ASIF SAEED KHAN KHOSA, J.--- In the province of civil law adoption of a legally available device is permissible but a disguise is not and, likewise, in the realm of criminal law a bona fide stratagem or a manoeuvre by the defence is acceptable but a ruse, subterfuge or deception is always looked at with suspicion and distrust. The case in hind is a classic case in point as an accused person facing a charge of murder before a trial court is trying to invoke the provisions of the Juvenile Justice System Ordinance, 2000 to his advantage at a belated stage and the State and the complainant maintain that the accused person's bid in that regard is actuated by motivations which are not legitimate or above board.
2. The petitioner is one of the accused persons in and respondent No, 3 is the complainant of case FIR No, 349 registered at Police Station Raiwind City, District Lahore on 18-6-2005 in respect of an offence under section 302, PPC read with section 34, PPC which case is presently being tried by a learned Additional Sessions Judge, Lahore. The present stage of the said trial is that a charge has already been framed against the petitioner and his co-accused but the statements of the prosecution witnesses are yet to be recorded. On 27-2-2007, i,e, after framing of the charge against him the petitioner submitted an application before the learned trial court seeking a declaration that he was a 'child' at the time of the alleged occurrence within' the purview of the Juvenile Justice System Ordinance, 2000 and, thus, the case against him ought to be tried by a Juvenile Court. That application of the petitioner was dismissed by the learned Additional Sessions Judge, Lahore vide order dated 2-4-2007 which has been assailed by the petitioner before this Court through the present revision petition
3. On 19-4-2007 this revision petition had been admitted to regular hearing by one of us (Asif Saeed Khan Khosa, J.) and the Superintendent, District Jail, Lahore had been directed to get the petitioner examined by a Medical Board for the purpose of determination of his age and to submit a report before this Court in that regard. It had further been observed in the said order as follows:-- "4. It has been noticed by me that in the present case, as also in many other such cases, a ground of minority of an accused person is taken at a very late stage which creates many complications besides causing delay in the trial. The Hon'ble Chief Justice is, therefore, requested to consider the advisability or otherwise of constitution of a larger Bench of this Court to hear this petition so as to provide guidelines to the police and to the subordinate judiciary vis-a-vis the stage and the forum for urging or considering the ground of minority of an accused person for the purposes of the Juvenile Justice System Ordinance, 2000. Let the Office obtain the necessary orders in this regard from the Hon'ble Chief Justice. A notice of this revision petition shall also be issued to the learned Attorney-General for Pakistan as well as to the learned Advocate-General, Punjab."
' Subsequently the Hon'ble Chief Justice was pleased to constitute the present Full Bench to hear this petition and to consider the referred issue.
4. We have heard the learned counsel for the petitioner, the learned Assistant Prosecutor-General appearing for respondents Nos. 1 and 2, the learned Deputy Attorney-General for Pakistan and the learned Assistant Advocate-General, Punjab and have gone through the relevant record and material with their assistance. We have also considered and pondered over the relevant statutory provisions and the precedent cases referred to by them. Respondent No, 3 has engaged the services of Mr. Muhammad Maqsood Yasin Nizamani, Advocate to represent him and his power-of- attorney is available on the file of the present petition but unfortunately he has not bothered to enter appearance before us despite his name having been duly reflected in the cause-list issued for today.
5. It has been argued by the learned counsel for the petitioner that the petitioner had himself been injured in the occurrence in issue and in the Medico-legal Certificate issued in that respect the doctor had recorded the petitioner's age as 17/18 years; in the Saza Slip prepared by the investigating officer in respect of the petitioner his age had again been mentioned as 17/18 years; after his arrest in connection with the present criminal case the petitioner had been lodged in the Juvenile Barrack of the relevant jail and, thus, even the jail authorities had treated the petitioner as a juvenile; the School Leaving Certificate produced by the complainant and relied upon by the learned trial court for holding that the petitioner was more than 18 years of age at the time of the alleged occurrence is a bogus document as the petitioner had never been admitted to the relevant school nor he had ever studied thereat; and, therefore, the learned Additional Sessions Judge, Lahore was not justified in concluding and holding that the petitioner was more than 18 years of age at the time of the alleged occurrence.
