2021 P Cr (PLP)

ROZI KHAN BARRECH, J.

In the instant Criminal Quashment Petition, the petitioner claimed following relief: "It is, therefore, humbly prayed that the record from the trial Court be called and order dated 12.03.2019 passed by learned Judicial Magistrate-XIII, Quetta, and impugned order dated 22.05.2019 passed by learned Additional Sessions Judge-III Quetta, (Revisional Court) be set aside and medical board be constituted as well as school and college record be verified through the office concerned, in the interest of justice, equity and fair play".

2. Facts of the case are that FIR No.61 of 2018 for offence under sections 337-A, 504, P.P.C. was registered at Police Station Zarghoon Abad, Quetta, on 07.06.2018, against the petitioner (accused). After completion of investigation, challan was submitted before the Judicial Magistrte-XIII, Quetta. During trial on 27.11.2018, an application under section 4 of Juvenile Justice System Ordinance, 2000 ("the Ordinance") was placed for transfer the case for presiding under Juvenile Court, on the basis of school leaving certificate and the date of birth of the petitioner is 30.11.2002. The learned trial Court sent the Secondary School Certificate to Balochistan Board for verification and the same was received and verified. During pendency of the said application, the learned trial Court called the record from NADRA with regard to the family trees of father of the petitioner. On 12.03.2019, after receiving record from NADRA the learned trial Court rejected the application filed by the petitioner on 27.11.2018 for transferring of the case to Juvenile Court. Subsequently on 19.03.2019, another application under section 8 of the Ordinance was filed for determination of age of the petitioner through Medical Board as well as school and college record and the same was rejected on 12.03.2019, by the learned trial Court.

3. Being aggrieved from the order dated 12.03.2019, passed by the Judicial Magistrate-XIII/Civil Judge, Quetta, the petitioner filed Criminal Revision Petition before the learned Sessions Judge, Quetta, and the same was transferred to the Court of learned Additional Sessions Judge-III, Quetta.

4. After hearing arguments on the petition the revisional Court dismissed the application of the petitioner on 22.05.2019. Hence this petition.

5. Learned counsel for the petitioner submitted that sufficient material in the shape of Birth Certificate was available before the trial Court which the age of the petitioner was less than at the time of occurrence but subsequently on the application of the complainant the learned trial Court called the family trees of the petitioner from NADRA and the age of the petitioner was shown more than 18 years and there was contradiction between the school leaving certificate and NADRA record. In such circumstances the learned trial Court should conduct a proper inquiry through medical board for determination of age of the petitioner.

6. On the other hand, the learned State Counsel while opposing the contention raised at the bar by the learned counsel for the petitioner submitted that according to NADRA report the age of the petitioner was given more than 18 years at the time of occurrence. Further submitted that decision of the learned trial Court are based on convincing grounds, therefore, same should be dismissed.

7. I have heard the learned counsel for the parties and gone through the available record with their assistance. It has been observed that the petitioner has relied upon his birth on Secondary School Certificate wherefrom the age of the petitioner was admitted as 30.11.2000 and he is fulfilling the requirement being a minor, but the same facts remain that the same has shown to have been got entered into the record of NADRA, according to which, the petitioner's date of birth is 15.03.1998, meaning thereby that according to NADRA report at the time of occurrence the petitioner was not minor.

8. In the above circumstances, I am of the considered view that the report of NADRA alone is not an independent source of information about the age of the petitioner, because, this document followed the information volunteered by the person himself or someone connected with him. Such document, therefore, cannot be conclusive proof of the concerned person's date of birth. It is well settled by now that when controversy recording the age of an accused person could not be settled through documentary evidence and the medical opinion due to different opinion then preference is always given to the medical opinion. Reliance in this regard is placed on 2012 SCMR 1400.

9. It is an admitted fact that there are two documents which reflect to each other about the age of the petitioner which was also found genuine after verification, therefore, it required further inquiry for determination of the age of the petitioner.

10. The Criminal Procedure Code does not prescribe any procedure for determination of age of an accused person. However, the Ordinance which was enacted for protection of the rights of children involved in criminal litigation, provides a procedure therefore in matters falling within its purview. Article 8 of the Juvenile Justice System Act, 2018 (hereinafter "the Act") stipulates:- "

8. Determination of age. Where a person alleged to have committed an offence physically appears or clams to be a juvenile for the purpose of this Act, the officer-in-incharge of the police station or the investigation officer shall make an inquiry to determine the age of such person on the basis of his birth certificate, educational certificates or any other pertinent documents. In absence of such documents, age of such accused person may be determined on the basis of a medical examination report by a medical officer"-

11. At the very outset, it is observed that whenever a question arises before a Court as to whether the accused a juvenile offender and its subject to the jurisdiction of a Juvenile Court, the Court is required to hold an inquiry into the matter.

12. In case in hand, there can be no two opinions that in Article 8 of the Act there is a statutory command that the Court should hold an inquiry when it is confronted with a question about the age of an accused person. Since the purpose of an inquiry, as we have already seen, is to find out the truth, it should be spread over a fairly board spectrum. The Court should not only take into consideration the documents produced by the parties, but where necessary, it should also record statements of the witnesses. It should also requisition medical report, which means clinical and radiological examination of the accused or what is called his ossification test. In my opinion, a plain reading of Article 8 of the Act shows that this is mandatory unless there are strong reasons to dispense with the same. On the conclusion of the inquiry, the Court should give its findings after considering all the evidence brought before it in accordance with the established principles of criminal jurisprudence. For the above stated reasons, I am inclined to accept the petition. Consequently the order dated 12.03.2019, passed by learned Judicial Magistrate-XIII, Quetta, and impugned order dated 22.05.2019, passed by learned Additional Sessions Judge-III, Quetta, (Revisional Court) are hereby set aside. The case is remanded to the trial Court with the direction to conduct the inquiry for determination of the age of petitioner in view of Article 8 of the Act. Order accordingly. SA/167/Bal. Petition accepted.