2021 P Cr. L J 1032
[Balochistan]
Before Rozi Khan Barrech, J
MIRWISE ---Petitioner
Versus
MOHIB -UR-REHMAN, SI/SHO POLICE STATION SADDAR, LORALAI and
another ---Respondents
Criminal Miscellaneous Quashment Petition No. 330 of 2019, decided on 23rd August, 2019.
(a) Juvenile Justice System Act (XXII of 2018)---
----S. 8 --- Age, determination of --- Contradictory documents ---Constitution of Medical
Board ---Scope ---Accused assailed the dismissal of his applicat ion whereby he had sought
determination of his age through Medical Board ---Birth certificate of accused showed his age
to be less than 18 years whereas the record of NADRA showed his age more than 18 years ---
Court was required to hold an inquiry into the m atter whenever a question arose with regard
to age of accused ---Petition was accepted and the case was remanded to the Trial Court with
direction to conduct the inquiry for determination of the age of accused in view of S. 8 of the
Juvenile Justice System Act, 2018.
(b) Juvenile Justice System Act (XXII of 2018)---
----S. 8 ---Determination of age---Scope ---When controversy regarding the age of an accused
cannot be settled through documentary evidence and the medical opinion due to difference in
opinion the n preference is always to be given to the medical opinion.
2012 SCMR 1400 ref.
(c) Juvenile Justice System Act (XXII of 2018) ---
----S. 8 ---Determination of age ---Scope ---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.
Raja Jawad for Petitioner.
Abdul Karim Malghani, State counsel along with Wajahat Ghazna vi, State counsel for
the State.
Date of hearing: 26th July, 2019.
ORDER
ROZI KHAN BARRECH, J. ---In the instant Criminal Quashment Petition, the
petitioner claimed following relief:
"It is, therefore, humbly prayed that the record from the trial Court be called and
order dated 12.03.2019 passed by learned Judicial Magistrate -XIII, Quetta, and
impugned order dated 22.05.2019 passed by learned Additional Sessions Judge -III
Quetta, (Revisional Court) be set aside and medical board be constituted as w ell as
school and college record be verified through the office concerned, in the interest of
justice, equity and fair play".
2. Facts of the case are that FIR No.61 of 2018 for offence under sections 337- A, 504,
P.P.C. was registered at Police Station Zar ghoon Abad, Quetta, on 07.06.2018, against the
petitioner (accused). After completion of investigation, challan was submitted before the Judicial Magistrte -XIII, Quetta. During trial on 27.11.2018, an application under section 4 of
Juvenile Justice System Ordinance, 2000 ("the Ordinance") was placed for transfer the case
for presiding under Juvenile Court, on the basis of school leaving certificate and the date of birth of the petitioner is 30.11.2002. The learned trial Court sent the Secondary School Certi ficate to Balochistan Board for verification and the same was received and verified.
During pendency of the said application, the learned trial Court called the record from NADRA with regard to the family trees of father of the petitioner. On 12.03.2019, a fter
receiving record from NADRA the learned trial Court rejected the application filed by the petitioner on 27.11.2018 for transferring of the case to Juvenile Court. Subsequently on 19.03.2019, another application under section 8 of the Ordinance was fil ed for determination
of age of the petitioner through Medical Board as well as school and college record and the same was rejected on 12.03.2019, by the learned trial Court.
3. Being aggrieved from the order dated 12.03.2019, passed by the Judicial Magistr ate-
XIII/Civil Judge, Quetta, the petitioner filed Criminal Revision Petition before the learned Sessions Judge, Quetta, and the same was transferred to the Court of learned Additional Sessions Judge -III, Quetta.
4. After hearing arguments on the petition the revisional Court dismissed the application
of the petitioner on 22.05.2019. Hence this petition.
5. Learned counsel for the petitioner submitted that sufficient material in the shape of
Birth Certificate was available before the trial Court which the a ge of the petitioner was less
than at the time of occurrence but subsequently on the application of the complainant the learned trial Court called the family trees of the petitioner from NADRA and the age of the
petitioner was shown more than 18 years and there was contradiction between the school
leaving certificate and NADRA record. In such circumstances the learned trial Court should conduct a proper inquiry through medical board for determination of age of the petitioner.
6. On the other hand, the learned State Counsel while opposing the contention raised at
the bar by the learned counsel for the petitioner submitted that according to NADRA report the age of the petitioner was given more than 18 years at the time of occurrence. Further submitted that dec ision of the learned trial Court are based on convincing grounds, therefore,
same should be dismissed.
7. I have heard the learned counsel for the parties and gone through the available record
with their assistance. It has been observed that the petitioner has relied upon his birth on
Secondary School Certificate wherefrom the age of the petitioner was admitted as 30.11.2000 and he is fulfilling the requirement being a minor, but the same facts remain that the same has shown to have been got entered into the record of NADRA, according to which, the petitioner's date of birth is 15.03.1998, meaning thereby that according to NADRA report at the time of occurrence the petitioner was not minor.
8. In the above circumstances, I am of the considered view that the report of NADRA
alone is not an independent source of information about the age of the petitioner, because, this document followed the information volunteered by the person himself or someone connected with him. Such document, therefore, cannot be conclusi ve proof of the concerned
person's date of birth. It is well settled by now that when controversy recording the age of an accused person could not be settled through documentary evidence and the medical opinion due to different opinion then preference is a lways given to the medical opinion. Reliance in
this regard is placed on 2012 SCMR 1400.
9. It is an admitted fact that there are two documents which reflect to each other about
the age of the petitioner which was also found genuine after verification, the refore, it
required further inquiry for determination of the age of the petitioner.
10. The Criminal Procedure Code does not prescribe any procedure for determination of
age of an accused person. However, the Ordinance which was enacted for protection of t he
rights of children involved in criminal litigation, provides a procedure therefore in matters falling within its purview. Article 8 of the Juvenile Justice System Act, 2018 (hereinafter "the Act") stipulates:-
"8. Determination of age. Where a person alleged to have committed an offence
physically appears or clams to be a juvenile for the purpose of this Act, the officer -in-
incharge of the police station or the investigation officer shall make an inquiry to determine the age of such per son on the basis of his birth certificate, educational
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" -
11. At the very outset, it is observed that whenever a question arises before a Court as to
whether the accused a juvenile offender and its subject to the jurisdiction of a Juvenile Court,
the Court is required to hold an inquiry into the matter.
12. In case in hand, there can be no two opinions that in Article 8 of the Act there is a
statutory command that the Court should hold an inquiry when it is confronted with a
question about the age of an accused person. Since the purpose of an inquiry, as we have already seen , is to find out the truth, it should be spread over a fairly board spectrum. The
Court should not only take into consideration the documents produced by the parties, but where necessary, it should also record statements of the witnesses. It should also re quisition
medical report, which means clinical and radiological examination of the accused or what is called his ossification test. In my opinion, a plain reading of Article 8 of the Act shows that this is mandatory unless there are strong reasons to dispe nse with the same. On the
conclusion of the inquiry, the Court should give its findings after considering all the evidence brought before it in accordance with the established principles of criminal jurisprudence.
For the above stated reasons, I am inclined to accept the petition. Consequently the
order dated 12.03.2019, passed by learned Judicial Magistrate -XIII, Quetta, and impugned
order dated 22.05.2019, passed by learned Additional Sessions Judge -III, Quetta, (Revisional
Court) are hereby set aside. T he case is remanded to the trial Court with the direction to
conduct the inquiry for determination of the age of petitioner in view of Article 8 of the Act.
Order accordingly.
SA/167/Bal. Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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