IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition for leave to appeal is directed against the order of the Lahore High Court, dated 22-10-2002, whereby Writ Petition No,6638 of 2002 filed by the petitioner was dismissed.
2. Precisely stating the facts of the case are that respondent Najeebullah and his brother Ameenullah were tried by the Special Judge, Anti-Terrorism Court, Sargodha Division, Sargodha, for committing the murder of one Fida Muhammad. Learned trial Court vide judgment dated 17-3-1999 convicted the accused under section 302/34 P.P.C, and sentenced him to death with fine of Rupees One Lac or ten years' R.I. In default. However, co-accused Ameenullah was sentenced to 14 years'
R.I. With fine of Rs,10,000, or three months' R.I. In default. The learned Division Bench of the Lahore High Court, Lahore in appeal filed by convicts vide judgment dated 18-10-1999 maintained the conviction and sentence of respondent Najeebullah. However, co-accused Ameenullah was acquitted of the charge, and the Criminal Revision filed by the complainant Ziaullah for enhancement of the sentence of fine and imprisonment was dismissed. Respondent Najeebullah preferred Criminal Petition for leave to appeal being No,261/99 before this Court, which was dismissed on 13-9-2000 and leave to appeal was declined. Thereafter, he submitted a mercy petition before the President of Pakistan, but the same was also rejected. It is informed that once again he approached the President of Pakistan with the request for extending the time for execution of the sentence because he wanted to have compromise with the complainant party.
3. Meanwhile, President of Pakistan in exercise of powers under Article 45 of the Constitution of the Islamic Republic of Pakistan vide letter dated 13-12-2001 granted special remission to those condemned prisoners, who were Juveniles as defined in the Juvenile Justice System Ordinance, 2000, at the time of commission of offence, and their sentences were directed to be commuted to life imprisonment provided that the death sentence has been awarded under Ta'zir not Qisas or under other Hadood Laws. In pursuance of remission granted by the President of Pakistan, the Home Secretary Punjab, Lahore, constituted a committee under his Chairmanship alongwith I.-G.
Prisons, a Medical Expert from the Health Department and the Superintendent Jail concerned as Members, to determine the ages of the prisoners, who have claimed the benefit of remission awarded by President of Pakistan.
4. Respondent Najeebullah to claim the benefit of above remissions granted by the President of Pakistan, filed Writ Petition No,2054 of 2002 in the Lahore High Court, Lahore, which was disposed of vide order dated 2-4-2002. And its relevant paragraph reads as under:-- "2 ... According to the learned counsel for the petitioner during the course of trial and appeal, the Government of Pakistan issued Juvenile Justice System Ordinance, 2000 for protection of rights of children involved in criminal litigation. The child as defined as follow in Article 2(b) of the Ordinance: Child means a person who at the time of commission of an offence has not attained the age of 18 years.' According to the learned counsel for the petitioner a birth certificate has been produced showing the age of the petitioner at the time of the commission of offence less than 18 years hence under the Juvenile Justice System Ordinance, 2000 death sentence is converted into life imprisonment.
Mian Faheem-ud-Din, Assistant Superintendent Central Jail Mianwali has entered appearance and filed report and parawise comments. Two "certificates have been produced one from the petitioner and the other from the complainant and in this respect inquiry has to be conducted and the matter is liable to be referred for the constitution of the Medical Board to determine the age of the petitioner whether he is less than 18 years of age at the time of commission of the offence or not.
According to the Superintendent Jail the matter was referred to the Home Secretary Punjab and he had directed that the Medical Board to be constituted to determine the age of the petitioner and after constitution of the Medical Board and the determination of the age of petitioner some decision will be made in accordance with law. Medical Board is yet to be constituted. Petitioner can approach to the competent authority who shall conduct the inquiry regarding age of the petitioner after his conviction and the competent authority shall pass an appropriate order in accordance with law."
5. When the petitioner being complainant in the case, learnt about the passing of the aforesaid order of the High Court, he also filed a separate Writ Petition No,6638/2002, which was dismissed on 22-10-2002 in the following terms:-- "2. I have heard the learned counsel. I am afraid the order passed by the High Court in Constitutional jurisdiction cannot be challenged through another Constitutional petition. Proper course for the petitioner should have been to assail the order passed by this Court in Writ Petition No,2054/2002 before appropriate forum."
6. Now the petitioner has approached this Court against the above order passed by the learned High Court.
7. After hearing the learned counsel for the petitioner on the question "as to whether an Executive Authority is empowered to determine the question of age of a convict or such exercise should be done by a judicial forum" notices were issued to the Attorney-General for Pakistan as well as Provincial Law Officer and parawise comments were also solicited from the Home Secretary, I.-G.
Prisons Punjab, Lahore, etc. In response to the notices they submitted parawise comments stating that a Committee has been constituted to determine the age of the respondent at the time of commission of the offence.
8. Mr. Muhammad Asghar Khan Rokhri, learned Advocate Supreme Court for the petitioner has referred to section 7 of the Juvenile Justice System Ordinance, 2000, which reads as under:-- "7. Determination of age.--If a question arises as to whether a person before it is 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."
