1990 PLP 1288 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑The Petitioner seeks leave to appeal from Jail against the judgment of the Lahore High Court, Rawalpindi Bench, dated 2‑7‑1989, whereby his conviction under section 302, P.P.C. was maintained but the sentence was altered to life imprisonment instead of death. The fine of Rs.5,000 was also maintained.

2. Noor Elahi, deceased was uncle as well as father‑in‑law of the petitioner. Mst.Tehmina Bibi (P.W. 4) the daughter of Noor Elahi, had strained relationship with the petitioner, her husband, and cases of dissolution of marriage and restitution of conjugal rights had taken place between the parties. However, they had restarted living married life together after some amends had been made by the petitioner. When Noor Elahi came to take Mst.Tehmina Bibi from the house of the petitioner for a visit, the petitioner objected to it and ultimately Noor Elahi took her alongwith him and stayed at the house of Muhammad Ashraf (P.W. 9) for a night. On the morning of 25th of June, 1986, they started with one Gul Siraj (P.W. 3) for Rawalpindi. When they reached the bus‑stand, the petitioner appeared with a carbine alongwith his brother. The petitioner enquired from the deceased as to where they stayed for the night upon which deceased told him that it was his sweet will to stay wherever he liked. The petitioner abused the deceased and fired a shot with his carbine which hit Noor Elahi at the chest.

3. On learning of the occurrence, Shahjehan, S.I. (P.W. 10) reached the spot at 8‑30 a.m. and recorded the statement of Mst.Tehmina Bibi, on which the petitioner was prosecuted. In defence the petitioner pleaded that Muhammad Ashraf (P.W. 9) was maintaining illicit relations with Mst.Tehmina Bibi and wanted to remove Noor Elahi from the scene and he had murdered him and falsely implicated him, thus killing two birds with one stone.

4. The trial Court acquitted the co‑accused Chan Mehboob, the brother of the petitioner, who was attributed a Lalkara alone. The prosecution case was believed and the petitioner was held guilty and sentenced to death. On appeal the High Court upheld the conviction but altered the sentence as indicated.

5. The background of differences between spouses has been admitted and so also has the petitioner admitted his unfair treatment of Mst.Tehmina Bibi from which he undertook to desist. Ashraf P.W.9 is an old aced married man with children. The stay overnight at his house where his own family lived could not give rise to the suspicion which the petitioner nursed. The High Court has rightly disbelieved the counter version put forward by the petitioner as being inconsistent and inplausible in view of the evidence on record.

6. The statement of Mst.Tehmina Bibi has been believed and rightly so. The petitioner was her cousin as well as her husband. The charge related to her father's murder in a situation where the spouses were living together though not very happily and she was going to visit her parents. Neither the conviction nor the sentence awarded in the circumstances is such which may require further examination in this Court. The petition is liable to be dismissed. OPINION OF THE SECOND JUDGE ABDUL QADEER CHAUDHRY, J.‑‑‑I agree. Leave to appeal is refused. N.H.Q./P‑133/S ???????????????????????????????????????????????????????????????????? Leave refused.