1979 PLP 278 (SCMR)

NASIM HASAN SHAH, J.‑This is a petition for review of the order of this Court dismissing the petitioner's petition for leave to appeal (Cr. P. S. L. A. No. 45 of 1977) which had arisen out of the decision of the Lahore High Court confirming the death sentence awarded to t he petitioner by the trial Judge. The case was one of broad daylight murder and the conviction and sentence of the petitioner was maintained by us on the basis of the dying declaration made by the deceased who was removed to the Hospital shortly after the occurrence; this was corroborated by the motive and ocular testimony of Ghulam Yasin P. W. The facts are stated in some detail in our order under review and need not be repeated. Rana Mohammad Sarwar, learned counsel for the petitioner, wishes us to maintain this petition for review on the grounds:‑ (a) this Court erred in thinking that the motive stood established and ignored the statement of Jaffar Hussain, Sub‑Inspector (P. W. 15) and Exhs. DA, DB and DC in this connection; (b) the motive not being established the question of sentence needed consideration, but this Court had failed to do so; moreover, there were extenuating circumstances such as the youth of the petitioner who was only fifteen years old and the absence of premeditation in the commission of the crime which did not call for the maximum punishment ; and (c) even Ghulam Yasin P. W. did not fully support the prosecution and this Court, like other Courts, ignored this aspect. Before taking up these contentions it must be pointed out that some of these grounds were, however, not raised in the petition for leave to appeal, nor urged before us at the hearing thereof and the others not argued in the manner they are now sought to be agitated before us. Normally we would have disposed of the petition on the short ground that it did not attract the review jurisdiction, but as the case is one where death sentence was upheld by us, we, inter alia, have heard the learned counsel for the petitioner. On the point of motive, it was contended in the petition for special leave to appeal as under:‑ "(b) That it has been proved on the record of the case that the prosecution has failed to establish its motive but the learned Judges of the High Court believed the motive against the facts and materials on the record." Due notice of it was taken at the time of the hearing and in the order which followed it as follows:‑‑ "It was also contended that the motive had not been proved on the record. In this connection he submitted that the prosecution had relied upon two F. I. Rs. (Exhs. PG and PQ) registered on 7‑11‑1971 in connection with the recovery of narcotics from the house of one Ghulam Hussain alias Ghulam Hussain and not the petitioner and, therefore, the motive was not established." And this Court agreed with the High Court that the motive in the case, namely, that the petitioner murdered the deceased because the latter was instru?mental in conducting a raid to recover narcotics from his premises was established. Exhs. DA, DB and DC are the memoranda charging one Ghulam Hassan alias Ghulam Hussain in connection with offences under the Opium Act and Excise Act and the petitioner wants to show thereby that no raid in fact took place in the premises of the petitioner and, therefore, there was no motive on this score as had been attributed to the petitioner by the prosecution. Exh, DD is the copy of the application for the remand of said Ghulam Hassan alias Ghulam Hussain and the order of the Magistrate thereon and is similarly pressed into service. It is in evidence that this Ghulam Hassan was the personal servant of Mehr Gul petitioner which connects the petitioner with the trade of narcotics and the consequent raid on 7th November, 1977. This is precisely what this Court held while dismissing the petitioner's petition for special leave to appeal. As such it cannot be successfully argued that the motive for the offence of murder was not established and this finding is also not open to review. On the second contention, viz. if there were extenuating circumstance for awarding the sentence other than the capital punishment, it is stated that the petitioner was just fifteen years old when be committed the crime, but this is falsified by the inconsistent pleas with regard to his age before the Committing Magistrate and the trial Court. Before the former the petitioner gave his vocation as cultivator and his age as 24 years whereas at the trial he claimed to be a student aged 18 years. In these circumstances and for the reason that in review jurisdiction such questions of fact cannot be determined, we see no substance in the plea raised by the petitioner. This ground was not raised or argued before us at the leave stage. The question relating to the age of the petitioner, moreover, was not a matter which the petitioner can claim that he was prevented from raising if due diligence had been exercised by him. No interference in review proceedings is, therefore, possible. As regards the last contention relating to the ocular evidence of Ghulam. Yasin (P. W. 14), this has already been disposed of inasmuch as this Court held that the admissions in his cross‑examination, which were favourable to the petitioner, were hardly of any significance when viewed in the totality of the prosecution evidence. Although we allowed the learned counsel to address us once again on this aspect, our decision must be as before, for nothing has been urged to incline us to differ with this finding. The upshot is that this petition fails and is dismissed hereby. [Note.‑After the announcement of the order an application, with which some documents are annexed, has been received from the petitioner's father to the effect that he was prevented from producing these documents, namely, the copy of birth certificate, a medical report and one other document which established that the petitioner was less than sixteen years of age on the day of occurrence, owing to the security measures in force in connection with the personal hearing of Mr. Z. A. Bhutto. These documents, according to the applicant, were relevant in connection with the consideration of the question of sentence. We regret we cannot take any notice of these documents at this stage. This matter may, if the applicant is so advised, be taken up with the Executive Government. ??????????????????????????????????? Petition dismissed.