2026 P Cr. L J 698

 2026 P Cr. L J 698

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Muhammad

Najam-ud-Din Mengal, JJ

ABDUL HAFEEZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 462 of 2023, decided on 22nd April, 2025.

Penal Code (XLV of 1860)---

----S. 377---Juvenile Justice System Act (XXII of 2018), Ss. 2(b) & 8---

Unnatural offence---Juvenile offender---Appreciation of evidence---

Accused was charged that he forcibly committed unnatural offence

with the minor son of complainant---Challan was available on

record, wherein age of appellant was recorded as less than 18 years

at the time of commission of crime---Similarly, the birth certificate

of appellant (convict) was also available on record, which indicated

the date of birth of the appellant as 01.05.2009---Admittedly, at the

time of committing the crime, the age of the appellant was about 13-

14 years and undoubtedly, he was a juvenile within the meaning of

S.2(b) of the Juvenile Justice System Act, 2018---Besides, a special

procedure for determining of age had been provided under the

provision of S.8 of the Act, 2018---At the very outset, it was observed

that whenever a question arose before a Court as to whether the

accused was a juvenile offender and was subject to the jurisdiction

of a Juvenile Court, the Court was required to hold an inquiry into

the matter, but in the case in hand the Trial Court had failed to do

so---Trial Court had failed to conduct any inquiry in order to

determine the age of appellant through medical examination or to

treat the appellant as juvenile as mentioned in the challan as

juvenile---Similarly, the Court while granting custody of the

appellant (convict) had also failed to discharge its functions in the

light of S.8(2) of the ibid Act---Non-observance of mandatory

provisions of law regarding determination of age of appellant had

deprived him of the special rights and protection available to him as

a child/juvenile---In such circumstances, the appeal was partly

allowed by setting aside impugned judgment---Consequently, the

case was remanded to the Trial Court for denovo trial of the

appellant under the provisions of Juvenile Justice System Act, 2018.

Munir Ahmed v. The State 2024 PCr.LJ 772 and Muhammad Aslam

and others v. The State and another PLD 2009 SC 777 rel. Ahsan Rafique Rana for Appellant.

Muhammad Younas Mengal, Additional P.G. for the State.

Date of hearing: 19th March, 2025.

JUDGMENT

MUHAMMAD NAJAM-UD-DIN MENGAL, J.---This judgment disposes

of Criminal Appeal No.462 of 2023 filed by the appellant Abdul Hafeez

son of Muhammad Ilyas, against the judgment dated 30th September

2023, ( the impugned judgment ) passed by learned Special Judge Anti-

Rape/Sessions Judge, Sariab Division ( the trial Court ) whereby the

appellant was convicted under Section 377 P.P.C and sentenced to

suffer Life Imprisonment with fine of Rs.400,000/- and in default

thereof to further suffer Six months S.I. with the benefit of Section 382-

B Cr.P.C. while 50% of fine amount on its recovery shall be paid to the

victim Sajid Ali son of Hafeez Ullah under the provisions of Section 17

of Anti Rape (Investigation and Trial) Act, 2020.

2. Facts of the case are that on 9th May 2022, the complainant

Hafeezullah son of Ali Ahmed, lodged FIR No.33 of 2022 at Police

Station Shaheed Manzoor Quetta, under Section 377 P.P.C, stating

therein that on the day of occurrence at about 01.00 p.m., his minor

son Sajid Ali aged about 7-years went to the shop for buying some

articles, after two hours, when he returned back to the home was

crying, on query he informed the complainant that he had gone to the

shop, but the appellant forcibly took him in a room inside the

Madrassa and committed unnatural offence with him. Subsequently,

he along witth his minor son went to Madrassa, where the accused

Abdul Hafeez was present and confessed his guilt and requested for

apology.

3. Pursuant to above FIR, the appellant was investigated and on

completion thereof, challaned was submitted before the trial Court,

which indicted the charge to appellant, who refuted the same. The

prosecution in order to prove the charge produced Eight (08)

witnesses, whereafter the appellant was examined under Section 342

Cr.P.C. However, the appellant has not opted to record his statement on

oath under Section 340(2) Cr.P.C. and also did not produce any witness

in his defence. On conclusion of trial and after hearing the arguments,

the appellant was convicted and sentenced as mentioned above in

para No.1, whereafter the appellant has filed the instant appeal.

4. Learned counsel for the appellant, at the very outset, invited our

attention to the fact that the appellant is a juvenile, as at the time of

commission of crime he was of the age of 13/14 years; that same fact is

also admitted through the Birth Certificate of the appellant; whereby the date of birth of appellant is recorded as 01.05.2009 meaning

thereby the appellant was minor/juvenile at the time of commission of

alleged crime; that the learned trial Court has failed either to

determine the age of appellant or to treat the appellant as juvenile;

that according to the provisions of the Juvenile Justice System

Ordinance, 2000 the case of appellant was triable by the Juvenile

Court, but the learned trial Court has failed to do so at the time of

delivering of the impugned judgment.

5. Learned APG vehemently opposed the contentions so raised by

the learned counsel for appellant.

