Muhammad Bilal etc vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

Cr.A. No. 30-D of 2014

JUDGMENT

Date of hearing 29.03.2016

Appellant-petitioner Muhammad Bilawal and another by M/S Sana Ullah Khan Gandapur, Rab Nawaz Awan and Sai fur Rehman Advocates

Respondent State and another by Mr. Kamran Hayat Khan Miankhel Add: AG for State and Mr. Saleem ullah Khan Ranazai advocate for complainant.

MUHAMMAD GHAZANFAR KHAN, J.- Through this single judgment, we propose to dispose of instant Cr.Appeal No.30-D/2014 filed by appellants Mohammad Bilawal and Hasnain Ali alias Ali against their conviction and sentence and Criminal Revision No.5-D/2014 preferred by Mst. Javeria Bibi, sister of deceased Muhammad Salim, for enhancement of sentence awarded to appellants, as both the matters are the outcome of one and the same judgment dated 24.6.2012 rendered by learned Additional Sessions Judge-V, D.I.Khan, whereby the appellants were convicted under section 302(b) PPC and sentenced to imprisonment for life each and benefit of section 382-B Cr.P.C was extended to them.

2.The prosecution story, in brief, is that on 13.01.2012 at 0805 hours, Mohammad Gulzar complainant reported the matter at emergency room of

Civil Hospital, D.I.Khan to the effect that on the said date, his nephew Salim, a milkman, had taken milk for supply to the shop of Falak Sher Mekan on his cycle while the complainant was present at home. At 07.35 AM, his relative namely Imam Bakhsh informed the complainant on cell phone that Bilawal and Ali had made firing with their pistols at Mohammad Salim who got seriously injured and that he was being taken to hospital.

On this information, complainant reached the hospital and found his nephew dead, thus he lodged the report which was reduced into writing in the shape of murasila and later on case FIR No.55 dated 13.01.2012 was registered at police station Cantt: D.I.Khan under sections 302/34

PPC.

3.After completion of usual investigation, complete challan against the appellants was submitted before the learned trial Court where they were formally charged, to which they did not plead guilty and claimed trial. The prosecution, in order to prove its case against the appellants, examined eleven P.Ws. Thereafter, the appellants were examined under section 342 Cr.P.C, wherein they professed innocence and false implication.

However, they neither appeared as their own witnesses on Oath under section 340(2) Cr.P.C, nor produced any evidence in their defence. After hearing the arguments, the learned trial Court convicted and sentenced the

appellants as mentioned above vide impugned judgment dated 24.6.2015.

4.At the very outset, learned counsel for the appellants contended that as per record, the age of appellant Hasnain Ali alias Ali is 16/17 years and being juvenile, his trial could not be conducted by ordinary Court, therefore, the impugned judgment is not sustainable.

5.As against that, the learned Addl: A.G assisted by learned counsel for the complainant party argued that such objection was not raised by the appellants at trial stage, therefore, at this belated stage it has no legal value.

6.We have considered the arguments of learned counsel for the parties in the light of law on the subject.

7.The arguments of learned Addl: A.G and

learned counsel for the complainant party are misconceived because it is a legal ground and can be agitated any time. Perusal of card of arrest of appellant Hasnain Ali alias Ali reveals that his age is mentioned as 16/17 years. Formal charge framed by the learned trial Court also indicates the same age of the appellant. Section 2(b) of Juvenile Justice System Ordinance, 2000 defines a child as a person who at the time of commission of an offence has not attained the age of eighteen years. In such circumstances, the learned trial Court was required to first

determine exact age of the appellant Hasnain Ali alias Ali before proceeding with the case, because if found below the age of eighteen years, he could not be tried together with his adult co-accused Mohammad Bilawal in view of the provisions contained in section 5 of the Ordinance ibid, reproduced below for ready reference:- “No joint trial of a child and adult person...(1) Notwithstanding anything contained in section 239 of the Code, or any other law for the time being in force, no child shall be charged with or tried for an offence together with an adult.

(2)If a child is charged with commission of an offence for which under section 239 of the Code, or any other law for the time being in force such child could------------be tried together with an adult, the Court taking cognizance of the offence shall direct separate trial of the child by the Juvenile Court.”

Section 7 of the Ordinance ibid deals with determination of age which is reproduced as under:-

“If a question arises as to whether a person before it is a 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.”

The learned trial Court lost sight of above provisions of law and tried both the appellants jointly, thus the judgment is not sustainable in the eye of law.

8.For the reasons mentioned above, we accept the instant Criminal Appeal No.30-D/2014, set aside the

impugned judgment of conviction and sentence dated 24.6.2014 and remand the case to learned Additional Sessions Judge-V, D.I.Khan with the direction to first determine that what was the age of appellant Hasnain Ali alias Ali at the time of commission of offence and then to proceed with the case de-novo in the light of above observations. Till then the appellants shall remain as under-trial prisoners.

9.As the appeal has been accepted and case has been remanded, the instant revision petition for enhancement of sentence has become infructuous and is dismissed accordingly.

Announced.

Dt:29.3.2016.

Habib/* JUDGE

JUDGE