ABDUL HADI KHOSO, J.---This Criminal Revision has been filed under sections 435/439 read with 561-A, Cr.P.C. Against the judgment dated 13-5-2010 passed by the learned IVth Additional Sessions Judge (South) Karachi in Sessions Case No.555 of 2004, whereby, the respondent No. 2 is found guilty of the charge under sections 302/380, P.P.C. But treating him as Juvenile, convicted under sections 302/380, P.P.C. And sentenced him for 10 years and 4 years respectively with benefits of section 382-B, Cr.P.C. Of running of the sentences concurrently. At the same time learned Court released the convict under section 11 of the Juvenile Justice System Ordinance 2000 on probation for good conduct and placed under the care of Probation Officer on executing upon surety in tie sum of Rs.300,000 to the satisfaction of the Probation Officer for three years of remaining period of award of the sentence. The applicant has prayed for setting aside the impugned Judgment.
2. Brief facts of the case are that the deceased Muhammad Bashir brother of the Complainant/applicant was working as Customs Officer and was residing at Hina Palace Karachi was murdered by some unknown person aged 21/22 years, who according to watchman was seen with deceased, and took away car No.ED-0667 made Mitsubishi Lancer of the deceased which was parked in the Railway compound in front of the Hina Palace. Such information was conveyed by one Fazal Rabi on 8-8-2004 at about 6-30 p.m. On phone to the complainant at Peshawar. The applicant along with brothers, sister and others rushed for Karachi and reached there on 9-8-2004 and found that the flat of the deceased was sealed by the police. The applicant went to concerned Police Station and after observing the legal formalities the police official of the said Police Station came to the flat of the deceased de-sealed it. On checking of the flat complainant found brief case containing precious articles, cash licence pistol, mobile Phone. VCD and Rado Watch belonging to deceased missing. Thereafter, the applicant lodged F.I.R. No.99 of 2004 at about 12-00 Noon on the same date with P. S. Artillery Maidan.
3. That during investigation respondent No.2 was arrested by the police on 19-8-2004 along with Car and after the investigation the convict/accused was challaned before the Court. The trial Court after completing the legal formalities framed the charge on 6-5-2005 against the respondent No.2 for committing the murder of deceased and theft of the articles from the flat of the deceased. The trial commenced and the trial Court examined as many as 29 witnesses including the applicant.
The prosecution closed its side. The statement under section 342, Cr.P.C. Of the accused was recorded but he denied the allegations and did not opt either examine himself on Oath or led any evidence in defence. After hearing the learned Counsel, the trial Court passed the judgment, which is impugned in this revision application.
4. Mr. Jamal Ahmed Mufti, learned Counsel for the applicant has argued that the applicant has assailed the judgment dated 13-5-2010 passed by the learned IVth Additional Sessions Judge South awarding the sentence of ten years imprisonment to the respondent No.2 for committing the qatl-e-amd of deceased Muhammad Bashir, considering him as a minor without declaring him as a minor as required under section 7 of Juvenile Justice System 2000 which is illegality and cannot be curable under section 537, Cr.P.C. And this illegality is evident from the records the proceedings available in this Court. He has further argued that the charge was framed on 6-5-2005 wherein it is not mentioned that the trial Court has acted as a Juvenile Court. The evidence of prosecution witnesses has been recorded by the trial Court wherein it is also not mentioned that the evidence has been recorded by the Juvenile Court. Apart from above the statement recorded under section 342, Cr.P.C. Of the accused, no question of minority has been asked by the Court to show that the accused was considered as minor. He has further argued that the Judgment also does not show that the trial of the accused has been conducted under the provisions of the sections 4 and 5 of the Juvenile Justice System 2000. The complainant had made an application to the trial Court on 8-12-2004 requesting for referring the accused to the Civil surgeon for constituting Board of the Doctors to ascertain his age. The accused/respondent was examined by the Medical Board and the Board had opined his age about 17/18 years. The complainant had also produced the documents showing the date of birth of the accused as 19-11-1985 in Nadra Birth Certificate issued by the District Municipal Corporation South Karachi showing date of birth of Respondent 19-11-1985, School Leaving Certificate of Umair Ashraf Showing the date of Birth 19-11-1985 and B-Form of the father of the Umair Ashraf. The above documents have been verified by the I.O. And produced the same in the evidence during his evidence in the Court.
