Juvenile accused

Applicant was admittedly 15 years of age at the time of the commission of offence and had been incarcerated for over 06 months

Court of first instance erred in its interpretation of S. 6(4) of the Act and denied the bail application of the applicant on the ground that he was accused of a "heinous offence"

Section 6(4) is applicable only in cases where the juvenile is over 16 years of age, but the applicant at all relevant times did not cross that threshold, thus, the nature of the offence in question was immaterial

Even if there was a doubt pertaining to the interpretation of S. 6(4), the benefit of the same ought to have been given to the applicant

Applicant had also made out a case for bail as no statement under S. 164, Cr.P.C of the victim had been recorded and neither had any other cogent evidence surfaced before High Court disentitling the applicant for the concession of bail

Messages allegedly exchanged between the victim and accused did not decipher as to whether applicant intended to commit the offence and the said adjudication could only be made at trial, thus, incarceration of accused would serve no useful purpose

Petition for grant of post arrest bail was allowed, in circumstances.

Main reasons given by the High Court for the denial of bail to the petitioner (juvenile accused) on the statutory ground of delay in the conclusion of the trial were (i) that the petitioner committed a 'heinous offence'; (ii) that the delay in the conclusion of the trial was attributable to the petitioner, as he had moved an application for the determination of his age under Section 8 of the Juvenile Justice System Act, 2018 ("2018 Act"), which took time; and (iii) the frequent absence of the co-accused during the trial also contributed to the delay

Validity

High Court erred in law by attributing the delay in concluding the trial to the petitioner, who had filed an application for determination of his age under Section 8 of the 2018 Act, which took time

Initial duty to determine the age of an accused who appeared or claimed to be a juvenile laid with the police

When the police fails in this duty, it passes on to the court

Therefore, the time spent by the court in making this determination constitutes an act of the court, which cannot be construed as delay caused by the petitioner in the trial, thereby depriving him of his right to bail on the statutory ground of delay

So far as the delay caused by the frequent absence of the co-accused during trial was concerned, the same could not be attributed to the petitioner as one was responsible for his own acts or omissions, not of others

Petitioner was arrested in the present case on 23 February 2023 and had been detained continuously for more than six months since then, with his trial not yet concluded

There was no evidence on record indicating that the delay in concluding the trial was caused by any act or omission of the petitioner

Therefore, the prerequisites of Section 6(5) of the 2018 Act were fulfilled, which entitled the petitioner to the grant of post-arrest bail as a matter of right on the statutory ground of delay in the conclusion of the trial

Petition was converted into an appeal and the same was allowed, the impugned judgment was set aside, and the petitioner was admitted to bail.

Period of delay in concluding the trial is calculated from the date of the arrest of the accused.

Since both 'minor offence' and 'major offence' are treated as bailable under Section 6(3) of the Juvenile Justice System Act, 2018 ('the 2018 Act'), the ground of delay in the conclusion of the trial provided by Section 6(5) for grant of bail applies solely to juveniles detained for a 'heinous offence'

Therefore, post-arrest bail is to be granted as a matter of right to a juvenile detained for a heinous offence, regardless ofhis age, whether above or below sixteen years, provided the prerequisites of Section 6(5) are fulfilled

Nature of the offence is not a valid ground to withhold bail under Section 6(5) of the 2018 Act.

Record revealed that though petitioner was directly charged in the FIR and considerable quantity of narcotics were allegedly recovered from his direct/conscious possession, however, secondary school certificate of the petitioner showed his date of birth as 28.4.2007 and as per the said certificate, at the time of alleged offence i.e. on 22.10.2023, his age was 16 years, hence for all practicable purposes he was a juvenile and, therefore, under S. 6 subsection (1) of the Juvenile Justice System Act, 2018, he deserved the concession of bail

Record further showed that after the alleged recovery no videography whatsoever was carried out

Moreso, the sample parcels were sent to the Forensic Science Laboratory Authorities after five days of delay

Bail petition was allowed in circumstances.