6. Heard the learned counsel and perused the available record with

their able assistance. Perusal of record transpires that appellant

(convict) was charged in the case for the committing unnatural offense

with the minor son of complainant namely Sajid Ali. The challan is

available on record, wherein his age is recorded as less than 18 years

at the time of commission of crime. Similarly, the birth certificate of

appellant (convict) is also available on record, which indicates the date

of birth of the appellant as 01.05.2009. Admittedly, at the time of

committing the crime, the age of the appellant was about 13-14 years

and undoubtedly, he was a juvenile within the meaning of Section 2(b)

of the Juvenile Justice System Ordinance, 2000 ( JJSO, 2000), which is

now repealed and substituted by Juvenile Justice System Act, 2018,

(hereinafter referred as Act of 2018 ). Child in the repealed Ordinance

and Act of 2018, is defined as:

Child: "means for the purpose of this Act a person who has not

attained the age of eighteen years".

7. Likewise, Juvenile is defined in Section 2(h), which means "a child

who may be dealt with for an offence in a manner which is different

from an adult". Section 7 of the Act of 2018, provides the procedure of

investigation of Juvenile cases, which is reproduced as under:

Investigation in juvenile cases---(1) A Juvenile shall be interrogated

by a police officer not below the rank of sub-Inspector under

supervision of Superintendent of Police or SDOP.

(2) The investigation officer designated under subsection (1) shall be

assisted by probation officer or by a social welfare officer

notified by the Government to prepare social investigation

report to be annexed with the report prepared under section 173

of the code.

8. Besides, a special procedure for determining of age has been

provided under the provisions of Section 8 of the Act of 2018, for

facilitation, the same is reproduced hereinbelow. Determination of age.---(1) 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 of his birth

certificate, educational certificates or any other pertinent

documents. In absence of such documents, age 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.

9. 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, but in the case in hand the learned

trial Court has failed to do so.

10. Bare reading of record further reveals that the age of appellant

(convict) is mentioned in the Challan and he was below then 18 years

and in support of such contention, the appellant has also produced his

birth certificate, which prima facie shows that the age of appellant

(convict) as 13/14 years at the time of commission of crime, but the

trial Court has failed to conduct any inquiry in order to determine his

age through medical examination or to treat the appellant as juvenile

as mentioned in the challan as juvenile. Similarly, the Court, while

granting custody of the appellant (convict) has also failed to discharge

its functions in the light of Section 8(2) of the ibid Act. Non-observance

of mandatory provisions of law regarding determination of his age has

deprived him of the special rights and protection available to him as a

child/juvenile. Relance in this placed on the case of Munir Ahmed v.

The State, 2024 PCr.LJ 772, the relevant portion whereof is reproduced

as under:

13. In the case in hand, there can be no two opinions that in Section

8 of the Act 2018, 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 a medical report, which

means a clinical and radiological examination of the accused or

what is called his ossification test. In our opinion, a plain

reading of section 8 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.

Hence, determination of child/adult requires recording of evidence

in view of Qanun-e-Shahadat Order, 1984. This aspect has also

been elaborated by the Supreme Court of Pakistan in a salutary

judgment handed down in the case of Muhammad Aslam and

others v. The State and another (PLD 2009 SC 777), the relevant

portion of which is reproduced as under:-

"---S. 302(b)---Juvenile Justice System Ordinance (XXII of 2000), S. 7---

Qatl-i-amd---Death sentence---If a convict, wishes to avoid death

penalty on account of being less than 18 years of age, the onus

would be on him to prove his minority for the purpose---Where

an accused claims minority then such a plea must be taken by

him at the earliest available opportunity and he should not be

allowed to throw surprises at the prosecution and at the far end

of the trials or at appellate or revisional stages depriving the

prosecution of opportunities to rebut such claims in a proper

manner---Whenever such a plea is raised, the courts of law could

fall into error by accepting the same only because some school

certificate so said---Provisions of S. 7, Juvenile Justice System

Ordinance, 2000 mandate a proper inquiry into the said issue

wherein the courts should require production of evidence for

proof of age in accordance with the manner and the procedure

prescribed by the Qanun-e-Shahadat, 1984 and wherein the

other side is also afforded opportunities which are envisaged

and guaranteed by the Qanun-e-Shahadat---Entertaining

documents handed down from across the bar and then acting

upon the same, would be fraught with the danger of the courts

being misled into passing unwarranted Orders--- Such-like

documents should never be accepted without first testing their

authenticity and genuineness which would be possible only if

the procedure prescribed by the Qanun-e-Shahadat was followed

and where the accused was also put through the requisite

medical examination---Exercise undertaken by the Trial Court as

also by the High Court, to resolve the issue in question, in the

present case, was disapproved and Supreme Court observed that

consequent findings about the minority of the convict could not

be sustained---Supreme Court further observed that the court would have ordinarily remanded the matter to the Trial Court to

hold a proper inquiry in the matter and to determine the

question of the convict's age afresh......."

For the foregoing reasons, the instant appeal is partly allowed and

the impugned judgment dated 30th September 2023 passed by the

learned Special Judge, Anti-Rape/Sessions Judge, Sariab Division is set

aside; consequently, the case is remanded to the trial Court for de-novo

trial of the appellant under the provisions of Juvenile Justice System

Act, 2018. Till then the appellant shall remain as under-trial prisoner.

JK/90/Bal. Case remanded.