' CH. EJAZ YOUSAF, J.--- This review petition is directed against the judgment, dated 11-12-2006 passed by this Court whereby Jail Petition No,96 of 2005 filed by the petitioner was dismissed and conviction and sentences recorded against the petitioner by the trial Court and upheld by the Lahore High Court, were maintained.
2. Facts of the case, in brief, are that on 30-11-1998 complaint was lodged by Fateh Sher, father-in- law of the petitioner at Police Station Chikrala, District Mianwali, wherein it was alleged that the complainant Fateh Sher along with Muhammad Javed and Muhammad Shafique, were on the said date coming back from a funeral. When they reached near Government Secondary School, suddenly the petitioner armed with .12 bore gun came there and raised Lalkara that Muhammad Javed, deceased, would be taught a lesson for causing knife injury to Allah Nawaz, brother of the petitioner. The petitioner fired a shot which landed on forehead of the deceased causing his death instantly. He also fired at the complainant but he was narrowly escaped. It was also alleged that the P. Ws. Khan Muhammad and Nasrullah went to the house of Gulbaz where, he was saying to his sons, Ahmad Nawaz, the petitioner and Allah Nawaz to take revenge from Muhammad Javed deceased for causing injury to Allah Nawaz.
3. On the stated allegations, formal F.I.R. Bearing No,67 of 1998, dated 30-11-1998 was registered against the petitioner and his father, namely Gulbaz at the said police station under sections 302/109, P.P.C. And investigation was carried out in pursuance thereof. On completion of the investigation both the accused persons were challaned to the Court for trial. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused persons examined eleven witnesses in all, whereafter co-accused persons were examined under section 342, Cr.P.C. The petitioner in his above statement took the plea of alibi and stated that he at the relevant time was on duty at Gujranwala Cantt. The accused persons failed to lead any evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C. On conclusion of the trial, the Court convicted the petitioner under section 302(b), P.P.C. And sentenced him to death vide judgment, dated 21-10-2000. He was also directed to pay a sum of Rs,1,00,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to further undergo six months' R.I. Co-accused Gulbaz, father of the petitioner, was, however, acquitted of the charge under section 109, P.P.C.
4. Against his conviction and sentence the petitioner preferred appeal bearing No, Cr.A. 1637 of 2000 before the Lahore High Court, Lahore. Murder Reference bearing No,635 of 2000, for confirmation of the death sentence, was also sent by the trial Court. A Division Bench of the Lahore High Court, while maintaining conviction and sentence of the petitioner dismissed the appeal filed by him, answering the Murder Reference in the affirmative. Being aggrieved, the petitioner approached this Court through Jail Petition bearing No,96 of 2005 which was dismissed vide judgment dated 11-12-2006, hence this review petition.
5. It would be pertinent to mention here that the instant review petition was initially filed by Mr. M.
Asghar Rokhari, learned Advocate Supreme Court through Mr. A.H. Masood, Advocate-on-Record.
Along with this review petition an application bearing Criminal Miscellaneous Application No,365 of 2007 seeking permission to file and argue the review petition by Mr. M. Asghar Rokhari, Advocate Supreme Court, in place of Mr. Muhammad Anwar Khan, learned Advocate Supreme Court who had appeared and argued the main petition, was also filed. Now since Mr. Muhammad Anwar Khan, learned Advocate Supreme Court has himself appeared and argued this review petition, therefore, the said miscellaneous application has become infructuous.
6. It has been mainly contended by the learned counsel for the petitioner that since the very fact that the petitioner, at the time of occurrence, was a minor and his age, as per certificate attached with the review petition, at the relevant time was just 17 years 3 months and 21 days, could not be brought into the notice of this Court at the time of hearing of the jail petition, therefore, the impugned judgment required review. It is further his case that since the petitioner had acted under the influence of his father Gulbaz Khan, therefore, it being a strong mitigating circumstance, the petitioner deserves a lesser sentence. Reliance has been placed on the cases reported as (i)
Mahmood Rashid's case 2003 SCM R 581, (ii) Liaqat Shah's case 1985 SCM R 1415, (iii) Mst. Hafeezan 1995 SCM R 256 and (iv) Mst. Hayyat Bibi's case 1976 SCM R 128. Having been questioned as to why if the petitioner and his father were residents of Chikrala, District Mianwali, the birth certificate produced by him was issued by the Secretary Union Council, Chak No,215/R.B., Madina Town, District Faisalabad, learned counsel stated that perhaps father of the petitioner at the time of petitioner's birth was residing at Faisalabad, therefore, the certificate was obtained from Faisalabad.
