Ishfaq Khan Vs The State etc.

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IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Cr.Misc: BA No. I 71-812024

Ishfaq Khan v.

The State etc.

ORDER

Date of hearing 03.05 .2024

For petitioner(s): Mr. Salah-ud-Din Marwat Advocate

For respondent(s): Noor Rehman in person.

For State: IVIr. Abdu1 Waheed,

A.A.G.

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Dr. Khurshid lqbal, J.-

1.The petitioner/accused Ishfaq Khan seeks post arrest bail in case FIR No.l5, dated 23.07.2023, registered under sections 3021324134 PPC at Police Station Shadi Khel, District Lakki Marwat.

2.On 23 .07 .2023, at 07:40 hours, the complainant Noor Rahman brought the dead body of his son Hameed Ullah to the Civil Hospital Tajori, where he lodged a report that on the eventful night, he and his son were walking from village Gazgoba to their home. At about 00:30 hours, as they reached near the house of accused Afsar Khan, two culprits shouted threats at them that they would not go alive. The complainant illuminated them with his torch and identified them as Ashfaq Khan (the present petitioner), armed with a Kalashnikov, and Afsar Khan, armed with a 12 bore Repeater, who immediately started firing at the complainant party with the intent to cause their qatl-i-amd. Consequently, the complainant's son Hameed Ullah was hit and seriously injured, while the complainant luckily escaped unhurt. After (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Dr. Khurshid lqbal

the incident, the accused fled from the crime scene. When the

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complainant attended to his son, he had already succumbed to his injuries at the spot. The complainant alleged that there was no apparent motive behind the occurrence, but a few days prior, there had been an exchange of harsh words between his son Hameed Ullah and the accused Ashfaq Khan.

3.Arguments heard. Record perused.

4.Perusal of the record reveals that the occurrence took place on 23.07.2023, while as per his school leaving certificate and the Child Registration Certificate (CRC) issued by the NADRA, the date of birth of the petitioner is 01.01.2011. It shows that the petitioner was barely 12 and a half years old at the time of the occulrence and, thus, falling within the definition of a juvenile as contained in section 2 of the Juvenile Justice System Act, 2018 ("the Act"). However, neither the police offtcer, in terms of subsection (l) of section 8, determined the age of the petitioner, nor did the Judicial Magistrate, before whom the petitioner was produced under section 167 Cr.P.C, in terms of subsection (2) of section 8, record any findings as to his age. Rather, the S.I. (Inv) of the police station recorded the age of the petitioner as 17118 years in his arrest card, and the Judicial Magistrate straightaway authorized his detention within the meaning of sub-section (2) of section 167 Cr.P.C.

5.In a number of cases, the higher courts have observed that the subordinate courts and police officials are not paying proper attention to the issue of juvenility. Needless to say, it is mandatory as per section 8 of the Act that they must pay due attention to this issue. For the sake of ready reference, the provision is reproduced below:

8.Determination of age. "-(l) Where a person alleged to have committed an offence physically appears or claims to be a juvenile for the purpose of this Act, the officer-in- charge of the police station or the investigation officer shall make an inquiry to determine the age of such person on the basis (Ghafoor Zaman) (S.8.) Hon'ble Mr. Justice Dr. Khurshid Iqbal

V of his birth certificate, educational certificates or any other pertinent documents. In absence of such documents, dEa of such accused person may be determined on the basis of a medical examination report by a medical officer.

(2)When an accused person who physically appears to be a juvenile for the purpose of this Act is brought before a Court under section 167 of the Code, the Court before granting further detention shall record its findings regarding age on the basis of available record including the report submitted by the police or medical examination report by a medical officer.

(Underlines are mine for emphasis)

6.A plain reading of the aforesaid provisions reveals that according to the first part, when an accused appears from his physical condition or claims to be a juvenile, it would be the duty of the offrcer-in-charge or the investigating officer to conduct an inquiry into his age. The phrase "physically appears" is significant as it imposes a duty on the officer-in- charge and/or the investigating officer to inquire into the age of the accused, regardless of whether the accused has made any plea of juvenility or not. For this purpose, they have to examine documents such as the birth certificate, educational certificates, and any other relevant documents. In the absence of such documents, they are required to conduct a medical examination of the accused through an authorized Medical Officer.

7.The second part imposes a duty on the Court, before which an accused who "physically appears to be a juvenile" is brought under section 167 of the Criminal Procedure Code, 1898, to record its findings regarding his age. For this pu{pose, the Court must consider the record before it, including the police report conceming the age of the accused as determined in accordance with the first part. In the absence of such a report, the Court should examine the report of the Medical Officer as aforesaid.

(Ghafoor 7.aman) (S.B.) Ilon'ble Mr. Justice Dr. Khurshid Iqbal

V 8. It may also be helpful to observe that the issue of determination of age of juvenile offenders has been comprehensively dealt with by the higher courts while the repealed Juvenile Justice System Ordinance, 2000 was in vogue. An important case is of Sulton Ahmad v. Additional Sessions Judge-l, Mianwali and two others (PLD 2004 SC 758). In this case, the Supreme Court of Pakistan ruled:

Therefore, whenever a Court is confronted with ttre 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 ofthe concerned accused person and to take such other and further steps which could help the court in reaching the just conclusion about the said matter. As has been mentioned above, the issue about the age of an accused person at tlJral which could result in punishment of death, was now of vital significance and the learned presiding officer should never hasten to decide the said issue in a sunmery or 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 was thus not legally tenable. The reluctance of the Courts to benefit from such a mandated material was not understandable. Therefore, whenever, question of 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 )OflI of 2000 which commands (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Dr. Khurshid lqbal

V that "such inquiry shall include a medical report for determination of the age."

