' TASSADUQ HUSSAIN JILLANL J. -- Petitioner seeks review of this Court's judgment dated 12.11.2009 whereby petition for leave to appeal qua plea for lesser punishment against the judgment of the learned High Court was dismissed.
2. Learned counsel for the review petitioner Sheikh Muhammad Akram, ASC submitted that at the time of the occurrence (24.10.2001), petitioner was below 18 years of age (17 years 11 months 20 days); that on question of age petitioner had tendered documentary evidence i,e, birth certificate issued by the Union Council No, 35 Aimanabad which indicated that he was born on 4.11.1983; that the birth entry was recorded on 5.11.1983 which indicates that it was not on afterthought and that no documentary or oral evidence was tendered in rebuttal of the said document. He added that on the direction of the Trial Court, the Superintendent Civil Hospital Gujranwala constituted a Medical Board to determine the age of the petitioner; that he was examined by the Board on 15.6.2002 and in terms of the report submitted he was aged between 18Vz and 21 years of age which further strengthens petitioner's claim qua age. Yet another document was the Computerized National Identity Card (CNIC) issued by NADRA where his date of birth has been correctly recorded as 4.11.1983. Notwithstanding the afore-referred evidence and the statement made by petitioner under Sections 342 and 340(2), Cr.P.C, the learned Trial Court recorded his age as 25 years which reflects a misreading of evidence. He lastly submitted that on the strength of the evidence led, petitioner had filed an application under the Juvenile Justice System Ordinance that he be treated as juvenile but the learned Trial Court dismissed the said application for reasons not tenable in law; that even this Court while passing the judgment under review did not consider the evidence led and merely relied on the findings of the two Courts below, ln support of the submissions made, learned counsel relied on a judgment of this Court in Muhammad Aslam v. The State (PLD 2009 SC 777 at 779).
3. Khawaja Muhammad Sharif, learned Sr. ASC opposed the review petition by submitting that it is rather late in the day for the petitioner to seek review of this Court's judgment on question of sentence; that all the Courts i,e, the Trial Court, the High Court and this Court have specifically adverted to this question and there is no error in the judgment under review to warrant interference. Elaborating his submissions, learned counsel contended that the conduct of the petitioner has been contumacious throughout; that towards the fag end of the trial, he had tendered the birth certificate Ex.DA while his statement under Section 342, Cr.P.C, was being recorded; that it was a stage when the prosecution had no time to offer rebuttal. However, the learned Trial Court had itself summoned the relevant record from the Union Council and found that the register was not intact; that there were loose papers and finding the record to be dubious, it rightly did not rely on the said evidence. He further submitted that petitioner acted in a brutal manner; that he repeated fires and killed his own maternal uncle for no rhyme or reason and he does not deserve any leniency on question of sentence. 1h support of the submissions made, learned counsel relied on Sultan Ahmad v. Additional Sessions Judge (PLD 2004 SC 758), Muhammad Aslam v. The State (PLD 2009 SC 777), Atif Zaman v. The State (2003 Cr. L.J. 35), Sh.
Mehdi Hassan v. Province of Punjab (2007 SGMR 755).
4. Learned Advocate General Punjab, on the other hand, submitted that having examined the evidence and the' impugned judgment, he is of the view that it is a fit case in which this Court should interfere in review jurisdiction on question of sentence because the petitioner had taken the plea of being below 18 years of age at the time of occurrence before the Trial Court and it was incumbent on the said Court to consider the said plea through a proper enquiry on the issue raised and not summarily. According to him, this Court while passing the judgment under review mainly relied on concurrent findings recorded by the Trial Court and the High Court on question of age which findings reflect that the said issue was not decided by the Courts through a proper enquiry and in the light of the judgment of this Court in Muhammad Aslam v. The State (PLD 2009 i$C 777).
He added that this Court in the afore-referred judgment had laid down principles which the Courts should consider while deciding the question of age which inter alia emphasize as follows:-- (a)The normal penalty for an offence punishable "the death, is death, and in view of the provisions of Section 367(5), Cr.P.C., special. reasons must exist to impose, on the convict, a punishment other than a sentence of death; (b)the plea of minority by an accused is a special plea intended to take the accused off the noose and onus is thus on him to prove the same; (c)such a plea of minority must be taken by the accused at the earlier possible opportunity, preferably during the course of investigation so that the requisite evidence about the age of the accused could also be properly collected during the said exercise of collection of evidence and any delayed claim on the said account should be met by adverse inferences; ' whenever such a question of age is raised or arises at the trial, the Courts should not deal with the same in a cursory or in a slip-shod manner but must proceed to hold an inquiry in the matter as commanded by the provisions of Section 7 of the Juvenile Justice System Ordinance including medical examination of the accused for the purpose; (d)the said inquiry should not, be understood to mean only to entertain documents from across the bar and then giving a decision thereon. Such a practice needs not only to be discouraged but, in fact, to be discontinued. Basing judicial decisions on untested and un scrutinized documents was a dangerous path to tread; (e)proper compliance of the said provisions of Section 7 would be to call upon the parties to lead* their evidence--oral or documentary in accordance with the provisions of Qanun-e- Shahadat Order of 1984 with a right to the other party to test the veracity or the genuineness of the same in accordance with law and then to arrive at a judicial decision in terms thereof; (f)a medical examination of the accused person could furnish a useful guideline in the matter and should be resorted to; and finally, (g)we must always keep in mind that while it is important, being a legal command, that a "child" should not be sent to the gallows, it is equally important that the one who deserves death must not be allowed to escape the same on the strength of false and fabricated material.
