2020 P Cr (PLP)

CH. ABDUL AZIZ, J.

The instant criminal revision filed in terms of sections 435 and 439, Cr.P.C. is aimed at calling in question the vires of order dated 20.07.2017 passed by learned Sessions Judge, Bhakkar, whereby he turned down the request of petitioner to be declared as a person of less than 18-years of age and to try him for the charge of qatl-i-amd as juvenile.

2. Brief facts which formed basis of instant criminal revision are to the effect that the petitioner stands implicated in case FIR No.18/2017 dated 17.01.2017 registered under sections 302 and 109, P.P.C. at Police Station Klor Kot, Bhakkar, with the allegation of having committed qatl-i-amd of one Inayat Ullah. The case after thorough investigation was forwarded for trial through report under section 173, Cr.P.C. and was placed before learned Sessions Judge, Bhakkar. During trial an application under section 7 of the Juvenile Justice System Ordinance, 2000 (since repealed) was moved on behalf of petitioner, which met the fate of dismissal through order dated 20.07.2017 (hereinafter referred to as "Impugned Order").

3. It is contended on behalf of petitioner that on the fateful day, he was less than 18-years of age; that claim of petitioner is further supported by Form-B issued by National Database and Registration Authority; that even from the report of Medical Board it evinces that on 24.06.2017 the petitioner was 18 to 19 years of age; that in this backdrop, the learned trial court committed an error by rejecting the plea of petitioner for being declared as juvenile. With these submissions, it was urged that petitioner be declared as juvenile and his trial be conducted as such.

4. On the other hand, learned law officer assisted by the learned counsel for complainant submitted with intensity that petitioner indeed was much above the age of 18-years on the day of occurrence; that in this regard, his birth registration certificate issued by Secretary Union Council is also available on record; that the claim of petitioner about being juvenile on the day of incident is contradicted even from the documents produced on his behalf and that the report of Medical Board, from face of it, is discrepant in nature. It was, thus, prayed that the finding of learned trial court on the subject be upheld.

5. Arguments heard. Record perused.

6. In the wake of facts mentioned above, it is observed that controversy involved herein relates to the age of petitioner, who is facing murder trial in the court of learned Sessions Judge, Bhakkar. At the time of indictment, petitioner came forward with the stance that since on the eventful day i.e. 17.01.2017 he had not attained the age of 18-years, hence be declared child in terms of section 2(b) of Juvenile Justice System Ordinance, 2000 (hereinafter referred to as "JJSO, 2000") and be tried accordingly. In support of his acclaimed age, petitioner banked upon Form-B issued by National Database and Registration Authority (hereinafter referred to as "NADRA") and school leaving certificate issued by Principal of Government Elementary School Hattarawala (South) District Bhakkar. It is intriguing to mention here that in Form-B, petitioner's date of birth was mentioned as 10.05.2001, whereas in school leaving certificate, it was described as 13.02.1999. If correctly calculated, the age of petitioner as per Form-B was about 15-years and 08-months on the eventful day, whereas according to school leaving certificate he was one month short of 18-years. Such age plea of petitioner met a stiff opposition from the complainant who placed on record his birth registration certificate issued by Secretary Union Council. It is noticed that in the birth registration certificate, petitioner's date of birth was mentioned as 15.06.1996 which makes him more than 20-years of age on the day of incident. It is also important to mention here that Form-B, upon which petitioner heavily relied was issued on 04.04.2017 i.e. after about three months of the murder occurrence and on this score alone has lost its credibility. Even otherwise, the date of birth mentioned in Form-B is in sharp conflict with the school leaving certificate which was also produced by none other than the petitioner himself. On the other hand, the birth certificate of the petitioner tendered before the trial court by the complainant is found to be based upon an entry made in the record of Union Council on 16.06.1997 i.e. approximately a decade before the homicide incident. Ironically, the petitioner has yet not called in question the genuineness of birth certificate placed before the trial court by the complainant, thus this Court has all the good reasons to place reliance over it for deciding the pending age controversy.

7. The learned trial court also referred the age controversy to the Medical Board, who vide its report dated 29.06.2017 opined that petitioner was aged about 18 to 19 years. Before dilating upon the report of Medical Board, it seems appropriate firstly to have a glance over the law enacted to cater with the criminals having age of less than 18-years. In order to govern arrest, detention, trial etc. of an accused having age of less than 18-years, JJSO, 2000 was enacted, which in the recent past was repealed and substituted with Juvenile Justice System Act, 2018 (hereinafter referred to as "JJSA, 2018"). An overview of JJSO, 2000 reveals that in section 2(b) child was defined as a person who at the time of commission of offence had not attained the age of 18-years. To deal with cases of such accused, Juvenile Courts were established under section

4. Through this enactment, certain privileges were granted to child-accused, some of which were pertaining to arrest, bail, release on probation and prohibition of inflicting capital sentence etc. On 22.05.2018 JJSO, 2000 was repealed and substituted by JJSA, 2018. In the latter referred enactment, further benefits are granted to child accused so as to save them from being exposed to ordinary Criminal Justice System, its adverse impact on character building and above all to provide a chance of rehabilitation by keeping in view their criminogenic needs. The comparative analysis of two enactments referred above unveils that the procedure to determine the age of child-accused also underwent a change. According to section 7 of JJSO, 2000 (since repealed) the age plea of an accused was to be raised before the Court and was to be decided through an inquiry, the important part of which was a medical report. For reference sake, section 7 of JJSO, 2000 is being mentioned hereunder:- "Determination of age.

