Ali Shair alias Malhi Vs The Learned Addl. Session Judge etc

FORM NO. HCJDC/A-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

JUDGMENT

Crl. Revision No.49478 of 2026

Ali Shair alias Malhi Vs.

Addl. Sessions Judge Ferozewala, District Sheikhupura etc Date of Hearing: 17.09.2026

Petitioner by: M/s Muhammad Safdar Bhatti & Muhammad Matloob Sandhu, Advocates.

Respondents by: Rana Muhammad Imran Anjum, Deputy Prosecutor General for the State.

Nemo for respondent No.2.

Ch. Uzair Ashraf, Advocate/Amicus Curiae.

AMIR AJAM MALIK, J. Through this criminal revision filed under section 435 Cr.P.C read with section 439 of Cr.P.C, the petitioner has challenged the order dated 22.02.2025 passed by learned Additional District & Sessions Judge, Ferozewala, District Sheikhupura whereby an application under section 8 of Juvenile Justice System Act, 2018 for declaring him as juvenile in the case bearing FIR No.880/2024, dated 02.02.2024, u/s 302, 394, 34 of PPC, registered at police station Factory Area, District Sheikhupura, was dismissed by relying upon ossification test report wherein age of the petitioner was estimated as 20+1 years while ignoring Birth Registration Certificate issued by concerned union council submitted by the petitioner himself wherein his age is about 13 years.

02.While opening his arguments, learned counsel for the petitioner submits that by typographical mistake the date of passing of

impugned order has been written as 22.02.2025 in this criminal revision petition whereas the actual date of impugned order is 15.02.2025. He further requested for rectification of the date of passing of impugned order.

The request of learned counsel for the petitioner is genuine and the same is accepted and rectification of date of impugned order is allowed. The impugned order be read as 15.02.2025 instead of 22.02.2025.

03.I have given anxious consideration to the arguments advanced at bar and carefully perused the record with able and appreciable assistance of learned counsels for the petitioner, learned Deputy Prosecutor General, Rana Muhammad Imran Anjum and learned Amicus Curiae, Ch. Uzair Ashraf, Advocate. Despite of notice no one appeared on behalf of complainant/respondent No.2.

04.Allah, the Almighty has created human beings with intellect to execute both right and wrong. The divine words that “Allah has endowed the human soul with an innate moral compass to distinguish wickedness and righteousness”1 reveals the inherent nature of mankind from initial stage of the creation of human being. Allah, the Omnipotent prescribed punishment for evil deeds and reward for good deeds on the day of ultimate judgement.

In fact, such punishments to the commission of offences are meant to safeguard individuals and society, and is thus a social need. The Holy Quran commands, “whoever does evil will be requited accordingly”2 and in other verse it was ordained that, “anyone who has done an Atom’s weight of evil, shall see it.”3

05.The Fitrat (nature) of Juvenile is committing erroneous and mistake out of intent and thoughtfulness.4 Accordingly, Juveniles often commit Quran ‘Surah’ Al-Shams 91 Verse 8.

2 Quran ‘Surah’ Al-Nisa 4 Verse 123.

3 Quran ‘Surah’ Az-zalzalah 99 Verse 8.

4 Islam M.S. (2015). Fundamental Human Rights towards Childhood: Islamic Guidelines are Unique to Protect the Child. Journal of Alternative Perspective in the Social Sciences 7.

wrong or an offence by the lacking of proper knowledge about crime, therefore, it is the Islamic basic principle to establish the intent or guilty mind of the crime as essential component to grant punishment. The Holy Prophet Muhammad (Peace be upon him) articulated that “the reward of deeds depends upon the intentions and every person will get the reward according to the words and deeds he had intended.5 Islam exceptionally treats Juvenile by providing basic principles relating to trials against a juvenile offender. Al-Quran says, “But when the children among you, come of age, let them (also ask for permission), as do those senior to them “in age”: thus does Allah makes clear his Signs to you: for Allah is full of knowledge and wisdom.”6 The Holy Prophet (Peace be upon him) said, “three persons are not accountable, a child until he reaches the age of puberty, a sleeping person until he awakes, and an insane7 person until he becomes sane.8 Islamic law does not make accountable to anyone who is unable to make a deliberate choice. The Holy Prophet further says, “my Ummah is exempted from mistakes, forgetfulness, and the act done under coercion.”9 Hence, the following circumstances will be considered exceptions to the criminal responsibility; Minority, Lunacy, Intoxication, and Coercion, under certain circumstances as laid down in Pakistan Penal Code (PPC) 1860. In Islamic law, the criminal accountability and responsibility rests on three basis, namely,

i. The person commits a forbidden act,

ii. The person commits a crime with free consent,

iii. The person who commits an offence is mature, of sound mind, and can differentiate between the right and wrong.

