Abdul Hafeez Versus State
Muhammad Najam-ud-Din Mengal, J .--- This judgment disposes of Criminal Appeal No.462 of 2023 filed by the appellant Abdul Hafeez son of Muhammad Ilyas, against the judgment dated 30th September 2023, ( the impugned judgment ) passed by learned Special Judge Anti-Rape/Sessions Judge, Sariab Division ( the trial Court ) whereby the appellant was convicted under Section 377 P.P.C and sentenced to suffer Life Imprisonment with fine of Rs.400,000/- and in default thereof to further suffer Six months S.I. with the benefit of Section 382-B Cr.P.C. while 50% of fine amount on its recovery shall be paid to the victim Sajid Ali son of Hafeez Ullah under the provisions of Section 17 of Anti Rape (Investigation and Trial) Act, 2020.
2. Facts of the case are that on 9th May 2022, the complainant Hafeezullah son of Ali Ahmed, lodged FIR No.33 of 2022 at Police Station Shaheed Manzoor Quetta, under Section 377 P.P.C, stating therein that on the day of occurrence at about 01.00 p.m., his minor son Sajid Ali aged about 7-years went to the shop for buying some articles, after two hours, when he returned back to the home was crying, on query he informed the complainant that he had gone to the shop, but the appellant forcibly took him in a room inside the Madrassa and committed unnatural offence with him. Subsequently, he along witth his minor son went to Madrassa, where the accused Abdul Hafeez was present and confessed his guilt and requested for apology.
3. Pursuant to above FIR, the appellant was investigated and on completion thereof, challaned was submitted before the trial Court, which indicted the charge to appellant, who refuted the same. The prosecution in order to prove the charge produced Eight (08) witnesses, whereafter the appellant was examined under Section 342 Cr.P.C. However, the appellant has not opted to record his statement on oath under Section 340(2) Cr.P.C. and also did not produce any witness in his defence. On conclusion of trial and after hearing the arguments, the appellant was convicted and sentenced as mentioned above in para No.1, whereafter the appellant has filed the instant appeal.
4. Learned counsel for the appellant, at the very outset, invited our attention to the fact that the appellant is a juvenile, as at the time of commission of crime he was of the age of 13/14 years; that same fact is also admitted through the Birth Certificate of the appellant; whereby the date of birth of appellant is recorded as 01.05.2009 meaning thereby the appellant was minor/juvenile at the time of commission of alleged crime; that the learned trial Court has failed either to determine the age of appellant or to treat the appellant as juvenile; that according to the provisions of the Juvenile Justice System Ordinance, 2000 the case of appellant was triable by the Juvenile Court, but the learned trial Court has failed to do so at the time of delivering of the impugned judgment.
5. Learned APG vehemently opposed the contentions so raised by the learned counsel for appellant.
6. Heard the learned counsel and perused the available record with their able assistance. Perusal of record transpires that appellant (convict) was charged in the case for the committing unnatural offense with the minor son of complainant namely Sajid Ali. The challan is available on record, wherein his age is recorded as less than 18 years at the time of commission of crime. Similarly, the birth certificate of appellant (convict) is also available on record, which indicates the date of birth of the appellant as 01.05.2009. Admittedly, at the time of committing the crime, the age of the appellant was about 13-14 years and undoubtedly, he was a juvenile within the meaning of Section 2(b) of the Juvenile Justice System Ordinance, 2000 ( JJSO, 2000), which is now repealed and substituted by Juvenile Justice System Act, 2018, (hereinafter referred as Act of 2018 ). Child in the repealed Ordinance and Act of 2018, is defined as:
Child: "means for the purpose of this Act a person who has not attained the age of eighteen years".
7. Likewise, Juvenile is defined in Section 2(h), which means "a child who may be dealt with for an offence in a manner which is different from an adult". Section 7 of the Act of 2018, provides the procedure of investigation of Juvenile cases, which is reproduced as under:
Investigation in juvenile cases---(1) A Juvenile shall be interrogated by a police officer not below the rank of sub-Inspector under supervision of Superintendent of Police or SDOP.
(2) The investigation officer designated under subsection (1) shall be assisted by probation officer or by a social welfare officer notified by the Government to prepare social investigation report to be annexed with the report prepared under section 173 of the code.
8. Besides, a special procedure for determining of age has been provided under the provisions of Section 8 of the Act of 2018, for facilitation, the same is reproduced hereinbelow.
