MANZOOR AHMAD MALIK, J.--- After a regular trial, Muhammad Anwar was convicted by the learned Additional Sessions Judge, Vehari vide judgment dated 27.06.1998, under section 302(b), PPC and sentenced to death, besides being convicted and sentenced under sections 324 & 337-D, PPC. Aggrieved of his conviction and sentence, convict Muhammad Anwar filed a criminal appeal before the Lahore High Court, Multan Bench, Multan which was dismissed vide judgment dated 25.07.2001 and conviction and sentence of Muhammad Anwar was maintained. The murder reference was accordingly answered in the affirmative. The convict filed a criminal petition before this Court wherein leave was granted. However , the criminal appeal was dismissed by, this Court vide order dated 11.10.200.7 and conviction and sentence of the convict filed a review petition, which was also dismissed by this Court on 05.06.2009 as having not been pressed. The mercy petition filed by the convict was dismissed by the President of Islamic Republic of Pakistan.
2. On 13.12.2001, the Ministry of Interior , Government of Pakistan issued notification No. 8(4)/2001 PINS dated 13.12.2001 (Presidential Order ), wherein it is mentioned that the President of Pakistan in exercise of his prerogative under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973 on the advice of the Chief Executive, has been pleased to grant special remissions in sentences and the death sentence of those condemned prisoners who were, juvenile as defined in the Juvenile Justice System Ordinance, 2000 at the time of commission of offence -stood commuted to life imprisonment provided that the death sentence has been awarded under Ta'zir and not Qisas or under other Hudood Laws. On the strength of this Presidential Order , the convict. Muhammad Anwar approached the Home Secretary , Government of Punjab for conversion of his death sentence into imprisonment for life on the ground that on the date of occurrence i.e. 06.03.199 3, he was below the age of 18 years and as such after promulgation of the Juvenile Justice System Ordinance, 2000, he being a minor at the time of commission of offence, could not be sentenced to death. The said representation of convict, as per learned counsel for the petitioner , was not decided, whereafter , the convict Muhammad Anwar filed an application before the learned Sessions Judge, Vehari which was dismissed on 01.07.2009. Aggrie ved of that order , the petitioner filed W.P. No. 6092 of 2009 which was disposed of vide order dated 05.05.2015, with a direction to the Secretary , Home Department, Government of the Punjab to decide 'application/representation of the petitioner by 08.05.2015 and to submit report for perusal of learne d Judge in chambers of High Court. It is recorded in the impugned order that the Home Department Government of the Punjab submitted a report that in view of judgment of this Court reported as Ziaullah v. Najeebullah and other s (PLD 2003 SC 656), it was the Court which was required to determine the question of juvenility of a convict/condemned prisoner .
3. The convict Muhammad Anwar in view of dicta laid down in Ziaullah supra filed another application before the learned Sessions Judge, Vehari, but the same was also dismissed vide order dated 29.06.2015 on the ground that no lis was pending before the Court and it had become functus officio . The convict Muhammad Anwar challenged the order of learned Sessions Judge, Vehari before Lahore. High Court. Multan Bench, Multan by filing W.P. No. 11557 of 2015, which was disposed of vide order dated 17.12.2015, with a direc tion to learned Sessions Judge Vehari to decide the application of convict Muhammad Anwar to determine his juvenility afresh, in view of law laid down by this Court in Ziaullah supra. The learned Sessions Judge, Vehari again dismissed the application of the convict Muhammad Anwar vide order dated 18.12.2015 on the ground that no representation of convict was ending before the Home Department claiming juvenility and since his death sentence had been confirmed by the Supreme Court, therefore, issue of juvenility of convict could not be determined. The convict then challenged the order dated 18.12.2015 before the learned High Court, Multan Bench, Multan by filing W.P. No. 18943 of 2015, which was dismissed through the impugned order dated 11.02.2016 on the ground that since the Supreme Court had refused to commute sentence of death of convict, therefore, learned High Court was left with no jurisdiction to reopen the past and closed matter in Constitutional jurisdiction. Hence, the instant civil petition for leave to appeal.
4. Learned Counsel for the petitioner (brother of convict Muhammad Anwar) has vehemently contended that Presidential Order was issued on 13.12.2001 i.e. after the pronouncement of judgment by the learned High Court maintaining conviction and sentence of the convict Muhammad Anwar; that Juvenile Justice System Ordinance.
