TARIQ SALEEM SHEIKH, J.---This criminal revision is directed against order dated 12-11-2016 passed by the learned Additional Sessions Judge-I, Jampur, District Rajanpur, whereby he dismissed the application of the Petitioner for constitution of a medical board for determination of his age.
2. The facts relevant for the adjudication of this petition are that the Petitioner was booked in case FIR No. 282/2015 dated 24-09-2015 registered at Police Station Muhammad Pur, District Rajanpur for offences under sections 302/34/311/114, P.P.C. for the murder of Mst. Rafia Mai. The said case was investigated and the Investigation Officer submitted report under section 173, Cr.P.C. before the learned trial Court. During the pendency of trial, on 15-07-2016, the Petitioner made an application before the learned trial Court contending that he was a juvernile at the time when the offence was committed. As such, he was entitled to trial under the Juvenile Justice System Ordinance, 2000 (the "Ordinance"). In the support of his application the Petitioner relied on school certificate according to which his date of birth was 07-05-1998. He prayed that a medical board be constituted to conduct his ossification test for the determination of his age.
3. The prosecution opposed the aforesaid application of the Petitioner arguing that the Petitioner was not a juvenile at the time of occurrence. It contended that the Petitioner was registered as a voter and according to the Form issued by the District Election Officer/ Registration Officer, Rajanpur, his age was 18 years on 01-01-2013. The prosecution also relied on National Identity Card No. 32402-1557090-5 and the electoral rolls of Chak Londa which also showed that the age of the Petitioner was 18 years on 01-01-2013.
4. The learned Additional Sessions Judge examined the aforementioned documents and held that the CNIC, which according to him was got prepared by the Petitioner himself, and the electoral roll were sufficient for determining whether the Petitioner was a juvenile on the relevant date and his ossification test was not required. Therefore, vide order dated 12-11-2016, he dismissed the above- mentioned application of the Petitioner. It is this order which has been impugned in this revision petition.
5. Arguments heard. Record perused.
6. The Criminal Procedure Code does not prescribe any procedure for determination of age of an accused person. However, the Ordinance, which was enacted for protection of the rights of children involved in criminal litigation, provides a procedure therefor in matters falling within its purview.
Section 7 of the Ordinance stipulates: "7. Determination of age. If a question arises as to whether a person before it is a 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 child."
7. 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. There is no definition of the word "inquiry" in the Definition Clause of the Code of Criminal Procedure. However, in section 4(1)(k) the Code explains that it "includes every inquiry other than a trial conducted under the Code by a Magistrate or Court." An inquiry is thus something different from trial. The Major Law Lexicon (4th Edition 2010) states: "The word 'inquiry' has multiple meanings. It can mean asking for information or it can refer to a hearing. The word 'inquiries' includes singular word 'inquiry'. [R. v. Secretary of State for the Environment, Food and Rural Affairs, (2004) EWHC 2387: (2005) 1 All ER 166, QBD (Admin): (2005)
Current Law Year Book, p.80, para 1801"
The following excerpt from Stroud's Judicial Dictionary of Words and Phrases (Eighth Edition) is more instructive: "An "inquiry" in an action was not limited to what a man could see with his own eyes; it signified a judicial inquiry with witnesses; therefore in a reference "for inquiry and report" under Judicature Act 1873 (c.66) s. 56, the referee might, and it was the invariable practice to, hear counsel and witnesses (Wenlock V River Dee Co, 19 Q.B.D. 155)."
"A "due inquiry" (Medical Act 1858 (c.90) s. 29, Medical Act 1956 (c. 76) s. 33) means to give its subject-matter a fair hearing (Allbutt v General Medical Council, 23 Q.B.D. 400, and Lesson v General Medical Council, 43 Ch. D. 366, cited INFAMOUS CONDUCT) and there can have been no "due inquiry" if the rules of natural justice have not been observed (General Medical Council v Spackman [1943] A.C. 627."
Judicial Dictionary by K.J. Aiyar (13th Edition) defines the term 'inquiry' as follows: "Legal proceedings in which facts are found on the basis of which liability or disability of person is judged. It connotes an act of seeking truth, information or knowledge about something. Though synonymous with inquisition, investigation, probe or inquest, it acquires specific meaning by the context in which it is used. Jamunabai Motilal v. State of Maharashtra 1978 LJ 93; AIR 1978 Born.
200."
In "Real Value Appliances Ltd. v. Canara Bank" [(1998) 5 SCC 554; AIR 1998 SC 2064], the Supreme Court of India held that the word "inquiry" occurring in section 16(1) of the Sick Industrial Companies (Special Provisions) Act, 1985, means "search for knowledge".
Biswa s Encyclopedic Law Dictionary (Legal and Commercial) (Third Edition 2008) explains: "The word 'inquiry' does not always mean judicial inquiry, whether it does or does not depend on the context in which it is used. Mohammad Umar v. I.G. of Police, AIR 1957 All 767."
However, Stroud's Judicial Dictionary supra cautions that: "Words like 'proceedings' or 'inquiry' used by a given statute are to be understood in the context of that statute for the term 'proceedings' may have a wide as well as narrow connotation. It would take the colour from the context which alone is determinative of its true scope. 'Proceedings' by itself may indicate the whole action or a mere step in an action. That term in the context of law is generally understood as indicating the form and manner of conducting juridical business before Court or judicial officer, regular and orderly progress in form of law including all possible steps in an action from its commencement to conclusive by judgment. It is not a necessary rule that every proceeding must be an inquiry and every inquiry must be a proceeding. The context may indicate otherwise in that a proceeding may contain several inquiries and an inquiry may contain different proceedings. [B A MASODKAR and A A GINWALA JJ] Jamunabai Motilal v. State of Maharashtra, MLJ: YD (1978) Suppl C 1660: (1978) Mah LJ 93: AIR 1978 Bom 200. [Interpretation of Statutes]."
