Askari Law Chambers

01/01/2024

--S. 8--Ossification test--Ossification test is the best way to determine a person’s age--The ossification test is a test that determines age based on the “degree of fusion of bone” by taking the X-Ray of a few bones.
PLJ 2023 SC (Cr.C.) 349
[Appellate Jurisdiction]
Present: Yahya Afridi and Sayyed Mazahar Ali Akbar Naqvi, JJ.
GUFRAN ALI--Petitioner
versus
HASEEB KHAN and another--Respondents
Crl. P. No. 1617 of 2022, decided on 23.5.2023.
(On appeal against the order dated 17.11.2022 passed by the Islamabad High Court, Islamabad in Criminal Revision No. 99 of 2022).
Juvenile Justice System Act, 2018 (XXII of 2018)--

----S. 8--Pakistan Penal Code, (XLV of 1860), S. 302--Juvenile--Determination of age--Conflict regarding the date of birth--Report of Medical Board--Ossification test--Pursuant to an application submitted by the respondent No.1, the Trial Court vide order declared the respondent No.1, Juvenile at the time of commission of the offence--There is a conflict regarding the date of birth of the respondent-accused--Report of Medical Board wherein according to Radiology Department the age of the accused was shown as 18 to 20 years whereas according to Dental Department, the age of the accused was 16 to 18 years--Ordinarily, the date of birth of a person is determined on the basis of documentary proof i.e. birth certificate, educational documents and National Identity Card etc--Report consists of three opinions of (i) Radiology Department, (ii) General Medicine Department and (iii) Dental Department. Although the age of the respondent was found to be 18 to 20 years and 16 to 18 years by the two departments--No ossification test of the accused was conducted and the learned courts below had decided the issue of age of the accused one the basis of school leaving certificate and the birth register--Whenever such a question of age is raised or arises at the trial, the courts should not deal with the same in a cursory or in slip-shod manner but must proceed to hold an inquiry--The High Court has correctly appreciated the material aspects of the case and the conclusions drawn are in line with the guidelines enunciated by this Court on the subject--This petition, which is dismissed and leave to appeal is refused.

[Pp. 350, 351 & 352] A, B, E, G & H

PLD 2009 SC 777 ref.

Juvenile Justice System Act, 2018 (XXII of 2018)--

----S. 8--Ossification test--Ossification test is the best way to determine a person’s age--The ossification test is a test that determines age based on the “degree of fusion of bone” by taking the X-Ray of a few bones. [P. 351] C

Juvenile Justice System Act, 2018 (XXII of 2018)--

----S. 8--Medical jurisprudence--Bone age--Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. [P. 351] D

Juvenile Justice System Act, 2018 (XXII of 2018)--

----S. 8--Juvenile--It is settled principle of law that if two views are possible from the evidence adduced in the case then the view favourable to the accused is to be adopted. [P. 351] F

2023 SCMR 241; 2022 SCMR 1806 ref.

Mr. Khalil-ur-Rehman Abbasi, ASC for Petitioner.

Mr. Fakhar Abbas, I.O. for Respondent No. 2.

Date of hearing: 23.5.2023.

Order

Sayyed Mazahar Ali Akbar Naqvi, J.--Through the instasnt petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 17.11.2022 passed by the learned Single Judge of the learned Islamabad High Court, Islamabad, vide which the order dated 02.11.2022 passed by the learned Additional District and Sessions Judge-IV, East-Islamabad was upheld.

2. Briefly stated the facts of the matter are that the respondent No. 1 Haseeb Khan was proceeded against in terms of the case registered vide FIR No. 853/2021 dated 02.10.2021 under Section 302, P.P.C. at Police Station Koral, Islamabad, for committing murder of Raja Nadeem Ghalib, paternal cousin of the petitioner/complainant. Pursuant to an application submitted by the respondent No. 1, the learned trial Court vide order dated 02.11.2022 declared the respondent No. 1 juvenile at the time of commission of the offence. Being aggrieved, the petitioner/complainant filed Criminal Revision before the learned Islamabad High Court but it also met the same fate vide impugned order. Hence, this petition.