5 Bukhari and Khan 1997, Hadith No.1

Quran ‘Surah’ Al-Nur 24 Verse 59.

Hanbal, A.B (1999). Musnad Ahmad bin Hanbal: Jild I, III, IV-VI. Beirut: Dar Al Fikr Anwarullah (1997) The Criminal law of Islam: AS Noor-Deen Tirmizi, A.I.M. a. (1980). Sunan al-Tirmizi: Beirut: Dar al-Fikr.

06.The purpose of criminal responsibility is to ensure protection of the public interest and make peace in the society because the commission of offences is harmful to the collective order and system of beliefs as well as to the life, property, honour, and the feeling of the individual interests.10 Deeds that appear prejudicial to the welfare of individuals adversely affect combine interests in the final analysis. According to Article 1 of OIC Covenant on Rights of Child in Islam (CRCI), the child is “...every human being who, according to the law applicable to him/her, has not attained maturity.” Convention on the Rights of Child “CRC” was adopted by the United Nations (UN) in the year 1989 and it became obligatory upon Pakistan to adhere to the principles as enunciated by the Covenant. The Reformatory School Act 189711 appears to be first example of law relating to rehabilitation of Juvenile offenders. This law, promulgated during the British Colonial time, empowered courts to direct youthful offenders sentence to transportation or imprisonment, to reformatory schools. Before the Juvenile Justice System Ordinance, there was no specific central law governing criminal trials of juvenile offenders. However, the provinces of Sindh and Punjab each had such laws: The Sindh Children Act 1955, and Punjab Youthful Offender Act 1983 which created Juvenile Courts.12 Most recent statutory instrument, i.e. the Juvenile Justice System Act 2018 protects children involved in criminal litigation and seeks to rehabilitate such children in society, reorganize juvenile courts, and deal with matters connected therewith and incidental thereto.13 The key features of Act Ibid not only include the provisions for social reintegration of the juvenile Islam M.S. (2015). Criminal Accountability and Juvenile Offenders: A Study under Islamic Principles, International Law and the Children Act 2013, International Journal of Ethics in Social Sciences, Vol.3, 53.

The Reformatory School Act 1897

The Sindh Children Act 1955, Section 7, Punjab Youthful offender Act 1983 Section 4 Juvenile Justice System Act 2018, preamble

offenders,14 but also establishment of separate Juvenile Courts.15 The law envisages that Juvenile offenders may be separately tried.16 It prohibits publication of criminal proceedings against juvenile offenders and bar award of death penalty, and handcuffing juvenile offenders,17 in safeguarding the freedom and liberty of children, it defines “child” as “a person who has not attained the age of 18 years”18 and “juvenile offender” means “a child who is alleged to have committed or who has been found to have committed any offence.”19

07.The Pakistan Penal Code (PPC) 1860, the principle of law that defines offences provide two general exceptions regarding juvenile offenders. Firstly, PPC determines the minimum age of criminal liability of a child at the age of 7,20 secondly it sets the maximum upper age limit at the age of 12 provided the child accused of an offence has not attained sufficient maturity of understanding to judge the nature of consequences of his criminal act.21 The second exceptions make it discretion of the court to evaluate maturity of accused whose age is above 7 and under 12. This situation, it is argued, has certain implications. Firstly, the plea of lack of maturity needs to be specifically raised and proved. Secondly, the court will presume the accused had attained sufficient maturity, thirdly that the prosecution may not feel obliged to produce evidence on the question of maturity. Indeed, the assessment of age of an accused, must be, in the first instance, assumed by police investigation and prosecution as their bounden duty in order to ensure fair trial and protect due process in a case involving a juvenile accused. But in case, if the investigation and prosecution Ibid.

Ibid, Section 4

Ibid, Section 12

Ibid, Sections 13 and 16

Ibid, Section 2(b)

Ibid, Section 2(k)

Pakistan Penal Code (PPC) 1860, Section 82

Ibid, Section 83

agencies fail to discharge such an important role, a question arises how the court resolves issue of determination of juvenile accused.

