KHALIL-UR-REHMAN RAMDAY, J.---Tahir Hassan Khan respondent was the solitary accused saddled with the murder of Fahim deceased by allegedly inflicting a knife blow on him on 1-8-2002 in the area of Police Station City, District Mianwali. After the challan in the said case had reached the learned trial Judge i,e, learned Additional Sessions Judge at Mianwali and after Tahir Hassan Khan accused had been summoned to face the trial, he submitted an application before the learned trial Judge on 16-11-2002 claiming therein that he was a "Child' in terms of the Juvenile Justice System Ordinance, 2000 and praying consequently that he be tried as such under the said Ordinance.
2. Sultan Ahmed complainant who is the father of Fahim deceased submitted a reply to the above mentioned application stating therein that the said application of the said accused was based on incorrect and forged documents; that the said accused had initially placed reliance on a school leaving certificate wherein his date of birth had been mentioned as 14-12-1986 whereafter he produced a copy of his birth entry issued by the Union Council of Ghulaman of District Bhakkar wherein his date of birth had been 'recorded as 27-12-1984; that the said two certificates thus disclosed two different and contradictory dates of the birth of Tahir accused; that according to the birth certificates of a brother and a sister of Tahir accused (copies of which had been appended with the said reply) his eldest brother, namely, Ahmed Hassan Khan was born on 17-6-1983 and his sister Tahira Yasmeen was born on 13-2-1986 and in Column No, 12 of the Certificate of Tahira Yasmeen it was mentioned that two children had been born before her birth which established that the birth certificate and school leaving certificate of Tahir accused produced by him before the learned trial Court were dubious and fictitious; that in the birth certificate of the said brother and sister of Tahir accused, the profession of their father had been mentioned as 'Government Service' while in the alleged birth certificate of Tahir accused the profession of his father had been recorded as 'cultivator'; that the above-mentioned birth certificates of the brother and the sister of Tahir accused carried National Identity Card No, of their father but in the relevant column in the case of, the birth certificate of Tahir accused the I.D Card No, of his father had not been mentioned; that according to the birth certificates of his brother and sister produced in the Court, his brother Ahmed Hassan was born on 17-6-1983 in the City of Mianwali and similar was the position of his sister who was born on 13-2-1986 in the City of Mianwali and their birth entries had consequently been registered in the record of the Municipal Committee, Mianwali; that even according to the.
P.T.1 form, the parents of Tahir accused had shifted to Mianwali City in the year 1983 but Tahir accused, according to his birth certificate, was born in village Ghulaman of Tehsil Kalorkot, District Bhakkar and there beingno explanation as to why the mother of Tahir accused had gone to village Ghulaman to give birth to him, the certificate in question appeared to be a doubtful affair; that the father of Tahir accused was a Senior Teacher of Government Jamia High School, Mianwali while his real uncle Ameer Abdullah Khan was posted as District Education Officer, Mianwali and it was because of their influence that the false school leaving certificate had been secured by Tahir accused and that in the circumstances the application of Tahir accused for being treated as a "Child" was liable to be dismissed. It was also mentioned by the learned trial Judge in his impugned order dated' 25-1-2003 that the learned counsel for the complainant appearing before him had prayed that Tahir accused be got medically examined through a Medical Board for determination of his actual age.
3. Despite the above noticed submissions made by the complainant controverting the said accused person's claim of minority and without giving any reasons for not accepting them, the learned trial Judge proceeded to hold that Tahir accused was less than 18 years of age because:- the age of the accused has firstly been shown to be 16/17 years by the prosecution itself. His age has been proved to be below 18 years by the provisional result card issued by the Board of Intermediate and Secondary Education, Sargodha and finally by a copy of the birth register." Reliance had been placed by the learned trial Judge, to refuse the complainant's prayer for medical examination of Tahir accused for determination of his age, on Muhammad Ishaque s case reported as 2002 SCM R 440 and on Muhammad Akram's Case which was a Single Bench judgment of the Lahore High Court reported as 2002 PCr.L.J. 633.
4. The Hon'ble High Court refused to interfere with the above mentioned order of the learned trial Judge on the ground that:- "the material produced on record by the respondent consists of school leaving certificate and his birth certificate. Genuineness of both these documents has not been disputed by the complainant through any document to the contrary. The police record also shows that at the time of his arrest his age was written as 16/17 years."
