TANVEER ABBAS vs THE STATE and others

ORDER

' MEHMOOD MAQBOOL BAJWA, J.---Legality of the order dated 13th of June, 2011 recorded by the learned Addl. Sessions Judge, Malakwal has been called in question at the instance of the petitioner, nominated accused in case F.I.R. No,4 of 2011 registered under sections 302, 109, 148 read with section 34 of the Pakistan Penal Code, 1860 at Police Station Gojra, District Mandi Baha-ud-Din, whereby the application made at the instance of the petitioner declaring him as a "child" within the meaning of section 2(b) of the Juvenile Justice System Ordinance 2000 (XXII of 2000) was declined.

2. Learned counsel for the petitioner maintained that the petitioner approached the learned trial Court to declare his status as child on the strength of the birth certificate issued by the NADRA, according to which the date of birth of the petitioner is 6th of September, 1993 and he at the time of the alleged occurrence was 17 years and 4 months old and as such was a "child" within the meaning of the Juvenile Justice System Ordinance, 2000 for all intents and purposes. Contended that the learned trial Court though banked upon the birth certificated issued by the NADRA while determining the status of co-accused i,e, Jehangir, but while determining the status of present petitioner as child ignored the entry in birth certificate and concluded that the outlook/physique of the present petitioner suggests him as major.

3. Since there was assertion at the instance of the petitioner that he was "child" at the time of occurrence and in order to substantiate his contention, birth certificate was placed on record before the learned trial Court, therefore, proper inquiry was mandate within the meaning of section 7 of Ordinance XXII of 2000.

4. The honourable Supreme Court of Pakistan in "MUHAMMAD ASLAM and others v. THE STATE and another" (PLD 2009 Supreme Court 777) while dealing with the moot point with reference to section 7 of the Juvenile Justice System Ordinance, 2000 formulated the following points in order to determine the claim of accused person regarding his status as child;--

(a) The normal penalty for an offence punishable with death, is death, and in the view of provisions of section 376(5), Cr.P.C., special reasons must exist to impose, on the convict, a punishment other than a sentence 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, preferably 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 inferences;

(d) whenever such a question of age is raised or arises at the trial, the. Court should not deal with the same in a cursory or in a slipshod 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;

(e) the said inquiry should not be understood to mean only to entertain documents from across the bar and then giving a decision thereon. Such a practice needs not only to be discouraged but, in fact to be discontinued. Basing judicial decisions on untested and un-scrutinized documents was a dangerous path to tread:

(f) proper compliance of the said provisions of section 7 would be to call upon the parties to lead their evidence --- oral or documentary in accordance with the provisions of Qanun-eShahadat 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 arrive at a judicial decision in terms thereof;

(g) a medical examination of the accused person could furnish a useful guideline in the matter and should be resorted to; and finally;

(h) we must always keep in the 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.

5. Perusal of order impugned suggests that learned trial Court while dealing with the matter disposed of the same in a cursory manner which is against the intention of legislature reflected in section 7 of the Ordinance. Claim of minority agitated at the instance of petitioner was required to be dealt with in accordance with mandate of section 7 of the Ordinance. Failure to adopt the proper procedure to reach a just conclusion is an illegality which cannot he endorsed.

6. In view of the matter, while setting aside the order impugned to the extent of petitioner, the learned trial Court is directed to decide the application of petitioner claiming status of "child" while proceeding under section 7 of the Juvenile Justice System Ordinance 2000 and keeping in view the guideline provided by honourable apex Court, reproduced in para. (3) of the order.