2017 Y L R 2146
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
ABDUL MAJEED--- Petitioner
Versus
BISMILLAH and 2 others ---Respondents
Criminal Revisions Nos.131 and 135 of 2016, decided on 31st March, 2017.
(a) Juvenile Justice System Ordinance (XXII of 2000) ---
----S. 7---Penal Code (XLV of 1860), Ss.302, 147, 148 & 149---Age of accused, determination
of---Accused submitted application to the Trial Court with the plea that he being juvenile would
be dealt with under the Juvenile Justice System O rdinance, 2000, which was accepted---
Petitioners had alleged that Trial Court had accepted the plea of accused on the basis of record of
National Database Registration Authority and school leaving certificate without conducting
proper inquiry ---Validity ---When question arose as to whether a person was a child, the court
shall record a finding after such inquiry which would include a medical report for determination
of the age of the child--- Record showed that Trial Court did not resort to the ossification t est of
the accused and relied on National Database and Registration Authority record for determination
of his juvenility ---Entry made in the record of National Database and Registration Authority was
not to be conclusive proof of the age of accused--- Opini on of medical experts could offer a
valuable guide in resolving the controversy in issue ---Proper compliance of S. 7 to conduct
inquiry, would be to call upon the parties to lead their evidence, oral or documentary in
accordance with the provisions of Qanun- e-Shahadat, 1984 with the right to the other party to
test the veracity or the genuineness of the same in accordance with law and then to arrive at a
judicial decision in terms thereof ---Circumstances established that the procedure adopted by the
Trial C ourt was against the principles of justice and mandate of law because the question of
juvenility of the offender related to the ultimate determination of quantum of sentence ---Revision
petition was accepted.
Ali Hassan alias Jamshaid v. The State 2012 SC MR 242; Muhammad Aslam v. The State
PLD 2009 SC 777 and Sultan Ahmed v. Additional Sessions Judge -I, Mianwali PLD 2004 SC
758 rel.
S. Ghulam Mustafa v. The State PLD 2004 Pesh. 236; Muhammad Akram v. Muhammad
Haleem 2002 PCr.LJ 633; Mehboob Ahmed v. The S tate 2002 PCr.LJ 2034 and Tauseef alias
Captain v. The State PLD 2009 Lah. 535 ref.
(b) Juvenile Justice System Ordinance (XXII of 2000) ---
----Preamble & S. 7 ---Scope of Juvenile Justice System Ordinance, 2000---Ordinance was
promulgated in order to provi de protection to the rights of children involved in criminal
litigation, their rehabilitations in society, reorganization of juvenile courts, and matter connected
therewith and incidental thereto.
(c) Juvenile Justice System Ordinance (XXII of 2000) ---
----S. 7--- Age of accused, determination of ---Principles ---Plea of minority by accused was a
special plea---Such plea of minority must be taken by the accused at the earlier possible
opportunity, preferably during the course of investigation so that the requisite evidence about the
age of the accused could be properly collected during the said exercise of collection of evidence
and any delayed claim on that account would meet adverse inferences ---Question of age
whenever was raised or arisen at the trial, the court would not deal with the same in cursory or in
a slip -shod manner but must proceed to hold an inquiry in the matter as commanded by the
provisions of S. 7 of the Juvenile Justice System Ordinance, 2001 including medical examination
of the accused for the purpose ---Such inquiry would not be understood to mean only to entertain
documents from across the bar and then giving a decision thereon---Such a practice need not
only be discouraged but, to be discontinued---Basing judicial decisions on unscrutinis ed
documents was a dangerous path to tread; Medical examination of the accused person could
furnish a useful guideline in the matter and should be resorted to--- "Child" was not to be sent to
the gallows but it was equally important that the one who deserve d death must not be allowed to
escape the same on the strength of "false and fabricated material" ---Order accordingly.
(d) Constitution of Pakistan --
----Art. 189---Judgment of Supreme Court ---Binding effect ---Any decision of the Supreme Court
deciding a question of law or based upon or enunciating a principle of law, was binding on all
other courts in the country.
Bhooral Khan v. The State 2017 MLD 7 rel.
Muhammad Shabbir Rajput for Petitioner.
