Sher Bahadur vs Fayyaz and another
This criminal appeal challenges a judgment of the Peshawar High Court which set aside the conviction and life imprisonment sentence of respondent No. 1 for an offense under Section 302(b), Pakistan Penal Code 1860. The High Court had acquitted the respondent on the sole ground that he was a 'child' under the Juvenile Justice System Ordinance, 2000 at the time of the crime, and thus the trial court lacked jurisdiction. The High Court relied on a school leaving certificate and CNIC without verifying their authenticity. The Supreme Court observed that the respondent failed to raise the plea of being a juvenile throughout the trial proceedings. Holding that reliance on unverified documents was unsafe for overturning a conviction, the Supreme Court set aside the High Court's judgment. The matter was remanded for a fresh hearing, with directions to the High Court to determine the respondent's age through a medical board's ossification report and to verify the authenticity of the documents produced, while granting the prosecution an opportunity to rebut the respondent's claim of juvenility.
- Can a high court set aside a conviction based on a claim of juvenility without verifying the authenticity of the documents supporting that claim?
- Is it appropriate for a court to determine a defendant's age solely on the basis of a school leaving certificate and CNIC without further inquiry?
- Should a plea regarding the lack of jurisdiction due to juvenile status be entertained if it was not raised during the trial proceedings?
- Section 302(b), Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Section 2(b), Juvenile Justice System Ordinance 2000
ANWAR ZAHEER JAMALI, J. --- This criminal appeal with leave of the Court arises out of the judgment dated 27.5.2014, in Criminal Appeal No. 232 of 2011 passed by the learned Division Bench of the Peshawar High Court, Peshawar, whereby the conviction of respondent No.1, under Section 302(b), P.P.C. Recorded by the learned Additional Sessions Judge-II, Swabi vide judgment dated 30.3.2011, awarding him sentence of imprisonment for life with benefit of Section 382-B, Cr.P.C., and payment of compensation of Rs.1,00,000 was set aside, on the sole ground that the Trial Court lacked jurisdiction to proceed with his trial as the appellant at the time of commission of crime was a 'child' within the meaning of Section 2(b) of the Juvenile Justice System Ordinance, 2000, therefore, he could not have been tried before the said Court. It seems that for this purpose the High Court has relied upon the school leaving certificate and CNIC of respondent No.1 on its face value, without due verification of their genuineness and authenticity, least realizing that manipulation of such documents, in the present day scenario is not a big deal.
2. Admittedly, in the present case the incident had taken place on 12.8.2008 and after the arrest of respondent No.1 on 5.12.2009 he was tried and convicted by the Trial Court vide judgment dated 30.3.2011, but throughout this period at no stage of the proceedings he had taken the plea about lack of jurisdiction of the Trial Court, he being a juvenile offender. In these circumstances, the High Court should not have taken the issue of lack of jurisdiction of the Trial Court qua actual age of respondent No.1 so lightly. In our opinion, reliance placed upon by the High Court on two documents produced by respondent No.1 was not safe for striking down the judgment of his conviction rather further inquiry in the matter was required to do complete justice between the parties.
3. In the above circumstances, with the consent of learned Advocate Supreme Court for respondent No.1, and the learned State Counsel, the impugned judgment is set aside and Criminal Appeal No. 232 of 2011 is sent back to the Peshawar High Court for its hearing afresh, after calling for ossification report etc. Of respondent No. 1 through a Medical Board of Specialist doctors in the required field, from Khyber Medical College, Peshawar; verification of authenticity of the two documents, relied upon by respondent No. 1 before the High Court and also providing fair opportunity to prosecution/complainant to rebut the assertion of respondent No. 1 about his age.
We expect that this whole exercise will be completed within three months before hearing the appeal on merits.
4. As a result of this judgment, short order dated 27.5.2014 passed in Criminal Revision Petition No. 89 of 2011 filed by the appellant for seeking enhancement in the sentence of respondent No. 1 is also set aside, and it is also restored to its original position for hearing afresh.