With respect to the medical examination of Tahir accused for determination of his age, it was held by the learned Judge in Chamber that the provisions of section 7 of the Juvenile Justice System Ordinance, 2000 could not be invoked in each and every case mechanically and it was only where a question with respect to age of an accused person could not be answered through any documentary evidence that an inquiry as envisaged by the said section 7 could be resorted to. The learned High Court had also relied upon the same Muhammad Ishaque's case (supra) to declare that no reason existed justifying the medical examination of Tahir accused because in the above mentioned precedent case, this Court had affirmed the decision of the High Court where reliance had been placed on a birth certificate and the certificate issued by an educational institution without conducting the ossification test.
5. The learned Additional Sessions Judge did not give any justifiable reason for discarding the documentary evidence and the above noticed submissions offered by the complainant. The learned High Court also failed to notice the above mentioned documents submitted by the complainant before the trial Court and declared that the genuineness of the school leaving certificate and of the birth certificate produced by Tahir accused had not been- disputed by the complainant through any document to the contrary. Both the learned Courts also placed explicit reliance on the age of the accused as mentioned in the police record.
6. As has been noticed above, the complainant had thrown a rather serious challenge the genuineness of the birth certificate and the school leaving certificate produced by Tahir accused in support of his minority and had also demonstrated that the said two certificates contradicted each other in the matter of the date on which Tahir accused was allegedly horn. The complainant had also produced documentary evidence to show the dates of the birth of other brothers and sisters of Tahir accused which indicated that Tahir accused could not have been born on the date on which he claimed to have been born. It had also been brought on .The record of the learned trial Court by the complainant that the parents of Tahir accused had migrated to Mianwali City where his father was posted as a teacher in a Government School and in which city his other brothers and sisters had been born and had consequently canvassed that in the absence of any plausible explanation to the contrary, there was a serious possibility of Tahir accused not having been born in village Ghulaman of District Bhakkar casting serious doubts on the veracity of his birth certificate.
It had also been submitted by the complainant that the father of Tahir accused was a Senior Teacher posted at a Government School in Mianwali while his uncle was District Education Officer of Mianwali which also indicated a possibility of false certificate having maneuvered by them by misusing their official position.
7. It is thus clear that the complainant had, more than vehemently,controverted the claim of Tahir accused through documentary evidence and the other attending circumstances. The two learned Courts were thus in error in holding that genuineness of the two certificates in question had not been challenged by the complainant through any documentary evidence.
8. Muhammad Ishaque's case (supra) relied upon by the learned trial Court and the learned Revisional Court, proceeded on absolutely, different and completely distinguishable facts. In the said case the learned trial Judge had found the accused person less than 18 years of age as mentioned in the birth certificate school leaving certificate and the domicile certificate of the accused which certificates had not been challenged by the complainant before the trial Court. It was thereafter through an application under section 526 Cr.P.C. That the complainant had prayed for transfer of the trial in question back to an ordinary Court under Cr.P.0 and it was in these circumstances that the High Court of Sindh had held as under:-- "It is a settled law that where birth certificate and other documents issued by the Educational Institution giving the date of birth of an accused are available on record then unless such certificates are held to be fraudulent and/or bogus, they are to be relied upon. If the complainant/applicant did not feel satisfied with the genuineness and validity of the birth certificate and other certificates issued by the educational institution, then he ought to have challenged the same before the trial Court and filing of this transfer application under section 526,Cr.P.0 in this Court was net warranted."
9. And it was for this reason that this Court had declined to interfere with the above noticed decision of the High Court. This decision of this Court has no bearing on the facts of the present case because the complainant had fairly strongly challenged the genuineness and validity of the birth certificate and the school leaving certificate produced by the accused before the learned trial Judge while the question of the age of the accused was being determined by him. Therefore, reliance of the two learned Courts on the said judgment of this Court was misplaced.
10. In the cited case of the Lahore High Court (2002 PCr.L.J. 633), the learned trial .Judge had placed reliance on a copy of the result card and a copy of the school leaving certificate as the genuineness of the same had been confirmed from the record of the National Registration Office which had been produced by an Assistant Director of the Registration Office. In this case the complainant had tried to cast doubts on the correctness of the above mentioned certificates through a document marked as Exh.P/1 which stood contradicted by the original record of the National Registration Office. It was in these circumstances that the High Court had found that in view of the reliable documentary defence produced by the accused, person which had not been controverted by the complainant on the strength of any authentic document that no serious exception could be taken to the decision of the learned trial Judge in not having directed his medical examination for reaching a conclusion about the age of the accused person. Reliance by the learned trial Court and by the learned High Court even on this judgment of the High Court was thus misplaced because the said precedent case of the High Court also proceeded on clearly distinguishable facts.
