2018 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, read with section 439, Cr.P.C. the petitioner has sought indulgence of this Court with the following prayer:- "It is, therefore, prayed that by accepting this writ petition impugned order dated 29.01.2008 may kindly be declared illegal and without any lawful authority and remand the case with direction to Addl. Sessions Judge, Sialkot/Juvenile Court to determine the following:- (i) Whether the convict Ehsan Ullah alias Ehsana son of Muhammad, was minor at the time of registration of FIR No.46/1993, dated 21.02.1993 under sections 302, 324, 34, P.P.C., Police Station Mautra, District Sialkot and after completing the inquiry inform its result to Secretary Home Department, Government of the Punjab, Lahore/Government of Pakistan, Ministry of Interior 'Islamabad with reference to letter No.3/78/2005-Ptns. dated 9.8.2007. (ii) Any other appropriate relief which this Hon'ble Court deems fit and proper in the circumstances of the case may also be awarded." During the course of proceedings, amended petition was filed before this Court with certain amendments calling into question the vires of order dated 29.01.2008, passed by learned Additional Sessions Judge, Sialkot; whereby application of the petitioner in terms of section 7 of the Juvenile Justice System Ordinance, 2000, was dismissed.

2. Facts of the case succinctly required for determination of the petition in hand are that the petitioner was booked in a case FIR No.46/1993, dated 21.02.1993, offence under sections 302, 324, 34, P.P.C., Police Station Mautra, District Sialkot. The matter firstly came up before the learned trial court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, wherein the learned trial court after recording the prosecution evidence and fulfilling other legal requirements found the accusations correct and vide judgment dated 15.05.1994 sentenced the petitioner to death on two counts. The judgment of the learned trial court was assailed before the High Court through filing Crl. Appeal No.292/1994, which was dismissed vide judgment 07.10.2002. Subsequently, the vires of the judgment of the High Court were challenged before the august Supreme Court of Pakistan through filing Crl. PLA No.169-L/2003 and 57/2004; wherein the final adjudication was carried out on 15.03.2005, however, it met the same fate. Thereafter the petitioner filed mercy petition before the President of Pakistan in terms of Article 45 of the Constitution, which was referred to the Home Secretary for its adjudication in the spirit of section 7 of the Juvenile Justice System Ordinance, 2000. The petitioner filed an application before the learned Additional Sessions Judge for conducting inquiry under section 7 of the Juvenile Justice System Ordinance, 2000, and the learned trial court while adjudicating application filed as per provisions mentioned above dismissed the same summarily. which is under challenge through the instant constitutional petition.

3. Learned counsel for the petitioner while addressing the Court contends that the impugned order is bed in law having been passed in a stereotype manner without adverting to real facts of the case. Further contends that in fact the learned trial court was under obligation to adjudicate the application of the petitioner in letter and spirit and the requisite inquiry was pre-requisite for determining the question whether the petitioner was juvenile at the time of occurrence or not. He further states that the petitioner had produced two documents viz. birth certificate and school leaving certificate qua his age but the learned trial court has not paid any heed to determine its genuineness and decided the matter in a hasty manner. It is finally argued that as the learned trial court has not decided the lis as per dictates of justice, therefore, the instant petition is maintainable and deserves success on this score alone.

4. On the other hand learned Law Officer assisted by learned counsel for the complainant has forcefully argued that the matter relates to the year 1993 while the plea of juvenility was taken by the petitioner/convict when he had already exhausted all the remedies available under the law. Further contends that even the benefit of the proclamation issued by the President of Pakistan dated 13.12.2001 was available to the petitioner during the pendency of his appeal before the High Court, which was decided on 07.10.2002 while his appeal before august Supreme Court of Pakistan was finally adjudicated on 15.03.2005, however, that was not pressed before two appellate forums. It is further brought into the notice of the Court that on both the occasions it was very much within the domain of the petitioner to advance the plea of minority, however, the same was not agitated for the reasons best known to the petitioner. It is further argued that even the petitioner has not taken this plea while recording his statement under section 342, Cr.P.C. Finally it is argued that any plea taken at a belated stage has no legal sanctity, as such the same requires to be repelled.

5. We have heard the arguments advanced by learned counsel for the parties and gone through the record available on file.

6. There is no cavil to this proposition that the provisions of section 7 of the Juvenile Justice System Ordinance, 2000 require detailed inquiry, which has to be carried out in letter and spirit but at the same time this Court cannot lose sight of the fact that the matter in hand pertains to the year 1993. If at all the petitioner, who claims to be juvenile at the time of occurrence, was not seized with the Juvenile Justice System Ordinance, 2000 because it was not promulgated at that time, then admittedly provisions of section 299, P.P.C., were part of the Pakistan Penal Code, 1860, and very much available to the petitioner. Apart from this the outcome of the conviction was result of a full-fledged trial by a court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, where the petitioner had not taken the plea of minority in terms of section 299, P.P.C. Moreover, during the course of proceedings of trial, the petitioner while making his statement under section 342, Cr.P.C. had not pleaded this plea. So much so the petitioner had preferred appeal before the High Court challenging his conviction and sentence during the pendency of which Juvenile Justice System Ordinance, 2000, stood promulgated, however, this plea was not taken even at the time of final adjudication of the appeal. Furthermore the petitioner assailed the vires of the judgment of the High Court before the august Supreme Court of Pakistan where it was again open to the petitioner to address the question of minority/juvenility under section 299, P.P.C., as well as, section 7 of the Juvenile Justice System Ordinance, 2000, but unfortunately all opportunities were squarely missed while dealing with the matter, hence the plea of juvenility taken at a belated stage after the lapse of fourteen years means nothing. It seems that the plea of juvenility has been taken at a belated stage just to frustrate the proceedings subsequent to final adjudication before the august Supreme Court of Pakistan. There is plethora of judgments of the Apex Court that plea taken at a belated stage has no legal sanctity. Guidance in this regard is sought from the pronouncements of the august Supreme Court of Pakistan in the cases of Rehmat Ullah alias Raja v. Home Secretary, Punjab Lahore and others (2004 SCMR 1861), Muhammad Jamil v. The State and 3 others (2004 SCMR 1871), Sarfraz alias Shaffa v. The State and 3 others (2007 SCMR 758) and Ahmed Nawaz v. The State (2009 SCMR 399).

7. In sequel to what has been discussed above, by scanning the material available on record from every angle and seeking guidance from the judgments of the apex Court referred to above, we are of the considered view that filing of the instant petition is nothing but to prolong the proceedings, hence the same having no legal force, hereby stands dismissed. JK/E-7/L Petition dismissed.