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." Admittedly, the procedure provided in JJSO, 2000 to determine the age question was imperfect and often gave rise to complexity. Though on one hand, the criteria to grant remand and bail to child- accused was somewhat sympathetic as compared to adult accused but to avail such benefits application under section 7 was to be moved before the Juvenile Court which was to assume jurisdiction after the submission of report under section 173, Cr.P.C. So far as, JJSA, 2018 is concerned in section 8(1), it is made incumbent upon the Officer Incharge of Police Station or the Investigating Officer to determine the acclaimed age of juvenile from his birth certificate, educational certificates or any other relevant document from the very inception of investigation. A juvenile is to be medically examined only if there is no other trustworthy documentary proof in support of his age plea. Likewise, according to section 8(2) of JJSA, 2018 an accused who physically appears to be juvenile, finding about his age is to be given by the court before whom he is brought under section 167, Cr.P.C. and that too before granting his further detention (emphasis supplied). Such finding is to be based upon record made available before the court including report prepared by the police officer in terms of section 8(1) of JJSA, 2018 or the medical examination report, if any. For the clarity of proposition section 8 of JJSA, 2018 is being referred hereunder:- "

8. Determination of age.

(1) Where a person alleged to have committed an offence physically appears or claims to be a juvenile for the purpose of this Act, the officer-in-charge 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, education 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. (2). When an accused person who physically appears to be a juvenile for the purpose of this Act is brought before a Court under section 167 of the Code, the Court before granting further detention shall record its findings regarding age on the basis of available record including the report submitted by the police or medical examination report by a medical officer." From above, it emerges that according to the erstwhile JJSO, 2000 the inquiry to determine age of a juvenile was to be conducted solely by the trial court, whereas now in accordance with JJSA, 2018 the age controversy of a juvenile is to be decided though by the court but at the very initial stage of 167, Cr.P.C. proceedings and that too through enabling data collected by police.

8. It can inexorably be held that in JJSO, 2000 the age of a minor was to be determined through an inquiry, the most important part of which was a medical report, whereas in JJSA, 2018 such report is only to be requisitioned if there is no supporting and definite documentary material available in this regard. Unfortunately, even today, on occasions, the birth of a child is reported to Union Councils or NADRA with unnecessary afflux of time, thus the relevant age record is often misleading. The age determination of an accused gains importance in criminal trials, not only in reference to JJSA, 2018 but also in accordance with concept of doli incapax (deemed incapable of forming the intent to commit a crime by reason of age under ten years) which is also embodied in section 82 of Pakistan Penal Code, 1860. Killing of a living person inevitably is bereft of morality and normal human deeds, more so, when it also involves extreme brutality. An accepted plea of being juvenile/child extenuates capital punishment even in brutal murder cases including those in which more than one persons are slain. It is in this backdrop, the skeletal forensic gains importance. Now the question of foremost importance is to the effect that whether age determined through skeletal forensic is definite or subject to variation. The exercise of age determination through medical examination is generally carried out from the examination of teeth, development of bones, physique and height as well as from the change in voice. The age assessment through teeth is called Forensic Odontology or Dentistry. It will not be out of place to mention here that Odontology is used not only to determine the age but also for ascertaining the identity of a corpse as well as for finding out the origins of bite marks on the persons of victims of crime. This skill is ancient and dates back even to Egyptian Civilization in which the dental identification was used even in 2500 B.C. to identify a body in a tomb of Giza which had two molar teeth linked by a gold wire. Likewise, in 66 A.D. mistress and mother of Nero Claudius Caesar Augustus Germanicus identified his corpse by the presence of discoloured front tooth. Even in the recent past, an infamous serial killer in Canada known as 'The Vampire Rapist', Wayne C Boden was connected with crime from the matching bite marks on the dead bodies of his numerous female murdered victims in the 7th decade of 20th Century. Despite all these, unfortunately, the Forensic Odontology for age determination is prone to variation of 2/3 years even in this modern era. Dr. B.R. Sharma observed in 5th Edition of his book Forensic Science in Criminal Investigation and Trials that there are two types of teeth i.e. milk teeth and permanent teeth and development of each kind is subject to variation, thus determination of age through Odontology is prone to an error of two to three years. In this regard, it will not be out of context to reproduce his observation which is as under:- "There is variations in the eruptions of teeth in various individuals therefore exact age of the person from teeth eruption cannot be given but a rough idea can be gathered from the table for adults mentioned below: Table 32.3 Eruption Schedule of Permanent Teeth: S. No. Tooth Age of appearance (in year) Lower jaw Upper jaw

