1988 PLP 300 (SCMR)

NASIM HASAN SHAH, J.--This order will dispose of Cr. Petition No.377 of 1982 and Cr. Petition No. 389 of 1982, as both are directed against one and the same order of the High Court passed in Murder Reference No.152 of 1982 and Criminal Appeal No. 691 of 1980 dated 26-9-82. Mr. Muhammad Azam, Advocate, aged 28 years was murdered and Mohammad Nazir alongwith Ghulam Rasool and Muhammad Arshad were tried for this heinous act. Ghulam Rasool and Muhammad Arshad were awarded light sentences but Muhammad Nazir was sentenced to death by the learned trial Court. On appeal and reference to the High Court a difference of opinion emerged amongst the members of the Bench consisting of Mr. Justice Javid Iqbal and Mr. Justice Rustam S.Sidhwa. While Mr.Justice Javid Iqbal was of the opinion that the death sentence should be confirmed; the other member of the Bench Mr.Justice Rustam S.Sidhwa was of the opinion that the accused be awarded the lesser penalty of life imprisonment plus a fine of Rs.5,000/- which may be paid as compensation to the heirs of the deceased. In view of this difference of opinion the matter was laid before the third Judge, namely, the then Chief Justice of the Lahore High Court, namely, Shamim Hussain Kadri, C.J. The learned Chief Justice in his judgment observed that the interests of Justice would be best served if the amount of the compensation was enhanced from Rs.5,000/- to Rs. one lac which amount should be paid to the heirs of the deceased and the lesser penalty of life imprisonment awarded by Rustam S.Sidhwa,J. be maintained. He disposed of the appeal and reference accordingly. Both Muhammad Nazir and the complainant Shan Muhammad feel aggrieved by this order passed by the learned Chief Justice. According to the learned counsel for Muhammad Nazir, the person who undertook to pay Rs. one lac as compensation, namely, the maternal grand-father of Muhammad Nazir petitioner was an old and illiterate person who was per chance present in the Court and neither could give any undertaking nor was in a position to fulfil it. Other objections of a legal nature have also, been taken to the order of the learned Chief Justice. Similarly, the complainant has, inter-alia, submitted that this was a case in which the normal penalty, namely, the sentence of death was clearly attracted and was the only appropriate sentence; that the learned Chief Justice had not exercised his discretion on any sound legal or reasonable principle in awarding the lesser sentence. We consider that the matter does indeed require further consideration. Leave is, accordingly, granted in both the petitions. The Jail Authorities to be informed that Muhammad Nazir must not to be released until these petitions have been finally disposed of. M.I./S-80/S Leave granted.