March 30, 2007	Friday	Rabi-ul-Awwal 10, 1428

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PESHAWAR, March 29: The Federal Shariat Court on Thursday reserved judgment on an appeal filed by two juvenile offenders who have been on death row for the last five years.

The bench comprising Chief Justice Hazikul Khairi, Justice Dr Fida Mohammad Khan and Justice Salahuddin Mirza heard arguments of both the parties in the appeal filed by the two convicts, Sohail Fida and Mohammad Rafique.

Senior Advocate Khwaja Mohammad Khan Gara appeared for the appellants and contended that they were below 18 at the time of the offence in 2000 and they should be treated as juvenile offenders. He cited various judgments of the superior courts in support of his contention, arguing that awarding death sentence to juvenile offenders was too harsh.

Mr Gara pointed out that both the boys had continued their studies in the prison where Sohail had passed his post-graduate examination and Rafique his intermediate examination.

The appellants were arrested on charges of killing another boy, Mohammad Zubair, in Swat district on May 25, 2000. They had confessed to their crime before a local court in Swat.

The prosecution claimed that they entered into the residence of Zubair with the intention of theft when he was all alone at home.

They were charged under the Offence Against Property (Enforcement of Hudood) Ordinance, 1979, and were tried by an Izafi Zila Qazi (additional district and sessions’ judge).

The court convicted them on July 23, 2002, and awarded them capital punishment. Initially, they had filed an appeal before the Peshawar High Court which transferred the case to the Shariat Court in April 2003, observing that as the charge against them was framed under the Hudood law, therefore only the Shariat Court could hear the appeal.

The instant case had triggered a controversy over whether a juvenile offender could be awarded death sentence when the juvenile law pertaining to it was not applicable to an area. Under the Juvenile Justice System Ordinance, 2000, death sentence could not be awarded to a juvenile offender.

Mr Gara contended that the Juvenile Justice System Ordinance was promulgated in May 2000, but it was extended to the Provincially Administrated Tribal Areas (PATA), where Swat district is situated, in October 2004.

He argued that despite the non-applicability of law to Swat district at the time of occurrence the death sentence could not be awarded to a juvenile offender.

He contended that there was consensus among the superior courts and various judgments suggested that the death sentence could not be slapped on an offender who was below 18 at the time of the occurrence.

Moreover, he added, that two people were charged for killing the boy, therefore it was not clear which of the two had used the chopper which was used for killing him.