Muhammad Basharat son of Muhammad Latif, petitioner, through this criminal revision petition under Section 435 read with Section 439, Cr.P.C., impugns the order dated 17.11.2005 passed by learned Sessions Judge, Jehlum, whereby he declined the relief of special remission of death sentence to be converted into life imprisonment being juvenile at the time of commission of offence being below the age of 18 years by virtue of notification dated 13.12.2001, issued by the President of Pakistan in exercise of powers conferred upon him under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The petitioner was tried and sentenced to death in case vide F.I.R. No. 448 dated 13.9.1990 for offences under Sections 302/307 PPC registered at P.S. Dina, District Jehlum by the learned trial Court on 30.6.1992. Death sentence was confirmed by the High Court on 19.10.1996. The appeal and review petition were also dismissed by the Hon'ble Supreme Court' of Pakistan, respectively on 12.6.2000 and 10.9.2001.
3. Juvenile Justice System Ordinance, 2000 was promulgated on 1.7.2000 and President of Pakistan granted special remission of death sentence to all the convicts who were juvenile at the time of commission of offence by virtue of notification dated 13.12.2001.
4. The petitioner preferred a petition before the learned Sessions Judge, Jehlum seeking special remission of death sentence to be converted into life imprisonment on the basis of aforesaid notification dated 13.12.2001 contending therein that at the time of occurrence, he was below the age of 18-years and was a child within the meaning of Section 2(b) of the Juvenile Justice System Ordinance, 2000 and remission of death sentence be granted to him. The said petition was dismissed. The order was challenged before this Court in Crl. Rev. No. 95 of 2005, which was allowed on 22.7.2005. The case was remanded to the learned Session Judge, Jehlum for determination of the age of the petitioner by following the procedure laid down under Section 7 of the Juvenile Justice System Ordinance, 2000.
5. Pursuant to the above said order of this Court, the learned Sessions Judge directed Medical Superintendent, DHQ Hospital, Jehlum to constitute a medical board to examine the petitioner and submit the report with regard to his age at the time of occurrence, but the Medical Superintendent expressed his inability to do so due to lack of proper facility in his hospital. Thereafter, the matter was referred to Medical Superintendent, DHQ Hospital Rawalpindi for determination of the age of the petitioner, who constituted medical board, which examined the petitioner and submitted report dated 15.9.2005. In the report, it was unanimously opined that the petitioner is more than 25 years of age. It was further opined that if further opinion is required the Court may refer the case to the Surgeon, Medico-Legal Punjab, Lahore. Learned Sessions Judge Jehlum again referred the matter to the Medical Board of DHQ Hospital Rawalpindi for re-determination of the age of the petitioner and the medical board vide report dated 8.10.2005 unanimously opined that physical appearance, dental status and radiologically the petitioner is around 40-years of age + - (plus minus) 5-years of age. The petitioner through his brother moved an application seeking directions to Medical Superintendent, DHQ Hospital Rawalpindi, to submit his personal opinion and the opinions of the other members of the board forming part of medical report alongwith their reasons. The said 'petition was disposed of vide order dated 29.10.2005. Ultimately, the learned Sessions Judge vide order dated 17.11.2005 did not grant the remission of death sentence into life imprisonment by extending benefit of notification dated 13.12.2001 by observing that the petitioner was not a child at the time of commission of the offence, hence this petition.
6. Before us, learned counsel for the petitioner on the strength of case reported as Ziaullah versus Najeebullah and others (PLD 2003 SC 656) contends that petitioner Muhammad Basharat, convict, was child at the time of occurrence therefore he was entitled for the benefit of notification dated 13.12.2001 issued by the President of Pakistan; further that evidence in this case has been mis-read by the trial Court while passing the impugned order and holding that the petitioner was not. child at the time of occurrence. He contends that the Court has wrongly denied to rely upon the birth certificate issued by the Union Council, Lehri, according to which the date of birth of the petitioner is 4.11.1972 and as such the petitioner was less then 18-years of age at the time of occurrence. He further contends that birth register is maintained in accordance with the provisions of Local Government Ordinance, 2000 and as such the entry in the Union Council Lehri record carries strong presumption of truth. Further, on the strength of case reported as Altaf Hussain versus The State (2003 P.Cr.L.J. 1898) the learned counsel contends that the learned Sessions Judge has wrongly relied upon the entries of school leaving certificate wherein date of birth is incorporated as 10.4.1968; that in absence of any proof of age at the time of alleged admission in school or in absence of any application form for admission it cannot be said with certainty the school certificate was actually of the petitioner and as such no reliance can be placed on the said school leaving certificate; further that the learned Sessions Judge was not supposed to consider the entries contained in Form "A" and "B" of Registration Department; the approximate age mentioned in these forms is itself unauthentic and non-reliance proof as there is no supportive document attached to it on the basis of which the age was, allegedly incorporated.
7. On the other hand, learned A.A.G. contends that it has been made crystal clear in the notification dated 13.12.2001 issued by the President of Pakistan that Provincial Government shall ensure prior to the commutation of death sentence to life imprisonment that the age as recorded by the learned trial Court entitled the condemned prisoner to such a commutation; that in the instant case no such finding was ever recorded by the learned trial Court, hence the petitioner would not be entitled for any commutation. Adds that in fact the question of age was never agitated before the learned trial Court, appellate, Court as well as before the Hon'ble Supreme Court of Pakistan, therefore, it is too late to raise such plea before the learned Sessions Judge now that he was minor at the time of occurrence and was child within the meaning of 'Section 2(b) of the Juvenile Justice System Ordinance, 2000 and is entitled for the benefit of notification dated 13.12.2001.