3. At the very outset, it has been argued by learned counsel for the petitioner that there is a conflict regarding the date of birth of the respondent-accused i.e. according to NADRA record, his date of birth is 14.07.2005 whereas the certificate issued by Secretary Union Council Naryab, Hangu shows his date of birth as 06.03.2007. Contends that the learned Courts below overlooked the report of the Medical Board wherein according to Radiology Department the age of the accused was shown as 18 to 20 years whereas according to Dental Department, the age of the accused was 16 to 18 years. Lastly contends that the learned trial Court ought to have called the members of the Medical Board and cross-examine them before arriving at the conclusion. In support of the contentions raised, learned counsel placed reliance on Muhammad Aslam v. The State (PLD 2009 SC 777).

4. We have heard learned counsel for the petitioner at some length and have perused the available record.

5. Ordinarily, the date of birth of a person is determined on the basis of documentary proof i.e. birth certificate, educational documents and National Identity Card etc but when the date of birth is disputed and varies on all such documents then the ossification test is the best way to determine a person’s age. The ossification test is a test that determines age based on the “degree of fusion of bone” by taking the x-ray of a few bones. In simple words, the ossification test or osteogenesis is the process of the bone formation based on the fusion of joints between birth and the age of twenty five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. The ossification test varies slightly based on individual characteristics such as climatic conditions where the person born and raised, dietic values, hereditary differences etc. In the present case, there was a conflict between the Birth Registration Certificate issued by the Secretary Union Council Naryab, Hangu and the NADRA record regarding the date of birth of the respondent No. 1. In this backdrop, the learned trial Court rightly constituted a medical board to examine the respondent-accused. We have perused the report submitted by the medical board. The report consists of three opinions of (i) Radiology Department, (ii) General Medicine Department and (iii) Dental Department. Although the age of the respondent was found to be 18 to 20 years and 16 to 18 years by the two departments but it is settled principle of law that if two views are possible from the evidence adduced in the case then the view favourable to the accused is to be adopted. Reliance is placed on Saghir Ahmed v. State (2023 SCMR 241) and Sahib Ullah v. The State (2022 SCMR 1806). During the course of arguments, learned counsel repeatedly argued that the actual date of birth of the respondent was according to NADRA record i.e. 14.07.2005. However, even if the date of birth of the respondent as per the NADRA record is considered to be true, his age was 16 years 02 months and 19 days at the time of commission of the crime, therefore, in all eventuality he was a juvenile at that time. So far as the case law relied upon by the learned counsel for the petitioner is concerned, the same is distinguishable as in the case of Muhammad Aslam supra, no ossification test of the accused was conducted and the learned Courts below had decided the issue of age of the accused on the basis of School Leaving Certificate and the Birth Register. This Court held that “whenever such a question of age is raised or arises at the trial, the Courts should not deal with the same in a cursory or in a slip-shod manner but must proceed to hold an inquiry in the matter as commanded by the provisions of Section 7 of the Juvenile Justice System Ordinance including medical examination of the accused for the purpose.” As per Section 510, Cr.P.C. the report of the expert in various fields of science can be produced in evidence without calling them and can be used as evidence in any inquiry or trial or other proceedings. The learned High Court has correctly appreciated the material aspects of the case and the conclusions drawn are in line with the guidelines enunciated by this Court on the subject. Learned counsel for the petitioner has not been able to point out any legal or factual error in the impugned judgment, which could be made basis to take a different view from that of the learned High Court.

6. For what has been discussed above, we do not find any merit in this petition, which is dismissed and leave to appeal is refused. The above are the detailed reasons of our short order of even date.

(K.Q.B.) Petition dismissed

19/12/2023

Keeping a case on abeyance, stopping proceedings u/s 249 crpc, and ordering the case to be kept in dormant by the trial court are not in line with the jurisdiction of the court and also against the articles of 4 &10-A of the Constitution.
*PLD 2018 Baluchistan 39*
*Askari Law Chambers* *Najam Askari(AHC) District Courts,Toba*. *0321-7531431*

11/12/2023

Statement of the witnesses in the court in which improvements are made to strengthen the case of prosecution are not worthy of reliance.
*1985 SCMR 685*
*PLD 1963 Kar. 805*
*1971 P.Cr.L.J 229*
*PLD 1960 Lah.373*
*Askari Law Chambers* *Najam Askari(AHC)*. *0321-7531431*

09/12/2023

Normally statement of a witness is recorded u/s 164 crpc by way of prosecution so that if eventually he is won over and does not support the prosecution case then in his cross-examination he
could be confronted with his 164 crpc statement after he is declared hostile.
*PLD 1993 SC 550*
*Askari Law Chambers* *Najam Askari(AHC)*. *0321-7531431*

