Onus of proof regarding age is on accused person to establish his claim regarding juvenility

PLJ 2014 SC 1105
[Appellate Jurisdiction]

Present: Asif Saeed Khan Khosa, Sarmad Jalal Osmany & Umar Ata Bandial, JJ.

SHER BAHADUR–Petitioner

versus

FAYYAZ, etc.–Respondents

Crl. Petition No. 368 of 2014, decided on 22.8.2014.

(Against the judgment dated 27.5.2014 passed by the Peshawar High Court, Peshawar in Criminal Revision No. 89 of 2011).

Constitution of Pakistan, 1973–

—-Art. 185(3)–Juvenile Justice System Ordinance, 2000–Scope–Child–Copy of school certificate and NIC without even verifying–Question of–Whether documents were genuine or authentic or not–Juvenile at time of occurrence–Delayed claim of juvenility an adverse inference–Validity–High Court, had erred in law by holding that in case of a doubt regarding an accused person’s age benefit of such doubt is to be extended to accused personOnus of proof regarding age is on accused person to establish his claim regarding juvenility through positive evidence and if there is any doubt left in matter then he cannot take advantage of that doubt–Petition allowed.         [P. ] A & B

2007 SCMR 936, 2003 SCMR 855, PLD 2003 SC 656, PLD 2007 SC 111 & PLD 2007 Lah. 650 & 2012 SCMR 1400, rel.

Mr. Noor Alam Khan, ASC and Syed Rifaqat Hussain Shah, AOR for Petitioner.

Nemo for Respondents.

Date of hearing: 22.8.2014.

Order

Asif Saeed Khan Khosa, J.:

Criminal Miscellaneous Application No. 491 of 2014

This miscellaneous application is allowed as prayed for. Disposed of.

Criminal Petition No. 368 of 2014

  1. It has inter alia been contended by the learned counsel for the petitioner that for recording a finding that Respondent No. 1 was a `child’ within the purview of the Juvenile Justice System Ordinance, 2000 the Peshawar High Court, had relied upon a copy of the Secondary School Certificate (Exhibit-D1) pertaining to Respondent No. 1 and the National Identity Card of the said respondent without even verifying as to whether the said documents were genuine or authentic or not. The learned counsel for the petitioner has pointed out that Respondent No. 1 had never claimed before the learned trial Court at any stage that he was a juvenile and in this respect he has submitted that the charge framed against Respondent No. 1 recorded the age of the said respondent as twenty-four years (about twenty-one years at the time of occurrence), in the statement of Respondent No. 1 recorded under Section 342,Cr.P.C. the said respondent had never claimed that he was a juvenile and in the memorandum of his appeal filed before the High Court the said respondent had never taken any ground that he was a juvenile at the time of the occurrence. It has been maintained by the learned counsel for the petitioner that the Peshawar High Court, Peshawar had failed to notice that this Court had already repeatedly declared that in case of a delayed claim of juvenility an adverse inference is to be drawn against the accused person and in this respect he has referred to the cases of Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others (PLD 2004 SC 758), Sarfraz alias Shaffa v. The State and 3 others (2007 SCMR 758) and Muhammad Aslam and others v. The State and another (PLD 2009 SC 7777).The learned counsel for the petitioner has further submitted that the Peshawar High Court, Peshawar had erred in law by holding that in case of a doubt regarding an accused person’s age the benefit of such doubt is to be extended to the accused person. He has submitted that in such a case the onus of proof regarding age is on the accused person to establish his claim regarding juvenility through positive evidence and if there is any doubt left in the matter then he cannot take advantage of that doubt. In this regard he has referred to the law declared by this Court in the cases ofMasood Sarwar v. Sadaqat Hussain and others (2007 SCMR 936), Tauqeer Ahmed Khan v. Zaheer Ahmed and others (2009 SCMR 420), Muhammad Akram v. The State (2003 SCMR 855), Muhammad Ajmal v. The State through Advocate-General Punjab (PLD 2003 SC 1), Ziaullah v. Najeebullah and others (PLD 2003 SC 656) andIftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111). He has also referred to the case of Babar Ali v. The State and 2 others (PLD 2007 Lahore 650) decided by a Full Bench of the said Court wherein the judgment had been authored by one of us (Asif Saeed Irfan Khosa, J.). He has also drawn our attention towards a case decided by the Supreme Court of India on the subject and that was the case of Om Parkash v. State of Rajasthan and another (2012 SCMR 1400).
  2. The contentions and submissions of the learned counsel for the petitioner noted above require consideration. This petition is, therefore, allowed and leave to appeal is granted for the purpose. As the matter in hand  pertains to an order of remand passed by the Peshawar High Court, Peshawar, therefore, the matter has an inherent urgency involved therein. The office is directed to fix the main appeal for regular hearing before the year 2014 is out.

Criminal Miscellaneous Application No. 492 of 2014

  1. As leave to appeal has already been granted in the main petition, therefore, the operation of the impugned judgment passed by the Peshawar High Court, Peshawar on 27.05.2014 is suspended.

(R.A.)  Petition allowed

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