ZULFIQAR ALI vs SECRETARY, HOME DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 3 others
This constitutional petition was filed by the brother of a death-row convict seeking the benefit of a Presidential Notification dated 13-12-2001, which purportedly grants commutation of sentences for juvenile offenders. The petitioner contended that the convict was a juvenile at the time of the occurrence, a fact not previously agitated before the trial court, the High Court, or the Supreme Court. The core legal question was whether the High Court could entertain a plea regarding the convict's juvenility and grant the benefit of the Presidential Notification after the conviction had been upheld by the Supreme Court. The Lahore High Court dismissed the petition, holding that it had become functus officio as the matter had already been adjudicated by the Supreme Court. Relying on the precedent set in Rehmatullah alias Raja v. Home Secretary, Punjab, Lahore, the Court affirmed that where the issue of age was not raised during trial or appellate proceedings, it could not be agitated at a belated stage. The principle established is that a court cannot grant commutation based on juvenility if that plea was not established or challenged during the trial.
- Can a High Court entertain a plea of juvenility to grant commutation of a death sentence after the conviction has been upheld by the Supreme Court?
- Is a convict entitled to the benefit of a Presidential Notification regarding juvenility if the issue of age was never raised or determined by the trial court?
- Does the High Court become functus officio once a criminal conviction has been finalized by the Supreme Court?
- Article 45, Constitution of Islamic Republic of Pakistan 1973
ORDER
' The petitioner's brother, namely, Muhammad Hadayat alias Teddy, was convicted and sentenced to death by the learned trial Court, the sentence of death was confirmed by this Court, while convict's appeal before the august Supreme Court was dismissed.
2. Learned counsel submits that petitioner convict was a juvenile at the time of the occurrence; that he belongs to a far-flung area, therefore, he was not aware about the said factum and could not agitate it before the learned trial Court, this Court and the Hon'ble Supreme Court of Pakistan.
Further submits that the Notification in question was issued by the President on 13-12-2001 while the Home Department circulated it on 15-8-2003. While concluding his submissions, learned counsel contends that all the related documents were placed before the learned Sessions Judge but the benefit in question was not extended to the convict and that it is a matter of death and life of the convict. Prays that the benefit of the said notification, being juvenile, be extended to the convict as well.
3. After having heard learned counsel for the petitioner at length, we are of the considered view that this Court has become functus officio and cannot adjudicate upon the matter because the matter was not only decided by this Court but also by the august Supreme Court of Pakistan. We are fortified our view with a judgment of the apex Court of the country in the case of Rehmatullah alias Raja v. Home Secretary, Punjab, Lahore etc. (2004 SCM R 1861) wherein, after having dilated upon the Notification dated 13-12-2001 issued by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973, it was held as under:- "4. 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 B 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 was recorded by the trial Court entitles the petitioner to such commutation which is mandatory prerequisite before any benefit is claimed." (Emphasis suppolied).
4. Respectfully following the verdict of the august Supreme Court of Pakistan in the above case, we find no merit in this Constitutional petition which is hereby dismissed.
Cited by 3 cases
- MUHAMMAD YASEEN and 2 others vs S.S.P., ISLAMABAD and 5 others 2012 PLJ Islamabad 238
- MUHAMMAD YASEEN and 2 others vs SSP ISLAMABAD and 5 others 2013 P Cr. L J 137
- Muhammad Yaseen And 2 Other vs S.S.P., Islamabad And 5 Other 2013 KLR Criminal Cases 159