Shaukat Ali Rakhshani for Respondent No.1.
Amir Hamza Me ngal, D.P.G. for Respondent/State.
Date of hearing: 29th March, 2017.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This common order shall
dispose of Criminal Revision Petitions Nos.131 and 135 of 2016 as common question of law and
facts is involved therei n. Both these petitions are directed against the orders of even date i.e.
08.12.2016 (impugned order) passed by the learned Additional Sessions Judge, Loralai ("trial
court") whereby the respondent No.1 has been declared juvenile and the prosecution was
directed to submit a separate challan to his extent.
2. Brief facts of the case are that on written report of the complainant Abdul Majeed the FIR
No. 62 of 2016 was registered under Sections 302, 147, 148 and 149, P.P.C. with Duki, Police
Station, District Duki on 10.09.2016, alleging therein that on the fateful day at the stated place
and time, he along with Abdul Rehman, Abdul Zahir and Muhammad Ibrahim were heading
towards Sheikh Ibrahim's shrine; that near Haji Fazal Khan's tube -well respondent No.1 and his
companions namely Abdul Zahir and Gul Baran made firing upon them; that due to such firing
Abdul Zahir sustained bullet injury on his face and died on the spot, while the complainant and
his other companion remained unhurt. Thus, the FIR was registered.
While the FIR No. 05 of 2016 was lodged with police station Crimes Branch on
24.09.2016 which shows that respondent No.1/accused during interrogation in the main case
registered vide FIR No. 62 of 2016 disclosed that he can lead to recovery of pistol, w hich he had
concealed in his house, thus, he led the police party to his house and effected the recovery of T.T
pistol along with five bullets, therefore the FIR No. 05 of 2016 was registered.
3. On completion of investigation, challan of the case was subm itted before the trial court.
Where the learned counsel for respondent No.1 submitted an application with the plea that the
respondent No.1 being juvenile shall be dealt with under the Juvenile Justice System Ordinance,
2000, which was accepted by the tria l court in the manner mentioned herein above. Hence this
petition.
4. Learned counsel for the petitioner contended that after submission of challan the
application under Section 5 of the Juvenile Justice System Ordinance, 2000 (the Ordinance,
2000), was filed before the trial court purely on the strength of NADRA record and school
leaving certificate and the trial court after conducting summary inquiry and recording the
statement of the NADRA representative, who also produced the Form ( ) of respondent
No.1/accused and verified that the respondent No.1's date of birth as per their record is
01.01.2001 and further stated that the Form ( Ex.C/C -1) was issued from their office in the year
2009; that subject to provision of Section 7 of the Ordinance neither a ny ossification test nor any
proper inquiry was conducted by the trial court and the respondent No.1/accused was declared
juvenile in slipshod and cursory manner; that section 7 of the Ordinance stipulates that inquiry in
respect of juvenility of the offen der shall include a medical report for determination of his age
but the trial court relied on the NADRA record, which course was against the mandate of law. In
support of his contention the learned counsel placed reliance on the following reported
judgment s of the Hon'ble Supreme Court: --
Ali Hassan alias Jamshaid v. The State (2012 SCMR 242)
Muhammad Aslam v. The State (PLD 2009 SC 777)
Sultan Ahmed v. Additional Sessions Judge -I, Mianwali (PLD 2004 SC 758)
He finally urged for setting aside the impugned order and prayed for direction to the trial
court to proceed with the matter strictly in accordance with mandate of law.
5. Conversely, learned counsel for respondent No. I/accused contended that the NADRA
record duly authenticated by its representative shows that ( ) i.e. Ex.C/C -1, was issued in the year
2009, while the occurrence in the instant case has been alleged to have taken place in the year
2016: that since the complainant has not disputed the authenticity of the NADRA record rather
persisted on the ossification test of the respondent, therefore in presence of valid documentary
evidence with regard to juvenility of the offender no further inquiry was required to be
undertaken; that the NADRA record being conclusive in nature prevails over the medical
opinion; that the ossification test was only required if there were no other convincing and reliable
evidence on record to assist the court to reach the just conclusion of the issue in dispute. In
support of his contention he also placed reliance on t he following judgments: --
S. Ghulam Mustafa v. The State (PLD 2004 Peshawar 236)
Muhammad Akram v. Muhammad Haleem (2002 PCr.LJ 633 Lahore)
Mehboob Ahmed v. The State (2002 PCr.LJ 2034 Lahore)
Tauseef alias Captain v. The State (PLD 2009 Lahore 535)
The learned DPG adopted the arguments advanced by learned counsel for the
complainant/petitioner and added that the manner and procedure adopted by the trial Court is
based on slipshod and cursory manner and urged for setting aside the impugned order.
