1990 PLP 311 (SCMR)

‑‑‑Ss.302/149 & 148‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal‑‑‑Defence version after having been considered by High Court was not found to have been proved‑‑‑Reappraisal of evidence could not be done at the stage‑‑‑Finding of High Court about motive having been shrouded in mystery and on that account not imposing extreme penalty was unassailable‑‑‑Petition was barred by two days, but even on merits no interference was called for‑‑‑Leave to appeal was refused in circumstances. Zafarullah Cheema, Advocate Supreme Court instructed by S. Ali Imam Naqvi, Advocate‑on‑Record for Petitioner. Nemo for the State. Date of hearing: 26th September, 1989. JAVID IQBAL, J.‑‑This petition for leave to appeal is directed against judgment of the Lahore High Court, Lahore dated 28th February, 1988 whereby conviction of the petitioner was maintained but his sentence was reduced from death to imprisonment for life plus fine. Briefly the facts are that the petitioner alongwith 4 others was tried for offences under section 302/148/149, P.P.C. and vide judgment of the trial Court, Nausher petitioner and Waryam co‑accused were convicted under section 302/149, P.P.C. and each of them was sentenced to death plus fine. The remaining three co‑accused were also convicted under section 302/149, P.P.C but each of them was sentenced to imprisonment for life plus fine. All of them were also convicted under section 148, P.P.C. and sentenced to 2 years' R.I. plus fine. On appeal the conviction of Nausher petitioner and Waryam co‑accused was maintained but their sentence of death was altered to life imprisonment. The others were acquitted. The deceased in this case is Asghar Ali and he has been murdered due to the fire shots of Nausher petitioner and Waryam co‑accused. According to the medical evidence he had two fire‑arm injuries on his person, one on the abdomen attributed to Nausher petitioner and the other on the chin attributed to Waryam co‑accused. He did not have any other injury except these fire‑arm injuries on his person. The three acquitted co‑accused although stated to be carrying hatchets were attributed lalkaras. The motive as set up by the prosecution could not be established. Ocular testimony coming forth from Inayat real brother of the deceased and Muhammad Amin not related has been believed as it found support also from the medical evidence. Learned counsel for the petitioner attempted to argue before us that the defence version has been wrongly rejected. The defence version has been considered by the High Court and the finding is that the insult to the wife of Waryam co‑accused namely Mst. Zainab by the deceased had also not been proved. Learned counsel only wants us to reappraise the evidence but that cannot be done at this stage. The finding of the High Court to the effect that the real motive of the occurrence was shrouded in mystery and on that account not imposing the extreme penalty is unassailable. Waryam co‑accused is not petitioner before us. Only Nausher petitioner has come and his petition is also barred by two days. Be that as it may, in the light of the above discussion no interference is called for on merits. The petition is therefore dismissed. N.H.Q./N‑219/S Petition dismissed.