1. Central Incisor 6-7 7-8

2. Internal incisor 7-8 8-9

3. Canine 9-10 11-12

4. I Premolar 10-12 10-11

5. II Premolar 11-12 10-12

6. I Molar 6-7 6-7

7. II molar 11-13 12-13

8. III molar 17-21 17-21

9. I have also taken pain to peep through the medical jurisprudence so as to see that how much definite is the ossification test for determining the age of a child/juvenile. The term ossification stands for developmental process of bone formation whereby their shape and size is changed with passing age in childhood and adolescence. According to the opinion of Modi expressed in Chapter-10 of his book Medical Jurisprudence and Toxicology the symptoms are helpful for determining age until ossification is completed. However, Modi himself expressed his view in the same chapter that owing to variations in climatic conditions, dietetic values, hereditary differences and other factors, it is not possible to formulate a uniform standard for determination of the age of union of epiphysis in different regions of sub-continent. In Lyon's Medical Jurisprudence for India, it is found mentioned that the medical witness while determining the age is not only to exercise the greatest caution in coming to an opinion but should be prepared to admit the possibility of estimate being wrong as it is quite possible. Similarly, in a research article titled as Forensic Age Estimation in Living Individuals: Methodological Considerations in the Context of Medico-Legal Practice authored by Franklin D, et al, the possibility of variation in determining age through ossification was discussed. The authors quoted the example of an inquiry conducted by Australian Human Rights Commission in a case of Human Trafficking wherein ages of about 180-Indonesians were investigated by Australian Federal Police through hand-wrist radiographs. Later on, the age of handful of these persons was found to be incorrect. The margin of error for age determination through ossification can further be gauged from the following table of ossification mentioned by Emily Morey-Holton in her research paper titled as Predicting Height from the Length of Limb Bones:- Time period Bones affected Third month of embryonic development Ossification in long bones beginning Fourth month Most primary ossification centres have appeared in the diaphysis of bone. Birth of 5 years Secondary ossification centres appear in epiphyses 5 years to 12 years in females, 5 to 14 years in males Ossification is spreading rapidly from the ossification centres and various bones are becoming ossified 17 to 20 years Bone of upper limbs and scapulae becoming completely ossified 18 to 23 years Bone of the lower limbs and os coxae become completely ossified 23 to 25 years Bone of the sternum, clavicles, and vertebrae become completely ossified By 25 years Nearly all bones are completely ossified. It is evident from the above table that the determination of age through ossification is vulnerable to variation of 2 to 3 years. Due to the reasons mentioned above, it is always desirable to prefer some authentic document like birth certificate etc. over the medical report for determining the age controversy like the instant one. At this stage, it is considered important to mention here that despite apprehended variation in age determination, the ossification test has its own significance and can be conducted and relied upon in appropriate cases. The afore-mentioned view of this Court is further fortified from the observation of Hon'ble Supreme Court of Pakistan expressed in case reported as Intizar Hussain v. Hamza Ameer and others (2017 SCMR 633). An excerpt from the cited judgment for advantage sake is being referred hereunder:- A somewhat similar view was expressed by the Hon'ble Supreme Court of AJ&K in case reported as Naveed Abbasi v. Hassan Zamir Abbasi and another (2019 YLR 1033) which is being referred below:- "It may be observed here that determination of age by Ossification test is necessary when no reliable documentary evidence is available on record about the age of the accused, whereas, in the instant case the situation is quite otherwise as authentic documentary evidence regarding the age of the accused is available on record." If any further reference in this regard is required that can be made to the cases reported as Muhammad Naeem v. The State and another (2003 YLR 321), S. Ghulam Mustafa v. The State and 2 others (PLD 2004 Peshawar 236), Muhammad Zubair v. The State and others (2014 PCr.LJ 1680), Muhammad Basit v. The State and 3 others (2016 PCr.LJ 1745) and Khushal v. The State (2018 YLR 1605).

10. The resume of above discussion is that since an unchallenged/unrebutted document in the shape of birth certificate of petitioner was available on record from which it reasonably insinuates that he was much above 18-years of age on the eventful day, hence learned trial court was justified in giving it preference over the report of medical board. Therefore, the Impugned Order needs no interference by this Court in its revisional jurisdiction. Resultantly, the instant criminal revision being devoid of any force is dismissed.

11. While parting with this judgment, it is appropriate to mention here that a legal flaw is noticeable from the bare perusal of section 8 of JJSA, 2018 which is essentially required to be discussed here. It is observed that an accused arrested by police is to be produced before the court within 24-hours as provided under section 61, Cr.P.C. Likewise, such accused after being brought before the Area Magistrate, in accordance with 167, Cr.P.C. is either to be handed over to police on physical remand for investigation or is to be lodged in jail. Keeping in view the fact that it is provided in section 8(2) of JJSA, 2018 that the court is to give finding about the age plea before passing any order of detention under section 167, Cr.P.C. the same is likely to create legal complications. Needless to mention here that age determination through medical examination is a time consuming process which cannot be decided within the time period of 24-hours stipulated in section 61, Cr.P.C. The legal anomaly emerging from section 8 of JJSA, 2018 is required to be taken care of, thus, office is directed to forward this judgment to the Federal Law Ministry for taking measures to remove legal absurdity highlighted above. SA/T-1/L Petition dismisse