6. Heard. Record perused.
7. In both the impugned orders the trial court has determined the juvenility of respondent
No.1 in the following manner: --
"5. So, considering the documents aforementioned it can safely be held that the age of the
accused/applicant is less than 18 years, while under the Juvenile Justice System
Ordinance, a person whose age is less than 18 years, is classified/considered as juvenile,
and he should be tried separately under the said Ordinance, hence, therefore, the
application is accepted and the prosecution is directed to separate the challan to the extent
of accused/applicant Bismillah son of Gul Baran and submit the same before juvenile
Court, Loralai."
8. Since both the learned counsel for the parties as well as the learned DPG have r elied upon
the provision of Section 7 of the Ordinance, 2000, therefore the same being relevant is
reproduced here under, which states that: --
"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"
The question of the age of a person facing trial who has been put to trial to face charge of
murder has got significant importance in view of Section 12 of the Ordinance, which runs as
under:
"12. Orders that shall not be passed with respect to a child. Notwithstanding anything
to the contrary contained in any law for the time being in force no child sha ll be?
(a) Awarded punishment of death, or ordered to labour during the time spent in any
Borstal or such other institution, and
(b) Handcuffed, put in fetters or given any corporal punishment at any time while in
custody;
Provided that where there is reas onable apprehension of the escape of the child from
custody, he may be handcuffed"
9. The Ordinance, 2000, after receiving the assent of the President of Islamic Republic of
Pakistan was promulgated on 01.07.2000 in order to provide 'protection for the rig hts of children
involved in criminal litigation', whereas its preamble states that 'it is expedient to provide for
protection of children in criminal litigation, their rehabilitation in society, reorganization of
juvenile courts, and matter connected there with and incidental thereto'. Whereas its clause (b) of
Section 2 states that:--
"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;"
However a vital significance to th e issue of age of an offender has been granted under
Section 306, P.P.C., which was included in Chapter XVI of the Pakistan Penal Code, 1860 after
promulgation of Criminal Law (Second Amendment) Ordinance VII of 1990, whereby the
provisions of Sections 299 and 338, P.P.C. were deleted and were replaced by the provision of
Chapter XVI. Section 306, P.P.C. provides as under: --
"306. Qatl -i-amd not liable to qisas .---Qatl -i-amd shall not be liable to qisas in the
following cases, namely: --
(a) when an offender is a minor or insane: --
Provided that, where a person liable to qisas associates with himself in the commission of
the offence a person not liable to qisas with the intention of saving himself from qisas, he
shall not be exempted from qisas;
(b) when an offender causes death of his child or grandchild how low -so-ever; and
(c) when any wali of the victim is a direct descendant, how low -so-ever, of the
offender."
While sub- clause (i) of Section 299, P.P.C. defined that a 'a minor means a person who is not an
adult'. In criminal justice system a minor is only defined under the afore -referred definition and
there after a child was defined as juvenile offender under the Ordinance, 2000. Thus, it can
safely be concluded that prior to promulgation of the Ordinance , 2000 the statute i.e. Pakistan
Penal Code, 1860 already prohibited the imposition of death on a child, which was defined by
sub-clause (i) of section 299 of the (Criminal Law (Second Amendment) Ordinance -VII of 1990,
as a person who had not attained the age of eighteen years at the time of commission of the
offence involving punishment of death. Moreover the Rule 2(1)(c) of the Juvenile Justice Rules,
2001, defines the juvenile as under:
"2. Definitions: - (1).... (a)... (b)... (c)"Juvenile" means a person who at the time of
commission of an offence has not attained the age of eighteen years (or a child as defined
in the Juvenile Justice System Ordinance, 2000)."