2000 was promulgated after the passa ge of Judgment (dated 27.06.1998) of learned trial Court, whereby Muhammad Anwar was convicted and sentenced to death. He has drawn our attention to the order dated 05.06.2009 passed by this Court in review petition to contend that in fact the petitioner had not pressed the review petition in order to approach the competent authority for redressal of his grievance in the light of Presidential Order but the learned Courts below have failed to consider this aspect of the matter . He canvassed at the Bar that convict Muhammad Anwar is not praying for anything over and above the law but only prays for the benefit of Presidential Order as he was a juvenile at the time of occurrence i.e. on 06.03.1993 and it is established from the documents placed on record and his statement recorded by the trial Court (on 19.06.1998) while examining him under section 342, Code of Criminal Procedure where age of the convict Muhammad Anwar has been mentioned about 24 years, it is crystal clear that at the time of occurrence which took place on 06.03.1993, the convict Muhammad Anwar was a juvenile within the meaning of section 7 of .the Juvenile Justice System Ordinance, 2000. Learned counsel has also placed on record birth certificate of convict Muhammad Anwar issued by concerned Union Council wherein his date of birth is mentioned as 28.12.1975, his school leaving certificate wherein his date of birth is mentioned as 05.03.1972; his national identity card wherein his date of birth is mentioned as 28.12.1975 and the report of Medical Board dated 21.03.2002, whereby it was concluded that age of convict Muhammad Anwar was 25 to 30 years. Learned counsel lastly contended that the occurrence in this case took place on 06.03.1993 and convict Muhammad Anwar was lodged in jail on 23rd of March, 1993 meaning thereby he is behind the bars, for the last about 28 years; that he was convicted by the learned trial Court on 27.06.1998 and sentenced to death, whereafter he is lodged in. death cell for the last about twenty-two years but the matter of determination of his juvenility has not been decided by the learned Courts below for one or the other technical reason and it would not be fair at this stage to remand the case to learned Sessions Judge concerned, rather it would be in the interest of justice and within the powers of this Court to do complete justice, to decide the issue of juveni lity of convict Muhammad Anwar on the basis of material available:. on record particularly the report of Medical Board constituted by Home Department, Government of the Punjab, wherein the age of convict Muhammad Anwar has been determined and the age of the convict mentioned by the trial Court while recording his statem ent under section 344 Code of Criminal Procedure.
5. Learned Prosecutor General, Punjab assisted by learned Additional Prosecutor General, learned Additional Advocate General, Punjab and learned Advocate High Court appearing on behalf of complainant (with special permission of the Court) have, however , opposed the petition.
6. After hearing the learned counsel for the parties at length and perusal of availabl e record, with their assistance, it is observed that facts regarding convictio n and sentence of convict Muhammad Anwar are not disputed. It is also not disputed that the convict Muhammad Anwar , after his arrest in this case, was lodged in jail on 23rd of March, 1993 i.e. about twenty-eight years ago and since then he is behind the bars. Admitt edly the petitions filed by convict Muhammad Anwar seeking benefit of Presidential Order were dismissed thrice by the learned Sessions Judge, Vehari on 01.07.2009, 29.06.2015 and 18.12.2015. The learned High Court, as alluded to in Paras 2 & 3 above, also did not accede to the prayer of the convict Muhammad Anwar . At this stage, it would be proper to refer to the relevant portion of the Presidential Order:--- "a. The death sentence of those condemned prisoners who were juvenile defined in the Juvenile Justice System Ordinance, 2000 at the time of commission of offence stands-commuted to lift imprisonment provided that the death sentence has been awarded under T a'zir and not Qisas or under other Hadood Laws.
2. The Provincial Governments shall ensure that the age as recorded by the trial Court entitles the condemened prisoner to such commutation.
3. In case of any doubt about the age, medical opinion may be obtained and decision taken by a committee comprising on expert. Home Secretary , I.G. Prisons and the Superintendent of the Jail where the condemned prisoner is housed 4. Those who have been convicted on or before 17.12.2001 are entitled for the above-said special remission.
7. It is clear from the aforesaid Order that those condemned prisoners who were convicted and sentenced on or before 17.12.2001 are entitled for special remission i.e. conversion of death sentence into imprisonment for life on the basis of juvenility at the time of commission of offence. Indeed, the convict Muhammad- Anwar was convicted and sentenced by the learned trial Court on 27.06.1998 and criminal appeal filed' by him against his conviction and sentence was dismissed by the learned High Court on 02.07.2001 i.e. before the issuance of Presidential Order .