' According to the learned counsel, the Home Secretary or for that matter any other Government functionary has no judicial power to determine the question of age of an accused who claims himself to be below the age of 18 years at the time of commission of offence. He also stressed that plea of being below the age of 18 years is being raised by the convict without substance and with a view to prolong the implementation of order of the Court wherein he has been directed to be hanged by neck till he is dead for the murder of Fida Muhammad.
9. In response to the arguments of learned counsel for the petitioner, Mr. Muhammad Nawaz Bhatti, learned Deputy Attorney-General, stated that the Government has already taken notice of this aspect of the matter and now a summary has been submitted before the Prime Minister of Pakistan to authorize Juvenile/Sessions Court to determine the age of a convict who claims himself minor at the time of commission of the offence.
10. Ms. Yasmeen Sehgal, learned Assistant Advocate-General Punjab, stated that as the respondent has raised the plea of being below 18 years age at the time of commission of the offence, therefore, this question should be determined by the competent forum and his plea should not be rejected merely for the reason that the Executive Authorities are determining this factor because Constitution has guaranteed him protection of life. Mr. Dil Muhammad Tarrar, learned Advocate Supreme Court for accused/respondent adopted arguments of State Counsel.
11. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court, who was present in the Court.
Invited our attention towards the decision of this Court in Criminal Petition No,97 of 2002, dated 27- 5-2002, wherein for the determination of identical question the matter was referred to the Sessions Court/Juvenile Court. Relevant para from the said judgment reads as under:-- "4. After hearing at length, learned counsel for the parties, we, in the interest of justice and legal pleas raised, so as to avoid future complications in the trial of case; remand the case to the learned Sessions Judge/Juvenile Court, Rawalpindi to re-determine the age of respondent Muhammad Haleem son of Muhammad Arbi in terms of section 7 of the Juvenile Justice System Ordinance, 2000 after allowing the parties to lead further evidence if it is so desired and hearing them on all legal pleas to be raised and on finding arrived at, the said respondent/accused be tried by competent forum in accordance with law. The petition is disposed of accordingly."
12. The President of Pakistan has allowed special remission in exercise of his powers under Article 45 of the Constitution of Islamic Republic of Pakistan in Ta'zir cases to the juvenile offenders who were below 18 years at the time of commission of the offence to claim the benefit.
13. It seems that a good number of prisoners who never took the plea of being below 18 years during the trial but after the pronouncement of said Special remission, they have started making effort to prove themselves to be below 18 years at the time of the commission of the offence so that they could be benefited by special remission announced by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan. Essentially question relating to determination of the age of such claimant in terms of section 7 of the Juvenile Justice System Ordinance, 2000 can only be determined by a judicial forum because it is a question of fact which can be settled judiciously for the purpose of treating the accused to be juvenile offender. As far as Executive Authorities or any Committee constituted by them is concerned, it enjoys no power to discharge the judicial function. If they are allowed to do so, it would be negation of the concept of independence of judiciary. Similarly, it would give rise to number of related complications on account of which possibility would be that in the garb of exercise of such powers the judgments of the superior Courts are nullified by reducing the sentences of death to life imprisonment by the Executive Authorities on the argument that the age of the accused was below 18 years at the time of commission of offence. This Court in the case of Sh. Liaquat Hussain and others v. Federation of Pakistan PLD 1999 SC 504 has held that any Court or Tribunal which is not found on any of the Articles of the Constitution cannot lawfully share judicial powers with the Courts referred to in Articles 175 and 203 of the Constitution of Islamic Republic of Pakistan, therefore, following the above dictum, we are inclined to hold that, the Committee constituted by the Home Secretary, Government of Punjab for the purpose of determining the age of an accused, who claims himself to be below 18 years of age at the time of commission of the offence, has no lawful authority to do so and if at all such question requires to be determined, the matters can be referred to concerned Sessions Judge, who also exercises powers of Juvenile Court under Juvenile Justice System Ordinance, 2000. It would also be pertinent to observe that the Sessions Judge/Juvenile Court, if required to determine the age of an offender, who claims himself to be below 18 years, at the time of commission of the offence, may dispose of his request expeditiously because by advancing such plea by a convict, element of causing delay in execution of the death sentence cannot be ruled out. Thus for the above reasons, instant petition is converted into appeal, allowed and case remanded to the Sessions Judge/Juvenile Court, Mianwali for determination of following questions, expeditiously as far as possible within a period of four weeks, after receipt hereof:-
(1) Whether he, convict-Najeebullah son of Ghulam Muhammad, wasminor at the time of registration of F.I.R. No,12 of 1998, dated 31-10-1998: and
(2) Whether he is entitled for the benefit of section 7 of the Juvenile Justice System Ordinance, 2000, read with the order of President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan whereby special remission has been extended to the offenders, who were minor at the time of commission of offence. Learned Sessions Judge/Juvenile Court after completing the inquiry shall inform its result to the concerned authority responsible for executing the sentences.