2007 P Cr (PLP)

MUHAMMAD JEHANGIR ARSHAD, J.

The appellant was sent up to Face trial in case F.I.R. No.64, registered with Police Station Taunsa on 1-4-2004 for an offence under section 302, P.P.C. The learned Additional Sessions Judge, Taunsa vide judgment dated 21-4-2005 convicted the appellant under section 302, P.P.C. and sentenced him to undergo fourteen years' R.I. He was also directed to pay compensation to the tune of Rs.20,000 to the legal heirs of the deceased under section 544-A, Cr.P.C., and in default whereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. was also extended to the appellant. Feeling aggrieved, the appellant has filed the instant criminal appeal challenging his conviction and sentence.

2. During the pendency of the instant appeal, the appellant has moved an application (Criminal Miscellaneous No.1 of 2006) for suspension of sentence and his release on bail. With the concurrence of both learned counsel for the parties, I propose to decide the said criminal miscellaneous along with the criminal appeal.

3. The facts in brief are; that the appellant was challaned to face trial in the above mentioned case for the murder of Tahir Muhammad Abbas before the learned Additional Sessions Judge, Taunsa. The appellant took plea before the learned trial Court that he being a child within the meaning of section 7 of the Juvenile Justice System Ordinance; therefore, be tried under the said Ordinance. The learned Additional Sessions Judge, vide order dated 8-10-2004 after holding inquiry declared the appellant as juvenile and directed his trial under Juvenile Justice System Ordinance. After the completion of trial, the learned trial Court convicted the appellant and sentenced him as noted above.

4. It is submitted by learned counsel for the appellant that after declaring the appellant as juvenile the learned trial Court did not adopt the procedure laid down in the Juvenile Justice System Ordinance and treated the appellant as an accused under ordinary law and thus, tried him under the ordinary law, therefore, the judgment of conviction passed by the learned trial Court was not only void, without jurisdiction but also coram non judice. Hence, the same was liable to be set aside as being without lawful authority.

5. On the other hand, learned counsel for the complainant has frankly conceded the proposition but has submitted that the complainant, would have no objection if the case is sent back to the learned trial Court for re-writing of judgment instead of holding de novo trial because no prejudice has been caused to the appellant who is a single accused through the trial conducted by the learned trial Court. In support of his contention, learned counsel has placed reliance on Muhammad Hayat v. The State 2005 YLR 595.

6. I have heard learned counsel for the parties and have also perused the record. Admittedly, the appellant was declared Juvenile by the learned trial Court on 8-10-2004 and his trial was also directed under the Juvenile Justice System Ordinance. The perusal of the file indicates that except showing himself as Juvenile Court during the entire proceedings, the learned Additional Sessions Judge, committed no illegality or irregularity while holding and concluding the trial. Further perusal of the file also indicates that throughout the proceedings no objection was taken before the learned trial Court with regard to not holding of trial under the above said Ordinance causing prejudice to the appellant. However, since the illegality committed by the learned trial Court is patent from the record, therefore, the same cannot be ignored on the mere ground that the appellant either gave consent or did not raise any objection before the learned trial Court because it is established principle of law that mere consent does not confer jurisdiction which is otherwise not available and question of jurisdiction can be raised at any stage. Reliance is placed on Multan Electric Power Company Ltd. v. Muhammad Ashiq and another PLD 2006 SC 328, Muhammad Ramzan and others v. Member (Revenue)/CSC 1997 SCMR 1635 and Amanullah and others v. The State PLD 2004 Quetta

105. I am, therefore, satisfied that the ends of justice would adequately be met if the judgment recorded by the learned trial Court is set aside and the case is remanded to the learned trial Court for re-writing of judgment as Court under Juvenile Justice System Ordinance. However, the appellant may be at liberty to produce any other evidence if he so wants. The learned trial Court shall conclude the trial and decide the case after hearing the parties as early as possible but not later than 30-4-2007 with compliance report to the learned Additional Registrar of this bench.

7. Since in terms of section 10 of the Juvenile Justice System Ordinance the trial of the appellant has not been legally concluded so far, therefore, by extending benefit of section 10 of the said Ordinance, I direct the release of the petitioner on bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees on hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court. However, the petitioner-appellant shall keep on appearing before the learned trial Court on all dates of hearing.

8. This disposes of Criminal Miscellaneous No.1 of 2006 as well as the main appeal. N.H.Q./M-200/L Case remanded.