6. As against that the learned Assistant Prosecutor-General appearing for respondents Nos. 1 and 2 has argued that a Medico-legal Certificate is essentially meant for preparing a record of the injuries sustained by a person, and the age of the injured person recorded therein is merely incidental and is generally based upon only a cursory visual assessment of the doctor and the age stated to the doctor by the injured. Person himself. According to her a Medico-legal Certificate is never meant for determination of the age of an injured person and it serves no such purpose. She has further argued that the petitioner's age recorded by the investigating officer in the Saza Slip was again based solely upon a visual assessment of the investigating officer who is not recognized by the law as an expert in that field. She has added that lodging of the petitioner by the jail authorities in the Juvenile Barrack was based upon the record received by them from the police and no independent assessm ent of the petitioner's age had been undertaken by the jail authorities themselves. The learned Assistant Prosecutor-General has gone on to submit that the occurrence in this case had taken place on 10-6-2005 and according to his School Leaving Certificate the petitioner's date of birth was 3-5-1985 which established that the petitioner was more than 20 years of age at the time of the incident in issue. She has pointed out that the petitioner had never contested the authenticity of the School Leaving Certificate before the learned trial court and he has failed to produce any affidavit of his learned counsel appearing before the learned trial court in support of his stand that the genuineness of the School Leaving Certificate had in fact been objected to by the petitioner before the learned trial court at the relevant time. She has maintained that presumption of regularity and correctness is attached to judicial record and nothing has been produced by the petitioner before this Court in order to rebut the presumption that the petitioner had not objected to authenticity or correctness of the School Leaving Certificate produced before the learned trial court. The learned Assistant Prosecutor-General has pointed out that in the impugned order the learned trial court had observed that from his physical appearance as well the petitioner appeared to be more than 18 years of age. She has also laid great emphasis on the fact that the petitioner had never claimed to be a minor before the investigating officer throughout the investigation of this case or before the learned Magistrate taking cognizance of the offence or before the learned trial court at the time of taking cognizance of the case nor any such plea had ever been urged by him during the arguments in support of his applications for bail submitted before the learned trial court as well as before this Court. According to her the plea regarding his juvenility had been taken by the petitioner for the first time after more than two years of registration of this criminal case as a result of an afterthought and that too after framing of a charge against him by the learned Additional Sessions Judge, Lahore upon commencement of his trial. The learned Assistant Prosecutor-General has thus, maintained that such a plea has been advanced by the petitioner only by way of a delaying tactic and the said plea is, therefore, liable to an outright rejection by this Court.
7. The learned Deputy Attorney-General for Pakistan and the learned Assistant Advocate-General, Punjab appearing On Court's notice have maintained before us in unison that in order to claim any benefit arising out of the _juvenile Justice System Ordinance, 2000 the relevant accused person must claim his juvenility at the earliest opportunity before the investigating officer, the Magistrate taking cognizance of the offence and the trial court taking cognizance of the case. According to them any delay in taking of such a plea by an accused person may indicate that the said plea is a result of an afterthought and an adverse inference may be drawn against him in that regard.
8. After hearing the learned counsel for the petitioner, the learned Assistant Prosecutor-General appearing for respondents No, 1 and 2, the learned Deputy Attorney-General for Pakistan and the learned Assistant Advocate-General, Punjab and after going through the record of this case as well as the material and precedent cases produced before us we have felt sanguine that the plea of juvenility advanced by the petitioner for the first time before the learned trial court after framing of a charge against him was nothing but an afterthought and was simply a ruse, a ploy or a subterfuge to get his trial delayed. We have also felt confident that the material relied upon by the petitioner for belatedly raising such a plea was also sketchy, vague and imprecise at its best. The learned Assistant Prosecutor-General has been found by us to be quite right in maintaining that a Medico-legal Certificate is prepared only as a record of the injuries sustained by an injured person and the age of the injured person recorded therein is merely incidental and is generally based upon only a cursory visual assessm ent of the doctor and, more often than not, upon the age stated to the doctor by the injured person himself. While preparing a Medico-legal Certificate a doctor is not called upon to determine the age of the injured victim and, thus, the age of the injured victim mentioned in such a Certificate cannot be accepted as a considered opinion of the doctor in that regard. Similarly the petitioner's age recorded by the investigating officer in the Saza Slip was again based solely upon a visual assessm ent of the investigating officer who is not recognized by the law as an expert in that field. The learned Assistant Prosecutor-General has also been found by us to be quite justified in maintaining that lodging of the petitioner by the jail authorities in the Juvenile Barrack was based upon the record received by them from the police and no independent assessm ent of the petitioner's age had been undertaken by the jail authorities themselves. We have noticed that the occurrence in this case had taken place on 10-6-2005 and according the School Leaving Certificate produced by respondent No, 3 before the learned trial court the petitioner's date of birth was 3-5-1985 which showed that the petitioner was more than 20 years of age at the time of the incident in issue. Nothing has been produced before us to even seriously assert that the petitioner had contested the authenticity of the said School Leaving Certificate before the learned trial court. The impugned order passed by the learned Additional