' MAULVI ANWARU HAQ, J.---The petitioner (Muhammad Zubair alias Jhara) was sent up for trial before a learned Additional Sessions Judge, Multan, in case F.I.R. No.383 dated 30-8-1997 under section 302/34, P.P.C. At Police Station New Multan, District Multan. Vide judgment dated 22-4-1998, the petitioner was convicted under sections 302(b)/34 P.P.C. And was sentenced to death while the other two persons were awarded life imprisonment. He filed Criminal Appeal No.151 of 1998 alongwith his co-accused. The matter was heard along with Murder Reference No.48 of 1999. Vide judgment dated 24-7-2001 of a learned Division Bench of this Court, the appeal of the petitioner was dismissed and his death sentence was confirmed. Sentence imposed upon Muhammad Sharif co-accused was also upheld while Muhammad Shafi co-accused was acquitted. The petitioner then filed an Appeal No.111 of 2001 from Jail. It was heard by the Hon'ble Supreme Court of Pakistan and dismissed on 28-3-2002. Suo moto Review Petition No.11 of 2002 was dismissed by the Hon'ble Supreme Court on 1-10-2002. We are told that a Mercy Petition filed by the petitioner was also dismissed by the competent authority.
2. On 6-1-2003 the petitioner tiled Writ Petition No.68 of 2003 in this Court. It was stated that the President of Pakistan has issued a Notification chi 15-12-2001 in exercise of his powers under. Article 45 of the Constitution of the country granting special remission in cases of A death sentences of those condemned prisoners who were juvenile as defined in the Juvenile Justice System Ordinance, 2002, at the time of commission of offence. The said sentence was commuted to life imprisonment provided that the sentence has been awarded as Tam. The contention raised was that the date of birth of the petitioner is 3-6-1980 whereas the occurrence took place on 30-8-1997 and as such he was 17 years, 2 months and 27 days of age of on the date of said occurrence. The prayer made was as follows:- "In the aforementioned circumstances it is most respectfully prayed that by accepting this writ petition the execution of sentence may be suspended and respondents may be directed to act strictly in accordance with law and obtain medical opinion about the age of petitioner, if desired, in accordance with notifications And grant special remission of sentence awarded by President of Pakistan so circulated vide Notification No.JB/GI/53406-35 dated 15-12-2001 and letter No.3406/35 dated 15-2-2001 issued by respondent No.2, and commute the death sentence of petitioner into life imprisonment".
' On 5-10-2004 the case came up before a learned Single Judge of this Court in the presence of counsel for the petitioner, a learned Additional A.-G. And learned counsel for the complainant. The learned counsel. For the petitioner 'stated that having examined the judgment in the case of Ziaullah (PLD 2003 SC 656), he does not press the said writ petition in order to approach the Court of learned Sessions Judge/Court constituted under the said Ordinance, 2000, for determination of the age" of the petitioner. The writ petition was accordingly dismissed. Thereafter an application was filed before the learned Sessions Judge, Multan, which was entrusted to a learned Additional Sessions Judge. A notice was issued and the matter was fixed for Z9-11-2004.
3. On .22-11-2004 another application was filed intimating that the petitioner has learnt that a black warrant has been issued and his execution is to be undertaken on 2-12-2004. The prayer was made for suspending the execution of death sentence pending the decision of the said application. The matter was taken up by the learned Additional Sessions Judge, Multan on 26-11-2004 in presence of the learned counsel for the petitioner as well as the complainant and the. Additional Superintendent, New Central Jail, Multan. On the same date, he passed an order stating that the petitioner should go to the relevant authorities or competent forum and the learned Additional Sessions Judge has to do nothing. The file was accordingly ordered to be consigned to, record.
4. Present writ petition was filed in this Court on 27-11-2004. It came up before a learned Single Judge on 30-11-2004 who opined that since the death sentence was confirmed by a Division Bench of this Court, the matter be placed before the Division Bench. The case was accordingly put up on the same date when learned counsel for the petitioner, the complainant and learned Additional - A.-G. Put in appearance. After hearing some arguments, we summoned the records of the trial Court and adjourned the case for hearing today.
