Javed Ullah vs State

2012 Y L R 2076

[Peshawar]

Before Nisar Hussain Khan, J

JAVED ULLAH---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Revision No.9 of 2012, decided on 29th May, 2012.

Juvenile Justice System Ordinance (XXII of 2000)---

---S.7---Qanun-e-Shahadat (10 of 1984), Art. 134---Juvenile status---Age of accused--- Determination--- Documents establishing age of accused-juvenile---Proof---Scope---Accused and co-accused (respondents) were convicted and sentenced by the Trial Court, whereafter they filed an appeal against their conviction raising the plea of being juveniles at the time of the occurrence---Appeal of accused and co-accused was accepted and case was remanded back to the Trial Court for determination of their age and consequently for trial, de novo---Complainant (petitioner) filed an application before the Trial Court for summoning the Radiologist as court witness to testify about the report prepared by him , on basis of which age of the accused and co- accused was determined by the doctors, but said application was turned down by the Trial Court- --Contentions of the complainant were that the Trial Court passed the impugned order in his absence as well as his counsel; that the Trial Court had relied upon fake and fictitious school certificates of the accused and co-accused which were never produced by them during their trial and as such had wrongly declared them as juvenile offenders---Validity---Perusal of the record revealed that the accused and co-accused were earlier tried by the Trial Court, wherein, they did not take the plea of their tender age nor objected on their trial in the ordinary court--- Requirement of law was that accused should take such a plea at the very initial stage, after registration of the case, so that the investigation officer might collect evidence in support thereof---Accused and co-accused failed to take such a plea during the investigation and the trial and it was at the appellate stage, when they took the plea of being juveniles for the first time--- When the case had been remanded to the Trial Court, it was obliged to allow the complainant meaningful participation during the inquiry proceedings about the determination of the age of the accused and co-accused---Impugned order had been passed on the back of the complainant and his counsel---Trial Court was obliged to consider the factum that the documents which had never seen the light of the day, during the investigation or the earlier trial, had been produced by the accused and co-accused at the inquiry stage and said documents had to be proved in accordance with the guidelines provided by the Supreme Court---Where a document was disputed, it was required to be proved in accordance with the law by tendering it in evidence and offering the

same for cross-examination to the opposite party---Revision petition was allowed, impugned order was set aside and the case was remanded to the Trial Court for determination of age of the accused and co-accused by inviting the parties to lead their evidence, oral and documentary, in accordance with the provisions of the Qanun-e-Shahadat Order, 1984, by testing the veracity and genuineness of the same in accordance with the law.

Muhammad Aslam and others v. The State PLD 2009 SC 777 fol.

Noor Zada Ahmad Zai for Petitioner.

Farooq Khan Sokri, Alam Zeb Khan for Respondents Nos. 2 and 3.

Ahmed Farooq Khattak, A.A.-G. for the State.

Date of hearing: 29th May, 2012.

JUDGMENT

NISAR HUSSAIN KHAN, J.---Through instant petition, petitioner-complainant has called in question the order of learned Additional Sessions Judge-I, Bannu, dated 17-12-2011, whereby respondents-accused Adnan and Roman sons of Shafqatullah, have been declared as juvenile offenders and complainant's application for summoning Radiologist, as Court witness, has been turned down vide his order dated 3-1-2012 (wrongly mentioned in petition, as 21-11-2011).

2.The resume of the facts forming the background of instant petition is that, on the report of Shafiullah, brother of petitioner-complainant, F.I.R No.62, dated 8-5-2006, was registered against the respondents under sections 337-F(vi)/337-F(ii), P.P.C., at Police Station Basia Khel District, Bannu. After completion of investigation, case was put in Court for trial, where, after recording prosecution evidence, respondents were convicted and sentenced by learned trial Court vide his judgment dated 20-6-2011. Both the respondents preferred appeal against their conviction and sentence, before D.I. Khan Bench of this Court, wherein, they raised the plea of being juveniles at the time of occurrence. Their appeal was accepted, conviction and sentence, recorded by the trial Court, were set aside and case was remanded to the Trial Court for determination of age of respondents-accused and consequently for trial, de novo.

