Tanveer Abbas vs The State And Other
The petitioner challenged an order by the Additional District Judge, Malakwal, which declined his application to be declared a "child" under the Juvenile Justice System Ordinance, 2000, despite his reliance on a NADRA birth certificate. The core legal question was whether the Trial Court erred in summarily rejecting the petitioner's claim of minority based on his physical appearance without conducting a formal inquiry. The High Court held that the Trial Court's cursory disposal of the application was illegal and contrary to the legislative intent of Section 7 of the Juvenile Justice System Ordinance, 2000. Citing the Supreme Court's guidelines in Muhammad Aslam v. The State, the Court emphasized that claims of minority must not be decided on untested documents alone. Instead, the Trial Court must conduct a proper inquiry, allowing parties to lead evidence under the Qanun-e-Shahadat Order, 1984, and consider medical examination. Consequently, the impugned order was set aside, and the Trial Court was directed to re-decide the application in strict compliance with the mandatory inquiry procedure prescribed by law.
- Is a Trial Court permitted to determine an accused's status as a child based solely on physical appearance?
- What procedure must a Trial Court follow when an accused claims to be a child under the Juvenile Justice System Ordinance, 2000?
- Can a court decide a claim of minority based solely on the submission of documents without allowing for the testing of their veracity?
- Does the failure to conduct a formal inquiry into an accused's age constitute a legal error?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 2(b), Juvenile Justice System Ordinance 2000
- Section 7, Juvenile Justice System Ordinance 2000
- Section 376(5), Code of Criminal Procedure 1898
- Qanun-e-Shahadat Order 1984
ORDER
MEHMOOD MAQBOOL BAJWA, J. Legality of the order dated 13th of June, 2011 recorded by the learned Additional District 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 indents and purposes. Contended that the learned Trial Court though banked upon the birth certificate 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 mandated 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 of 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 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;
(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. Being judicial decisions on untested and urn- 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 -- oral1 or documentary in accordance with the provisions of Qanun-e- Shahadat Order, 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 be 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.