then submitted that Bashir Ahmed and Zulfiqar had fired at the behest of their elder, Ali Hussain, therefore, they are entitled to lesser punishment. This contention has no force. They had come to the place of occurrence fully armed with fire-arms: Zulfiqar is stated to be aged 25 years and Bashir Ahmed aged 35 years. They were not teen-agers at the time of occurrence; therefore, the normal penalty awarded by the two Courts has to be maintained. Their petition for leave to appeal is dismissed. As the rifle alleged to have been recovered at the instance of Muhammad Ashraf, petitioner No,1, did not match with the empties of rifle recovered from the spot therefore, to re- appraise the evidence qua Muhammad Ashraf, leave is granted to him.