2007 S C M R 758

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Nawaz Ahbasi and Hamid Ali

Mirza, JJ

SARFRAZ alias SHAFFA----Petitioner

Versus

THE STATE and 3 others----Respondents

Civil Petition No.3499-L of 2002; decided on 28th June, 2006.

(On appeal from the judgment, dated 10-9-2002 of the Lahore High Court
Bahawalpur Bench, passed in Writ Petition No.3083 of 2002/BWP)

Juvenile Justice System Ordinance (XXII of 2000)---

----S. 2-B---Constitution of Pakistan (1973), Arts.45, 199 & 185(3)--Death

sentence awarded to accused was upheld by Supreme Court--Plea of age
of accused not raised before Trial Court and Appellate Courts---
Constitutional petition filed to seek benefit of special remission vide
notification dated 13-12-2001 issued by the President---Trial Court
convicted accused/petitioner on murder charge and sentenced him to
death---Appeal filed thereagainst was dismissed by High Court---Petition
for leave to appeal against finding of High Court was rejected by
Supreme Court on 9-5-2002---Petitioner thereafter tiled constitutional
petition before High Court, claiming benefit of special remissions
pursuant to notification dated 13-12-2001 issued by the President of
Pakistan in exercise of powers as conferred upon him under Art.45 of the
Constitution---Petitioner had also claimed that being minor as defined by
S.2-B of Juvenile Justice System Ordinance, 2000, death sentence could
not have been awarded to him---Constitutional petition tiled by petitioner
was, however, dismissed by High Court--Validity---Notification by the
President dated 13-12-2001 revealed that Provincial Governments were
to ensure prior to commutation of death sentence to imprisonment for
life that age as recorded by Trial Court entitled condemned prisoner to
such commutation--Plea of age, was never taken either before Trial or
Appellate Courts including the Supreme Court--Petition for leave to
appeal preferred on behalf of petitioner was decided by Supreme Court
whereby judgment of High Court had been kept intact---No interference,
at this belated stage could be made as petitioner failed to make out a case
for special remission-Fact-urn of age was never pressed into service nor
it was ever recorded by Trial Court---Petitioner was not to be entitled to
any commutation by virtue of Presidential notification dated 13-12-2001--
-Petition for leave to appeal was dismissed.

Rehmat Ullah v. Home Secretary, Punjab 2004 SCMR 1861 rel.

M.A. Zafar, Advocate Supreme Court for petitioner.

Nemo for Respondents.

Date of hearing: 28th June, 2006.

JUDGMENT

JAVED IQBAL, J.---This petition for leave to appeal is directed against the
order, dated 10-9-2002 whereby the writ petition preferred on behalf of
petitioner has been dismissed wherein the petitioner had claimed to be a
child as defined under section 2-B of the Juvenile Justice System
Ordinance, 2000 which was promulgated on 1-7-2000. The petitioner had
also claimed benefit. of the special remissions pursuant to the
notification, dated 13-12-2001 issued by the President of Pakistan in
exercise of powers as conferred upon him under Article 45 of the
Constitution of Islamic Republic of Pakistan.

2. Heard Mr. M.A. Zafar, learned Advocate Supreme Court on behalf of

the petitioner who mainly confined his contention to the interpretation
of notification dated 13-12-2001 with the further submission that the
sentence of death could not have been awarded to the petitioner in view
of the provisions as contained in section 2-B of the Juvenile Justice
System Ordinance, 2000.

3. We have carefully examined the contentions as agitated on behalf of

petitioner in the light of relevant provisions as contained in the Juvenile
Justice System Ordinance, 2000 as well as notification dated 13-12-2001. A
careful scrutiny of the record would reveal that the plea of "juvenile" was
never taken before the learned trial and Appellate Courts. It is wroth
mentioning that even it did not find mention in the petition for leave to
appeal filed before this Court which was also rejected. The petitioners'
case now mainly revolves around the notification dated 13-12-2001
issued by the President of Pakistan which has been interpreted by this
Court in case Rehmat Ullah v. Home Secretary, Punjab 2004 SCMR 1861
and relevant portion whereof is reproduced hereinbelow for ready
reference:--

"(1) ----------------------------------------------------------

(a) 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 stands commuted to life
imprisonment provided that the death sentence has been awarded
under Ta'zir and not Qisas or under other Hudood Laws.

(2) The Provincial Governments shall ensure that the age as

recorded by the trial Court entitles the condemned prisoners to
such commutation. (Emphasis provided).

(3) In case of any doubt about the age, medical opinion may be
obtained and decision taken by a committee comprising an 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."

4. The above reproduced notification has been couched in a simple

and plain language and being free from any ambiguity there is
hardly any scope for its scholarly interpretation. It has been made
crystal clear in the said notification that the Provincial
Governments shall ensure prior to commutation of death sentence
to imprisonment for life that the age as recorded by the trial Court
entitles the condemned prisoners to such commutation. No such
age was ever recorded by the trial Court, hence the petitioner
would not be entitled for any commutation.

In fact, the question of age was never agitated before the learned
trial Court, appellate Court as well as this Court. It is too late in the
day to raise such a plea now as at the time of occurrence, his date
of birth has been shown as 8-3-1976 which was never challenged
and thus there was no occasion for the trial Court to get the
ossification test conducted. Nothing, has come on record showing
that the age as recorded by the trial Court entitles the petitioner to
such commutation which is mandatory prerequisite before any
benefit is claimed." (Emphasis provided)

4. The case of the petitioner has been examined in the light of the
touchstone of the criterion as mentioned hereinabove and we are of the
considered view that the above notification cannot be pressed into
service being not applicable in this case. In fact it appears to be a futile
exercise to get the matter prolonged. As mentioned hereinabove the plea
of age was never taken either before the learned trial or Appellate Courts
or even before this Court. The petition for leave to appeal preferred on
behalf of petitioner was decided by this Court vide order dated 9-5-2002
and the judgment of learned High Court was kept intact and hence no
interference at this belated stage, can be made as the learned Advocate
Supreme Court failed to make out a case for special remission. The
factum of age was neither pressed into service nor it was ever recorded
by the learned trial Court hence the petitioner would not be entitled for
any commutation by virtue of the said notification as pressed time and
again. The controversy has been set at naught by this Court in Rehmat
Ullah v. Home Secretary's case (supra) and no further deliberation would
be required. The petition being devoid of merit is dismissed and leave
refused.

S.M.B./S-77/SC Petition dismissed.

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