8. At this stage, it is observed that in the circumstances of the case, this Court his two options; first to remand the case to the Sessions Judge concerned to resolve the controversy regarding juvenility of the convict Muhammad Anwar; and/or second, to resolve the issue in these proceedings on the basis of material available on record.
9. After the issuance of Presidential Order , the convict Muhammad Anwar filed first application before the learned Sessions Judge, Vehari on 08.04.2009 i.e. about twelve years ago, with the claim that he was a juvenile at the time of commission of offence and was entitled to the benefit of Presidential Order but the said application was dismissed on 01.07.2009; f the writ petition field by him before the learned High Court was also disposed of on 05.05.2015 i.e. after six years of the dismissal of his application by the learned Sessions Judge, Vehari, with a direction to the Home Department, Gover nment of the Punjab to decide application/representation of the petitioner positively by 08.05.2015; thereafter , two more attempts on the same issue made by the convict Muhammad Anwar or on his behalf failed before the learned Sessions Judge Vehari on 29.06.2015 and 18.12.2015 and before the learned High Court on 17.12.2015 and 11.02.2016, as alluded to in Paras 2 & 3 above. It has- been observed-by us with concern that in the last twelve years, the determination of juvenility of convict Muhammad Anwar is in limbo and has not been decided. Therefore, in the peculiar circumstances of the case particularly the fact that convict Muhammad Anwar is behind the bars for the last about 28 years and the matter regarding his claim of juvenility at the time of occurrence is pending for the last about 12 years, we are not inclined to remand the matter .
10. Learned counsel for the petitioner has placed reliance on the birth certificate of convict Muhammad Anwar , his school leaving certificate and his national identity card. The authenticity of these documents cannot be determined in these proceedings but even if these documents are kept out of consideration, it has been observed by us that statement of convict Muhammad Anwar recorded by learned trial Court on 19.06.1998 i.e. after about five years and three months of the occurrence, while examining him under section 342, Code of Criminal Procedure shows that his age has been mentioned as abou t 24 years by the learned trial Court. If this fact is accepted as correct, the age of convict Muhammad Anwar at the time of commission of offence i.e. on 06.03.1993 comes to less than 19 years. It has also been observed by us that the learned trial Court, in its judgment dated 27.06.1998, whereby Muhammad Anwar was convicted and sentenced, has observed in Para 34 that convict Muhammad Anwar was a young man. It is also significant to note that learned counsel for the petitioner has placed on record through C.M.A.
No. 978 of 2017 a report of Medical Board constituted by the order of Home Department, Government of the Punjab whereby ossification test of convi ct Muhammad Anwar was conducted on 21.03.2002 i.e. after about nine years of the occurrence, to determine whether he was a juvenile or not at the time of commission of offence. In that report, the Medical Board has opined that the age of Muhammad Anwar was 25 to 30 years (on 21.03.2002) meaning thereby at the time of occurrence i.e. on 06.03.1993 his age would be 16 to 21 years. Learned Prosecutor General, learned Additional Advocate General, learned Additional Prosecutor General and learned Advocate High Court appearing on behalf of complainant have not taken exception to the said report of the Medical Board. In these circumstances, it is concluded that at the time of commission of offence, the convict Muhammad Anwar was a juvenile within the meaning of section 7 of the Juvenile Justice System Ordinance, 2000.
11. For the foregoing, the instant civil petition is converted into an appeal and the same is hereby allowed. The impugned order of the learned High Court dated 11.02.2016 and that of learned 'Sessions Judge, Vehari dated 18.12.2015 are set aside. It is declared that convict Muhammad Anwar was a juven ile at the time of commission of offence within the meaning of section 7 of the Juvenile Justice System Ordinance, 2000 and is entitled to the benefit of Presidential Order dated 13.12.2001. Therefore, conviction of Muhamm ad Anwar under section 302(b), PPC is maintained, however , his sentence of death is converted into imprisonmen t for life. Instead of payment of fine to legal heirs of deceased, convict Muhammad Anwar is directed to pay compensation of Rs. 25000/- to the legal heirs of deceased, in default whereof he has to undergo SI for six months. The, convictions and sentences of convict Muhammad Anwar under sections 324 and 337-D, PPC are upheld. Benefit of section .382-B, Code of Criminal Procedure is extended to him and it is ordered that all the senten ces of imprisonment shall run concurrently .