SHER BAHADUR vs FAYYAZ and anothers
This criminal appeal arises out of a judgment of the Peshawar High Court whereby the respondent's conviction under section 302(b) of the Pakistan Penal Code 1860 and sentence of imprisonment for life were set aside on the sole ground that the trial court lacked jurisdiction because the respondent was allegedly a juvenile at the time of the offense under the Juvenile Justice System Ordinance 2000. The Supreme Court observed that the High Court relied upon a school leaving certificate and CNIC at face value without due verification, and that the plea of juvenility was never raised during the trial. The core legal question was whether the High Court was justified in setting aside the conviction based on unverified documents without further inquiry into the accused's actual age. The Supreme Court held that reliance on unverified documents was unsafe and that further inquiry, including an ossification test and verification of documents, was required. The impugned judgment was set aside and the matter remanded to the High Court for a fresh decision after proper age verification.
- Can the High Court set aside a conviction on the ground of juvenility based on unverified documents without further inquiry?
- Whether a plea of lack of jurisdiction due to being a juvenile can be raised for the first time without prior verification during trial?
- Is an ossification test and medical board report necessary for determining the age of an accused claiming juvenility?
- 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 Session 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 piace 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.