NAUSHER vs THE STATE
This petition for leave to appeal arises from a judgment of the Lahore High Court maintaining the petitioner's conviction under section 302/149 of the Pakistan Penal Code while reducing his sentence from death to imprisonment for life, alongside a conviction under section 148. The core legal question involves the propriety of the conviction based on ocular and medical evidence where the prosecution's motive could not be established and co-accused were acquitted. The Supreme Court held that the concurrent findings of fact regarding the ocular testimony and the reduction of sentence based on a shrouded motive are unassailable, and that evidence cannot be reappraised by this Court. The key principle laid down is that the Supreme Court will not reappraise evidence in a petition for leave to appeal when the lower courts have properly appreciated the ocular and medical evidence, and that the absence of a proved motive can justify the mitigation of a death sentence to life imprisonment.
- Whether the Supreme Court will reappraise evidence in a petition for leave to appeal against concurrent findings of conviction?
- Does the failure of the prosecution to establish a motive justify the mitigation of a death sentence to imprisonment for life?
- Can ocular testimony supported by medical evidence sustain a conviction under section 302 read with section 149 of the Pakistan Penal Code 1860?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
1. ' 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.
2. ' 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.0 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.
3. ' Be that as it may, in the light of the above discussion no interference is called for on merits. The petition is therefore dismissed.