2004 PLP 1871 (SCMR)

ABDUL HAMEED DOGAR, J.

Petitioner seeks leave to appeal against the order, dated 21-6-2004 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Revision No.520 of 2004 preferred by petitioner was dismissed.

2. Briefly stated, the facts leading to the filing of the instant petition are that petitioner Muhammad Jamil was tried and convicted by the learned Sessions Judge, Jhang under section 302, P.P.C. and was sentenced to death vide judgment, dated 19-6-1994. Appeal preferred against this judgment was dismissed by a learned Division Bench of the Lahore High Court, Lahore, on 2-8-1999 and the sentence of death was confirmed. Feeling aggrieved, petitioner preferred petition for leave to appeal before this Court in which leave was granted. However, the appeal was dismissed vide judgment, dated 21-5-2002 and sentence of death was maintained. On 17-6-2002, petitioner sent Jail Review Petition through Superintendent Jail, Jhang, which was registered as Suo Motu Review Petition No. 10 of 2002 and was dismissed vide order, dated 13-9-2002. Meanwhile, on 29-8-2002, the petitioner had filed mercy petition before the President of Pakistan but that too was dismissed vide order, dated 25-8-2003.

3. Meanwhile, on 24-3-2003 Muhammad Chiragh, father of petitioner Muhammad Jamil, had moved an application to the Home Secretary, Government of Punjab, Lahore for remission in sentence of death in the light of letter No.JB/G-I/40680-709, dated 12-9-2003 issued by the Inspector-General of Prisons, Punjab, Lahore based on letter issued by Ministry of Interior, Government of Pakistan. dated 13-12-2003 through which President of Pakistan under Article 45 of the Constitution Islamic Republic of Pakistan, 1973, was pleased to grant special remission to Juvenile Condemned Prisoners who were sentenced to death and defined as 'juveniles' in the Juvenile Justice System Ordinance, 2000 at the time of commission of the offence.

4. The said application was forwarded to the learned Sessions Judge, Jhang, who vide order, dated 12-6-2004 dismissed the same. The said order was challenged in the above mentioned criminal revision before learned High Court which was dismissed in limine vide impugned order.

5. During the pendency of the instant petition, Criminal Miscellaneous Application No.222 of 2004 was filed by the petitioner for grant of interim relief. Meanwhile, President of Pakistan was pleased to stay the execution of the sentence of petitioner till 5-8-2004.

6. Mr. Ghulam Dastagir, Superintendent Jail, Jhang, has appeared along with record and categorically states that the period of stay of execution of sentence of petitioner has expired on 5-8-2004 and is not extended further by the President of Pakistan.

7. We have heard Raja Abdul Ghafoor, learned Advocate-on -Record and have gone through the record and the proceedings of the case in minute particulars.

8. Learned counsel for the petitioner mainly contended that since the question of minority of the petitioner was never in question before any Court which awarded death sentence to him, therefore it was mandatory to hold an inquiry under section 7 of the Juvenile Justice System Ordinance, 2000, in order to determine the age of petitioner at the time of commission of offence. According to him, no such inquiry has been held, as such, the matter requires consideration by this Court even if the petitioner has availed all remedies available to him according to law.

9. We are not persuaded to agree with the contentions of the learned counsel for the petitioner as the incident in this case took place on 2-3-1993 and the Juvenile Justice System Ordinance, 2000 was introduced in the year 2000 while his appeal was pending before this Court. Even the question of minority or juvenility was not urged by the petitioner before this Court. Irrespective of above, admittedly petitioner neither raised the question of minority before the trial Court nor before the learned Appellate Court and it was for the first time after dismissal of mercy petition by the President of Pakistan, Muhammad Chiragh, father of petitioner, took the plea of juvenility in his application addressed to Home Secretary, Government of Punjab, Lahore, by initiating second round of litigation. Record reveals that age of petitioner as mentioned in his statement recorded under section 342, Cr.P.C. on 12-6-1994 was 24 years which factor was confirmed by the learned Appellate Court as well as by this Court leaving no room for further probe.

10. Finding no merits in the petition, the same is dismissed along with C.M.A. No.222 and leave to appeal refused. M.H./M-143/S Petition dismissed