5. Learned Counsel has further argued that the accused had applied for bail on the ground of his Minority but the learned trial Court had not considered him as a minor and had elaborately passed the order while rejecting his bail application dated 25-10-2005. The above order was challenged before the honourable High Court in Criminal Bail Application No.1\179 of 2005 wherein the ground of the minority was taken by the accused but same was not pressed before the honourable High Court and it was dismissed vide Order dated 31-1-2006. The above ample evidence was available in the Court regarding the majority of the accused hence the learned trial Court did not pass the order as minor and proceeded the case according to law of conducting the case of adult accused.
He has further argued that the learned Trial Judge fell in error at the time of judgment and passed the order awarding the lesser punishment which is not consonance with the law and cannot be sustainable. Learned Counsel has relied upon 2004 SCMR 1 (Faruukh Sayyar and others v.
Chairman NAB), PLD 2004 758 (Sultan Ahmed v. Additional Sessions Judge Mianwali and others), 2003 YLR 321 (Muhammad Naeem v. The State), 2003 YLR 315 (Ahmed Khan v. The State), PLD 2008 Lah. 26 (Zatar Iqbal v. Ehsan Ali & others), 2002 SCMR 440 (Muhammad Ishaq v. Muhammad Nadeem), PLD 2007 SC 202 (Nazir v. State).
6. On the other hand, Mr. Nasir Mehmood, learned Counsel for the respondent No.2 has supported the impugned judgment in view of the medical report and opposed the present revision while contending that the trial Court has rightly passed the impugned judgment. He has relied upon 2001 PCr.LJ 1939. 2001 "MLD 1191 and 2004 PCr.LJ 105.
7. Mr. Abdullah Rajput, learned State Counsel, has supported the arguments of the applicant's Counsel.
8. I have heard learned Counsel for the parties and have minutely perused the record of the case.
9. It appears that the applicant has assailed the impugned judgment passed by the learned IVth Additional Sessions Judge South awarding the sentence of ten years imprisonment to the respondent No.2 for committing the Qatl-e-amd of deceased Muhammad Bashir considering him as a minor without declaring him as a minor as required under section 7 of Juvenile Justice System 2000 which is not curable under section 537, Cr.P.C. And this illegality evident from the record of the proceedings before this Court. It further appears that the charge was framed on 6-5-2005, which does not mention that, the trial Court has {1F7BB1E4-E0DD-4B04-B018-8F7BEF67A969}acted as a Juvenile Court. The evidence of prosecution witnesses has been recorded by the trial Court wherein it is also not mentioned that the evidence has been recorded by the Juvenile Court. Moreover, the statement recorded under section 342, Cr.P.C. Of the accused no question of minority has been asked by the Court to show, that the accused was considered as minor. The Judgment also does not show that the trial of accused has been conducted under sections 4 and 5 of the Juvenile Justice System Ordinance 2000. It further appears that the accused/respondent No.2 was examined by the Medical Board and the Board had opined his age about 17/18 years. The applicant had also produced the documents showing the date of birth of the accused as 19-11-1985 in Nadra Birth Certificate issued by the District Municipal Corporation South Karachi School Leaving Certificate of Umair Ashraf Showing the date of Birth 19-11-1985 and B-Form of the father of Umair Ashraf.
10. In the light of above facts and circumstances of the case, it appears that the learned trial Court has erroneously considered the respondent No.2 as minor. Therefore, the impugned judgment is set aside. The case is remanded back to the trial Court for a fresh decision while considering the respondent No.2 as adult and the trial Court is directed to issue N.B.Ws. Of the accused/respondent No.2.
The revision application is allowed.
R and P of the case be returned to the trial Court along with the copy of this order for compliance within one week.