Sessions Judge, Lahore on 2-4-2007 shows that even from his physical appearance the petitioner appeared to be more than 18 years of age. On 19-4-2007 this Court had directed the Superintendent, District Jail, Lahore to get the petitioner examined by, a Medical Board for the purpose of determination of his age and to submit a report before this Court in that regard. Consequently the petitioner had been examined by a Special Medical Board comprising of five senior doctors serving at the Services Hospital, Lahore on 9-5-2007 and the report dated 10-5-2007 submitted in that respect shows that on the basis of his physical, radiological and dental examination the petitioner's age had unanimously been opined by the Special Medical Board to be "about 20 years". The occurrence in this case had taken place about two years prior to rendering of that medical opinion and, thus, the medical opinion appears to be quite inconclusive and not of much avail for the present purposes, i,e, determination of the petitioner's exact age at the time of the alleged occurrence. It is universally recognized that the age of a person opined by a medical expert can vary by one or even two years on either side and, thus, in a borderline case like, the one in hand medical opinion about the age is uncertain, unconvincing and inconclusive besides being utterly insufficient to clinch the issue all by itself. The remaining material available on the record shows that in the present case the petitioner's assertion about his juvenility is squarely based upon a visual assessm ent of his .Age by a doctor examining him for his injuries, a visual assessment of his age by the Investigating Officer and his treatment as a juvenile by the jail authorities on'thellasis of no independent assessm ent of-their own in that regard whereas such assertion of the petitioner's juvenility is contradicted by a Sthool Leaving Certificate and, of course, his physical appearance noticed by the learned trial court itself. There are therefore, no two opinions in our minds that the considerations in support of the petitioner's assertion regarding his juvenility are heavily outweighed by the material available before us against his asserted juvenility at the time of the alleged occurrence.
9. Apart from what has been observed above it is evident from the record that throughout the investigation of this case the petitioner had never claimed before the investigating officer that he was below the age of 18 years at the time of the alleged occurrence nor at the relevant time had he taken any such stand before the learned Magistrate taking cognizance of the offence or before the learned trial court taking cognizance of the case. It is not disputed that the petitioner had failed to assert his juvenility even during his arguments advanced in support of his applications for bail submitted before the learned- trial court and before this Court. The record of this case, thus, unmistakably demonstrates that the plea regarding his juvenility had been taken by the petitioner for the first time after more than two years of registration of this criminal case and that too after framing of a charge against him by the learned Additional Sessions Judge, Lahore upon commencement of his trial. We have, therefore, found a lot of substance in the submission of the learned Assistant Prosecutor-General that such a plea had been advanced by the petitioner by way of an afterthought and most probably for the purpose of getting his trial delayed. We have sought guidance in this respect from the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others [PLD 2004 SC 758] wherein it had categorically been declared that "An adverse inference could be drawn where the concession in question was claimed after undue and un-explained delay."
10. The learned counsel for the petitioner has also argued that it is settled law that where two opinions about an aspect are possible in a criminal case the one favourable to the accused person is to be adopted by the court. In the context of the present case this submission of the learned counsel for the petitioner has appeared to us to be a twisted and self-serving interpretation of the legal principle in that regard. The principle is that where the facts of a criminal case are equally susceptible to a conclusion about guilt as well as a conclusion. About innocence of an accused person then the conclusion regarding innocence of the accused person is to be adopted. An extension of the same principle is that where two interpretations of a legal provision are possible there the interpretation favourable to the accused person is to be accepted. It 'goes without saying that the question of age of an accused person is essentially a question of fact and according to Articles 117, 118 and 119 of the Qanun-e-Shahadat Order, 1984 the burden of proving a fact is on the person asserting that fact and if the person asserting a fact fails to discharge his onus of proving the same then the fact does not stand proved and the court cannot act on the basis of that asserted fact. Apart from that an accused person's assertion regarding his minority for the purpose of seeking advantages under the Juvenile Justice System Ordinance, 2000 is akin to a plea of an accused person for the purpose of bringing his case within the general or special exceptions recognized by the law. According to Article 121 of the Qanun-e-Shahadat Order, 1984 it is for the accused person to establish the circumstances bringing his case within the general or special exceptions and 'the court is to presume the absence of such circumstances. It is probably in that backdrop that, while granting leave to appeal, the Hon'ble Supreme Court of Pakistan had observed in the case of Masood Sarwar v. Sadaqat Hussain and others [2007 SCMR 936] that "This fact is also to be considered that if there is a doubt in respect of age of an accused, benefit would not be extended to him". In the case in hand neither the petitioner had brought any positive evidence on the record regarding his juvenility at the time of the alleged occurrence nor any other independent material had convincingly or conclusively supported his claim in that connection and, thus, he could not be extended any benefit in that respect vis-a-vis the Juvenile Justice System Ordinance, 2000. It is, however, another thing that in view of some uncertainty regarding an accused person's minority the court of ordinary jurisdiction trying him may consider this aspect as relevant to the sentence to be passed against him, if any, as was done by the Hon'ble Supreme Court of Pakistan in the cases of Sohail Iqbal v. The State [1993 SCMR 2377] and Javaid lqbal v. The State [1982 SCMR 447].
