Determination of age

2023 PLD 536 SUPREME-COURT Judicial Precedent

S. 8(1)JuvenileDetermination of ageOssification test

Scope and significance of ossification test in determining age of an accused stated.

2023 PLD 536 SUPREME-COURT Judicial Precedent

S. 8(1)JuvenileDetermination of ageReport of Medical BoardConflicting reportsView favourable to accused to be adopted

Medical board constituted by the Trial Court to examine the accused submitted its report which consisted of three opinions of (i) Radiology Department, (ii) General Medicine Department, and (iii) Dental Department

Although the age of the respondent was found to be 18 to 20 years and 16 to 18 years by the two departments but it was settled principle of law that if two views were possible from the evidence adduced in the case then the view favourable to the accused was to be adopted

Trial Court had rightly declared the accused to be a juvenile at the time of commission of the offence

Petition for leave to appeal was dismissed and leave was refused.

2021 PCrLJ 1032 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 8Determination of ageScope

Section 8 of the Juvenile Justice System Act, 2018 provides that the court should hold an inquiry when it is confronted with a question about the age of an accused person

Purpose of an inquiry is to find out the truth, therefore, it was to be spreaded over a fairly broad spectrum

Court was to not only take into consideration the documents produced by the parties, but where necessary, it should also record statements of the witnesses

Court was to also requisition medical report, which means clinical and radiological examination of the accused or what is called his ossification test

Plain reading of S. 8 of Juvenile Justice System Act, 2018, shows that determination of age is mandatory unless there are strong reasons to dispense with the same.

2021 PCrLJ 1032 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 8Determination of ageScope

When controversy regarding the age of an accused cannot be settled through documentary evidence and the medical opinion due to difference in opinion then preference is always to be given to the medical opinion.

2020 YLRN 96 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 365-A & 302Juvenile Justice System Ordinance (XXII of 2000), Ss. 5 & 7 [since repealed]Kidnapping or abducting for extorting property, valuable security, Qatl-i-amdNo joint trial of a child and adult personDetermination of ageScope

Accused and others were alleged to have abducted the minor son of complainant for ransom and due to fear of exposure of their identity had put the minor to death

One of the acquitted accused was a child and the other three convicted co-accused were of the ages of 17 to 21 years

High Court observed that Trial Court, in circumstances was required to first determine exact ages of the other accused persons before proceeding with the case, because if found below the age of eighteen years, the juvenile could not have been tried together with their adult co-accused in view of the provisions contained in S.5 of the Juvenile Justice System Ordinance, 2000

Trial Court had lost sight of Ss. 5 & 7 of the Juvenile Justice System Ordinance, 2000 and tried the accused persons jointly thus, the judgment was not sustainable in the eye of law

Trial Court was directed by the High Court to first determine the ages of the accused persons at the time of commission of offence and then proceed with the case de-novo

Appeal was accepted.

2020 PCrLJ 1158 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 7Determination of ageRule of lenityScopePetitioner assailed order passed by Trial Court whereby it had declared the accused to be a juvenileMedical Board had left the age of accused, on the day of occurrence, to swing between 17 to 18 years

High Court observed that the case was a fit case to apply the rule of lenity, which was intended to apply in the instances, where the court recognized the existence of more than one interpretations and where the decision which the court reached harmed or benefited the defendant to some greater or lesser degree, in such an eventuality, this rule required 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

Trial Court had rightly considered the age of the accused which was more favourable to him

Petition was dismissed, in circumstances.

2020 PCrLJ 1158 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 7Determination of ageNon-availability of corroborative evidenceBeneficial constructionScopePetitioner assailed order passed by Trial Court whereby it had declared the accused to be a juvenile

Trial Court had refused to accept the record of NADRA and Union Council by observing that entries made therein were got recorded much after the date of occurrence

Date of birth recorded much after the commission of the crime could not be safely relied upon without any corroborative piece of evidence

Trial Court had rightly considered the report of Medical Board which included the ossification test

Accused had come out to be juvenile under the relevant law and such fact was supported by school leaving certificate

Age of accused on the day of occurrence was left by Medical Board to swing between 17 to 18 years

Where there were two interpretations then the one favourable to the subject had to be adopted

Approach of the Trial Court was perfectly in accordance with the law, no legal flaw, error or jurisdictional defect was found therein

Petition was dismissed.

2020 PCrLJ 374 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 7 & 2(b)Determination of ageOssification test

Duty had been cast upon Incharge of Police Station or Investigating Officer that if a person alleged to have committed an offence physically appeared or he himself claimed to be a juvenile, immediately an inquiry would be initiated for determination of his age.

2020 PCrLJN 94 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss.302, 354, 109 & 34Anti Terrorism Act (XXVII of 1997), S. 7Juvenile Justice System Ordinance (XXII of 2000), S. 5

Qatl-i-amd, assault or criminal force to women with intent to outrage her modesty, abetment, common intention, act of terrorism

Accused claiming himself to be a juvenile

Determination of age

Methodology

Application for separation of trial of the accused being juvenile was dismissed

Accused was charged that he along with his co-accused in furtherance of common intention committed murder of the son of complainant

Age certificate of accused submitted by the Police Surgeon divulged that the age of accused was 17-18 years, as per ossification of bones

Said age certificate being based on the report of only one Professor of Radiology and not the Board, therefore, the Trial Court was directed to constitute Special Medical Board for the determination of age of accused

Medical Superintendent of the hospital constituted a Medical Board

Investigating Officer of the case was directed by the Medical Superintendent to produce passport, birth certificate from hospital, O level/matric certificate, NIC/B Form, school leaving certificate and the accused before the Special Medical Board for determination of his age