3.After remand, respondents-accused were examined by the Medical Board on 11-11-2011 and 14-11-2011, respectively. As per reports of the Medical Board, respondent Adnan was found above 18 years of age, whereas, according to opinion of the Medical Board, respondent Roman was above 22 years. It appears from the record that both the reports about age of the respondents were not accepted by the Trial Court, due to absence of Orthopedic Surgeon in the Medical Board and the matter was again referred to Chief Executive Khalifa Gul Nawaz Hospital to

constitute fresh Medical Board, having Orthopedic Surgeon, as its member, as well. As per direction of the Trial Court, both, Adnan and Roman were examined on 10-11-2011, by the Medical Board, consisting of Dental Surgeon, Assistant Professor Orthopedic and Assistant Professor Radiology and submitted their report, according to which, both the respondents have been shown above 22 years of age. The learned trial Court apart from the report of the Medical Board, relied on the Secondary School Certificates of the respondents and held them juvenile on the day of occurrence and declared them as juvenile offenders and as such were ordered to be tried under the Juvenile Justice System Ordinance, 2000. It appears from the record that on 21- 12-2011, complainant filed an application for summoning Radiologist as Court witness to testify about his report and other ancillary matters, on the basis of which, age of the respondents were determined by the doctors. This application of the complainant was also turned down on 3-1- 3-A. Learned counsel for petitioner argued that learned trial Court passed the impugned order on 17-12-2011, in absence of petitioner complainant as well as his counsel; that learned trial Court has relied upon the fake and fictitious School Certificates of respondents-accused which were never produced by them during their earlier trial and as such has wrongly declared them as juvenile offenders. He maintained that learned trial Court has erred in law by rejecting application of complainant for summoning of the doctor and the procedure adopted by it, is contrary to the guideline enunciated by the Hon'ble Supreme Court in various pronouncements.

4.Learned counsel for respondents-accused defended the impugned order by arguing that ages of respondents, as per School Certificates and report of the Medical Board, were less than 18 years, so they were rightly declared as juvenile by the learned trial Court.

5.I have heard the extensive arguments of the learned counsel for the parties and learned A.A.-G. for the State and have gone through the record with their assistance.

6.The perusal of the record transpires that respondents-accused were earlier tried by learned trial Court, wherein, they did not take the plea of their tender age nor objected on their trial in the ordinary court. It is the requirement of law that accused would take such plea at the very initial stage, after registration of the case, so that the Investigating Officer, may collect evidence in support thereof. The respondents have failed to take this plea during investigation of the case likewise, they did not bother to agitate the same at the time of trial. It was for the first time, when this plea was taken at the appellate stage and this Court, in the interest of justice, remanded the case so that justice may not slip out of hands, at the cost of expeditious disposal and speedy justice. The learned trial Court was obliged to allow the complainant to meaningful participation during the inquiry proceedings about determination of age of the respondents. It appears from the impugned order dated 17-12-2011 that the same was passed on the back of complainant and his counsel and when objection was raised by filing application, it was turned down. The learned trial Court was obliged to consider the factum that the documents which have never seen the light of the day, during investigation or the previous trial, have been produced by respondents- accused, at inquiry stage, after remand, and that too objected by the other side, were required to be proved in accordance with the guideline enunciated by the Hon'ble Supreme Court in case titled, "Muhammad Aslam and others v. The State" (PLD 2009 Supreme Court, 777). Clause, (f) of the principle and procedure regulating the determination of age appearing at page 781 of the ibid report is reproduced hereinbelow:-

(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-e-Shahadat 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.

7.Needless to mention that when a document is disputed, it requires to be proved in accordance with law by tendering it in evidence and offering the same for cross-examination to the opposite party. The learned trial Court has failed to adhere to the procedure of legal requirement of proof of fact in issue and to comply with the guideline of the apex Court propounded in the ibid report and thereby rendered the impugned order which is in violation of the principle set by the apex Court and as such not sustainable being illegal.

8.For the reasons discussed above, this petition is allowed, the impugned orders are set aside and the case is remanded to the trial Court for determination of age of respondents-accused by inviting the parties to lead their evidence, oral as well as documentary in accordance with the provisions of Qanun-e-Shahadat Order, 1984, by testing the veracity and genuineness of the same in accordance with law and then to decide the matter within a period of two months, positively. The parties shall appear before the learned trial Court on 11-6-2012.

9.Before parting with the judgment, it is observed that, if, after the inquiry in light of the above observations, the learned trial Court comes to the conclusion that respondents-accused were juvenile at the time of commission of crime, it would proceed with the de novo trial, in pursuance of Juvenile Justice System Ordinance, 2000, and, if, it is not so, would decide the case forthwith as on ordinary court, after hearing both the sides, on the basis of available evidence, already recorded, in the earlier trial.

M.W.A./207/P Case remanded.