11. For the reasons recorded above we have felt no hesitation in concluding that the present revision petitions merits dismissal and it is ordered accordingly.
12. As regards the issue referred to this Full Bench regarding the stage and the forum for urging or considering the ground of minority of an accused person for the purposes of the Juvenile Justice System Ordinance, 2000 we have noticed that while examining the vires of the Juvenile Justice System Ordinance, 2000 a Full Bench of this Court had observed in the case of Farooq Ahmed v.Federation of Pakistan through Secretary Law and Parliamentary Affairs, Government of Pakistan, Islamabad [PLD 2005 Lahore 15] as follows:-- "After hearing the learned counsel for the petitioner, the learned law officers and the learned amici curiae at some length and after going through the material referred to by each of them we are constrained to observe at the outset that the impugned Ordinance has not appeared to us to be the finest example of legislative draftsmanship inasmuch as its language as well as its contents have been found by us to be defective and thoughtful in many ways."
' Unfortunately the issue posed by the present petition goes a long way in reinforcing the said view of the Full Bench about the said Ordinance.
13. We have found that subsection (3) of section 4 of the Juvenile Justice System Ordinance, 2000 declares in most emphatic and categorical terms that "The Juvenile Court 'shall have exclusive jurisdiction to try cases in which a child is accused of commission of an offence" but the entire Ordinance is completely silent as to how and at what stage a case shall reach a Juvenile Court and at what point of time and by whom a determination is to be made as to whether an accused person is a 'child' or not. Section 5 of the said Ordinance provides that:-- "(1) No joint trial of a child and adult person.- Notwithstanding anything contained in section 239 of the Code, or any other law for the time being in force, no child shall be charged with or tried for an offence together with an adult.
(2) If a child is charged with commission of an offence for which under section 239 of the Code, or any other law for the time being in force, such child could be tried together with an adult, the Court taking cognizance of the offence shall direct separate trial of the child by the Juvenile Court."
The said provisions create an impression that a Challan against a child and his adult co-accused is to be submitted jointly before a court of ordinary jurisdiction and then it is that court which is to direct that the child's trial is to be separately conducted by a Juvenile Court. The Ordinance, however, fails to specify the mechanism whereby such court of ordinary jurisdiction may determine as to whether an accused person is in fact a child or not. As against that section 7 of the same Ordinance provides that "Determination of age.--If a question arises 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."
The provisions of section 7 reproduced above create an impression that a determination about the age of an accused person is to be made by a Juvenile Court when a. Challan has already been submitted against him by the State before the Juvenile Court and the said accused person is already "before it". The Ordinance, however, is once again silent as to how and by whom a decision is to be taken that the Challan in the case is to be submitted before a Juvenile Court because the accused person concerned is a 'child' for the purposes of the Juvenile Justice System Ordinance, 2000.
14. The confusion created by the lack of legislative clarity or profundity in the above mentioned regards and the resultant misuse or abuse of the relevant law had been commented upon by the Full Bench of this Court in the case of Farooq Ahmad (supra) in the following words: '16. While adverting to section 7 of the impugned Ordinance we may unhesitatingly observe that this provision has created nothing but havoc in our criminal justice system in particular and in the society in general. According to section 7 "If a question arises 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". We take judicial notice of the fact that because of this provision a large number of criminal cases witness a mini- trial regarding the age of an accused person before or during, and sometimes even at the far end of, the main trial of the accused person and during this exercise evidence, both oral and documentary, is received. A decision of the trial court in that regard is then assailed through a revision petition before this Court and then the matter is taken to the Hon'Ille Supreme. Court.
