' The petitioner Shafqat Hayat was tried by learned Sessions Judge, Bahawalnagar in case F.I.R.
No.627 of 1998 registered at Police Station, Saddar, Bahawalnagar and on conviction under section 302, P.P.C. Was sentenced to death vide judgment of the trial Court dated 19-7-1999. Against his conviction and sentence, Criminal Appeal No.117 of 1999 filed by the present petitioner failed before a Division Bench of this Court on 18-7-2001 and on answering the Murder Reference No.19 of 1999 in affirmative the sentence of death was confirmed. The petitioner approached the Honourable Supreme Court of Pakistan by way of Criminal Appeal No.17 of 2001 which also met the same fate on 11-4-2002.
2. With the above backdrop the petitioner claiming himself as a child within the meaning of section 7 of Juvenile Justice system Ordinance, 2000 and for seeking benefit of Notification issued by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan whereby it was declared that any condemned prisoner who was less than 18 years of age at the time of enforcement of said Ordinance and had been sentenced to death not under any law relating to Qisas, his sentence of death shall be converted into life imprisonment, moved an application before the learned Sessions Judge, Bahawalnagar on 11-4-2005 praying that as he was child within the meaning of section 7 of the said Ordinance at the time of occurrence, hence benefit of the said Notification of the President of Pakistan dated 14-12-2001 be extended to him and his death sentence be converted into life imprisonment.
3. The said application was contested by the State as well as complainant and the learned Sessions Judge, Bahawalnagar after holding inquiry and recording available evidence, dismissed petitioner's application holding that as the petitioner was not less then 18 years of age at the time of instant occurrence, the benefit of said. Notification of the President of Pakistan could not be extended to him. The petitioner by way of instant writ petition seeks a declaration that petitioner being child within the meaning of section 7 of the Juvenile Justice System Ordinance, 2000 at the time of occurrence, was entitled to claim benefit of concession extended by the abovementioned Notification of the President of Pakistan, hence his death sentence be converted into life imprisonment.
4. Before proceeding to deal with the contentions raised in this petition suffice it to say that this petition is liable to be dismissed for the reason that in this petition neither the complainant has been made party nor a positive order of the learned Sessions Judge, Bahawalnagar recording expressed findings of fact about age of the petitioner, has been challenged, whereas the said order was passed on the application of the petitioner himself and in presence of such expressed findings of fact recorded by the learned Sessions Judge, this Court cannot record new findings of fact about age of the petitioner by ignoring the findings of learned Sessions Judge in the abovementioned order. However, there are other sufficient grounds also for dismissal of this Constitutional petition, besides the above defects.
5. Learned counsel for the petitioner while arguing this petition has laid much stress by pressing into service provision of section 7 of Juvenile Justice System Ordinance, 2000 and contended that if the evidence about the age of the petitioner in the form of Birth Certificate and School Leaving Certificate was deficient or unsatisfactory the learned Sessions Judge was duty bound to have the ossification test of the petitioner for determination of his age with reference to the date of occurrence. In support of his contentions the learned counsel has placed reliance on the case "Sultan Ahmad v. A.S.J., Mianwali" PLD 2004 SC 758 and "Muhammad Akram v. Muhammad Haleem alias Hamayun" PLD 2003 SC 656. He has further argued that by not having the ossification test of the petitioner the learned Sessions Judge has not only acted illegally but has also refused to exercise the jurisdiction vested in him under section 7 of the said Ordinance.
6. We have considered the arguments of learned counsel, perused the available record and analysed the case-law.
7. The Juvenile Justice System Ordinance, 2000 was enforced w.e.f. 1-7-2000 and the President of Pakistan issued Notification bearing No.F.8/41/2001 Ptns dated 13-12-2001 whereby the death sentence of those condemned prisoners who were Juvenile/Child (as defined in the said Ordinance) at the time of commission of the offence were converted into life impriginment, provided that death sentence was awarded under Tazir and not under Qisas or Hudood Laws.
