-- IN THE FEDERAL SHARIAT COURT

(Appellate Jurisdiction)

PRESENT

MR. JUSTICE SYED AFZAL HAIDER

Criminal Appeal No. 152/1 of 2007

Riaz Hussain son of Allah Bakhsh

Rio Mullan Miran Ghazanfar Gar~
Muzaffargarh Appellant

Versus
The State Respondent

Counsel for appellant Mehar Sardar Ahmed Abid,

Advocate

Counsel for State Mr. Asjad Javaid Ghural"

Deputy Prosecutor General

FIR. No. Date & 96,15.2.2006

Police Station Rohillanwali, Mazaffargarh

Date of judgment of 26.5.2007

trial court

Dates of Institution 06.7.2007

Date of hearing 14.5.2008

Date of decision 14.5.2008 '

-0-
Cr. Appeal No.152/1 of 2007 2

JUDGMENT

SYED AFZAL HAlDER, JUDGE.- This is an appeal through

which Riaz Hussain has challenged his conviction recorded by learned

Additional Sessions Judge-III, Muzaffargarh on 26.05.2007 in Hudood Case

No.33-2 of 2006 and Hudood Trial No.13 of 2006 under section 10(3) of the

Offence of Zina (Enforcement of Hudood) Ordinance, 1979 whereby he was

sentenced to 07 years rigorous imprisonment with a compensation

amounting to Rs. 50,000/- under section 544-A of the Cr.P.C " for causing

psychological and mental anguish, ravishing her chastity, damaging her

reputation in the society and causing a stigma to her, in default of payment

thereof, the convict suffer S.1. for six months and the compensation amount

will be recoverable as arrears of land revenue. However the convict is given

the benefit of section 382-B, Cr.P.Code".

2. The case emanates from the crime No.96/2006 registered with

Police Station Rohelanwali, District Muzaffargarh on 15.02.20Q6 at 10.30

a.m. on the statement of Mst. Samina P.W.1 regarding an incident which

took place on the night between 27/28.01.2006.

 Cr. Appeal No.152/1 of 2007 3

3. The age of the appellant as recorded by the learned trial court in

the title of the judgment is 20 years though the formal charge framed by the

learned trial court on 07.07.2006 and the statement of the accused recorded

thereafter does not disclose the age of the appellant. However there are two

statements of the appellant recorded under section 342 of the Code of

Criminal Procedure. The first statement was recorded on 11.0~.2007 In

which significantly the space of age has been left blank. The second

statement recorded on 15.05.2007 by the same trial judge under section 342

of the Code of Criminal Procedure records the age of the appellant as 16/17

years which means that on the alleged date of occurrence, which was around

27/28.01.2006 the appellant was around 14/15/16 years of age.

4. The reason for recording the second statement under section

342 of the Code of Criminal Procedure was that the given up P.W.

Muhammad Alanal was summoned as C.W.l on 12.05.2007 and the

statement made by him had to be put to the accused and hence the necessity

of recording of the statement for the second time.

5. I have gone through the judgment. The learned trial judge,

while concluding para 20 of his judgment, observes:-

Cr. Appeal No.152/1 of 2007 4

"The defence has also produced document Ex.DD to prove the

minority of the accused Riaz Hussain, but the defence has
neither taken plea of minority at the time of framing of charge
against him or in his statement uls 342 Cr.P.Code or through
moving any independent application for his trial under the
Juvenile Justice System Ordinance,. 2000 which means that the
accused admitted his age of his majority. So far as document
Ex.DD is concerned, it is not conclusive proof of age of the
accused Riaz Hussain. The ac~used has neither produced the
scribe of document Ex.DD nor moved any application for his
summoning uls 540 Cr.P.Code. Therefore in my humble view,
the document Ex.DD is not helpful to the accused for holding
him at this belated stage as a minor in age at the time of the
commission of occurrence in this case. In view of above,
the defence has badly failed to create any dent or loophole in
the prosecution case through leading any reliable and cogent
defence".

