1980 PLP 545 (SCMR)

S. 302 read with Supreme Court Rules, 1956, O. XXVI, r. 7-Peti tioner convicted for murder and sentenced to death and his appeal before High Court and petition for leave to appeal before Supreme Court having failed making a review petition praying that his birth certificate and medical report may be taken into consideration as to his minority at time of commission of offence- Supreme Court while dismissing such petition observing that "matter may be taken with Executive Government"-Provincial Government on mercy petition, referring matter to Medical Board to check up petitioner's bodily health and condition at relevant time instead of relying upon his birth and medical certi ficates-Held, procedure adopted by Executive authorities cannot be deemed to be a violation of any order or observation made by Supreme Court-Application seeking clarification and amplification of direction to Executive Government amounting to second review petition-Such petition, held, not competent under r. 7, O, XXVI, Supreme Court Rules, 1956. Piare Dusadh and others v. Emperor A I R 1944 F C 1 not relevant. NASIM HASAN SHAH, J.-This is a miscellaneous application in Criminal Review Petition No. 10R of 1977 purporting to seek a clarification and amplification of certain observations made by this Court while disposing of review petition (Cr. R. P. 10-R/77) in Criminal Petition for Special Leave to Appeal No. 45 of 1977. The facts, which form the background are that the petitioner Mehr Gul Khan was sentenced to death under section 302, P. P. C. by the Additional Sessions Judge, Mianwali. His appeal was dismissed by the Lahore High Court and the death sentence confirmed. A petition for leave to appeal (Cr. P. S. L. A. No. 45 of 1977) was then filed in this Court by him, which was also dismissed vide order dated 1-10-1977. Thereafter, the petitioner filed a criminal review petition (Cr. R. P. No. 10-R/77), which was heard. on the 20th of December, 1978, and dismissed. After the announcement of the order in the Review Petition an application was moved by the father of the petitioner to the effect that he was prevented from' producing certain documents, namely, the' copy of a birth certificate; a medical report and one other document which established that the petitioner was less than 16 years of age on the day of occurrence, owing to the security measures in force in the Court in connection with the personal hearing of Mr. Z. A. Bhutto. "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." The application was dismissed with the above remarks on 27-12-1978. The petitioner's wife thereafter appears to have submitted a mercy petition to the Governor, Punjab, which apparently did not achieve the desired result. Hence the petitioner submitted a miscellaneous application in this' Court stating that the Provincial Government while considering the mercy petition referred his matter to a Medical Board at the District Headquarters Hospital, Sargodha, to check up his bodily health and condition on the 28th of July, 1979, instead of relying upon the birth certificate and medical certificate relevant to his date of birth at the time he committed the offence and praying that insofar as this Court while making the observations noted above did make a reference to the Medical Board in view but had desired action on the basis of the documents that were placed before the Court, the reference to the Medical Board was a violation of this Court's directions. Consequently, the sentence of death passed on the petitioner was liable to be commuted to that of imprisonment for life on the basis of the documents already submitted before this Court. "(i) this miscellaneous application may be placed before the Bench which had disposed of the review petition for orders and the execution of the petitioner stayed meanwhile; or (ii) the petitioner's counsel may be informed that the petitioner having exhausted all his legal remedies, the present petition which was in nature of a second review did not lie to this Court." The learned Chief Justice passed the following orders on 25-10-1979, on this note: The petition does not lie as it amounts to second review. No action can be taken on it and it should be filed. The petitioner and the Superintendent Jail be informed." The present miscellaneous application has now been submitted on learning about these orders and it is contended that this petition does not amount to a second review by any "stretch of imagination" as it purports to seek a clarification and amplification of the direction to the Executive Government of the Punjab to "comply with the observations of the Hon'ble Judges of the Supreme Court The petition submitted is not in the form of second review. The petitioner prays for the consideration of his birth certificate to prove his minority". After hearing Mr. Abdullah Anwar Beg in support of the above petition we are clearly of the view that this petition is incompetent and entirely misconceived. The observations made by this Court in the additional note, after disposing of first review petition, in connection with the documents produced before us, namely, the copy of the birth certificate and medical report etc. were to the effect that these documents could not be taken notice at this stage but this matter could, if the applicant was so advised, be taken up with the Executive Government. No direction was issued to the Executive Government as to how it should deal with the mercy petition, if the petitioner, was advised to submit one, and, therefore, the submission that the Executive authorities should have merely restricted themselves to considering the copy of the birth certificate and medical report submitted to us and not proceeded to determine the issue themselves by constituting a Medical Board to examine the petitioner, is not tenable. The procedure which was adopted by the Executive authorities cannot, therefore, be deemed to be a violation of any order or observation made by this Court and consequently the question of clarification and amplification of the said order does not. arise. In fact, this application although styled as an' application seeking clarification and amplification is nothing else but a second review petition, which is not competent under the Rules (Order XXVI, r. 7, S. C. R.) and we cannot allow the rule to be defeated by this stratagem. "We do not doubt that this Court has power, where there has been inordinate delay in executing death sentences in cases which come before it to allow the appeal in so far as the death sentence is concerned and substitute a sentence of transportation for life on account of the time factor alone, however right the death sentence was at the time when it was originally imposed. But this is a jurisdiction, which very closely entrenches on the powers and duties of the executive in regard to sentences imposed by Courts. It is a jurisdiction which any Court should be slow to exercise." It is manifest that the precedent relied upon before us is entirely Irrelevant in the context of this application and, therefore, of no benefit to the petitioner. The upshot is that this petition, which is entirely misconceived, must fail and is hereby dismissed. Petition dismissed.