8. We have heard the arguments of the learned counsel for parties and perused the record with their assistance. Notification dated 13.12.2001, issued by the President of Pakistan came up for consideration before the Hon'ble Supreme Court of Pakistan in cases reported as Ziaullah versus Najeebullah and others (PLD 2003 SC 656), Rehmat Ullah alias Raja versus Home Secretary, Punjab, Lahore and others (2004 SCMR 1861). In the former case the Hon'ble Supreme Court of Pakistan had ruled that, Provincial Government shall ensure prior to the commutation of death sentence to life imprisonment that the age as recorded by the learned trial Court entitled the condemned prisoner to such a commutation.
9. The crucial question around which decision of this case revolves is as to what was the date of birth of the petitioner at the time of occurrence. Section 2(b) of the Juvenile Justice System Ordinance, 2000 says that child means a person who at the time of commission of the offence has not attained the age of eighteen years. Moreover, Section 7 of the Ordinance requires the Juvenile Court to hold an inquiry which shall include a medical report for determination of age of the child.
Section 7 of the Ordinance ibid is reproduced hereunder:-- "7. Determination of age.--if a question arises as to whether a person before it is a child for the purposes of this Ordinance, the Juvenile Court shall record a finding after such inquiry which shall include a medical report for determination of the age of the child."
10. The learned counsel for the petitioner has relied on the case reported as Altaf Hussain vs. The State (2003 P.Cr.L.J. 1898 Lahore) to contend that the learned Sessions Judge has wrongly declined to rely on the birth certificate issued by the Secretary, Union council, according to which the date of birth of the petitioner is 4.11.1972 and he was less than 18 years of age at the time of occurrence. He further contends that the learned Sessions Judge was not supposed to consider the entries contained in the school leaving certificate and also the entries contained in Form-A and B of the Registration Department. Entries in the birth Certificate issued by the Secretary Union Council Lehri and in Form-A and B of the Registration Department are of little value in the facts and circumstances of the present case, because the determination of age of theaccused is to be made in accordance with Section 7 of the Juvenile Justice System Ordinance, 2000 on the basis of the medical report. In the case of Alta/ Hussain (2003 P.Cr.L.J. 1898 Lahore), relied upon by the learned counsel for the petitioner, the Honourable Chief Justice dismissed the revision petition filed against the order of the learned Sessions Judge, Khanewal, whereby he disposed of the complainant's application for determination of age of the accused with the observation that the learned Sessions Judge had rightly not referred the matter for medical opinion because more authentic and reliable proof in the shape of birth certificate issued by the Union Council regarding age of the accused was available. The Honourable Chief Justice in the above referred case relied on the cases of Muhammad Akram vs. Muhammad Haleem (2002 P.Cr.L.J. 633), Muhammad Hayat vs. The State and another (2002 YLR 711) and his Lordship differed with the view expressed by our learned brother ljaz Ahmad Chaudhry, J. in the cases of Hassan Zafar vs. The State (2001 P.Cr.L.J. 1939) and Nazir Ahmad alias Kala vs. District and Sessions Judge, Kasur and 2 others. (PLJ 2002 Cr.C. (Lahore) 195), because the view expressed in both the cases was latter in time than the one expressed by his Lordship Ijaz Ahmad Chaudhry.
11.We have gone through all the four above referred reported cases of Muhammad Akram, Muhammad Hayat, Hassan Zafar and Nazir Ahmad, and are unable to agree with the view expressed by the Honourable Chief Justice that the learned Sessions Judge was right in not referring the matter for medical opinion in respect of the accused regarding determination of age without inquiry which shall include the medical report for determination of age on the mandate of Section 7 of the Ordinance.
12.In the case of Noor Khan vs. The State (1992 P.Cr.L.J. 2459), it has been ruled that the best evidence to prove age is that of Radiologist and his report should be given preference to a school leaving certificate. In the Division Bench case of Peshawar High Court Iftikhar vs. The State (PLD 1972 Pesh. 27) it was held by their Lordships that evidence of Radiologist to be preferred to school certificate for the proof of the 'age. Yet, in another case reported as Sheikh Hassan vs. Bashir Ahmad and another (PLD 1966 (W.P.) Pesh. 97) their Lordships held at page No. 99 as under:-- "The learned Additional Sessions Judge in para 29 of the judgment thought that since the school leaving certificate was more beneficial to the accused he would accept that age as against the report of the Radiologist. The finding of the learned Sessions Judge in giving preference to the school leaving certificate over the report of the Radiologist is clearly erroneous in that it is well- settled proposition that the best evidence is the X-ray test. We, therefore, accept the radiologist's report and take the accused to be 16 years of age, which is more beneficial to him."
13. For what has been discussed above, we hold that on the basis of evidence, particularly the medical evidence, the learned Sessions Judge particularly on the basis of medical report dated 18.5.2005, rightly concluded that petitioner Muhammad Basharat was above 18 years of age on the date of occurrence. He was not a, child within the meaning of Section 2(b) of the Juvenile Justice System Ordinance, 2000, and therefore, he is not entitled to the remission of sentence of death into imprisonnient for life. He rightly proceeded to dismiss the petition. Even otherwise, in the instant case, no such a finding regarding the age of the petitioner was ever recorded by the learned trial Court. The question of age of the petitioner was never agitated before the learned trial Court, appellate Court, as well as before the Honorable Supreme Court of Pakistan, therefore, it is too late to raise such a plea before the learned Sessions Judge that he was minor at the time of occurrence and was child within the meaning of Section 2(b) of the Ordinance and entitled for special remission of death sentence to be converted into imprisonment for life by virtue of Notification dated 13.12.2001 issued by the President of Pakistan. No illegality or irregularity has been committed by the learned trial Court in dismissing the application of the petitioner.
14. For the above reasons, this revision petition fails and the same is dismissed.