Medical report of the victim was clear inasmuch as it showed a wedge sloped tear on anterior wall of anal canal, which prima facie indicated that penetration had taken place, which was enough for the commission of the offence

Mere fact that the Forensic Science LaboratoryReport of the swabs was awaited was not sufficient to help create a scope of further inquiry

Delay in such like cases did not matter much for the simple reason that the honour of the victim and his family was involved

No one would ordinarily falsely level the charge of such an offence to invite social stigma such an offence tends to carry

An additional ground was the putting of the victim in fear of instant death through the use of the pistol by the petitioners

Thus, on merit, there existed a prima facie case against both the petitioners, therefore, they were not entitled to the concession of bail

However, petitioners raised the plea of juvenility as well

Medical report of the petitioner "S" reflected his age to be about 17 years, while the medical report of petitioner "H" revealed that he was about 16 years of age

Thus, both the petitioners were juveniles, as defined in S.2 of the Juvenile Justice System Act, 2018

However, no effort under S.8 of the Act, including the Judicial Magistrate before whom the petitioners were produced under S.167, Cr.P.C., was made for determination of their juvenility

In the cards of arrest, the petitioner "H"was shown as 15/16, and the petitioner "S" as 16/17 years old

Court, thus, had to consider the cards of arrest and the medical reports as available material for the purpose of tentative assessment

Under subsection (3) of S.6 of the Act, for the minor and major offences a juvenile offender shall be treated as if accused of committing a bailable offence

However, under subsection (4) of the same provision, in the case of a heinous offence (carrying capital punishment), a juvenile over sixteen years of age may not be granted bail if there are reasonable grounds establishing prima facie connection with the alleged offence

Case of a juvenile offender of 16 years or below would be covered by subsection (3) of S.6 of the Act

For such reason, the petitioner "H" being 16 years old, stood entitled to bail on the ground of juvenility

Petitioner "S" being 17 and as such above 16, was refused bail being charged for a major offence

Petition was partially allowed.

Allegation against the petitioner was that he, being member of proscribed organization, possessed explosive substance weighing 470 grams along with four feet safety fuse wire and four detonators at the time of his arrest

Record revealed that no evidence was collected against the petitioner/accused during investigation showing that he had been indulging in any anti-state activities or he was a member of any proscribed organization

Petitioner had no antecedent of such like activities and even no other criminal case had so far been registered against him

Petitioner was behind the bars for more than three months whereas report under S. 173 of Criminal Procedure Code, 1898, had not been submitted in the Trial Court

There was no likelihood of early conclusion of the trial

Documents (Form-B and Matriculation Certificate) showed that the petitioner was below seventeen years of age at the time of alleged incident, therefore, he being juvenile and teenager was entitled for concession of bail

Bail was allowed to the petitioner, in circumstances.

When determining juvenility of accused, date of arrest in a criminal case is immaterial; an accused has to be dealt with under the law as applicable on the date that the crime is committed.

Upon raid on the said factory the accused was found present whereas 24 packets of ICE weighing 24000 grams and four packets of chemical weighing 106 kilograms were recovered from the possession of another co-accused

According to prosecution, presence of accused was shown at the spot but nothing was recovered from him or on his pointation

According to matriculation certificate the accused was about sixteen years and five months of age at the time of incident and apparently, he was a juvenile

Since as per prosecution's own case, nothing was recovered from the possession or on the pointation of accused, therefore, the Trial Court shall determine whether case of accused came within the mischief of Ss. 12 & 13 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 after recording evidence

Presently case against the accused called for further inquiry falling within the ambit of S. 497(2), Cr.P.C.

Petition for leave to appeal was converted into appeal and allowed, and accused was granted bail.

Plea of accused that negative forensic report cast shadow on the reliability of prosecution case, benefit whereof cannot be withheld from the accused

Validity

Child victim being in tender nubility was clinically established to have been violated, a circumstance that required no further forensic corroboration

Negative reports do not reflect upon the veracity of prosecution case for reasons more than one

D.N.A. profile generation though a most meticulous method with unfailing accuracy, nonetheless, requires an elaborate arrangement about storage and transportation of samples, a facility seldom available

Even a slightest interference with the integrity of samples may alter the results of an analysis and, thus, the fate of prosecution case cannot be pinned down to the forensic findings alone, otherwise merely presenting a corroborative support, hardly needed in the face of overwhelming evidence, presented by the prosecution through sources most unimpeachable

Crime was reported with a remarkable promptitude; accused being a close family relation, the timeframe does not space any hypothesis of consultations or deliberations

Given the violence inflicted upon the child, enhancement of accused's sentence by the High Court, his juvenility notwithstanding, cannot be viewed as excessive or harsh

Petition for leave to appeal and appeal were both dismissed.

