2007 PLP 2076 (YLR)

IQBAL HAMEEDUR RAHMAN, J.

Brief facts giving rise to this writ petition are that a case F.I.R. No.436 dated 13-9-1994 under sections 302 and 324 P.P.C. was registered at Police Station Muzaffargarh against the petitioner. The trial was conducted and the petitioner was convicted and sentence to death under section 302, P.P.C. and 10 years under section 324, P.P.C. with a fine of Rs.20,000 by the learned Sessions Judge, Muzaffargarh vide judgment dated16-2-1998. The petitioner filed a Criminal Appeal No.64/98 along with Murder Reference No.67/98 the appeal was dismissed on 9-1-2001 and the death sentence was confirmed by this Court. The petitioner filed Criminal Appeal No.144 of 2001 before the Honourable Supreme Court of Pakistan which was also dismissed on 9-9-2002.

2. The petitioner came to know that a Notification No.JB/GI/53405/35 dated 15-12-2001 has been issued, in which the President of Pakistan has granted special remission under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973 to juvenile condemned prisoners whereby the death sentence of juvenile as defined in the Juvenile Justice System Ordinance, 2000 at the time of commission of offence was commuted to life imprisonment. The date of birth of the petitioner is stated as 29-6-1977, whereas the occurrence took place on 13-9-1994 in this way the age of the petitioner is alleged to be 17 years, two months and 14 days i.e. below 18 years at the time of occurrence. So the petitioner is entitled for the benefit of aforesaid remission. In this regard the petitioner filed an application for inquiry about determination of the age before the learned Sessions Judge Muzaffargarh on 17-2-2005 who dismissed the same vide his order dated 23-4-2005. Against the said order, the petitioner filed W.P. No.2409 of 2005 and the same was withdrawn by the petitioner on 21-2-2007. Thereafter another Writ Petition bearing No.1469 of 2007 was filed and the same was disposed of on 26-3-2007. As Writ Petition No.1469 of 2007 was not decided on merits, the petitioner has filed this writ petition against the order dated 23-4-2005 passed by the learned Session Judge, Muzaffargarh. Along with this writ petition, the petitioner has filed an application (Civil Miscellaneous No.733 of 2007), praying that execution of death warrants dated 9-5-2007 may be suspended till the final decision of the writ petition. 2-A. It is contended on behalf on the petitioner that for the determination of age of the child, medical report was mandatory but the same was not called for, therefore, the findings of the learned Sessions Judge cannot be said to be conclusive and the impugned order be set aside. That a constitutional petition (Writ Petition No.2409 of 2005) was filed by the petitioner praying for the same relief earlier but the same was withdrawn vide order dated 21-2-2007 and thereafter another writ petition bearing No.1469 of 2007 was also filed and the same was disposed of on 26-3-2007 with the direction, that execution of death warrant/(letter No.6676) issued by Superintendent, New Central Jail, Multan, on 17-3-2007 in the name of Muhammad Nasrullah son of Muhammad Akram is suspended till 8-4-2007, so that the petitioner may make last effort for effecting compromise with the heirs of the deceased. In case the compromise is materialized the parties shall file the same before the learned Sessions Judge Multan in terms of section 338-E, P.P.C. In case the compromise is not effected between the parties, the order shall automatically lapse after the expiry of Court hours on 8-4-2007 and as Writ Petition No.1469 of 2007 was not decided on merits, the present writ petition is maintainable.

3. On the other hand, the learned A.A.-G has opposed the acceptance of the writ petition as well as the application (C.M. No.733 of 2007).

4. We have heard learned counsel for the petitioner as well as the learned A.A.-G. and perused the impugned order 23-4-2005.

5. We have carefully examined the contentions as agitated on behalf of the petitioner in the light of relevant provisions as contained in the Juvenile Justice System Ordinance, 2000 as well as notification dated 13-12-2001 careful scrutiny of the record would reveal that the plea of juvenile was never taken before the learned trial Court and the appellate Courts. The petitioner's case now mainly revolves around the notification dated 13-12-2001 issued by the President of Pakistan and relevant portion whereof is reproduced below:-- (1) 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 Tazir and not Qisas or under the Hudood Laws. (2) The Provincial Governments shall ensure that the age as recorded by the trial. Court entitles the condemned prisoners to such commutation. (3) In case of any doubt 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.

6. It is made clear in the said notification that the Provincial Government shall ensure prior to commutation of death sentence to imprisonment for life that the age as recoded 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. There is nothing on the record of the trial. Court showing the petitioner to be juvenile at the time of trial. In this respect, reliance is placed upon Sarfraz alias Shaffa v. The State and 31 others (2007 SCMR 758), in which it was held: - "Factum of age was never pressed into service nor it was ever recorded by the trial Court

Petitioner was not to be entitled to any commutation by virtue of presidential notification dated 13-12-2001

Petition for leave to appeal was dismissed." In view of the same, the contentions of the petitioner cannot be accepted.

7. As far as C.M. No.733 of 2007 is concerned, the same has been filed without adopting proper procedure permissible under the law. The same had not been filed with any supporting document to substantiate that efforts for compromise have been made. The petitioner has not filed any affidavit of the legal heirs of the deceased and it is only when this Court afforded an opportunity to the petitioner that affidavits of relatives of the deceased have been filed, stating that efforts for compromise are being made. We are afraid that the same cannot be taken into consideration as the law does not permit the same. It is only the legal heirs who can compromise with the accused party according to law and none of the legal heirs have either appeared before this Court nor submitted any affidavit.

8. In view of the above circumstances, this writ petition as well as C.M. No.733 of 2007 are dismissed. H.B.T/M-309/L Petition dismissed.