MUHAMMAD RAFIQUE Versus State

ZAFAR PASHA CHAUDHARY, J. ‑‑‑This appeal is directed against the judgment, dated 16‑1‑2004 passed by Mian Bashir Ahmad Bhatti, Additional Sessions. Judge, Dera Ghazi Khan, whereby the appellants namely Muhammad Rafique, Saifullah, Ghulam Yasin and Amanullah have been convicted under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 34, P.P.C. and sentenced to suffer 15 years' R.I. each. They were also convicted under section 302(b) read with section 34, P.P.C. and sentenced to life imprisonment, each with a fine of Rs.50,000, or in default thereof to further suffer R.I. for six months, each.

All the four convicts, i.e. Muhammad Rafique, Saifullah, Ghulam Yasin and Amanullah have jointly filed the present Criminal Appeal No.37/I of 2004 by impugning the judgment passed by the learned trial Judge recording their conviction and sentence.

2. The learned counsel for the appellant before commencement of trial has raised a legal objection with regard to very assumption of jurisdiction by the learned trial Judge. According to the learned counsel, except Muhammad Rafique, appellant, the remaining three appellants, i.e. Saifullah, Ghulam Yasin and Amanullah were minors and as per definition contained under section 2(e) of the Juvenile Justice System Ordinance (hereinafter referred to as "the Ordinance"), they were minors (children) at the time of commission of offence. Neither of them by that time had attained the age of 18 years. In support of his assertion, the learned counsel has referred to the statement of Saifullah, appellant No.2, under section 342, Cr.P.C. his age has been recorded as 15/16 years on 27‑10-2003. Similarly the age of Ghulam Yasin has also been recorded as 16/17 years, which was also recorded on the same date, i.e. 27‑10‑2003. The age of the fourth appellant Amanullah, has been recorded as 15/16 years on 27‑10‑2003. The learned trial Judge described the above said dates on their respective statements under section 342, Criminal Procedure Code and all the statements bear the signature of the learned trial Judge. No objection whatsoever was made either by the State or the complainant.

3. The learned counsel for the appellant has also sought a reference to School Leaving Certificates of the appellants, however, the recording of ages of all the three appellants by the learned trial Judge himself does prima facie indicate that all the three appellants were minors at the time of occurrence and fall within the definition of `child.' as contained in the Juvenile Justice System Ordinance, 2000. Muhammad Rafique, appellant No. 1, had however, crossed the age of 18 years and as such was not a child.

4. According to the learned counsel, as mandated by section 5 of the Ordinance, no child can be charged with or tried for an offence together with an adult. Under section 6 of the Ordinance, the procedure to be followed by the Juvenile Courts has been prescribed. It is contended that the learned trial Judge has violated the mandatory provisions of the Ordinance; therefore, the trial conducted by him stands vitiated and of legal consequence. It is, therefore, prayed that the case may be remanded, to the learned Sessions Judge for retrial.

5. The learned Assistant Advocate‑General appearing on behalf of the State, has not been able to rebut the contention effectively however he, rather halfheartedly, submitted that the trial Judge who was Additional Sessions Judge, had been vested with the powers of Juvenile Court; therefore, no prejudice has been caused to the appellants. The contention is not well‑founded because provisions of section 11 of the Ordinance has expressly provided a beneficial treatment to a Juvenile. The trial Judge, if he so considers, instead of remanding the Juvenile Offender to jail, the child offender can be released on probation.

6. In view of this special provisions it cannot be accepted that no prejudice has been caused to the three minor, appellants. The learned Assistant Advocate‑General also referred to some case‑law pointing out that in case no prejudice is caused then the case may not be remanded. The plea suffers from a factual fallacy because bare perusal of the Ordinance reveals that a child offender is entitled to a beneficial treatment and if the trial is not conducted accordingly then the prejudice is quite obvious.

7. As on the face of the record, the trial conducted by the learned Additional Sessions Judge, is illegal and without jurisdiction in this respect, therefore, conviction recorded against the appellants cannot be sustained.

8. The appeal, therefore, is allowed in terms that the case is remanded to the learned Sessions Judge, Dera Ghazi Khan, who may hold the retrial himself or entrust the same for retrial to any of the Additional Sessions Judge who has been vested with the powers of Juvenile Court.

9. Needless to observe that section 7 of the Ordinance lays down that; "if a question arises as to whether the offender is a child and the age is disputed, the learned trial Judge shall record a finding as Juvenile Court after holding inquiry by following the guidelines provided under this section". If as a result of enquiry any of the appellant turns out to be a minor then the conviction and sentence of all the appellants will stand set aside. The appellants will be relegated to the position, which they had before commencement of the trial. The child offender will be tried as Juvenile whereas the case of adult offender shall be separated, and he will be tried separately as laid down in the Ordinance. Supposing neither of the appellant is found to be minor then the case will be referred back to this Court.

10. The appeal is disposed of in the above terms.

H.B.T./100/FSC Order accordingly.