2018 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

By means of instant criminal revision petition filed under section 435/439, Cr.P.C. the petitioner, who is complainant of case FIR No.192/2015, dated 19.04.2015, offence under sections 302, 324, 34, P.P.C., registered with Police Station Garh, District Faisalabad, has challenged the vires of order dated 06.04.2016, passed by learned Additional Sessions Judge, Tandlianwala through which respondent No.1 was declared juvenile in terms of section 7 of the Juvenile Justice System Ordinance, 2000, and the learned court below had passed direction for submitting separate challan to his extent.

2. The learned counsel for the petitioner, at the very outset, contends that the impugned order is bad in law, which has been passed in derogation to the material available on record and guidelines enunciated by the superior courts of the country on the subject. It is vehemently argued that the impugned order has been passed without adverting to the provisions of section 7 of the Juvenile Justice System Ordinance, 2000; hence the same is not maintainable in the eyes of law. Contends that although the learned trial court had summoned Secretary Union Council and Headmaster of the School, however, their statements were not recorded in accordance with the dictates of law. While elaborating the word inquiry, the learned counsel has referred section 7 of the Juvenile Justice System Ordinance, 2000; wherein procedure for determination of age has been given and urges that the order passed by the learned trial court is nullity in the eyes of law. In support of his contentions the learned counsel has relied upon dictum of law laid down in the case of Muhammad Aslam and others v. The State and another (PLD 2009 Supreme Court 777).

3. On the other hand learned Law Officer assisted by learned counsel for respondent No.1 opposes the contentions raised by learned counsel for the petitioner with the submissions that the learned trial court has passed the order while adverting to the spirit of section 7 of the Juvenile Justice System Ordinance, 2000. It is argued that both the record keepers (Secretary, Union Council and Headmaster of the school) were duly summoned by the learned trial court and after observing that record with regard to birth entry of respondent No.1, as well as, entry in the school was unanimous, the learned trial court had passed the order squarely in the spirit of section 7 of the Juvenile Justice System Ordinance, 2000, as such no exception can be made to the same.

4. I have heard the arguments advanced by learned counsel for the parties and gone through the record available on file.

5. As far as tenure of the order passed by the learned trial court is concerned perhaps there is no deviation from the same but the procedure, which is pre-requisite for determining the question of juvenility in terms of section 2(b) of the Juvenile Justice System Ordinance, 2000, is concerned, prima facie the same has not been adopted as provided under section 7 of the ibid Ordinance. Plain reading of section 7 of the Juvenile Justice System Ordinance, 2000, reads as under:- "

7. 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." Bare perusal of the provision of section 7 reproduced above reflects that words 'child' as well as, 'inquiry' have been incorporated by the legislature. As far as term 'child' is concerned the same has been defined in section 2(b) of the Juvenile Justice System Ordinance, 2000, which is reproduced as under for ready reference:- "

2. Definitions... (a)... (b) 'child' means a person who at the time of commission of an offence has not attained the age of eighteen years; " As far as term 'adult' is concerned the same has not been given in the Juvenile Justice System Ordinance, 2000, which is borrowed from section 299, P.P.C., which is reproduced as under:- "

299. Definitions. In this Chapter, unless there is anything repugnant in the subject or context, (a) "adult" means a person who has attained, the age of eighteen years." Hence, determination of child/adult the same requires recording of evidence in view of Qanun-e-Shahadat Order, 1984. This aspect has also been elaborated by august Supreme Court of Pakistan in a salutary judgment handed down in the case of Muhammad Aslam and others v. The State and another (PLD 2009 Supreme Court 777), relevant portion of which is reproduced as under:- "

S. 302(b)

Juvenile Justice System Ordinance (XXII of 2000), S. 7

Qatl-i-amd

Death sentence

If a convict, wishes to avoid death penalty on account of being less than 18 years of age, the onus would be on him to prove his minority for the purpose

Where an accused claims minority then such a plea must be taken by him at the earliest available opportunity and he should not be allowed to throw surprises at the prosecution and at the fag end of the trials or at appellate or revisional stages depriving the prosecution of opportunities to rebut such claims in a proper manner

Whenever such a plea is raised, the courts of law could fall into error by accepting the same only because some school certificate so said

Provisions of S. 7, Juvenile Justice System Ordinance, 2000 mandate a proper inquiry into the said issue wherein the courts should require production of evidence for proof of age in accordance with the manner and the procedure prescribed by the Qanun-e-Shahadat, 1984 and wherein the other side is also afforded opportunities which are envisaged and guaranteed by the Qanun-e-Shahadat

Entertaining documents handed down from across the bar and then acting upon the same, would be fraught with the danger of the courts being misled into passing unwarranted Orders

Such-like documents should never be accepted without first testing their authenticity and genuineness which would be possible only if the procedure prescribed by the Qanun-e-Shahadat was followed and where the accused was also put through the requisite medical examination

Exercise undertaken by the Trial Court as also by the High Court, to resolve the issue in question, in the present case, was disapproved and Supreme Court observed that consequent findings about the minority of the convict could not be sustained

Supreme Court further observed that the court would have ordinarily remanded the matter to the Trial Court to hold a proper inquiry in the matter and to determine the question of the convict's age afresh......." As in the aforesaid circumstances, requirement of conducting an inquiry according to the provisions of Qanun-e-Shahadat Order, 1984 is imperative, which has not been done by the learned trial court leaving scope of agitation before this Court, hence no other option is left with this Court except to direct the learned trial court to proceed with the matter stricto sensu in the spirit of section 7 of the Juvenile Justice System Ordinance; thereby recording the statements of the Secretary, Union Council and Headmaster in accordance with law, as well as, the guidelines enunciated by august Supreme Court of Pakistan in Muhammad Aslam 's case referred supra.

6. For what has been discussed above the instant petition is allowed as a consequence whereof impugned order dated 06.04.2016, passed by learned Additional Sessions Judge, Tandalianwala is set aside. The matter is remanded to the learned trial court with the direction to decide the same afresh after holding an inquiry as enunciated in section 7 of the Juvenile Justice System Ordinance, 2000.

7. Case remanded. JK/Z-22/L Case remanded.