1. ' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgment, dated 31-10-2001 passed by a learned Single Judge of the Lahore High Court, Lahore, whereby Criminal Appeal No,774 of 1999 filed by the petitioners against their convictions and sentences recorded by the learned Additional Sessions Judge, Hafizabad, in a case arising out of F.I.R. No,50 of 1995 registered at Police Station Kassoke on 30-3-1995 under sections 302/324/337/34, P.P.C., was dismissed.
2. ' The facts briefly stated for the disposal of this petition are that abovementioned F.I.R. Was got recorded at the instance of Allah Ditta (P.W.9) for the murder of his son Fayyaz Ahmed. It was his case that on the fateful day his son Ashfaq Ahmed (P.W.12) parked his trolley on common passage near the garage and tractor in the garage. In the meantime Fayyaz Ahmad, acquitted co-accused, armed with Sota, petitioner Muhammad Khalid armed with a rifle, and Ijaz Ahmad, acquitted co- accused, armed with a pistol, all sons of Bashir Ahmad, alongwith the latter came there. They chained the trolley with their tractor whereupon Ashfaq Ahmad asked them as to why they were taking their trolley. Bashir Ahmad, co-accused (since dead) and others replied that they had already forbidden them not to park their trolley there and they would not allow them to pass by that passage. An altercation ensued and on hearing noise, Fayyaz Ahmad, Riaz Ahmad and Arshad Iqbal (complainant's sons) and Sardar alongwith Ghulam Ali P.Ws. Reached the spot. Bashir Ahmad, petitioners' father, raised a Lalkara that they should not go alive, whereupon the petitioner Muhammad Khalid fired from his rifle straight at Fayyaz Ahmed hitting him at his chest, who fell on the ground. He succumbed to the injuries there and then. Ashfaq Ahmad, Riaz Ahmad and Arshad Iqbal, sons of the complainant, were also injured in the occurrence. The motive for the occurrence as given in the F.I.R. Was that the accused party did not allow the complainant side to pass by the common passage leading to the tractor garage of the complainant and Dera of the accused.
3. ' All the accused were sent up for trial. The prosecution examined 12 witnesses to establish its case.
4. When the accused were examined under section 342, Cr.P.C. They set up a different story.
5. According to the statement of Fayyaz Ahmad, co-accused, it was a pitched dark night. Fayyaz Ahmed deceased was shouting that Ijaz Ahmad, co-accused, be killed whereupon he took up his licensed rifle which was already charged. He simply wanted to fire in the air to save his brother from the assailant. However, Riaz Ahmad P.W. Held the barrel of his rifle and during the scuffle a fire hit Fayyaz Ahmed which proved fatal. The prosecution agency concealed all these aspects. This plea was also taken up by other co-accused in their statements under section 342, Cr.P.C. They, however, did not bring any evidence in defence to support their stance.
6. ' The learned trial Court, after thrashing the entire evidence, convicted the petitioner Muhammad Khalid for Qatl-e-Amd of Fayyaz Ahmed and sentenced him to imprisonment for life as Ta'zir under section 302(b), P.P.C. And to pay a compensation of Rs,25,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default to suffer three month's S.I. He was given the benefit of section 382-B, Cr.P.C. Petitioner Fayyaz Ahmad was convicted under section 337-A(ii) and 337(iii), Cr.P.C. For causing injuries to Arshad Iqbal (P.W.11) and Ashfaq Ahmed (P.W.12) and was sentenced as under:--
(i) Under section 337-A(ii), P.P.C. Fayyaz Ahmed accused shall be liable to Arsh which shall be five per cent. Of the Diyat as stood on 1-7-1998. He is also punished with imprisonment for 3 years as Ta'zir.
(ii) Under section 337-A(iii), P.P.C. Fayyaz Ahmed accused shall be liable to Arsh which shall be ten per cent. Of the Diyat as stood on 1-7-1998. He is also punished with imprisonment for four years as Ta'zir.
7. ' He was also extended the benefit of section 382-B, Cr.P.C.
8. ' The present petitioners filed Criminal Appeal No,774 of 1999 in the Lahore High Court, Lahore, against their convictions and sentences while the complainant preferred Criminal Appeal No,777 of 1999 against the acquittal of their co-accused. A learned Single Judge of the Lahore High Court through his judgment dated 31-10-2001 dismissed both the appeals. Hence this petition for leave to appeal.
9. ' We have considered the contentions advanced by the learned counsel and have perused the evidence brought on record carefully with his assistance. We have noticed that the prosecution in order to establish its case produced as many as 12 witnesses. The occurrence in this case is admitted by the parties. By reading of the prosecution evidence in juxtaposition to that of the stance taken by the defence, we are clear in our mind that the plea taken up by the defence is baseless and does not fit in the circumstances of the present case. The ocular account has been narrated in its material particulars by Allah Ditta (P.W.9), Arshad Iqbal (P.W.11) and Ashfaq Ahmad (P.W.12), the last two witnesses are injured one and the defence side in spite of lengthy cross- examination failed to create any dent in their depositions. They are natural witnesses and there is no earthly reason for the complainant to implicate the petitioners in an offence entailing death sentence for the murder of his son leaving the actual culprits. The plea of the learned counsel that a Sota was recovered from petitioner Muhammad Khalid while a licensed rifle (P.5) was recovered from Fayyaz Ahmad petitioner, as such, petitioner Muhammad Khalid cannot be held responsible for causing fire-arm injuries to the deceased is totally without any force. It has come on record that the petitioners, both real brothers, participated in the occurrence at the same time. There is every likelihood of using the weapon of one brother by the other brother at such-like fatal juncture.
10. Furthermore, the complainant Allah Ditta (P.W.9) and injured P. Ws. Arshad Iqbal and Riaz Ahmad had stated in their statements in unequivocal terms that it was the petitioner Muhammad Khalid who fired with rifle at Fayyaz Ahmed deceased. This plea is fully corroborated by the medical evidence and the defence side, as already stated, in spite of lengthy cross-examination failed to shatter the same.
11. ' Resultantly, for what has been stated above, the instant petition being without any substance is dismissed and leave declined.
12. Leave refused.