2007 PLP 758 (SCMR)

JAVED IQBAL, J.

This petition for leave to appeal is directed against the order, dated 10-9-2002 whereby the writ petition preferred on behalf of petitioner has been dismissed wherein the petitioner had claimed to be a child as defined under section 2-B of the Juvenile Justice System Ordinance, 2000 which was promulgated on 1-7-2000. The petitioner had also claimed benefit. of the special remissions pursuant to the notification, dated 13-12-2001 issued by the President of Pakistan in exercise of powers as conferred upon him under Article 45 of the Constitution of Islamic Republic of Pakistan.

2. Heard Mr. M.A. Zafar, learned Advocate Supreme Court on behalf of the petitioner who mainly confined his contention to the interpretation of notification dated 13-12-2001 with the further submission that the sentence of death could not have been awarded to the petitioner in view of the provisions as contained in section 2-B of the Juvenile Justice System Ordinance, 2000.

3. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions as contained in the Juvenile Justice System Ordinance, 2000 as well as notification dated 13-12-2001. A careful scrutiny of the record would reveal that the plea of "juvenile" was never taken before the learned trial and Appellate Courts. It is wroth mentioning that even it did not find mention in the petition for leave to appeal filed before this Court which was also rejected. The petitioners' case now mainly revolves around the notification dated 13-12-2001 issued by the President of Pakistan which has been interpreted by this Court in case Rehmat Ullah v. Home Secretary, Punjab 2004 SCMR 1861 and relevant portion whereof is reproduced hereinbelow for ready reference:-- "(1)

(a) The death sentence of those condemned prisoners who were juvenile as defined in the Juvenile Justice System Ordinance, 2000 at the time of commission of offence stands commuted to life imprisonment provided that the death sentence has been awarded under Ta'zir and not Qisas or under other Hudood Laws. (2) The Provincial Governments shall ensure that the age as recorded by the trial Court entitles the condemned prisoners to such commutation. (Emphasis provided). (3) In case of any doubt about the age, medical opinion may be obtained and decision taken by a committee comprising an Expert, Home Secretary, I.G. Prisons and the Superintendent of the Jail where the condemned prisoner is housed. (4) Those who have been convicted on or before 17-12-2001 are entitled for the above said special remission."

4. The above reproduced notification has been couched in a simple and plain language and being free from any ambiguity there is hardly any scope for its scholarly interpretation. It has been made crystal clear in the said notification that the Provincial Governments shall ensure prior to commutation of death sentence to imprisonment for life that the age as recorded by the trial Court entitles the condemned prisoners to such commutation. No such age was ever recorded by the trial Court, hence the petitioner would not be entitled for any commutation. In fact, the question of age was never agitated before the learned trial Court, appellate Court as well as this Court. It is too late in the day to raise such a plea now as at the time of occurrence, his date of birth has been shown as 8-3-1976 which was never challenged and thus there was no occasion for the trial Court to get the ossification test conducted. Nothing, has come on record showing that the age as recorded by the trial Court entitles the petitioner to such commutation which is mandatory prerequisite before any benefit is claimed." (Emphasis provided)

4. The case of the petitioner has been examined in the light of the touchstone of the criterion as mentioned hereinabove and we are of the considered view that the above notification cannot be pressed into service being not applicable in this case. In fact it appears to be a futile exercise to get the matter prolonged. As mentioned hereinabove the plea of age was never taken either before the learned trial or Appellate Courts or even before this Court. The petition for leave to appeal preferred on behalf of petitioner was decided by this Court vide order dated 9-5-2002 and the judgment of learned High Court was kept intact and hence no interference at this belated stage, can be made as the learned Advocate Supreme Court failed to make out a case for special remission. The factum of age was neither pressed into service nor it was ever recorded by the learned trial Court hence the petitioner would not be entitled for any commutation by virtue of the said notification as pressed time and again. The controversy has been set at naught by this Court in Rehmat Ullah v. Home Secretary's case (supra) and no further deliberation would be required. The petition being devoid of merit is dismissed and leave refused. S.M.B./S-77/SC Petition dismissed.