Sometimes such issues are also raised for the first time in appeals before this Court and in appeals or petitions before the Hon'ble Supreme Court without this matter having been agitated before the trial court at all. A lot of time is consumed in this process and more often than not such an exercise is undertaken with intentions and purposes which are other than bona fide. In the case of Ziaullah v. Najeebullah and others [PLD 2003 SC 656] the Hon'ble Supreme Court of Pakistan had not only taken notice of but had also deprecated a growing trend that convicts already sentenced to 'death were trying to prove themselves to be children for the first time after the matters of their convictions and sentences had attained finality through the judgments rendered by the, apex court itself. According to its annual report published by the Human Rights Commission of Pakistan on the 'State of Human Rights in 2003' in July, 2003 over 300 cases were pending in the Province of the Punjab alone wherein the ages of convicts on death row were being contested and after exhausting all the judicial remedies against their conviction and sentence the convicts were trying to establish that they were less than eighteen years of age on the day of owes## ' In the referred case of Ziaullah v. Najeebullah and others [PLD 2003 SC 656] the Hon'ble Supreme Court of Pakistan had observed as follows: "13. It seems that a good number of prisoners who never took the plea of being below 18 years during the trial but after the pronouncement of the said special remission, they have started making efforts to prove themselves to be below 18 years at the time of the commission of the offence so that they could be benefited by special remission announced-by the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan. Essentially question relating to determination of the age of such claimant in terms of Section 7 of the Juvenile Justice System Ordinance, 2000 can only be determined by a judicial forum because it is a question of fact which can be settled judiciously for the purpose of treating the accused to be juvenile offender. As far as executive authorities or any committee constituted by them is concerned, it enjoys no power to discharge the judicial function. If they are allowed to do so, it would be negation of the concept of independence of judiciary. Similarly, it would give rise to number of related complications The issue regarding the stage and the forum for raising the question of age of an accused person for the purposes of the Juvenile Justice System Ordinance, 2000 had received specific attention of the Hon'ble Supreme Court of Pakistan in the subsequent case of Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others [PLD 2004 SC 758] and it had been observed in that case by way of providing "some guidelines" as under: "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 Investigating Officer could collect evidence even in this connection for the assistance of the competent Court. An adverse inference could be drawn where the concession in question was claimed after undue and, un-explained delay."
(Italics have been supplied by us for emphasis)
' The same issue again engaged the attention of the Hon'ble Supreme Court of Pakistan in the case of Sarfraz alias Shaffa v. The State and 3 others [2007 SCMR 758] and it was observed in the said case as follows: "3. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions as contained in the Juvenile Justice System Ordinance, 2000 as well as notification dated 13-12-200t. A careful scrutiny of the record would reveal that the plea "juvenile" was never taken before the learned trial and Appellate Courts. It is worth mentioning that even it did not find mention in the petition for leave to appeal filed before this Court which was also rejected.
4. In fact it appears to be a futile exercise to get the matter prolonged. As mentioned hereinabove the plea of age was never taken either before the learned trial or Appellate Courts or even before this Court. The petition for leave to appeal preferred on behalf of petitioner was decided by this Court vide order dated 9-5-2002 and the judgment of learned High Court was kept intact and hence no interference at this belated stage, can be made as the learned Advocate Supreme Court failed to make out a case for special remission. The factum of age was neither pressed into service nor it was ever recorded by the learned trial Court hence the petitioner would not be entitled for any commutation by virtue of the said notification as pressed time and again.
(Italics have been supplied by us for emphasis)
15. In the backdrop of what has been observed and referred to above we now proceed to find a solution to the confusion prevalent in this field and we must admit that we have to resort to some judicial engineering to solve this mayhem and muddle. Section 14 of the Juvenile Justice System Ordinance, 2000 provides that-- "Ordinance not to derogate from other laws.-- The provisions of this Ordinance shall be in addition to and not in derogation of, any other law for the time being in force and the spirit of the provisions of sub-section (1) of section 6 of the said Ordinance manifests that the Code of Criminal Procedure, 1898 (hereinafter sometimes referred to as Cr.P.C.) by and large applies to the procedure for the purposes of investigation and trial of cases involving juveniles. By virtue of the provisions of section 173, Cr.P.C. Upon completion of the investigation of every criminal case, the officer in charge of the police station has to, through the Public Prosecutor, forward a report (popularly known as a Challan) to a Magistrate "empowered to take cognizance of the offence". Subsection (3) of section 4 of the Juvenile Justice System Ordinance, 2000 declares in clear terms that "The Juvenile Court shall have exclusive jurisdiction to try cases in which a child is accused of commission of an offence" and subsection (6) of section 4 of the said Ordinance contemplates that it is a Juvenile Court which is to take cognizance of an offence committed by a `child'. By synthesizing and integrating the relevant provisions of the Code of Criminal Procedure, 1898 and the Juvenile Justice System Ordinance, 2000 it appears that a report under section 173, Cr.P.C. Vis-a-vis a 'child' is ' to be submitted by the police through a Public Prosecutor before a Magistrate who is to take cognizance of the offence under subsection (1) of section 190, Cr.P.C. And then under sub section (3) of section 190, Cr.P.C. The Magistrate is to send the case to the Juvenile Court competent to try the case under subsection (3) of section 4 of the Juvenile Justice System Ordinance, 2000. After receipt of the case from the Magistrate the Juvenile Court may take cognizance of the offence committed by the 'child' under subsection (6) of section 4 of the said Ordinance and may proceed with the trial of the case. It is of critical importance to observe here that such submission of the report under section 173, Cr.P.C. By the police qua a 'child' and its sending to a Juvenile Court by the Magistrate make it a pre-requisite that some tentative determination about the age of the relevant accused person is to be made by the police before submission of the report under section 173, Cr.P.C. And by the Magistrate before sending the case to a Juvenile Court for taking of cognizance and trial.