7. Ch. Munir Sadiq, learned Deputy Prosecutor-General, Punjab, on the other hand, while controverting the contention raised by the learned counsel for the petitioner has submitted that since the plea regarding minor age of the petitioner was never raised before the trial, appellate or even before this Court at the time of hearing of the jail petition, therefore, the petitioner by his conduct is now estopped to raise the same at this belated stage which otherwise appears to be afterthought. Likewise the plea that the petitioner, in committing murder, acted under the influence of his father too, was neither raised nor substantiated at the trial, therefore, it was devoid of substance.
8. We have given our anxious consideration to the respective contentions of learned counsel for the parties and have also perused the record of the case with their assistance, minutely.
9. Admittedly, the contentions raised for the first time through the instant review petition regarding age of the petitioner as well as that the petitioner had acted under the influence of his father, were never raised earlier, before any Court. Though it has been objected to by the learned counsel for the State that at this belated stage the petitioner, by his conduct, is estopped to take a somersault yet, we, in the interest of justice and in order to find out as to whether there is substance in the contentions, are inclined to consider the same on merits.
10. It is explicit on record that petitioner at the time of occurrence was married because F.I.R. Exh.P.G.
Was registered on the complaint of Fateh Sher, his father-in-law and he was also serving in the army, at the relevant time.
' So far as the contention regarding age of the petitioner is concerned, though it has been pleaded that the petitioner, at the time of occurrence, was a minor and therefore, death sentence could not have been inflicted on him, yet, we are afraid the argument cannot prevail for the reasons firstly, that the plea was never raised earlier and secondly, that the plea of alibi was taken at the trial and it was specifically pleaded that since the petitioner at the relevant time i,e, commission of the offence, being an army personnel, was on duty in his regiment at Gujranwala Cantt, therefore, he was not involved in the offence, but the plea was not believed. Question No,8 and answer thereto, which is reproduced hereinbelow, for ready reference is indicative of the stand taken by the petitioner:--- "Q.8. Have you to say anything else?
Ans. I am innocent. Prior to the registration of the case, I was on leave and I was seen by the complainant party in my village 4/5 days prior to the occurrence. Three days prior to the alleged occurrence, I had gone to my Company at Gujranwala Cantt. And there I met Soobedar Ashraf Khan for consulting him to get my remaining period of leave cancelled. Soobedar Muhammad Ashraf Khan told me there that it is not possible for the office to cancel your leave. I then went to Rawalpindi to see my friend there and on 5-1-1998, I joined my duty in my Regiment at Gujranwala Cantt. I was informed about the present case at Gujranwala. Prior to 21-12-1998, nobody approached my officers or myself for my arrest. I and my father have been involved by the complainant party due to suspicion and enmity because Muhammad Javed deceased was done to death in the darkness of the night near Abadi Kaluwal and the complainant party in collusion with the Investigating Officer fabricated the story and involved me and my father in this case falsely."
' From perusal of the above answer it stands established that the petitioner was serving in the army at the time of commission of the offence, hence the plea that he was a minor, stands vanished because a minor cannot render service in the army, hence the contention on its face appears to be devoid of force. Further in the statement of the petitioner recorded on 5-1-2000 under section 342, Cr.P.C. His age has been mentioned as 30 years and it has also been written therein that he was an army personnel, therefore, his age at the time of occurrence, on 30-11-1998, as per record was about 28 years. In the case of Ijaz Hussain v. The State 2002 SCM R 1455, it was held that if special plea of minority is taken by the accused then the burden shall be on him to establish that he was a minor at the time of commission of the offence. In the said judgment it was further held that if remains unrebutted, presumption of correctness would be attached to the age given in the said statement of the accused under section 342, Cr.P.C. As it forms part of judicial record.
11. Though learned counsel for the petitioner has strenuously urged that since the offence of murder was committed by the petitioner at the instigation of his father therefore, it was not a case of capital punishment, yet, the fact remains that when specifically questioned in the course of his statement recorded under section 342,Cr.P.C. As to whether the offence of murder was committed by him at the instigation of his father co-accused Gulbaz, the petitioner had himself categorically denied the suggestion. Question No,4 and answer thereto which is reproduced hereinbelow for ready reference is explicit in this regard:- "Q.4. It is in the prosecution evidence that two days before this occurrence Gulbaz your co-accused instigated you to commit the murder of Muhammad Javed and that in prosecution of the said abetment you committed the murder of Muhammad Javed deceased. Ans. It is incorrect."
' Hence, he now is estopped to take a summersault and set up a new case in defence. It is well- settled that belated plea is irrelevant to the review petition. Reference in this regard may usefully be made to the cases of (i) Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCM R 562 and (ii) Government of Punjab v. Munawar Sultana and others 1985 SCM R 165. Thus, this contention too is without force.
12. Upshot of the above discussion is that there is no error apparent on the face of record, therefore, no case for review is made out. Resultantly, this review petition being misconceived is hereby dismissed.