It is therefore that the accused of a criminal trial commenced his endeavor to establish
that he is less than eighteen years of age. Therefore, the ordinary punishment of death cannot be
awarded to him.
10. Now adverting to the contentions of learned counsel for the parties. It is worthwhile to
mention here that the trial court did not resort to the ossification test of the respondent No. 1
/accused and relied on NADRA record for determination of his juvenility. The Hon'ble Supreme
Court in the judgment rendered in the case of Ali Hassan alias Jamshaid v. The State ((2012
SCMR 242) held that: --
7. On 29- 9-2011, the afore -referred record was produced. Before forming any opinion
with regard to the original record pertaining to the birth entry of the petitioner, we asked
the learned Advocate -General Punjab to have a careful look and give his opinion. Ha ving
examined it, he submitted that the relevant entry reflected some overwriting and therefore
it could not be conclusive. So far as the National Database and Registration Authority's
[NADRA) record is concerned, there is no cavil to the proposition that the entry made
therein may not be conclusive proof of the age of petitioner."
(emphasis provided)
Yet in another case i.e. Sultan Ahmed v. Additional Sessions Judge -I, Mianwali (PLD
2004 SC 758) the Hon'ble Apex Court laid down the following principle: --
"21. From the matters reaching us in this Court, we have observed some confusion in the
minds of some learned Officers presiding over the Courts of law about some matter
arising out of the provisions of this section 7 which are summarized as under: --
(a) the true import of the expression ' IF A QUESTION ARISES' (the emphasis is ours)
as used in the above -quoted provisions of section 7 of the Ordinance;
(b) the scope of 'INQUIRY' (the emphasis is our) envisaged the said section; and
(c) the circumstances i n which the Courts could ask for a medical report about the age of
an accused person."
And in the same judgment in para 25 held that
"25. Medical report about the age of an accused person was a further aid placed at the
disposal of a Court of law for the purpose of determining the age of an accused person.
The opinion of medical experts could offer a valuable guide to a learned Presiding
Officer in resolving the controversy in issue. The impression that an ossification test
could be ordered only as a last resort, was not correct and thus not legally tenable. The
reluctance of the Courts to benefit from such a mandated material was not
understandable. Therefore, whenever, a question of the age of an accused person is raised
or arises, he must be subjected to a medical test unless strong reasons existed or could be
offered for not doing so. Such is the only course which is in accord with the \ provisions
of section 7 of Ordinance XXII of 2000 which command that ".......such inquiry shall
include a , Medical Rep ort for Determination of the age ." (Emphasis is ours)."
It was observed that the above guidelines should, however not, be considered exhaustive
as the, same relates to the matter in issue raised in the afore- referred case.
11. In the backdrop of rising increase in litigation involving the question of age of the
accused person facing trial for the commission of such like offences punishable with death, the
Hon'ble Supreme Court in the case Muhammad Aslam v. The State (PLD 2009 SC 777) laid
down exhaustive guidelines which run as under: ---
"11. While we are on the subject, we consider it necessary to re -iterate the principles
regulating the determination of age of accused persons vis -a-vis their claim of minority
and the procedure to be followed for the pur pose. The same are summarized as under: ---
(a) The normal penalty for an offence punishable with death, is death, and in view of the
provisions of section 367(5), Cr.P.C., special reasons must exist to impose, on the
convict, a punishment other than a sent ence of death;
(b), the plea of minority by an accused is a special plea intended to' take the accused off
the noose and onus is thus on him to prove the same;
(c) such a plea of minority must be taken by the accused at the earlier possible
opportunity, pr eferably during the course of investigation so that the requisite evidence
about the age of the accused could also be properly collected during the said exercise of
collection of evidence and any delayed claim on the said account should be met by
adverse i nferences;,
(d) whenever such a question of age is raised or arises at the trial, the courts should not
deal with the same in a cursory or in a slip -shod manner but must proceed to hold an
inquiry in the matter as commanded by the provisions of section 7 of the Juvenile Justice
System Ordinance including medical examination of the accused for the purpose;
(Emphasis provided)
(e) the said inquiry should not be understood to mean only to entertain documents from
across the bar and then giving a decision there on. Such a practice needs not only to be
discouraged but, in fact, to be discontinued. Basing judicial decisions on untested and
unscrutinised documents was a dangerous path to tread;
(f) proper compliance of the said provisions of section 7 would be to ca ll upon the parties
to lead their evidence -- oral or documentary in accordance with the provisions of Qanun-
e-Shahadat Order of 1984 with a right to the other party to test the veracity or the
genuineness of the same in accordance with law and then to arr ive at a judicial decision
in terms thereof, (Emphasis provided)
(g) a medical examination of the accused person could furnish a useful guideline in the
matter and should be resorted to; and finally, (Emphasis provided)
(h) we must always keep in mind that while it is important, being a legal command, that a
"child" should not be sent to the gallows, it is equally important that the one who
deserves death must not be allowed to escape the same on the strength of 'false and
fabricated material."