16. This fusion and blending of the various relevant provisions of the Code of Criminal Procedure, 1898 and the Juvenile Justice System Ordinance, 2000 conceived by us also helps us in harmonizing the provisions of section 7 and of subsections (1) and (2) of section 5 of the Juvenile Justice System Ordinance, 2000. Thus, the picture that emerges is that section 7 is relevant to the stage when the police have already submitted a report under section 173, Cr.P.C. Before a Magistrate, the Magistrate has sent the case to a Juvenile Court, the Juvenile Court has taken cognizance of the offence and of the case treating the accused person as a 'child', the complainant party disputes at such stage the juvenility of the accused person and at that stage the controversy is to be resolved by the Juvenile Court through an 'inquiry' under section 7 whereas subsections (1) and (2) of section 5 are restricted to situations where many persons are recommended by the police for a joint trial as adults, the question of juvenility of one or more of such accused persons has not cropped up till submission of the report under section 173, Cr.P.C.
And taking of cognizance by an ordinary court, such a question is raised before the ordinary court at such a stage and the ordinary court is required to decide the issue of age at such a stage under subsection (2) of section 5. In a case of this nature and in a situation of this kind the `inquiry' by a Juvenile Court contemplated by section 7 is to be conducted by the ordinary court and if any accused person is found to be a 'child' at the time of the alleged occurrence then the case against such accused person is to be separated from that against his adult co-accused for its trial by a Juvenile Court.
17. This brings us to the question as to what is to be done by the police where an accused person appears to the arresting police officer or the Investigating Officer to be a young person who could possibly be a `child' for the purposes of the Juvenile Justice System Ordinance, 2000. Section 12 of the said Ordinance provides that "12.Orders that shall not be passed with respect to a child. Notwithstanding anything to the contrary contained in any law for the time being in force no child shall be
(a) ------
(b) handcuffed, put in fetters or given any corporal punishment at any time while in custody: ' Provided that where there is reasonable apprehension of the escape of the child from custody, he may be handcuffed."
This shows that immediately upon the arrest of a young person the arresting police officer has to make a tentative assessm ent as to whether the arrested young person is a 'child' for the purposes of the Juvenile Justice System Ordinance, 2000 or not and, thus, can he be handcuffed, etc. Or not.
The tender age of the arrested young person may also be relevant to the questions of his medical treatment under subsection (6) of section 6 and bail under section 10 of the Juvenile Justice System Ordinance, 2000. According to Rule 26.7 of the Police Rules, 1934 "Whenever there is doubt as to the correctness of a statement made by an arrested person regarding his identity, residence or antecedents" the facts about the same are to be ascertained "at once". The questions regarding the "identity, residence or antecedents" of a young arrested person can also impliedly involve a question regarding his correct age. As a matter of fact Form No, 26.7(1) titled 'Certificate Regarding Identity of an Accused' prescribed in the Police Rules, 1934 actually contains a column regarding the age of the accused person. It is, thus, imperative that in all cases involving voting accused persons the relevant police officer should not only inquire from the accused person about his age but he should also make an appropriate inquiry as to whether the relevant accused person is or is not a 'child' for the purposes of the Juvenile Justice System Ordinance, 2000. In this connection the relevant police officer should collect or consult all possible material which may throw light on the accused person's age and such material may include the record of the hospital, if any, wherein the accused person was born, the Register of Births maintained at the relevant Union Council, the record of the educational institutions, if any, attended by the accused person, the educational Certificates or Degrees incorporating the accused person's date of birth, the record maintained by the National Database Registering Authority, the Electoral Roll of the area, the record maintained by the Nikah Registrar of the area and a medical opinion about the accused person's age, if need be.
Apart from that according to section 4 of the said Ordinance a Juvenile Court has the exclusive jurisdiction to try a `child' and only a Juvenile Court can take cognizance of an offence committed by a 'child'. Thus, prior to submission of a report under section 173, Cr.P.C. Against any young accused person the police have to form a tentative opinion as to whether the relevant accused person is in fact a 'child' or not and such opinion should be incorporated in the report under section 173, Cr.P.C. So that the Magistrate receiving that report should become conscious of this aspect of the case. The above mentioned material collected by the police in the process of formation of its opinion about the accused person's age would be of enormous assistance to the Magistrate in deciding where to send the case for trial and would also save a lot of time and effort of the ordinary court or the Juvenile Court in resolving any controversy raised before it regarding the relevant accused person's age.
