2004 PLP 1861 (SCMR)

JAVED IQBAL, J.

This petition for leave to appeal is directed against judgment dated 20-5-2004 whereby the writ petition preferred on behalf of petitioner has been dismissed and learned Division Bench of the Lahore High Court, Multan Bench, Multan, declined to issue a direction for commutation of death sentence of the petitioner to imprisonment for life.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect "that the petitioner was an accused in case F.I.R. No.216 of 1995 registered at P.3. City, Lodhran under section 302/34, P.P.C. at the instance of Muhammad Aslam, respondent No.3 for murder of his brother Muhammad Ashraf. After completion of investigation challan against the petitioner was submitted. "After trial the learned Sessions Judge vide his judgment dated 16-10-1997 convicted the petitioner under section 302(b), P.P.C and sentenced to death. He was also ordered to pay Rs.50,000 as compensation to the legal heirs of the deceased. He was further convicted under section 324, P.P.C. for causing fire-arm injuries to Muhammad Din, P.W. and sentenced to 7 years R.I. The petitioner challenged before this Court his conviction and sentence through Crl. Appeal No.343 of 1997 while the trial Court sent up Murder Reference No.276 of 1997 for confirmation of death sentence and vide judgment dated 21-6-1999 the appeal filed by the petitioner was dismissed and death sentence awarded to the appellant was confirmed. The petition for leave to appeal filed by the petitioner was also dismissed by the Hon'ble Supreme Court vide judgment dated 19-3-2001". The petitioner after issuance of notification dated 13-12-2001 approached the High Court to get his death sentence commuted to life imprisonment by way of writ petition which has been rejected, hence this petition.

3. Heard Mr. Muhammad Munir Peracha, learned Advocate Supreme Court for the petitioner, who mainly argued that petitioner being juvenile offender, the sentence of death cannot be executed which has been commuted to imprisonment for life by virtue of notification dated 13-12-2001 issued by the President of Pakistan in exercise of power as conferred upon him under Article 45 of the Constitution of Islamic Republic of Pakistan, which is reproduced herein below 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.

5. In sequel to above mentioned discussion, the judgment impugned being free from any infirmity or illegality and well based does not warrant interference. Petition being devoid of merit is dismissed ands leave declined. M.H./R-19/S Petition dismissed