12. Thus, in the light of principles of law and those of procedure and also in the light of the
rules of caution initiated by the Hon'ble Apex Court, I am of the considered opinion that the
procedure adopted by the trial court was against the principles of justice and mandate of law
because the question of juvenility of the offender relates to the ultimate determination of
quantum of sentence, which cannot be decided in slipshod and cursory manner.
The judgments cited by the learned counsel for respondent No.1/accused were rendered
by a single member bench of the respective High Courts, whereas the afore- referred judgments
rendered by the Hon'ble Supreme Court are binding on all organs of the State.
This court in the case of Bhooral Khan v. The State (2017 MLD 07) hel d that: --
"The proposition involved in this case is somehow different from the proposition
discussed in Mir Ikhlaq and Arbab Khan's case, because the death penalty awarded by the
trial court was confirmed by this court and for all practical purposes the fa te of the
appellant had been finally decided, but with a flux of time the law has been developed
and a new dictum has been laid down by the Hon'ble Apex Court and trial in absentia in
its totality is held to be unconstitutional, therefore, following the pr inciple of law of
precedents, the latest dictum rendered by the Hon'ble August court and the proposition
which holds the field shall be followed. Thus, the judicial dignity demands that every
judgment delivered by the Hon'ble Supreme Court irrespective of the size of the author
bench deserves and receives the highest respect, while any deviation thereof will amount
to clear violation of the mandate of the Constitution, as the Article 189 of the
Constitution enunciates that:
"189. Decision of Supreme Court binding on other Courts.
Any decision of the Supreme Court shall, to the extent that it decides question of law or is
based upon or enunciates a principle of law, be binding on all other courts in Pakistan."
In view of the referred to Article of the Consti tution no cavil is left to hold that the
determination and deposition made by the Supreme Court of Pakistan can neither be
bypassed nor the validity and verity thereof be examined by the High Court as the same
has binding force and effect under Article 189 of the Constitution, therefore, right duly
recognized by the judgment of the Hon'ble Supreme Court has to be given effect. Any
decision of the Hon'ble Supreme Court, shall to the extent it decides a question of law or
is based upon or enunciates a principle of law shall be binding on all other courts in
Pakistan. Thus, in the instant case, though, the murder reference against the appellant was
answered in affirmative by this court but the same cannot hold the field in view of dictum
rendered by the Hon'ble Apex Court."
Therefore, the judgments cited by the learned counsel for respondent No.1/accused being
based on distinguishable facts are not helpful to the respondent. Needless to mention here that
here is no cavil to the proposition that when law contemplates to do an act in a particular manner
then any deviation there -from will amount to violate the said provision of law and any order
pursuant thereto will not be sustainable.
For the above stated reasons, I am inclined to accept these petitions. Consequently the
impugned orders dated 08.12.2016 simultaneously passed in both cases by the learned Additional
Sessions Judge, Loralai are set aside. The case is remanded to the trial court with direction to
conduct inquiry including medical report (ossification test) for determining the age of respondent
No.1 viz. Bismillah son of Gul Baran in view of Section 7 of the Ordinance, 2000, and to
proceed with the matter strictly in accordance with the guidelines enunciated by the Hon'ble
Supreme Court of Pakistan in the judgments cited above.
JK/48/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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