1. ' MEHTA KAILASH NATH KOHLI, J.---Facts of the case, in brief, are that on the basis of report lodged by Naimatullah son of Muhammad Musa, an F.I.R. Was registered on 31st January, 2003 by Police Station Sariab, Quetta, wherein; he had alleged that he owns a cycle repair shop at Pood Killi Chowk Quetta; at 1-30 p.m. He went from his shop to Ittihad Colony and found two of his neighbourers namely Abdul Qahar and Zia-ud-din who bear vagabond character. It was further alleged that Zia-ud-din was holding a dagger while, Abdul Qahar was holding an axe, coming out from his house; his neighbourer was having his ablution, wilq had also seen accused persons running from his house; when he entered in his house, saw his younger brother, who was lying in a pool of blood and palpitating. Similarly when he reached in corridor and saw his sister Bibi Rubiqa aged 13/14 years in a pool of blood lying dead, while his sister's son namely Samiullah aged three years was also lying in a pool of blood and was dead. Complainant understood that this offence has been committed by Abdul Qahar and Zia-ud-din. It was further stated that he reacted to the said incident and also stated that his father went for earning bread, while his mother along with his sister had gone to Sanhri, as son of his sister was ailing and she had gone to bring Taveez ( ,:r2,10) ).
2. In such circumstances, accused-respondents were arrested, they were put to trial; they denied the allegations.
3. ' On the basis of material, the learned Special Judge Anti-Terrorism Court-I, Quetta vide judgment dated 12th June, 2003, convicted the private respondents for death penalty, as also respondent Abdul Qahar was convicted under section 10(3) Offence of Zina (Enforcement of .Hadood)
4. Ordinance, 1979 in view of section 7 read with section 21-M(2) of the Anti-Terrorism Act, 1997.
5. Learned Special Court had also sent Reference No.6 of 2003 for confirmation of death sentence.
6. Against said judgment, private respondents filed Appeal No.27 of 2003. A Division Bench of this Court vide judgment dated 23rd May, 2005, was pleased to hold that the case is exclusively triable by the Juvenile Court. Relevant observation of the Honorable Division Bench, are reproduced hereinbelow:-- "In view of the above discussion, the appeal is partly accepted and the impugned judgment dated 12-6-2003 passed by learned Special Judge, ATC-I, Quetta, is set aside and the case is remanded to the Juvenile Court, with directions to dispose of the same to rewrite the judgment on the basis of evidence recorded by the trial Court. However, the learned Juvenile Court after hearing both the parties to rewrite the judgment on its own merits without being influenced from the judgment dated 12-6-2003 passed by learned Special Judge, ATC-I, Quetta."
7. ' After remand of the case, learned Judge under the Juvenile Justice System Ordinance, 2000, convicted and sentenced the private respondents, in the manner hereinbelow mentioned:-- "Thus, in the light of above, the accused Abdul Qahar is convicted and sentenced under section 302(b) read with section 34, P.P.C. For life imprisonment as Ta'zir for commission of murder of deceased Bibi Robiqa and also ordered to pay Rs.100,000 (Rupees one lac only) as compensation to the legal heirs of deceased Bibi Robiqa in view of section 544-A, Cr.P.C. In default of payment, accused further will suffer SI for six (6) months. However, accused Abdul Qahar, has committed Zina-bil-Jabr of Ta'zir with deceased Mst. Robiqa, as I have discussed hereinbefore, while admittedly accused is a minor, therefore, he is convicted and sentenced under section 7 read with ;section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for a period of five (5) years' RI and fine of Rs.5,000, in default of fine accused further will suffer SI for one (1) year. Accused Abdul Qahar is also convicted and sentenced under section 302(b) read with section 34, P.P.C. For life imprisonment as Ta'zir for murder of deceased Samiullah and also ordered to pay Rs.100,000 (Rupees one lac only) as compensation to the legal heirs of deceased Samiullah in view of section 544-A, Cr.P.C. In default of payment, accused further will suffer S.I. For six (6) months. Accused Abdul Qahar is further convicted and sentenced under section 302(b) read with section 34, P.P.C.
8. For life imprisonment as Ta'zir for murder of deceased Roohullah and also ordered to pay Rs.100,000 (Rupees one lac only) as compensation to the legal heirs of deceased Roohullah in view of section 544-A, Cr.P.C. In default of payment, accused further will suffer S.I. For six (6) months.
9. ' While accused Zia-ud-din is convicted and sentenced under section 302(b) read with section 34, P.P.C. For life imprisonment as Ta'zir for commission of murder of deceased Bibi Robiqa and also ordered to pay Rs.100,000 (Rupees one lac only) as compensation to the legal heirs of deceased Bibi Robiqa in view of section 544-A, Cr.P.C. In default of payment, accused further will suffer SI for six (6) months. He is also convicted and sentenced under section 302(b) read with section 34, P.P.C.
10. For life imprisonment as Ta'zir murder of deceased Samiullah and also ordered to pay Rs.100,000 (Rupees one lac only) as compensation to the legal heirs of deceased Samiullah in view of section 544-A, Cr.P.C. In default of payment, accused further will suffer S.I. For six (6) months. Accused Zia- ud-din is further convicted and sentenced under section 302(b) read with section 34, P.P.C. For life imprisonment as Ta'zir for murder of deceased Roohullah and also ordered to pay Rs.100,000 (Rupees one lac only) as compensation to the legal heirs of deceased Roohullah in view of section 544-A, Cr.P.C. In default of payment, accused further will suffer S.I. For six (6) months. However, benefit of section 382-B, Cr.P.C. Is extended in favour of both the accused and the period, which accused have spent as under trial prisoners be deducted from their original sentences."
11. ' Against aforementioned judgment, present petition for enhancement of sentence has been filed.
12. ' We have heard Mr. Azizullah Kakar, learned counsel for petitioners. During course of arguments, it was pointed out that the matter was remanded by this Court vide judgment dated 23rd May, 2005 to the Juvenile Court by holding that the private respondents are covered under Juvenile Justice System Ordinance, 2000; the said judgment was accepted by all concerned and after remand of the case, the learned Juvenile Court has passed the maximum sentence provided by the law. It was pointed out to the learned counsel that how this petition for enhancement of sentence to that of death penalty is covered in view of above Ordinance. Learned counsel has not been able to properly answer the same. However, it is beneficial to reproduce section 12 of the Juvenile Justice System Ordinance, 2000, herein-below:-- "12. Orders that shall not be passed with respect to a child.---Notwithstanding anything to the contrary contained in any law for the time being in force no child shall be-
(a) awarded punishment of death, or ordered to labour during the time spent in any Borstal or such other institution; and
(b) handcuffed, put in fetters or given any corporal punishment at any time while in custody: Provided that where there is reasonable apprehension of the escape of the child from custody, he may be handcuffed."
13. The above provision of law clearly provides that the respondents-accused being Juvenile, cannot be awarded punishment of death. Similarly, they cannot be ordered to labour etc. In view of the clear bar contained in the law, which is applicable to the facts and circumstances of the case, the present petition for enhancement of sentence is not competent in law. The Legislature has clearly provided the maximum punishment for the juveniles, who are covered under the Juvenile Justice System Ordinance, 2000.
14. ' In such circumstances of the case, the petition for enhancement of sentence to death, is not maintainable, and thus; the same is dismissed in limine.