18. The next question is as to what is to be done by the Magistrate when he receives a report under section 173, Cr.P.C. Involving an accused person who either appears to be a young person who could be a `child' within the purview of the Juvenile Justice System Ordinance, 2000 without claiming to be so or who actually claims to be a 'child' for the purposes of the said Ordinance or even an accused person who has been reported to be a 'child' by the police in its report. In such a case the Magistrate must examine the entire record of the investigation, make his own assessment of the material collected by the police on the issue of the accused person's age and if the material collected by the police in that regard is found by him to be deficient then he may hold an inquiry of his own in respect of the accused person's age. It had been held by the Hon'ble Supreme Court of Pakistan in the cases of Mehar Khan v. Yaqub Khan and another [1981 SCMR 267] and Raja Khushbakhtur Rehman and another v. The State [1985 SCMR 1314] and by the Hon'ble High Court of Sindh in the case of Ali Mardan v. The State [1986 P.Cr.L.J. 1206] that while exercising his jurisdiction under section 190, Cr.P.C. a Magistrate is not to act as merely a post office but he is to apply his conscious mind to all the relevant facts and aspects of the case before taking a decision in that regard. Rule 3 in Part A of Chapter 24 of the Rules and Orders of the Lahore High Court, Lahore (Volume III) may also be referred to in this context with advantage. If after the above mentioned exercise the Magistrate feels satisfied that the relevant accused person was a 'child' within the purview of the Juvenile Justice System Ordinance, 2000 at the time of the alleged occurrence then the Magistrate, if he is not himself a Juvenile Court .Competent to take cognizance of the case, shall send the case to a Juvenile Court for its trial and if he finds the accused person to be an adult then he shall, 'if not himself competent to try the case, send the case to the ordinary court competent to try the case.
19. As regards the question as to what is to be done when the issue of juvenility of an accused person is agitated or contested for the first time when the case has already reached the trial court, be it the ordinary court or the juvenile court, we have already observed above that if the question of juvenility of the accused person crops up for the first time after the case has reached an ordinary court then the ordinary court is to decide the said issue under subsection (2) of section 5 of the Juvenile Justice System Ordinance, 2000 through an inquiry akin to that contemplated by section 7 of the said Ordinance and if the question of juvenility of the accused person is contested by the complainant party or the State before the Juvenile Court then the Juvenile Court is to decide the same in terms of the provisions of section 7 of the said Ordinance.
20. Adverting by a trial court to the question of age of an accused person at all the relevant stages of the case is a matter which cannot be over-emphasized arid the Rules and Orders of the Lahore High Court, Lahore attach due importance to the same for various reasons. Rule 1 in Part G of Chapter 1 of the Rules and Orders of the Lahore High Court, Lahore (Volume III) provides as follows: "Age of accused persons, complainants and witnesses to be carefully considered when the point is material.- ' In criminal cases, in which the age of an accused person, complainant or witnesses, is material to the matter in issue, or is likely to affect the sentence, the Court should record a careful finding as to probable age of such accused person, complainant or witness, and should refer to, and comment on, any discrepancies which there may be in the evidence on the point. In cases of doubt, the birth entry should be obtained, or in its absence, the opinion of a medical officer should be taken. The age of the accused as found or believed by the Court should be invariably stated in the judgment.
A careful statement of the probable age of the accused is especially necessary in murder cases in which the person charged is a youth or is very advanced in years. But in every case in which a charge is framed the accused should, at the opening of his examination, be required to state his age; and in all cases in which the age of the accused appears to the Court to be under twenty or over fifty years, or to be material for any special reason, the Court should add a note expressing his own opinion as to the probable age of the accused."
' Apart from that Rule 1 in Part A of Chapter 19 of the Rules and Orders of the Lahore High Court, Lahore (Volume III) recognizes age of an accused person/convict as a relevant factor vis-a-vis sentencing and Rule 8 in Part A of Chapter 22 of the Rules and Orders of the Lahore High Court, Lahore (Volume III) emphasizes the importance of mentioning the age of the accused person/convict in the judgment to be passed by a criminal court dealing with a youthful offender.
In the case of Sohail lqbal v. The State [1993 SCMR 2377] the Hon'ble Supreme Court of Pakistan had referred to the Rules and Orders of the Lahore High Court, PLD Lahore in this regard with approval and emphasis. All this highlights that the question of age of an accused person is to receive special attention of the court trying him at all the relevant stages of the trial irrespective of the fact whether the accused person concerned, the complainant party or the State formally raises such an issue or not.
