2020 P Cr (PLP)

MUHAMMAD QASIM KHAN, J.

This criminal revision has been filed to question the legality of order dated 10.10.2019 passed by learned Additional Sessions Judge, Mianwali, whereby in post remand proceedings in case FIR No.3/2014 under section 302/34, P.P.C. Police Station Choddru, Mianwali, application of respondent/accused (Muhammad Shahzad Khan) for declaring him as a juvenile, has been allowed.

2. Notice.

3. The learned Deputy Prosecutor General present in court in some other case accepts notice on behalf of the State. As a short question is involved, the learned counsel for the petitioner and the learned Deputy Prosecutor General are ready to submit final arguments today.

4. It is matter of record that in earlier round similar application of the present petitioner was dismissed vide order dated 05.04.2017, however, Criminal Revision No.35308/2017 filed against the said order was allowed by this court on 23.11.2018 and case was remanded for a fresh order after inquiry within the meaning of section 7 of the Juvenile Justice System Ordinance, 2000. In post remand proceedings the trial court held an appropriate inquiry by summoning and recording the statements of officers/officials from NADRA, concerned School, Union Council as well as Consultant Radiologist. According to the record maintained by NADRA, School and Union Council, the date of birth of Muhammad Shahzad Khan (accused/ respondent) was recorded as 12.09.1998. I have noticed that the learned trial court while refusing to accept the record of NADRA and Union Council has very rightly observed that entries with NADRA as well as Union Council were got recorded much after the date of occurrence of this case and the date of birth recorded much after the commission of the crime could not be safely relied upon without any corroborative piece of evidence. Although the School record produced before the learned trial court establish the accused/respondent No.2 as a juvenile but when the date of birth was not recorded in the Union Council and NADRA records before the registration of case then only the record in primary/middle or high School about the date of birth must be examined carefully and with caution, thus, the learned trial court rightly considered medical board report which included the ossification test to establish the date of birth of accused/respondent No. 2 and according to the ossification test conducted on 18.10.2016 the Standing Medical Board determined the age of Muhammad Shahzad Khan as 20/21 years. The occurrence in this case took place on 07.01.2014, as such, if according to the Medical Board Report the age of convict/respondent is taken as 20 years then on the date of occurrence i.e. 07.01.2014, his age would be 17-years, 02-months and 19 days and thus the accused/respondent came out to be a juvenile under the relevant law and this fact is also supported by school leaving certificate, and if his age according to the ossification test is considered as 21 years, then his age on the date of occurrence would become 18-years, 02-months and 19-days.

5. It is settled principle of interpretation that if there are two interpretations then the one favourable to subject is to be adopted. Furthermore, as discussed above when exact age has not been provided by the medical board report and the age of respondent/accused has been left to swing between 20/21 years on the day of medical report, then this court considers that this is a fit case to apply the "role of lenity", which is intended to apply in the instances, where the court recognizes the existence of more than one interpretation and where the decision which the court reaches harms or benefits the defendant to some greater or lesser degree, in such an eventuality, this rule requires the court to select the interpretation most beneficial (or least detrimental) to the accused and to nullify the harsh by construing the ambiguity in favour of the accused. Thus, the learned trial court has rightly considered the age of the accused/respondent which is more favour to him.

6. For what has been discussed above, the approach of learned trial court is perfectly in accordance with law, no legal flaw, error or jurisdictional defect has been found therein. The instant criminal revision is therefore, dismissed. SA/M-206/L Petition dismissed.