5. Learned counsel for the petitioner contends with reference to the said case of Ziaullah v.
Najeebullah and others (PLD 2003 SC 656) that since that part of the notification which required the age to be determined by a Committee comprising ally expert, Home Secretary, the I.G. Prisons and the Jail Superintendent concerned has been set aside by the Hon'ble Supreme Court and the matter is now to be determined by a Judicial forum which is the Sessions Judge/the Court constituted under the said Ordinance, 2000. He complains that the learned Additional Sessions Judge, has declined to decide the matter, illegally. Learned counsel for the complainant, on the other hand, rely upon the judgment in the case of Rehmat Ullah alias Raja v. Home Secretary, Punjab, Lahore and others (2004 SCM R 1861) to urge that the sole fact that the plea of minority was never raised during the trial or appeals in this Court and before the Hon'ble. Supreme Court would be sufficient to decline the prayer being made by the petitioner. Learned A.A.-G. Draws our attention to the learned Division Bench judgment of this Court which was upheld by the Hon'ble Supreme Court in the said case of Rehmat Ullah alias Raja to state that the plea was also considered on merits and found to be incorrect. The learned A.A.-G. Is of the opinion that the learned Additional Sessions Judge ought to have recorded his findings regarding the plea of the petitioner. He further informs us that pursuant to the judgment in the case of Ziaullah, the President in fact, amended the said notification.
6. We have given thought to the respective contentions of the learned counsel for the contesting parties and the learned Law Officer. We deem it appropriate to note in the very beginning, that para. 3 of the said notification as originally issued on 15-12-2001 was as follows:-- "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."
7. The verdict of the Hon'ble Supreme Court in the said case of Ziaullah was that this part of the notification is void inasmuch as the said Committee not being a Court referred to in Articles 175 and 203 of the Constitution cannot share judicial powers lawfully with the said Courts and as such the said Committee has no lawful authority to determine the age of the accused. It was then stated that if so required the matter can be referred to the Sessions Judge/Juvenile Court.
8. The learned A.A.-G. Has placed a copy of letter dated 18-8-2003 issued by the Home Department, Government of Punjab, to the Registrar of this Court informing that the President has modified para. Of the said notification dated 15-12-2001 as follows:-- "In case of any doubt about the age, the same may be determined in accordance with section 7 of the Juvenile Justice System Ordinance, 2000."
9. It will, thus, be seen that in implementation of the said dictum of the Hon'ble Supreme Court in Ziaullah's case, the notification stood modified by the President .
10. It is but obvious that the said fact was not brought to the notice notification as originally published.
11. We, however, noted with' regret that the learned Additional Sessions Judge has failed to read and understand the impact of the said judgment. It intends to set aside the constitution of the said Committee declaring it to be void and the impact is not to an individual case but rather all the cases covered by the said notification. We, therefore, do find that the learned Additional Sessions Judge has acted illegally in refusing to decide the plea of the petitioner.
12. We may here take note of the contention of the learned counsel for the complainant based on the said case of Rehmat Ullah alias Raja. The learned A.A.-G. Who had opposed the said prayer made by Rehmat Ullah before a learned Division Bench of this Court in Writ Petition No.2026 of 2004 has placed on record .a copy of the judgment of the learned Division Bench. We have examined the same and we do find that the learned Division Bench considered the merits of the plea with reference to some documents and found the same factually to be incorrect. Additionally, it was noted that the plea of minority was never taken during the course of trial and appeal. Besides, in the said case, there was a note in the trial Court's judgment that his date of birth was shown at the time of occurrence as 8-3-1976.
13. In view of what has been discussed above, we allow this writ petition and set aside the order passed by the learned Additional Sessions Judge declining to decide the plea of the petitioner. The matter is accordingly remanded back to the learned Additional Sessions Judge/Juvenile Court to decide the following questions:--
(i) Whether the convict Muhammad Zubair alias Jhara son of Muhammad Siddique was a minor at the time of occurrence subject-matter of F.I.R. No.383 dated 30-8-1997 under section 302/34, P.P.C.
At Police Station New Multan, District Multan? And
(ii) Whether the said convict is entitled to the benefit of section 7 of the Juvenile Justice System Ordinance, 2000, along with the said notification issued by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan granting special remission to the offenders, who were minors at the time of commission of offence?
14. The office to immediately remit copy of this judgment as also the records of the said case F.I.R.
No.383 dated 30-8-1997 under sections 302/34, P.P.C. At Police Station New Multan, to the learned Additional Sessions Judge/Juvenile Court, Multan, who shall immediately commence proceedings to answer the said questions and complete within four weeks and the result of the same be notified to the concerned Authorities responsible for executing the sentences.
15. We may further note here that nothing observed in this judgment either way shall influence the learned Additional Sessions Judge who shall consider whather material is produced before him and further consider all the pleas relevant to the said questions stated by the parties before him while deciding the said questions.
16. A copy of this judgment be also remitted to the Secretary, Home Department, Government of Punjab, Lahore, as well as the Superintendent, New Central Jail, Multan, who shall wait for the said determination to be made by the Learned Additional Sessions Judge/Juvenile Court, Multan, as directed in this judgment.