Section 2 of the said Ordinance defines a Child/Juvenile, "a person who at the time of commission of an offence has not attained the age of 18 years". The occurrence in this case took place on 8-6- 1998 and petitioner was convicted and sentenced to death by the learned Sessions Judge on 19-7- 1999 which remained the same uptil Honourable Supreme Court of Pakistan. While sitting in constitutional jurisdiction this Court cannot issue any direction which in fact amounts to setting aside the final judgment of the Apex Court maintaining conviction and sentence of the petitioner/accused and if the petitioner had any case to this effect he could very well raise the same before the apex Court which was the ultimate authority in this matter. This Court in the case of "Zulficiar Ali v. Secretary, Home Department, Government of Punjab, Lahore and others" PLD 2005 Lahore 275 while dealing with the matter of similar nature held that High Court becomes functus officio and cannot adjudicate upon the matter because the matter was not only decided by the High Court but also by the Supreme Court and the question of age of the accused having never been agitated before the trial Court/Appellate Court as well as the Supreme Court, it was too late in the day to raise such plea. This Court while holding so was fortified by the Judgment of Honourable Supreme Court in the case of "Rehmat Ullah alias Raja v. Home Secretary, Punjab, Lahore and others" 2004 SCMR 1861, wherein, it was held as under:-- "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 was recorded by the trial Court entitles the petitioner to such commutation which is mandatory prerequisite before any benefit is claimed."
' Finally the Honourable Supreme Court in a recent pronouncement "Muhammad Jamil v. State and 3 others" 2004 SCMR 1871 while rejecting similar contentions of the accused held as under:- "We are not persuaded to agree with the contentions of the learned counsel for the petitioner as the incident in this case took place on 2-3-1993 and the Juvenile Justice System Ordinance, 2000 was introduced in the year 2000 while his appeal was pending before this Court. Even the question of minority or juvenility was not urged by the petitioner before this Court. Irrespective of above, admittedly petitioner neither raised the question of minority before the trial Court nor before the learned Appellate Court and it was for the first time after dismissal of mercy petition by the President of Pakistan, Muhammad Chiragh, father of petitioner, took the plea of juvenility in his application addressed to Home Secretary, Government of Punjab, Lahore by initiating second round of litigation. Record reveals that age of petitioner as mentioned in his statement recorde under section 342, Cr.P.C. On 12-6-1994 was 24 years which factor was confirmed by the learned Appellate Court as well as by this Court leaving no room for further probe."
This Court also in an unreported D.B. Judgment of which one of us (Muhammad Jehangir Arshad, J.), was also a member, rendered in titled Shabir Hussain v. The State Writ Petition No.1292 of 2005, after surveying the law on the subject also came to the conclusion that after having lost up to the Apex Court of Pakistan, this Court had no jurisdiction to convert the death sentence into imprisonnient for life while sitting in constitutional jurisdiction, as the same would amount to circumventing the final judgment of the apex Court and we also adopt the same view.
8. Since the petitioner neither mentioned the date of occurrence in this petition, nor the copy of F.I.R.
Was appended, so much so statement of accused under section 342, Cr.P.C. Was also not annexed with this writ petition, we therefore, summoned the Paper Book containing record of Criminal Appeal No.117 of 1999 and Murder Reference No.19 of 1999. A perusal of the record reveal that statement of Shafqat Hayat accused/petitioner under section 342, Cr.P.C. Was recorded on 13-7- 1999 wherein his age was mentioned as 25 years, meaning thereby at the time of occurrence i.e. 8- -6-1998 the age of the petitioner was 24 years. As such by no stretch of imagination he could be considered as child at the time of occurrence within the meaning of section 7 of Juvenile Justice System Ordinance, 2000 and thus following the dictum laid down in the above cited Muhammad Jamil's case, the petitioner was not entitled to the concession of Notification issued by the President having been unsuccessful up to the Apex Court and further plea of protection under Juvenile Justice System. Ordinance was not available to them at all. The fact that he did not ever raise the question of age before the learned trial Court or for that matter before this Court and also before the Honourable Supreme Court, did not append any documentary evidence with this petition and also that he submitted forged documents, disentitle him to claim any benefit under said Ordinance or the Notification issued by the President of Pakistan and ask for ossification test which cannot be resorted to in the presence of age recorded in his statement under section 342, Cr.P.C. As the same was recorded at the time when question of petitioner's age was not in dispute.
Hence, a presumption of truth can be inferred about his age so recorded by the learned trial Court at the time of recording statement under section 342, Cr. P. C .
9. We are also not inclined to issue any such direction to declare the petitioner as child at the time of occurrence in the presence of expressed findings recorded by the learned Sessions Judge that the documents produced by the petitioner i.e. Birth Certificate and the School Leaving Certificate were forged and were produced to derive wrongful gain of the abovementioned Notification issued by the President of Pakistan. We have no reason to disbelieve the findings recorded by the learned Sessions Judge that the petitioner was of age of 18 years at the time of instant occurrence in the absence of any evidence to the contrary. Resultantly, this writ petition has no force and is dismissed in limine.