Determination of age.---(1) Where a person alleged to have committed an offence physically appears or claims to be a juvenile for the purpose of this Act, the officer-in-charge of the police station or the investigation officer shall make an inquiry to determine the age of such person on the basis of his birth certificate, educational certificates or any other pertinent documents. In absence of such documents, age of such accused person may be determined on the basis of a medical examination report by a medical officer.
(2) When an accused person who physically appears to be a juvenile for the purpose of this Act is brought before a Court under section 167 of the Code, the Court before granting further detention shall record its findings regarding age on the basis of available record including the report submitted by the police or medical examination report by a medical officer.
9. At the very outset, it is observed that whenever a question arises before a Court as to whether the accused is a juvenile offender and is subject to the jurisdiction of a Juvenile Court, the Court is required to hold an inquiry into the matter, but in the case in hand the learned trial Court has failed to do so.
10. Bare reading of record further reveals that the age of appellant (convict) is mentioned in the Challan and he was below then 18 years and in support of such contention, the appellant has also produced his birth certificate, which prima facie shows that the age of appellant (convict) as 13/14 years at the time of commission of crime, but the trial Court has failed to conduct any inquiry in order to determine his age through medical examination or to treat the appellant as juvenile as mentioned in the challan as juvenile. Similarly, the Court, while granting custody of the appellant (convict) has also failed to discharge its functions in the light of Section 8(2) of the ibid Act. Non-observance of mandatory provisions of law regarding determination of his age has deprived him of the special rights and protection available to him as a child/juvenile. Relance in this placed on the case of Munir Ahmed v. The State, 2024 PCr.LJ 772, the relevant portion whereof is reproduced as under:
13. In the case in hand, there can be no two opinions that in Section 8 of the Act 2018, there is a statutory command that the court should hold an inquiry when it is confronted with a question about the age of an accused person. Since the purpose of an inquiry, as we have already seen, is to find out the truth, it should be spread over a fairly broad spectrum. The court should not only take into consideration the documents produced by the parties, but where necessary, it should also record statements of the witnesses. It should also requisition a medical report, which means a clinical and radiological examination of the accused or what is called his ossification test. In our opinion, a plain reading of section 8 shows that this is mandatory unless there are strong reasons to dispense with the same. On the conclusion of the inquiry, the court should give its findings after considering all the evidence brought before it in accordance with the established principles of criminal jurisprudence.
Hence, determination of child/adult requires recording of evidence in view of Qanun-e-Shahadat Order, 1984. This aspect has also been elaborated by the Supreme Court of Pakistan in a salutary judgment handed down in the case of Muhammad Aslam and others v. The State and another (PLD 2009 SC 777), the relevant portion of which is reproduced as under:-
"---S. 302(b)---Juvenile Justice System Ordinance (XXII of 2000), S. 7---Qatl-i-amd---Death sentence---If a convict, wishes to avoid death penalty on account of being less than 18 years of age, the onus would be on him to prove his minority for the purpose---Where an accused claims minority then such a plea must be taken by him at the earliest available opportunity and he should not be allowed to throw surprises at the prosecution and at the far end of the trials or at appellate or revisional stages depriving the prosecution of opportunities to rebut such claims in a proper manner---Whenever such a plea is raised, the courts of law could fall into error by accepting the same only because some school certificate so said---Provisions of S. 7, Juvenile Justice System Ordinance, 2000 mandate a proper inquiry into the said issue wherein the courts should require production of evidence for proof of age in accordance with the manner and the procedure prescribed by the Qanun-e-Shahadat, 1984 and wherein the other side is also afforded opportunities which are envisaged and guaranteed by the Qanun-e-Shahadat---Entertaining documents handed down from across the bar and then acting upon the same, would be fraught with the danger of the courts being misled into passing unwarranted Orders--- Such-like documents should never be accepted without first testing their authenticity and genuineness which would be possible only if the procedure prescribed by the Qanun-e-Shahadat was followed and where the accused was also put through the requisite medical examination---Exercise undertaken by the Trial Court as also by the High Court, to resolve the issue in question, in the present case, was disapproved and Supreme Court observed that consequent findings about the minority of the convict could not be sustained---Supreme Court further observed that the court would have ordinarily remanded the matter to the Trial Court to hold a proper inquiry in the matter and to determine the question of the convict's age afresh......."
For the foregoing reasons, the instant appeal is partly allowed and the impugned judgment dated 30th September 2023 passed by the learned Special Judge, Anti-Rape/Sessions Judge, Sariab Division is set aside; consequently, the case is remanded to the trial Court for de-novo trial of the appellant under the provisions of Juvenile Justice System Act, 2018. Till then the appellant shall remain as under-trial prisoner.
JK/90/Bal. Case remanded.