08.Over the past few years, a considerable body of case law has evolved for the determination of the age of juvenile offender since the promulgation of Juvenile Justice System Ordinance 2000 (JJSO). The basic reason for this being the moot question in our criminal justice system, is the maintenance of poor birth record particularly in the rural areas.22 A careful study of case law would reveal that in the case of Ahmad Ali,23 the court issued reference for determination of age of accused by the medical board and if the accused was found to be minor, he shall be tried by Juvenile Court under the JJSO. In the case of Muhammad Ishaq,24 it was ruled that in the presence of birth certificate and certificate issued by the educational institution, the opinion of police surgeon or medical board was not necessary. However, in two other cases of Muhammad Hanif, 25 and Hassan Zafar,26 the preference was given to the medical opinion to birth certificate.

The reasons cited were firstly, no sanctity was attached to the entries in birth certificate, and secondly such birth certificates or school leaving certificates are easily available in the country.27 In the later, preference was given to the entry of birth recorded in the school certificate at the time of admission of the offender into the school. The reasoning of the court was firstly, at the time of admission of the child in the school “there is no contemplation about any future criminality”28 and secondly, the medical opinion could be obtained for extraneous consideration and such opinion could be based on mere approximation. Another important aspect discussed Iqbal K. (2009) Judging Juvenility: Determination of age of Juvenile Offenders under Pakistan’s Juvenile Justice System, Pakistan Journal of Criminology, Vol. 1(3) 105-115 Ahmad Ali Vs. The State (2001 MLD 1191)

Muhammad Ishaq Vs. Muhammad Nadeem and others (2001 MLD 1561) Muhammad Hanif Vs. Muhammad Yaqoob (2001 P.Cr.L.J 1939) Hassan Zafar Vs. The State (2001 YLR 2060)

Muhammad Hanif Vs. Muhammad Yaqoob (2001 P.Cr.L.J 1939) Hassan Zafar Vs. The State (2001 YLR 2062)

in Hassan Zafar’s case29 is that JJSO created what the court determine a feeble right. One glaring reason for this opinion seems to be that plea of juvenility was by and large set up by the offender and the onus to prove it also lies on him. The language of Section 7 of the JJSO provided that the juvenile court shall conduct inquiry only ‘if a question arises as to the juvenility of an offender.’ Thus an adverse plea could be raised by the prosecution, arguing that the offender was not a juvenile within the meaning of said provision. However, if no such plea was raised by the prosecution, a juvenile court would presume that the offence, in respect of whom, a case is entrusted to it, is juvenile. For this reason, the right of a juvenile offender may not be seen as a feeble right. While disposing of the plea of juvenility, the courts have also held that medical evidence is not essential for determination of age of an offender. Hence, section 7 of JJSO was not invoked in each and every case. Where difference was found between the age of offender assessed by medical board and the entry made in the record of union counsel, the court believed in the opinion of former, arguing that entry in later record could be forged.30 In the case of Muhammad Ishaq,31 a division bench of Honourable Supreme Court gave judicial credence to the birth certificate.

09.It goes without saying that question pertaining to determination of age is liable to be considered at preliminary stage, such as the request of offender for his/her release on bail, in that, the Juvenile Justice System Act 2018 safeguards the human rights of a section of society who deserve reasonable concession because of their tender age and therefore, it is to be construed liberally in order to achieve the said object.

Thus, there is no legal bar to raise the plea of juvenility at any stage of the Ibid

Gohar Abbas Vs. The State (2002 YLR 637)

Muhammad Ishaq Vs. Muhammad Nadeem and another (2002 SCMR 440)

trial. In the case of Babar Ali,32 this court has already held that soon after arrest, the arresting police officer must make tentative assessment of the juvenility by inquiring him and make an appropriate inquiry by recording his tentative opinion about the age of such accused person in his report under section 173 Cr.P.C, and must append any material collected for his assessment. Thereafter, on the receipt of report u/s 173, a Magistrate must examine the entire record of the investigation, make his own assessment of the material relevant to the question of juvenility, and if the Magistrate finds the inquiry deficient, he may assess the age of accused through an inquiry. In any case, if a question is raised before the competent Juvenile Court, such court must decide the question according to provision of section 8 of the Act Ibid. All Magistrate and trial court must pay special attention to the age of accused persons before them and must record their age in relevant record, charge sheet, and final judgement, as the matter of age is important to the issues pertaining to forum of trial, sentence, and custody etc. and lead to an adverse inference in case the plea of juvenility is raised at a belated stage of judicial proceedings.