6. As mentioned above the learned trial judge, it appears, did not

consider the fact that the age of the appellant was mentioned in one and it

was omitted in the other statement recorded under section 342 of Code of

Criminal Code. The observations of the learned trial court that the appellant

was a minor in age at the time of commission of the occurrence shows that

the provisions of Juvenile Justice System Ordinance, 2000 were in his view.

The State counsel did not contest the element of minority of the appellant

particularly when Ex.DD was produced during the trial on 14th April 2007

I.e. more than a month before the announcement of judgment. A cursory

Cr. Appeal No.152/1 of 2007 5

glance over the Juvenile Justice Ordinance, 2000 shows that a child shows

that under section 2 means a person who at the time of the commission of an

offence has not attained the age of 18 years. Under this law Juvenile Courts

have been specially set up under section 4 with exclusive jurisdiction to try

cases in which a child is accused of the commission of an offence . Section 6

of this Ordinance lays down the procedure of the Juvenile Court. Section 7 is

relevant to the point under discussion because it states that if a question

anses as to whether a person before it is a child for the purpose of this

Ordinance, the Juvenile Courts shall record a finding after such mqUlry

which shall include a medical report for determination of the age of the

child. It clearly means that medical report is not the solitary point for

. consideration but school leaving certificate and other evidence may also be

brought on record. Under section 10(2) of this Ordinance it is stated that

where a child accused of non-bailable offence IS arrested, he shall be

produced before a Juvenile court which means that the onus is on the police

officers, arresting the accused · to take him to a court of competent

jurisdiction to legalise investigation and performance of other codal

formalities. The Juvenile Court alone is competent to decide the issue of age
Cr. Appeal No.152/1 of 2007 6

and in this particular case when the school leaving certificate, showing the

date of birth, was brought to the notice of the learned trial court it should

have been considered and given weight in the sense that a inquiry should

have been taken place. At best there would have been a delay of 02 or 03

weeks to ascertain the factum of age so that the rights and the privileges

granted by this Ordinance to a child are not taken away if the appellant was

found to be a child at the time of the commission of offence.

7. I have gone through the provisions of this Ordinance. This law

contemplates certain privileges and rights for a Juvenile under trial and

Special Courts have been created with the sole object of trying juveniles.

Notification IS also issued by virtue of which Judges are appointed as

Special Courts to try the juvenile offenders. After gomg through the

provisions of this Ordinance it is crystal clear that moving of an application

by a juvenile under trial IS not a condition precedent for conferring

jurisdiction upon the court to take cognizance of the element of age under

this law. It appears that as and when the court is informed that the accused is

or was a child at the time -of commission of the offence the trial court is

bound to adopt the procedure prescribed under the Juvenile Justice

Cr. Appeal No.152/1 of 2007 7

Ordinance. Juvenile Ordinance is a special law and it takes precedent over

the general law. The Juvenile Ordinance does not concede discretion to a

trial court to ignore mandatory provisions.

8. This, in my opinion, is an illegality which vitiated the trial of

the appellant. The trial court was required to hold an inquiry the momen it

came to its knowledge that the under trial was juvenile. There is no escape

from it.

9. I am fortified in my conclusion by the decision in the case of

Babar Ali Versus The State reported as PLD 2007 Lahore 650 at page 674

decided by a Full Bench of the Lahore High Court in which inter-alia, the

following directions and guidelines to the police and subordinate judiciary

were issued as regards the stage and forum of urging and considering the

ground of minority of an accused person for the purpose of Juvenile Justice

System Ordinance, 2000: -

(vi) "If a case is sent by a Magistrate to a Juvenile Court for trial

and if the question of juvenility of the accused person is
contested by the complainant party or the State before the
Juvenile Court then the Juvenile Court is to decide the same in
terms of the provisions of section 7 of the Juvenile Justice
System Ordinance, 2000.
(vii) If the question of juvenility of an accused person crops
up for the first time ;tfter the case has already reached ' an
 •

Cr. Appeal No.152/1 of 2007 8

ordinary court for trial then the ordinary court is to decide the
said issue under subsection (2) of section 5 of the Juvenile
Justice System Ordinance, 2000 through an inquiry akin to that
contemplated by section 7 of the said Ordinance.
(viii) As required by the relevant Rules and Orders of the
Lahore High Court, Lahore 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."