After physical examination of accused, the Medical Board unanimously opined that the age of accused was above 19 years and below 20 years

According to birth certificate, date of birth of the accused was 27.11.1993, and the same date was mentioned in the registration/Application Form submitted to the college

In another education certificate issued by the college, the date of birth of accused was mentioned as 27.11.1993

Statement was filed on behalf of accused along with certain documents i.e. copy of B-Form in which the date of birth of the accused was 27.11.1995, but the name of his mother was differently recorded and his father's name was same

Copy of passport was also attached in which his date of birth was 27.11.1995 and the same date of birth was mentioned in the CNIC of the accused

Cumulative effect was that in some documents produced by the Investigating Officer including the documents issued by college, the date of birth of the accused was 27.11.1993 whereas documents produced by the accused though belatedly his date of birth was 27.11.1995, where there were such discrepancies and incompatibilities in the documents produced for and against, the most excellent approach and methodology, held, was to get opinion of Medical Board.

2018 PCrLJ 132 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 7Determination of ageClaim of being minorScopeRaising of such claim by accused belatedlyEffect

Adverse inference could be drawn against the accused.

2018 PLC(CS)N 133 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Regln. 3.16Employee of Civil Aviation AuthorityAlteration in date of birth of employee by the AuthorityRetrospective retirement of employeePrinciple of audi alteram partemApplicabilityMedical fitness certificateOssification testDetermination of ageService BookScopePrinciple of acquiescence and waiverApplicability

Contention of employee was that his date of birth was 02-08-1956 but the Authority altered the same and superannuated him

Department contended that employee filed medical certificate at the time of his induction showing his age at that time as eighteen years which would be around as 01-07-1952

Validity

Employee had been condemned unheard and had been retired retrospectively

Maxim 'audi alteram partem' was applicable to judicial as well as non-judicial proceedings

Department was a public Authority and was supposed to function in accordance with law

Authority had committed illegality by not providing any opportunity of personal hearing to the employee while altering his date of birth without any cogent reason

Medical certificate of employee was neither based upon ossification test nor opinions of dental surgeon or radiologist

Said certificate had also not been signed by any doctor nor it had been stamped showing its authenticity

Nothing was on record to suggest as to on what basis the date of birth of employee was mentioned as eighteen years in the medical fitness certificate

Mere stating in medical certificate that employee was eighteen years old could not be considered as an authentic piece of evidence to determine age of petitioner

Date of birth of petitioner was 02-08-1956 according to his Service Book

Service Book was always prepared by the department to maintain record of employee and could not be manipulated by the employee

Nothing was on record that employee had manipulated/tampered his date of birth in the Service Book

Employee had produced his school leaving certificate showing his date of birth as 02-08-1956

Said certificate had not been challenged by the department

School leaving certificate remained un-rebutted and entries mentioned in the said certificate were to be taken as true

Computerized National Identity Card issued by the NADRA also showed date of birth of petitioner as 02-08-1956

No reason, therefore, existed to discard the documentary evidence produced by the employee with regard to his date of birth as 02-08-1956

Stance of department/Authority which was based on irrational, arbitrary and illegal as well as surmises and conjectures could not be relied

Employee was to be treated as retired from service upon attaining the age of superannuation

Impugned orders passed by the Auuthority were set aside having no legal effect

Petitioner had attained the age of superannuation therefore no question for his reinstatement arose

Employee would be entitled for his all salaries and service benefits of intervening period

Constitutional petition was allowed in circumstances.

2017 SCMR 633 SUPREME-COURT Judicial Precedent

Ss. 2(b) & 7Juvenile accusedDetermination of age

Scope

2017 YLR 1605 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 7Determination of ageScope

When controversy regarding the age of accused could not be settled through documentary evidence, preference would be given to the medical opinion.

2017 YLRN 71 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 7Capital punishment offencesJuvenile accusedDetermination of ageRequirement

Issue about the age of an accused at trial which can result in punishment of death is of vital significance.

2015 PCrLJ 166 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 7 & 2(b)Determination of ageOssification test

Accused moved an application seeking declaration to be a juvenile at the time of commission of crime which was dismissed by the Trial Court after an inquiry and ossification test conducted by the Medical Board

Contention of the accused was that he was less than the age of eighteen years at the time of commission of crime

Validity

Accused applied for a declaration of his being a juvenile and he himself suggested the ossification test through a Medical Board and the same had been termed by him as a mandatory step within the meaning of S. 7 of the Juvenile Justice System Ordinance, 2000

Medical Board declared the accused as 22-23 years of age which had not been challenged by him and he had never demanded re-examination by creating doubts on opinion of Medical Board

Accused was not a child when occurrence took place within the meaning of S. 2(b) of the Juvenile Justice System Ordinance, 2000 and findings of the Trial Court were justified and did not call for any interference

Revision was dismissed.

2013 YLR 804 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 7Determination of ageAccused claimed that he was 17 years old at the time of his arrest

Trial Court allowed application filed by accused under Ss.4 and 5 of Juvenile Justice System Ordinance, 2000 after relying upon his birth certificate and academic records

Contentions of complainant (applicant) were that Medical Board, constituted by the Trial Court, opined that as per bone ossification and physical appearance of accused, he was aged between 19 and 20 years, and that accused had submitted forged birth certificate and academic records before the Trial Court

Validity

Accused had submitted a forged birth certificate as no record for its issuance was available with the concerned department

Only way left to determine age of accused in such circumstances was through medical evidence

Medical Board had opined that age of accused was between 19 and 20 years and his age at the time of commission of offence was not less than 18 years

General appearance of accused revealed that he was not less than 20 years of age

Impugned order of Trial Court was not sustainable in the eyes of law and as such same was set aside

Revision application was allowed accordingly.