5.He added that the Courts relied on the date of birth mentioned in the voters' list which is not a reliable piece of evidence as held in Babloo Pasi, v. State of Jharkhand (AIR 2009 SC 314, Para 11). He further added that the issue raised has nexus with enforcement of fundamental rights and in particular he referred to Article 4, the right to be dealt with in accordance with law and Article 9 which mandates that no person shall be deprived of his right or liberty save in accordance with law and the newly added Article 10A which reiterates the right of an individual for a fair trial and the observance of due process. He contended that the record of the Trial Court indicates that petitioner while being examined under Section 342, Cr.P.C, had specifically taken the plea that, he was 18 years of age; that he tendered Ex.DA, the birth certificate which reflects that at the time of occurrence, he was below 18 years of age; that notwithstanding the statement made by the petitioner the Trial Court recorded his age as 25 years and even according to the report of the Medical Board, he was around 18 years of age at the time of occurrence. Adverting to the application made by the petitioner on 25.6.2002 claiming that he was a juvenile, learned Advocates General submitted that the Court could' hot have summarily rejected the application and the said claim required probe and enquiry which was never conducted and the judgment under review did not consider this aspect too. In support of the submissions made, learned counsel relied on Bhola Bhagat v. State of Bihar (AIR 1998 SC 238), Abdui Ghaffar - Abdul Rehman and others v. Asghar AII and others (PLD 1998 SC 363 at 386), Shah Muhammad v. Ramzan Bibi (1998 SC MR 2415), Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 741 at 768), Rupa Ashok Hurra v. Ashok Hurra (AIR 2002 SC 1771).
6. Having heard learned counsel for the parties at some length and in view of the submissions made by learned Advocate General Punjab that question of his'age requires deeper probe and in the interest of justice this Court on 26.9.2011 requisitioned the following record:-- (h)the entire file of the medical examination of petitioner with regard to determination of his age; (ii)the original record of the Union Council No, 135 with regard to birth entry of petitioner dated 4.11.1983; and (iii)the record of National Database and Registration Authority (NADRA) including the application submitted by the petitioner for issuance of another identity card.
7. On 29.9.2011, the afore-referred record was produced. Before forming any opinion with regard to the original record pertaining to the birth entry of the petitioner, we asked the learned Advocate General Punjab to have a careful look and give his opinion. Having examined it, he submitted that the relevant entry reflected some overwriting, and therefore it could not be conclusive. So far as the National Database and Registration Authority's (NADRA) record is concerned, there is no cavil to the proposition that the entry made therein may not be conclusive proof of the age of petitioner. Even otherwise, we find that petitioner has two identity cards. According to the earlier identity card (287- 79-567498) which was issued on 2.10.2000, his date Of birth is of the year 1979. He moved an application dated before NADRA office for having a second (computerized) identity card issued.
This was at a time when his case had already been decided i,e, from Trial Court on and from learned High Court on 17.12.2008. Even before the .Trial Court, he moved the application to be treated as a juvenile when the prosecution evidence had been led and his statement under Section 340(2), Cr.P.C, was being recorded. The report of the Medical Board dated that his age could be between 1814 and 21 could not clinch the issue either.
8'. Both the Courts/.e. the Trial Court as also the Lahore High Court examined the record of Registration of Birth in NADRA to be 23 years of age. Even in the voters' list, he was of the same age at the time of occurrence. The birth entry in the record of-the union council was found to be dubious. This Court in judgment under review concurred with these findings. However, for our satisfaction and in the interest of justice, we requisitioned the record of the birth entry from the union council, perused the same carefully and were not persuaded to disagree with the concurrent findings rendered in this regard. Even otherwise, the review jurisdiction has a limited scope but since it was an issue of life and death, we deemed it proper to delve deeper into it,' although the question with regard to determination of age is primarily a question of fact to be decided by the Trial Court in the light of this Court's judgment in Muhammad Aslam v. The State (PLD 2009 SC 777).
9. For what has been discussed above, we do not find any error apparent in the face of record to warrant review. The petition lacking in merit is accordingly dismissed.