10. However the ninth direction issued by the Hon'ble Lahore High

Court, Lahore was that if the accused raises the question of minority for the

purpose of being treated as a child)within the purview of Juvenile Justice ~./

System Ordinance, 2000, then such claim should be raised by him at the

earliest possible opportunity and preferably during the course of

investigation and if he raises such a claim for the first time at a belated stage

of trial or during the course of the appellate proceeding then such a conduct

would be difficult to approve In the absence of any strong reason or

explanation justifyi'ng such a delay. It was further held that an adverse

inference may be drawn where the concession in question is claimed after

undue and un-explained delay. It may be noted that these directions were

issued by the Lahore High Court at the end of September 2007 and this case

,
Cr. Appeal No.152/1 of 2007 9

th
was decided by the learned trial Court on 26 May, 2007. It therefore clearly

means that the learned trial court as well as the investigating police agencies

were not aware of the existence of these instructions as enumerated in the

judgment delivered by the Full Bench of Lahore High Court. Moreover, the

plea of minority in the instant case had been taken by the appellant after his

statement under section 342 of the Code of Criminal Procedure had been

recorded but the prosecution had not raised any objection. As noted above,

at the time when his statement under section 342 of the Code of Criminal

Procedure was recorded the space indicating his age after writing his name, ~;/

parentage, occupation and residence was left blank. I have even otherwise

seen the appellant who is present in Court on bail. He was also present in

person during the trial proceedings. He was also seen and interrogated by the

police soon after the middle of February 2006. Even a cursory glance at the

face of the under trial was sufficient to suggest that he had not come of age. I

am therefore, inclined to hold that he should be permitted to avail

opportunity of claiming minority as envisaged by the Juvenile Justice

System Ordinance, 2000. Deprivation of the chance to claim right provided

under a special law would not be advancing the cause of justice.

 •
Cr. Appeal No.152/1 of 2007 10

11. Resultantly the conviction is being set aside and the case is

remanded to the learned trial court for fresh trial under the Juvenile law

provided the learned trial court has been notified as a juvenile court. In case

the'learned trial court is not so notified then the file should be placed before

the learned Sessions Judge; Muzaffargarh for being entrusting to a court of

competent jurisdiction.

12. The appellant is aJreadyon bail as per order of the Hon'ble

Chief Justice of the Federal Shariat Court dated 12.11.2007. He is directed to

appear before the trial court on 28.05.2008 for further proceedings.

Consequenstly the judgment of the learned Additional Sessions Judge-III,

Muzaffargarh dated 26.05.2007 delivered in Hudood Case No.33-2/2006 and

Hudood Trial No.13/2006 is hereby set aside and the case is remanded for a

fresh trial · as contemplated by Juvenile Justice Ordinance, 2000 .. The

appellant has been informed that he has to appear before the learned trial

court on 28.05.2008 by which date the Office should ensure the dispatch the

entire record of the case to the ·trial court. It is further directed that the 'trial

of the case should be completed within three months I.e. by the end of

August 2008, and monthly progress report should be sent to the Registrar of
Cr. Appeal No .152/1 of 2007 11

this court by the learned trial court. The Criminal Appeal No.lS2/1 of 2007

succeeds in the above terms. The appellant is already on bail and need not

---
furnish fresh bail bonds.
<; "\.4~.JlA,,:
.....
'
JUSTICE SYED AFZAL HAIDER

Islamabad the, 14th May, 2008

UMARDRAZ/