9.Reference may also be made to Babar Ali v. The State (PLD 2007 Lahore 650). In this case, the question of juvenility was extensively discussed and new means of solution were explored by resorting to what the Court called 'Judicial engineering". The Court issued the following guidelines to the subordinate courts and the police investigators:

First, soon after the arrest of a young person on a criminal accusation, the arresting police officer must make a tentative assessment as to whether the arrested young person is a "child" for the purpose of the [JJSO] 2000 or not and, thus, can hefishe] be handcuffed, etc. or not.

Second, the concerned police officer should inquire from the accused about his/trer age and also make an appropriate inquiry to find out whether the arrested young person is a child under the JJSO. In doing so, the concemed police investigator should collect or consult all possible material. Such material may include the record of hospital, the record pertaining to entry of birth maintained at the relevant Union Council, the record of educational institution, the record maintained by the National Database Registering Authority (NADRA), Electoral Roll and the marriage (Nikah) Registrar and a medical opinion about his/trer age, ifnecessary.

Third, the concerned police officer should record his tentative opinion about the age of the young accused person in his report under section 173 Cr.P.C to be forwarded to the concerned Magistrate.

Fourth, the police report under section 173 Cr.P.C must mention the plea of juvenility if set up by the young accused person and the material collected for the tentative assessment ofage.

Fifth, on receipt ofa report under Section 173 Cr.P.C, a Magistrate must examine the entire record of the investigation, make his[/her] own assessment of the material relevant to the (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Dr. Khurshid Iqbal

question of juvenility. If the Magistrate finds

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the inquiry deficient, then he/she may hold an inquiry of his/her own to assess the age of the young accused person. If the Magistrate finds the young accused person as a juvenile within the meaning of the JJSO, then if he/she is not empowered as a Juvenile Court, shall take cognizance of the offence and forward the case to the concemed Juvenile Court.

Sixth, if the question of juvenility is raised before a competent Juvenile Court, such Court must decide that question according to the provisions of Section 7 of the JJSO.

Seven, if the question of juvenility is raised before an ordinary court, to which a case has been sent for tial, the ordinary Court shall decide the issue ,,under subsection (2) of section 5 of the UJSOI, 2000 through an inquiry akin to that contemplated by section 7 of the said Ordinance.

Eight, 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.

Nine, an adverse inference may be drawn in case the plea ofjuvenility is raised at a belated stage of the judicial proceedings.

10.As noted above, the petitioner, being 12 and a half years old, should have had his age determined by the offtcer- in-charge and/or the investigating offrcer, regardless of his plea, in accordance with sub-section (1) of section 8 of the Act, considering his physical appearance as a juvenile. However, they failed to fulfill this statutory obligation. Similarly, when the petitioner was produced before the Judicial Magistrate in terms of section 167 Cr.P.C, the Magistrate did not adhere to the mandate of sub-section (2) of section 8 of the Act. It appears that neither the subordinate courts, nor the police officers comply with the requirements of section 8 of the Act. It is, therefore, imperative to direct that the subordinate courts and the concerned police officers (Ghafoor Zaman) (S.8.) Hon'ble Mr. Justice Dr. Khurshid Iqbal

! shall determine the age of persons accused of an offence who 'physically appear" or "claim" to be juveniles, strictly in accordance with section 8 of the Act.

11.Turning to the merits of the bail petition in hand, on the one hand, the complainant appeared in person and stated that he has no objection on the acceptance of this bail petition and the release of the petitioner on bail. On the other hand, the petitioner is barely 12 and, a half years old and, thus, a juvenile. As for the minor and major offences, a juvenile offender shall be teated as if accused of committing a bailable offlence, as per subsection (3) of section 6 of the Act. However, in the case of a heinous offence (carrying capital punishment), a juvenile over sixteen years of age may not be granted bail unless there are reasonable grounds establishing prima facie connection with the alleged offence, as envisaged in sub-section (4) of section 6 of the Act. It is important to note that the excepion provided in sub-section (4) applies only to juveniles over sixteen years of age, whereas, for those younger than sixteen years, their cases would be covered by subsection (3) of section 6 of the Act. Reliance is placed on Sahib Ullah v. The State through A.G. Khlrber Pakhtunkhwa and another Q022 SCMR 1806).

12.For these reasons, this petition is allowed. The petitioner is admitted to bail provided he fumishes bail bonds of Rs.2,00,000/- (Rupees Two Hundred Thousand) with two sureties to the satisfaction of concerned Judicial Magistrate / MOD, who shall ensure that the sureties are local, reliable, and men of means.

13.The above are the reasons for my short order of even date.

Announced

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(Ghafoor 7.aman) (S.8.) Hon'ble Mr. Justice Dr. Khurshid lqbal