11. Having thus examined all aspects of the matter, we find that the genuineness of the two certificates in question produced by Tahir accused to establish his claim of minority had been seriously questioned by the complainant through documentary evidence and otherwise. In these circumstances, in order to reach a correct and just decision, the learned trial Judge should have summoned the original record relating to the said two certificates and should have also questioned and examined the authors and the custodians of the same. This had, however, not been done for reasons not available on record. In this kind of a situation where the veracity of the certificates relied upon by an accused person had been seriously disputed, the normal course for the learned trial Judge should have been to have the accused medically examined by a competent Medical Board to reach a just decision regarding his age. The learned trial Judge as also the Hon'ble High Court had, without any justifiable reason, opted not to be benefited by the material which could have become available to them through medical evidence to assist them in determining the age of Tahir accused. The reliance of the two learned Courts on some entry in the police record, to resolve the issue, was also misconceived as there was no evidence that the Investigating Officer had mentioned the said age after any proper investigation about the same.
12. We are, therefore, of the opinion that both the learned Courts had fallen into error in reaching the impugned conclusions and we hold accordingly. Consequently, the impugned order of the trial Court dated 15-11-2002 and the impugned order of the Hon'ble High Court dated 28-10-2003 passed in Writ Petition No,2258 of 2003 are set aside and the matter in remanded back to the learned trial Judge fora fresh decision in the matter in accordance with the provisions of section 7 of the Juvenile Justice System Ordinance, 2000 including a reference to a competent Medical Board for the examination of the accused regarding his age.
13. This petition is, therefore, converted into an appeal which is allowed in the above terms. No orders as to costs.
14. However, before we part with this judgment, we would wish to take advantage of this opportunity and to offer a word of caution and guidance to the learned Courts of law with respect to the matter which was in issue in this case i,e, determination of the age of an accused person facing a charge involving a punishment of death.
15. It was through Criminal Law (Second Amendment) Ordinance No, VII of 1990 which was enforced as from the 12th day of Rabi-ul'Awwal of the year 1411 HIJRI corresponding to the 3rd day of October, 1990 that the provisions of sections 299 to 338 of the Pakistan Penal Code of 1860, as originally enacted, were deleted from the said Code and were replaced by the provisions of Chapter XVI as the same stand today. The thus re-enacted provisions of section 306, P.P.C. Declared that certain persons guilty of QATL-I-AMD were not liable to QISAS and one such category of the said persons were the offenders who were MINORS, defined by section 299 P.P.C. To be persons, who being male, had not attained the age of eighteen years.
16. This was thus for the first time that, statutorily speaking, the age of a person found guilty of murder, had assumed some importance in the matter of quantum of punishment award able to such an offender.
17. The promulgation, as from the 1st day of July, 2000, of the Juvenile Justice System Ordinance being Ordinance No,XXII of 2000, however, granted further and in fact vital significance to the issue of the age of an offender as section 12 thereof, inter alia, prohibited imposition of a punishment of death on a 'CHILD' who was defined by section 2 of this Ordinance as a person who had not attained the age of eighteen years at the time of the commission of an offence involving a punishment of death.
18. The result was that every person, accused of such an offence wished that he was a 'CHILD'.
Some of them then justifiably and the others not so justifiably, commenced their endeavors to establish that they were less then eighteen years of age when an offence of the kind had been committed. We have, ever-since, noticed a rising increase in litigation involving the question of the age of an accused person facing trial for the commission of such-like offences.
19. Hence the necessity to offer some guidelines to the Courts confronting this issue so that no one is permitted to exploit, unjustifiably and deceitfully, the above-noticed concession allowed by law to the minors and the children and also to ensure that no minor or child was sent to gallows in violation of the above-noticed legal provisions.
20. The provisions of the Pakistan Penal Code and that of the Code of Criminal Procedure do not prescribe any specific procedure which could be followed to determine the age of an accused person. But section 7 of the Juvenile Justice System Ordinance does prescribe a, process which could assist the Courts of law in reaching a just conclusion aboutthe age of such a person. The said section is re-produced below for ready reference:- Determination of age.--If a question arise as to whether a person before it is a child for the purposes of this Ordinance, the Juvenile Court shall record a finding after such inquiry which shall include a medical report for determination of the age of the child".
