MUHAMMAD SHAFIQUE Versus STATE

ORDER

1. NASIM HASAN SHAH, J.‑‑ The petitioner, at the time of the occurrence, was still studying in School and was in Class X. However, he had developed illicit relations with one Mst. Naeema P.W. whose husband had gone to U.K. where he was engaged on a petty job. The poor husband returned a week before the incident (11th June, 1976) and on this fateful night he was allegedly murdered by the petitioner‑‑a dagger blow was struck in his chest. Accordingly, the petitioner after being tried was convicted under section 302, P.P.C. and sentenced to death. The High Court confirmed the sentence of death and the petitioner moved a petition for leave in this Court.

2. This petition was heard on 11‑11‑1980 by a Bench comprising of Aslam Riaz Hussain, Karam Elahi Chauhan and Abdul Kadir Shaikh, JJ. and on the conclusion of the hearing it was dismissed by an oral order. But when the written order was released it showed that it was not signed by one of the three Judges who had heard the petition, namely, Karam Elahi Chauhan, J. But instead of him Mr. Justice Muhammad Haleem, Actg. C.J. had signed it alongwith the other two learned Judges who had heard the petition, namely, Aslam Riaz Hussain and Abdul Kadir Shaikh, JJ.

3. The further history of the proceedings in the case has been stated by the learned counsel for the petitioner thus:

4. "Review Petition No.8 of 1981 was filed in this Hon'ble Court wherein, inter alia, it was contended that the Acting Chief Justice Mr. Justice Muhammad Haleem was not a member of the Bench which heard the petition but the judgment had been signed by his Lordship; therefore, it was no judgment in the eve of law. This matter was listed for 15th September, 1981, and the Bench comprising the then Acting Chief Justice Mr. Justice Muhammad Haleem, Mr. Justice Abdul Kadir Shaikh and Mr. Justice Zaffar Hussain Mirza, was pleased to pass the following order:‑

5. "As it is contended, the Acting Chief Justice was not a member of the Bench which heard the petition. Accordingly, the case for review is made out. Let a notice issue to the Advocate -General, Punjab Lahore for a date in October, 1981. In the meantime, the execution of death sentence is stayed."

6. That Criminal Review Petition 8 of 1981 was heard by the Bench comprising Mr. Justice Aslam Riaz, Mr. Justice Karam Elahi Chauhan and Mr. Justice Abdul Kadir Shaikh on 28th October, 1981, which dismissed the petition but no judgment was signed and meanwhile Mr. Justice Karam Elahi Chauhan died. Therefore, Review Petition No.8 of 1981 was listed before the Bench comprising Chief Justice Muhammad Haleem, Mr. Justice Nasim Hasan Shah and Mr. Justice Shafiur Rahman, and Lordships vide order dated 17‑6‑1985 were pleased to order:‑

7. "In view of this Court's decision reported in 1981 S C M R 1089, the order passed in Criminal Petition 324 of 1979 is recalled and the petition is ordered to be heard afresh after Eid‑ ul-F'itr holidays." (underlining is ours).

8. This order could not be complied with so far for a variety of reason: and it is only now that the petition has come up again for hearing.

9. In support of this petition, Sh. Shaukat Ali, learned counsel for the petitioner has, inter alia, submitted that the petitioner, according to the School Leaving Certificate, was fifteen years and 61 months of age on the date of the incident (which took place on 11th June, 1976, having been born on 25‑11‑1960), that even according to the case of the prosecution only one blow was inflicted by the petitioner on the deceased; and that in any event he has now already been 8 years in the Condemned Cell and for all these reasons he~ deserves the lesser sentence.

10. Leave granted. Very early date.

11. M.I./M‑381/5 Leave granted.