Period of six months mentioned in section 6(5) of the Juvenile Justice System Act, 2018 is to be counted from the date of arrest of the juvenile, after determination of his age and not from the date of such determination or adjudication by the Court.

In case of a juvenile-accused it was desirable and appropriate that the accused should be provided counseling/consultation facility of his natural Guardian or any close blood relative

Confession should be voluntary, based on true facts and corroborated by other evidence available on record.

Allegation against the accused was that he borrowed a pistol from the witnesses and subsequently retuned it to them; the pistol was produced by the witnesses to the police and it was forensically found wedded with the casings secured from the scene of murder

Question as to whether the pistol presented to the police by the prosecution witnesses, shown to have ejected casings of the fatal shots could be attributed to the accused so as to conclusively saddle him with the culpability of crime in the absence of any other evidence was an issue that needed to be settled after recording of evidence

Furthermore date of birth of accused recorded in his school leaving certificate, brought his status within the remit of juvenility with concomitant concessions available to him under the law

Even otherwise, investigation being complete, accused's continuous detention was not likely to improve upon prosecution's case

Petition for leave to appeal was converted into appeal and allowed, and accused was released on bail.

Statutory period under S.10(7) of the Juvenile Justice System Ordinance, 2000, was one year in case juvenile was charged with an offence punishable with death or punishable with life imprisonment

Accused persons being juvenile, could not be awarded death penalty, but having been charged for an offence punishable with death the statutory period, as provided under S.10(7)(a) of Juvenile Justice System Ordinance, 2000 would be taken into consideration, which was one year

Accused were behind the bars for the period of more than two years

Challan against accused had been submitted after a period of more than seven months, followed by framing of the charge

Major portion of the prosecution evidence, though had been recorded, but material evidence i.e., the statements of the eye-witnesses and the Investigating Officer, were yet to be recorded, which could cause further delay

Non-appearance of the prosecution witnesses had caused delay in conclusion of trial

Accused persons, in circumstances, were entitled to the concession of bail on statutory ground of delay of more than one year

Accused, were admitted to bail, in circumstances.

Scope

Medical expert, opinion of

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

All documents, Secondary School Certificate Examination and school leaving certificate, were prior in time to the registration of present case and the same had come from official custody; as such, the same could not be regarded as fabricated or procured to avail the benefit of juvenility

Ossification test of the accused for determining his age would be necessary when no reliable documentary evidence was available on the record about the age

In presence of the authentic academic record available in the case file pertaining to the age of the accused, there was no necessity to refer the accused for the ossification test

Impugned order was maintained

Revision was dismissed accordingly.

Presiding Officer should always feel free to requisition the original record, summon and examine the authors and custodians of the record/documents to determine genuineness of the same, summon person, who, on account of their special knowledge, can depose about age of the accused and to take such other and further steps which can help the court in reaching a just conclusion about the matter.

Presiding Officer should never be in hurry to decide the issue (as to determination of age) in a summary or slipshod manner.

Normal penalty under Cl. (b) of S. 302, P.P.C., was death sentence, but accused was awarded sentence for imprisonment for life being juvenile

Age factor could only be seen in case of minor offences, but case of heinous offence of murder could not be treated at par with minor offences

Age, type and seriousness of offences and past record of criminal activities of accused at time of his conviction was a relevant factor, which should also have been adhered to Juvenile Justice System, which was meant to treat a child accused with care offering him chance to reform and settle into mainstream of society, but the same could not be allowed to be used as ploy to dupe course of justice while conducting trial and treatment of heinous offences.