21. From the matters reaching us in this Court, we have observed some confusion in the minds of some learned Officers presiding over the Courts of law about some matter arising out of the provisions of this section 7 which are summarized as under:-
(a) the true import of the expression 'IF A QUESTION ARISES' (the emphasis is ours) as used in the above-quoted provisions of section 7 of the Ordinance;
(b) the scope of 'INQUIRY' (the emphasis is ours) envisaged by the said section; and
(c) the circumstances in which the Courts could ask for a medical report about the age of an accused person.
22. What follows is how we understand these- matters.
23. The opening phrase of the said section is, 'IF A QUESTION ARISES' and not 'IF A QUESTION IS RAISED'. The selection by the legislature of the words comprising this expression is sufficient to demonstrate that the commencement of an exercise to find out the age of an accused person is not dependent upon such a question being raised by some party to the proceedings i,e, the accused person himself or the State or even by the complainant or by a WALI in cases involving QATL-I-AMD. The word ' ARISE' means 'TO RISE UP' WHILE THE WORD 'RAISE' means 'TO CAUSE TO RISE'. 'ARISES' thus indicates rising up by itself whereas 'RAISES' involves someone else causing it to rise. Therefore, what is meant by the said provisions of the said section is not that the Courts are required to wait to undertake an inquiry to determine the age of an accused person till such a question is raised before them. Dispensation of justice is the obligation cast on the Courts of law.
The parties; their agents; their 'learned counsel; their witnesses and others are only an instrument provided to them for the proper discharge of the said duty. It would be horrendous to visualize 'CHILD' or a 'MINOR' being hanged to death only because the question of his minority had not been raised before the relevant Court. It is the function of a Court to ensure that no illegality is permitted to occur and no injustice is allowed to creep into its decisions. To conclude, therefore, it is stated that irrespective of the fact whether the issue of the age of an accused person is or is not raised before the Court, it is the obligation of the learned Presiding Officer to suspend all further proceedings in a trial and to hold an inquiry to determine the age of an accused person if and whenever it appears to him that such a determination was necessary,
24. The word 'INQU IR' is defined by clause (k) of subsection (I) of section '4 of the Cr.P.0 but the said definition is not exhaustive. Various kinds of inquiries are envisaged by the Code of Criminal Procedure e.g. The one ordained by section 117 thereof. We know it by now from the judicial precedents that the purpose of holding an inquiry, amongst others, is to determine the existence or non-existence of a fact D or the falsity or correctness thereof and further that an inquiry is a judicial proceeding in which evidence could be legally taken. Therefore, whenever a Court is confronted with the question of the age of an accused person, it is incumbent upon it to hold an inquiry and the learned Presiding Officers should always feel free to requisition the original record; to summon and examine the authors and the custodians of such record and documents to determine the genuineness of the same; to summon persons, if need be, who on account of some special knowledge, could depose about the age of the concerned accused person and to take such other and further steps which could help the Court in reaching a just conclusion about the said matter.
As has been mentioned above, the issue about the age of an accused person at a trial which could result in a punishment of death. Was now of vital significance and the learned Presiding Officers should never hasten to decide the said issue in summary or in a slip should manner.
25. Medical report about the age of an accused person was a further aid placed at the disposal of a Court of law for the purpose of determining the age of an accused person. The opinion of medical experts could offer a valuable guide to a learned Presiding Officer in resolving the controversy in issue. The impression that an ossification test could be ordered only as a last resort, was not correct and thus not legally tenable. The reluctance of the Courts to benefit from such a mandated material was not understandable. Therefore, whenever, a question of the age of an accused person is raised or arises, he must be subjected to a medical test unless strong reasons existed or could be offered for not doing so. Such is the only course which is in accord with the provisions of section 7 of Ordinance XXII of 2000 which command that such inquiry shall include a Medical Report for Determination of the age" (Emphasis is ours).
26. Lastly, we may add that we have seen a number of cases where the claim of minority was lodged by an accused person at a belated stage of the trial and in certain cases even during the course of the appellate proceedings. We find it difficult to approve such a conduct in the absence of any strong reason or explanation justifying such a delay. A claim of minority should be lodged by an accused person at the earliest possible opportunity and preferably during the course of investigation so that the Investigation Officer could collect evidence even in this connection for the assistance of the competent Court. And adverse inferences could be drawn where the concession in question was claimed after undue and un-explained delay.
27: The above are some guidelines about the matter in issue which should, however, not be considered exhaustive. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.
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