10.It is pertinent to hold that the Honourable Supreme Court of Pakistan has already held in the case of Saleem Khan33 that:

“The determination of the age or juvenility of the accused under the Juvenile Ordinance was the responsibility of the trial court, requiring the trial court to hold an inquiry including obtaining a medical report for the determination of age. However, this process underwent change under section 8 of the Juvenile Act, wherein if the accused physically appears or claims to be a juvenile, the Police shall make an inquiry to determine the age of the accused on the basis of his birth certificate, educational certificate or any other pertinent Babar Ali Vs. The State (PLD 2007 Lahore 650)

Saleem Khan Vs. The State and others (PLD 2020 Supreme Court 356)

document. In the absence of such documents, age of such accused person may be determined on the basis of a medical examination report by a medical officer.”

In another case of Gufran Ali,34 it was held by the Honourable Supreme Court of Pakistan that:

“Ordinarily the date of birth of a person is determined on the basis of documentary proof, i.e. birth certificate, educational documents, and national identity card etc, but when the date of birth is disputed and varies on all such documents, then ossification test is the best way to determine a person’s age.”

11.Thus, it stands established by now that the co-existence of two conditions is a pre-requisite for referral of an accused for the ossification test: firstly, the date of birth varies on the documents produced by the accused claiming to be juvenile, and secondly, the date of birth is disputed by the prosecution. Both the ingredients must simultaneously exist for consideration before the case of an accused is referred to the medical board for ossification test. However, if there is no variance in the documents reflecting date of birth of the accused, then mere disputing the age of the juvenile by the prosecution would not constitute a valid ground for referral of the matter for determination of his age for the ossification test. Needless to mention, it is settled principle of law that if two views are possible from the evidence adduced, the one favorable to the accused is to be adopted.35 While relying upon this ratio of judgment laid down by the Honourable Supreme Court of Pakistan in the case of Muhammad Zubair36, this court has already pronounced in the case of Imran Haidar37 that such entries of date of birth in the documentary evidence relating to the date of birth were got incorporated prior to the date of occurrence, even if they Gufran Ali Vs. Haseeb Khan and another (PLD 2023 Supreme Court 536) Sagheer Ahmad Vs. The State (2023 SCMR 241)

Muhammad Zubair Vs. The State (2010 SCMR 182)

Imran Haidar Vs. The State and another (2025 P.Cr.L.J 482)

were contradictory vis-a-vis the age of petitioner, the one’s in favour of the juvenile accused were liable to be relied upon.

In the instant case, the accused, namely Ali Sher has produced document of Birth Registration Certificate in support of his claimed age, wherein his date of birth is recorded as 16.01.2011. Upon correct calculation, the age of the petitioner on the date of the occurrence was approximately 13 (Thirteen) years. Although this plea was vehemently opposed by the complainant. Significantly, the complainant has never challenged the genuineness or authenticity of the said document before the relevant competent forums. This circumstance provides a legitimate basis for this Court to place reliance upon the documents while adjudicating the controversy regarding the petitioner’s age, while following the Islamic principles and ratio of esteemed judgments as discussed above. Since an unchallenged and unrebutted document, in the form of a birth certificate, is available on the record, which reasonably indicates that the accused was much below eighteen years of age on the date of the occurrence. Even otherwise “the punishment slip in the report u/s 173 Cr.P.C, submitted by the local police divulge the age of the petitioner as 15/16 years to manifestly make it clear that the accused was a juvenile.

12.Since juveniles are naturally different from adults in respect of physical, physiological, and mental strength, they needed to be treated specially. It is the bounden duty of the courts to ensure that the rights guaranteed to such a vulnerable section of our society are secured in terms of the elaborate guidelines as dilated upon in the afore-going paragraphs, in that, the Islamic law has pronounced directions to show mercy, compassionate and kind treatment with child. According to the international

laws, including the Convention of the Rights of the Child (CRC), every human being under the age of 18 years old is considered to be a child.

13.As a natural corollary of the above discussion, this court has reached the conclusion that impugned order dated 15.02.2025 of learned trial court is not sustainable in the eye of law. For the foregoing reasons, by allowing instant criminal revision, the impugned order dated 15.02.2025 passed by the learned Additional Sessions Judge, Ferozewala, District Sheikhupura is set-aside. The matter is remanded to the learned trial Court with a direction to conduct a proper inquiry into the question of the petitioner accused's age/juvenility as on the date of occurrence, after providing an opportunity of hearing to all concerned and after examining the relevant documentary and other admissible evidence in accordance with law. The learned trial Court shall thereafter pass a fresh, speaking and well- reasoned order on the question of juvenility, while adhering strictly to the provisions of the Juvenile Justice System Act, 2018.

(AMIR AJAM MALIK)

Judge

Approved for Reporting.

Judge

*rouf*