NISAR HUSSAIN KHAN, J.---Through instant criminal revision petition, order of learned Additional Sessions Judge-IX, Peshawar dated 17-9-2013 has been challenged whereby petitioner's application for submission of Challan in terms of Juvenile Justice System Ordinance, 2000 has been turned down.
2. Learned counsel for petitioner argued that at bail stage, opinion of the Medical Board was solicited, according to which petitioner's age on the date of examination was 18 to 19 years and the date of examination is 27-4-2013 whereas date of occurrence as per FIR is 22-3-2013, as such petitioner was one month short of 18 years, so was juvenile and the trial court was required to ask the prosecution to submit Challan before the Juvenile Court in accordance with the provisions of the Juvenile Justice System Ordinance, 2000.
3. Learned Additional Advocate General, representing the State, vehemently opposed the contentions of the learned counsel for the petitioner.
4. We have heard the learned counsel for the parties and have gone through the record with their valuable assistance.
5. It is the case of petitioner that at bail stage, he moved an application for determination of his age through Standing Medical Board which was allowed and the Medical Board opined that at the time of examination, the petitioner's age was 18 to 19 years. So he be declared juvenile by virtue of that medical report. According to the report of the Medical Board, available on the record petitioner was referred to the Head of Department of Forensic Medicines, Khyber Medical College, Peshawar for age assessm ent, vide office letter dated 27-4-2013 and the report received from the Forensic Department of Khyber Medical College, vide letter No,153/FM/KMC/2013, dated 8-3-2013, on the basis of it they opined that age of the petitioner was 18 to 19 years. The dates mentioned in the report are not reconcilable. Since FIR was registered on 22-3-2013 then how the accused could have been examined by the Forensic Department on 8-3-2013, whereas the petitioner has not annexed the report of the Forensic Department which could have vindicated its authenticity with regard to the date of issuance and examination of the accused.
6. To avail benefits of Juvenile Justice System Ordinance, 2000, D petitioner was required to raise issue at the investigation stage and later on before the trial court which was accordingly raised.
The learned trial court after receipt of application was required to proceed under section 7 of the ibid Ordinance which for ready reference is reproduced in extenso herein below:-- "7. Determination of age.- If a question arises as to whether a person before it is child for the purpose 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."
7. Bare perusal of ibid Section transpires that when such question is raised before the Court, it shall enquire into the matter for determination of age of the accused and medical report shall be part of that enquiry and not a conclusive proof thereof. The matter has time and again came under consideration of the Superior Courts and lastly before the Supreme Court in the case titled Muhammad Aslam and others v. The State and another (PLD 2009 Supreme Court 777), wherein the said issue once for all has been settled by laying down principle and procedure for determination of the age of the accused in Para 11 of the judgment which for convenience is reproduced below:- "(11) While we are on the subject, we consider, it necessary to reiterate the principles regulating the determination of age of accused persons vis-a-vis their claim of minority and the procedure to he followed for the purpose. The same are summarized as under:-
(a) the normal penalty for an offence punishable with death, is death, and in view of the provisions of section 367(5), Cr.P.C., special reasons must exist to impose, on the convict, a punishment other than a sentence of death.
(b) the plea of minority by an accused is a special plea intended to take the accused off the noose and onus is thus on him to prove the same;
(c) such a plea of minority must be taken by the accused at the earlier possible opportunity, preferably during the course of investigation so that the requisite evidence about the age of the accused could also be properly collected during the said exercise or collection of evidence and any delayed claim on the said account should be met by adverse inference;
(d) whenever such a question of age is raised or arises at the trial, the courts should not deal with the same in a cursory or in a slip-shod manner but must proceed to hold an inquiry in the matter as commanded by the provisions of section 7 of the Juvenile Justice System Ordinance, including medical examination of the accused for the purpose.
(e) the said inquiry should not be understood to mean only to entertain documents from across the bar and then giving a decision thereon. Such a practice needs not only to be discouraged but, in fact, to be discontinued. Basing judicial decisions on untested and unscrutinised documents was a dangerous path to tread.
(f) proper compliance of the said provisions of section 7 would be to call upon the parties to lead their evidence - oral or documentary in accordance with the provisions of Qanun-eShahadat Order of 1984 with a right to the other party to test the veracity or the genuineness of the same in accordance with law and then to arrive at a judicial decision in terms thereof.
(g) a medical examination of the accused person could furnish a useful guideline in the matter and should be resorted to,. And finally,
(h) we must always keep in mind that while it is important, being a legal command, that a "child" should not be sent to the gallows, it is equally important that the one who deserves death must not be allowed to escape the same on the strength of false and fabricated material."
8. In view of the principle laid down by the august Supreme Court, the evidence in proof of a plea raised in his defence is to be led by the accused in accordance with law during the enquiry, in which the prosecution is to be afforded ample opportunity of cross-examination of the witnesses, to test the sanctity and genuineness of the documents and credibility of oral evidence if any. The opinion of the Medical Board would be a piece of evidence and not final and sole proof of the minority of the accused and that too would be led in evidence for determination of the age of the accused and if same is objected by the prosecution, it may call the author of the report for cross- examination.
9. In view of the above discussion, this petition is disposed of with the direction that in case petitioner is pressing his plea with regard to his minority, he may substantiate the same in the light of above guidelines, before the trial Court.