21. However, if an accused pardon raises a claim of minority for the purpose of being treated as a 'child' within the purview of the Juvenile Justice System Ordinance, 2000 then, as held by the Hon'ble Supreme Court of Pakistan in the case of Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others [PLD 2004 SC 758], such claim should be raised by him "at the earliest possible opportunity and preferably during the course of investigation" and if he raises such a claim for the first time "at a belated stage of the trial" or "during the course of the appellate proceedings" then such conduct would be "difficult to approve in the absence of any strong reason or explanation justifying such a delay". According to the Hon'ble Supreme Court "An adverse inference could be drawn where the concession in question was claimed after undue and un-explained delay."
22. In the light of the discussion made above we hereby issue the following directions and guidelines to the police and the subordinate judiciary in the Province of the Punjab:
(i) Immediately upon the arrest of a young person in connection with a criminal allegation the arresting police officer must make a tentative assessment as to whether the arrested young person is a 'child' for the purposes of the Juvenile Justice System Ordinance, 2000 or not and, thus, can he be handcuffed, etc or not.
(ii) In all cases involving young accused persons the relevant police officer should not only inquire from the accused person about his age but he should also make an appropriate inquiry as to whether the relevant accused person is or is not a 'child' for the purposes of the Juvenile Justice System Ordinance, 2000. 'In this connection the relevant police officer should collect or consult all possible material which may throw light on the accused person's age and such material may include the record of the hospital, if any, wherein the accused person was born, the Register of Births maintained at the relevant Union Council, the record of the educational institutions, if any, attended by the accused person, the educational Certificates or Degrees incorporating the accused person's date of birth, the record maintained by the National Database Registering Authority, the Electoral Roll of the area, the record maintained by the Nikah.
' Registrar of the area and a medical opinion about the accused person's age., if need be.
(iii) Prior to submission of a report under section 173, Cr.P.C. Against any young accused person the police must form a tentative opinion as to whether the relevant accused person is in fact a 'child' or not and such opinion should be incorporated in the report under section 173, Cr.P.C. So that the Magistrate receiving that report should become conscious of this aspect of the case.
(iv) In the report submitted under section 173, Cr.P.C. The police must mention the claim of the accused person regarding his minority and the material collected by the police about his age or date of birth.
(v) A Magistrate receiving a report under section 173, Cr.P.C. Involving a young accused person must examine the entire record of the investigation, make his own assessment of the material collected by the police on the issue of the accused person's age and if the material collected by the police in that regard is found by him to be deficient then he may hold an inquiry of his own in respect of the accused person's age. If after the above mentioned exercise the Magistrate feels satisfied that the relevant accused person was a 'child' within the purview of the Juvenile Justice System Ordinance, 2000 at the time of the alleged occurrence then the Magistrate, if he is not himself a Juvenile Court competent to take cognizance of the case, shall send the case to a Juvenile Court for its trial and if he finds the accused person to be an adult then he shall, if not himself competent to try the case, send the case to the ordinary court competent to try the case.
(vi) If a case is sent by a Magistrate to a Juvenile Court for trial and if the question of juvenility of the accused person is contested by the complainant party or the State before the Juvenile Court then the Juvenile Court is to decide the same in terms of the provisions of section 7 of the Juvenile Justice System Ordinance, 2000.
(vii) If the question of juvenility of an accused person crops up for, the first time after the case has already reached an ordinary court for trial then the ordinary court is to decide the said issue under subsection (2) of section 5 of the Juvenile Justice System Ordinance, 2000 through an inquiry akin to that contemplated by section 7 of the said Ordinance.
(viii) As required by the relevant Rules and Orders of the Lahore High Court, Lahore all Magistrates and trial courts must pay special attention to the age of the accused person before them and must record his age in the relevant record, charge-sheets and final judgments as the matter of age is important to issues pertaining to the forum of trial, sentence and custody, etc.
(ix) If an accused person raises a claim of minority for the purpose of being treated as a 'child' within the purview of the Juvenile Justice System Ordinance, 2000 then such claim should be raised by him at the earliest possible opportunity and preferably during the course of investigation and if he raises such a claim for the first time at a belated stage of the trial or during the course of the appellate proceedings then such conduct would be difficult to approve in the absence of any strong reason or explanation justifying such a delay. An adverse inference may be drawn where the concession in question is claimed after undue and un-explained delay.
23. The Office of this Court is directed to send a copy of this judgment to the Provincial Police Officer/Inspector-General of Police, Punjab for its circulation among all the Superintendents of Police (Investigation) in the Province of the Punjab with a direction to apprise all the investigating officers involved in investigation of crimes of the guidelines provided through this judgment and to ensure their compliance. The Office is also directed to send copies of this judgment to all the District & Sessions Judges in the Province of the Punjab for their circulation among all the Additional District & Sessions Judges, Civil Judges-cum-Judicial Magistrates and Juvenile Courts for their instruction, observance and adherence.