Defence failed to bring on record any ill-will or element of false implication on part of eye-witnesses or to show its relation with complainant

Statement of eye-witness could not be ruled out of consideration being independent witness fully supporting prosecution story

Statements of eye-witnesses were also confidence inspiring as the same had correctly narrated details of occurrence

Defence failed to point out mala fide or ulterior motive on part of eye-witnesses for falsely implicating accused

Disclosure memo. leading to discovery of new facts which were not known earlier was also admissible and further strengthened prosecution case

Prosecution had successfully proved motive of occurrence by showing conduct of parties due to business rivalry between them

Evidence of three eye-witnesses, medical evidence coupled with circumstantial evidence, disclosure by accused, recovery of crime empty of pistol and surrendering of accused to police right after commission of crime had proved beyond any shadow of doubt that deceased was murdered by accused due to business rivalry

Prosecution evidence was confidence inspiring and the same was not suffering from any contradictions or infirmity

Normal penalty under Cl. (b) of S. 302, P.P.C., was death sentence, but accused was awarded sentence for imprisonment for life being juvenile

Trial Court, after properly appreciating available evidence rightly awarded conviction to accused, which did not warrant any interference

Appeal was dismissed.

Confessional statement was not to be accepted as a substantial piece of evidence to place conviction on it alone, unless it was corroborated in each and every detail by other corroborative circumstantial evidence

Courts were always vigilant in the matter, that the prosecution would prove in all circumstances that confessional statement was free of all kind of coercion, threat, promise; and was voluntary

Retracted confession would not be accepted as a gospel truth

Court was to carefully scrutinize confessional statement as to whether all the formalities required thereof were fulfilled.

Trial Court granted bail to accused on the grounds that he was a juvenile and that there was a delay in conclusion of his trial

Validity

Accused was wanted by the police for allegedly committing carnal intercourse with the victim, and instead of surrendering he allegedly opted to murder the deceased

After getting bail from Trial Court, accused was found involved in two other cases

Accused had not only misused concession of bail but even otherwise, he was not entitled for grant of bail on the ground of delay in final disposal of case

Bail granted to accused was cancelled in circumstances.

In present times a male/female child gained sense of understanding things early and speedily as compared to older times on account of modernization in devices and technologies in all walks of life.

Accused, relying upon medical report, claimed to be juvenile offender but complainant produced birth certificate of accused

Trial Court relying upon the birth certificate did not declare the accused as child

Validity

Medical report was not the sole criterion for determination of age of accused, it was one of the pieces of evidence to be considered for such purpose

Medical report could be relied upon, if there was no other cogent evidence on record regarding age of accused

Complainant succeeded in getting certified copy of birth certificate of accused according to which he was born on 28-6-1993 and his birth was reported on next day i.e. 29-6-1993, by Chowkidar

Birth certificate in which name of accused was mentioned stood un-rebutted

Trial Court, from such evidence was in a position to ascertain exact date of birth of accused so it was rightly relied upon to determine the age of accused and according to birth certificate, accused was 18 years, 2 months and 26 days old at the time of occurrence, so he did not fall within the definition of "child" and could not claim separate trial to be conducted under Juvenile Justice System Ordinance, 2000

When there was nothing on record to rebut birth certificate there was no reason for Trial Court to discard such authentic piece of evidence

Exact age of any person could not be ascertained and determined by medical report

Difference existed between report of dental surgeon and ossification test

When exact date of birth was proved on record through birth certificate, the medical report could not be given preference over birth certificate

Trial Court rightly preferred birth certificate over medical report

Order passed by Trial Court suffered from no infirmity and warranted no interference by High Court in exercise of revisional jurisdiction, as Lower Appellate Court exercised jurisdiction vested in him

Revision was dismissed in circumstances.

Accused and co-accused persons were alleged to have committed dacoity at house of complainant and during the occurrence accused also allegedly fired a single shot at the injured witness

Prosecution alleged that accused fired a single shot which hit the injured witness and firing was not repeated, however mashirnama of place of wardat showed that 4 empties were recovered

Complainant alleged in the F.I.R. that blood started oozing out from the abdomen of injured witness, however as per mashirnama of wardat, no blood stained earth was recovered

Certificate issued by Special Medical Board showed that age of accused was 17 years, which meant that at time of commission of offence he was below the age of 17 years

Accused being a juvenile offender deserved concession of bail

Accused was allowed bail accordingly.

Where accused was a child, then it was the duty of the prosecution, when it produced documents through witnesses, to disclose the real facts.