1. ' MIAN MUHAMMAD AJMAL, J.---This review petition is directed against the judgment of this Court, dated 12-9-2001, whereby Jail Petition No,129 of 2001 of the petitioner was dismissed, maintaining his conviction and sentence of death awarded to him by the trial Court and confirmed by the High Court.
2. Learned counsel for the petitioner vehemently contended that on 12-9-2002 he was indisposed and sought adjournment but the Court declined to adjourn the case, proceeded with it and dismissed the petition without giving him proper hearing which amounted to denial of hearing. He submitted that as per order of this Court dated 9-9-2002, the learned Bench was inclined to grant leave in this case but he argued the matter on the quantum of sentence only and the Court ordered to issue notice to the respondent/State for 12-9-2002, on which, date the petition was dismissed in haste. He attempted to reargue the case both on merits as well as on quantum of sentence with reference to the ocular and medical evidence.
3. We do not find any substance in the contention of the learned counsel for the petitioner as he argued the case on 9-9-2002 and on conclusion of his arguments following order was passed by the. Court:--- "We were inclined to grant leave in this petition, however, learned counsel for the petitioner has argued the matter only on the quantum of sentence.
2. ' Let notice be issued to the respondent for 12-9-2002."
3. ' The afore-quoted order clearly indicates that the learned counsel completed his arguments confining to the quantum of sentence and the Court after hearing his arguments deemed it necessary to issue notice to the respondent/State for 12-9-2002 but on that date none appeared on behalf of the State, however, the petitioner's counsel was further heard who repeated the same arguments which were addressed on the previous date. The contention that the learned counsel was indisposed on 12-9-2002 or that the case was hurriedly disposed of is totally fallacious. It is obvious from the aforesaid order, dated 9-9-2002 that the learned counsel who was in normal state of health on the said day, opted to argue the case only to the extent of quantum of sentence and abandoned the case on merits. On subsequent date i,e, 12-9-2002, the State counsel was to be heard, since none appeared to represent the State, hence, further chance was given to the petitioner's, counsel for further arguments, but he repeated the same arguments. After dismissal of the petition through a well-reasoned and well-founded judgment, it appears that the learned counsel realized his omissions and commissions A and thus came up with absurd grounds that he was not fully heard. His contentions are totally belied by the following paragraph of the judgment under review:--- "9 Learned counsel without challenging the conviction on merits has contended that it was not a case of extreme penalty as initially case under section 324, P.P.C. Was registered and subsequently on death of Muhammad Amin in hospital after about 8 days of the occurrence. Section 302, P.P.C.
4. Was added and while taking us to the statement of Dr. Abdul Hameed, P.W.12 submitted that although the doctor has opined that cause of death was the injury to right lung and liver with chest complications (septicemia) but at the same time, he stated that one litre of blood mixed fluid in the right plural cavity was measured by the measuring metallic cup used in the autopsy room and 20 cc of puss in the left plural cavity was measured by disposable syringe which would show that the proper treatment was not given to the deceased at the initial stage as a result of which septicemia was developed and thus due to the negligence of medical and para medical staff, the deceased lost the chance of survival. The learned counsel urged that the circumstances under which deceased died in the hospital, would show that due to the lack of proper care and treatment, the condition of the deceased was aggravated which contributed in his death and that the injury as such was not an exclusive factor of his death in the hospital; therefore it was not a case of extreme penalty of death and the sentence of imprisonment for life would sufficiently meet the ends of justice."
5. ' Although learned counsel abandoned the case on merits and confined his arguments on quantum of sentence only, yet this Court for doing complete justice considered the merits of the case on scanning the record which is evident from the following paragraph of the judgment under review:--- "10 We with a view to consider the contentions raised by the learned counsel in the light of evidence, have thoroughly scanned the record. The report was lodged with a delay of 24 hours with the explanation that both the complainant and deceased in injured condition were admitted in the hospital and the condition of deceased was serious. Moreover, the respectables kept the complainant busy in negotiations for compromise. This is understandable that in view of the precarious condition of deceased, the complainant would be more concerned with life of deceased and with his own life, therefore, the delay in lodging the F.I.R. By him in the given circumstances would not be fatal to the prosecution case. The occurrence took place in the broad daylight on the mettled road when the deceased and the witnesses were taking bull cart loaded with Toori to their village. Muhammad Rashid also sustained injuries at the hand of petitioner in the occurrence, therefore, the presence of the witnesses in the occurrence was not questionable and the defence has also not seriously challenged their presence at the spot. The petitioner in his statement under section 342, Cr.P.C. Has admitted that the relations between the two families were strained and except the family dispute, there was no enmity between the parties. The aiming of successive fire shots at sensitive part of the body would be the direct proof of the intention of petitioner to kill and further an attempt on the life of Muhammad Rafiq would strongly suggest that not only the deceased but the complainant was also target, therefore, the motive given by the prosecution would be proved by the act of firing by the petitioner both at Muhammad Rafiq and deceased at the scene of occurrence. The perusal of prosecution evidence would show that the petitioner having prepared himself for attack, on arrival of complainant party at the scene of occurrence opened firing at the deceased and Muhammad Rafiq, therefore, neither it was a chance encounter nor a sudden occurrence as contended by the learned counsel and further no such, plea was raised by the petitioner at any stage at the trial or in the appeal before the High Court."
6. ' The contention of the learned counsel for the petitioner on the question of quantum of sentence was duly considered and finding no merit in the same it was repelled vide following paragraph of the judgment under review and the conviction and sentence of the petitioner was maintained:--- "(11) We have seriously considered the question relating to the quantum of sentence but have not been able to find out any mitigating circumstance in favor of petitioner for lesser penalty. The mere fact that the deceased after sustaining injuries survived for 8 days in the hospital and during this period some complication was developed and puss was found in the injury, would not be sufficient to suggest that either the injury sustained by the deceased was not the cause of death or death was result of infection caused by septicemia. The initial registration of case under section 324, P.P.C. And the survival of deceased for eight days in hospital also would not be a reason to hold that it was not an intentional murder or that it was a mitigating circumstance for lesser penalty."
7. ' Learned counsel for the petitioner attempted to reargue and reopen the case on merits as well as on quantum of sentence by referring to ocular and medical evidence but such a recourse is not permissible in review jurisdiction as under rule 1 of Order XXVI of the Supreme Court Rules, 1980, the ground of review in criminal proceedings is an error apparent on the face of the record, which the learned counsel failed to point out in the judgment under review, hence it is not open to exception .
8. We find no merit in this petition which is accordingly dismissed.