From the above-mentioned literature, it may be concluded that the purpose of an inquiry is to seek truth about a fact or a particular state of affairs.
8. Reverting to the case in hand, there can be no two opinions that in Section 7 of the Ordinance 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 medical report, which means clinical and radiological examination of the accused or what is called his ossification test. In my opinion, a plain reading of section 7 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. I am fortified in this view by the following dictum laid down by the august Supreme Court of Pakistan in "Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others" (PLD 2004 SC 758): "24. The word 'INQUIRY' is defined by clause (k) of subsection (1) of section 4 of the Cr. P. C. 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 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 a slipshod 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, 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..."
9. For the sake of completeness, it may be added that as per "Muhammad Raheel alias Shafique v.
The State" (PLD 2015 SC 145), the onus to prove juvenility is on the accused person. Furthermore, where such a claim is raised belatedly, an adverse inference can be drawn against him. Reliance in this respect is again placed on the cases of Sultan Ahmed and Muhammad Raheel supra.
10.In the instant case, the Petitioner had submitted a photocopy of his School Leaving Certificate to support his claim for minority. The learned trial Court discarded the said certificate on the ground that the original had not been produced. However, in order to hold that the Petitioner was not a child on the relevant date, he relied upon his CNIC and the electoral roll which he held were conclusive evidence for determination of his age. In "Muhammad Anwar v. Muhammad Suffyian and another" (2009 SCM R 1073), the august Supreme Court of Pakistan held that entry of date of birth in the register "Dakhil Khanrij" and in "Provisional Result Certificate" were not independent sources of information about the age of the accused because both the documents followed the information volunteered by the student himself or someone connected with him. In my opinion, the same observation also holds good for School Leaving Certificates. Situation may, however, be different after some years because of social development and increasing emphasis on documentation. Be that as it may, the learned trial Court erred in law in not requisitioning the record of the school concerned and examining its custodian to verify the genuineness of the certificate in question.
11.So far as the National Identity Card is concerned, it has its probative value because it is prepared under the National Database and Registration Authority Ordinance, 2001. The Supreme Court of Pakistan also recognized it when in "Abdul Ghani and others v. Mst. Yasmeen Khan and others"
(2011 SCM R 837), it ruled: "It is worth mentioning that National Identity Card has got its probative value which carries sufficient weight to be considered for determining the age which fact also finds recognition by this Court. In this regard reference can be made to the case of Razia Khatoon v. Roshan H. Nanji (1991 SCMR 840), relevant portion whereof is reproduced hereinbelow for ready reference:- `The probative value of the National Identity Card has been recognized by this Court. The entries therein were made, no doubt, at the instance of the landlady herself but at a time when the law granting any such benefits was not in existence, was not in anticipation either, and when there was no such controversy which could have prompted her to give an incorrect age. Besides, she was under a statutory duty under the National Registration Act, 1973 (Act LVI of 1973) to declare on affidavits her date of birth or age and the Registrar-General was empowered to satisfy himself about the truth of the information, under section 9 of the Act. The Act also makes penal by clause
(b) of section 11 making of any statement or furnishing of any information which is known or is reasonably believed to be false in material particulars. In such background, the entries of the National Identity Card shall hold the field unless they are rebutted by an equally good or better evidence. In this case such evidence was altogether lacking." [Emphasis added]
12. From the above dictum it follows that the National Identity Card and the entries in the NADRA Database do carry weight and hold the field unless they are rebutted. Since the entries in the electoral rolls are nowadays made on the basis of National Identity Card/NADRA Database, the above dictum of the Hon'ble Supreme Court would apply to them with equal force. The fact that section 7 of the Ordinance obligates the Court to seek the opinion of the medical expert may be because the legislature itself did not consider their data as a conclusive evidence of the age of a person. In the instant case, the National Identity Card and the electoral rolls are important documents which must be taken into consideration for reaching a just conclusion in the inquiry under section 7. Since I am minded to remand the matter to the learned trial Court, I refrain from making any comments in this regard lest it may prejudice the case of any of the parties.
13. The language of Section 7 and the dictum laid down by the Hon'ble Supreme Court in Sultan Ahmed's case leaves no room to doubt that medical test is mandatory under the Ordinance. Even otherwise, it may be observed that in "Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others" (2013 SCM R 203), the august Supreme Court emphasized the need to adopt modern techniques to reach just conclusion. Permitting ossification test would be a step in the right direction for safe administration of justice.
14. Last but not least, it may be reiterated that right to fair trial is a fundamental right of every person guaranteed under Article 10-A of the Constitution of Pakistan. The learned trial Court has denied this right to the Petitioner by refusing his request for ossification test.
15. In view of the above discussion, this revision petition is accepted and the impugned order dated 12-11-2016 is set aside. The case is remanded to the learned Additional Sessions Judge-I, Jampur, with a direction to decide the application filed by the Petitioner afresh after holding an inquiry as required under the law after getting ossification test done by a duly constituted medical board and taking into consideration all the documents produced by the parties in support of their respective contentions.