06/12/2023

اندراج مقدمہ سے قبل 157 ض ف کے تحت کاروائی عمل میں نہ لائی جاسکتی ھے۔SHO دفعہ 157 ض ف کا سہارا لیکر مقدمہ درج کرنے سے انکار نہ کر سکتا ھے
Section 157 of the Code read with Rule 24.4 cannot be employed before the registration of a criminal case under Section 154 of the Code. When information of a cognizable offence is received by the SHO, he cannot embark upon an inquiry to examine the reliability or credibility of such information to refuse the registration of a criminal case. He is under a statutory duty to register a criminal case and then to proceed with the investigation, if he has reason to suspect the commission of an offence, which he is empowered under Section 156 to investigate, subject to proviso (b) to Section 157(1) of the Code read with Rule 24.4 of the Rules, whereby an investigating officer has the ample power to dispense with the investigation altogether.

Conjunctural reading of Section 154 of the Code and Rule 24.1(1) of the Rules makes it abundantly clear that on receiving the information regarding the commission of a cognizable offence, the same shall culminate in the registration of a criminal case. The legislature by using the word 'every' to qualify the word 'information', ultimately left no discretion with an SHO to refuse the registration of a criminal case after receiving information regarding the commission of a cognizable offence. The words 'every information' clearly postulate that the legislature designedly abstained from further qualifying these words. It can be observed that in Section 154 of the Code, the legislature in its collective wisdom carefully and cautiously used the expression 'every information' contrary to Sections 22-A(3)(a) and 54 of the Code wherein the expressions, 'reasonable complaint' and 'credible information' have been used. Apparently, the use of the words 'every information' in Section 154 unlike in Sections 22-A(3)(a) and 54 of the Code is for the reason that the SHO should not have the power to refuse to record the information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for the registration of a criminal case. A comparison of the present Section 154 of the Code with those of the earlier Codes indicates that the legislature had intentionally thought it appropriate to employ only the words 'every information' without qualifying the said words. An overall reading of all the Codes makes it clear that sine qua non for recording a first information report is that there should be an information and that information must disclose the commission of a cognizable offence.

Section 156 of the Code confers the power upon a police officer to investigate a cognizable offence whereas Section 157 lays down the manner, in which that investigation should be carried out. The commencement of investigation by a police officer under Section 157 (1) of the Code is subject to two conditions, firstly, the police officer should have reasons to suspect the commission of a cognizable offence and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case. Under the provisos (a) & (b) to Section 157 (1) of the Code, there are situations where investigation can be dispensed with. Firstly, when any information as to the commission of a cognizable offence is given against a person by name and case is of a trivial nature, the investigating officer shall not make an investigation on the spot and secondly, where it appears to the officer incharge of police station that there is no sufficient ground for carrying out the investigation. Section 158 of the Code further lays down the self-explanatory procedure to submit a report under Section 157 of the Code. 7. Comprehensive scrutiny of Sections 154, 156, 157 and 158 of the Code makes it abundantly obvious that Section 157 read with Rule 24.4 of the Rules is post registration of criminal case stage, therefore, Section 157 read with Rule 24.4 cannot be pressed into service before the registration of a criminal case. It is only the registration of a criminal case which activates Rule 24.4 of the Rules read with Section 157 of the Code.

Criminal Proceedings
9549/21
Arsalan Raza Vs JOP Gujrat etc
Mr. Justice Ali Zia Bajwa
07-09-2022
2022 LHC 6953

06/12/2023

Report of police officer u/s 173 of cr.p.c. is merely an information of police and same is not admissible in evidence. Presumption of innocence of accused involved in it is not diminished by mere fact that the case has been sent up for trial.
*1986 SCMR 1736*
*1993 SCMR 550*

*Askari Law Chambers* *Najam Askari(AHC) District Courts,Toba*. *0321-7531431*

06/12/2023

منشیات مقدمات میں موقع کی #فوٹو گرافی/ #وڈیو گرافی بابت برآمدگی ضروری ہے
چیف جسٹس قاضی فائز عیسیٰ کی سربراہی میں #سپریم کورٹ کے تین رکنی بینچ نے ہدایت کی ہے کہ موقع پر موجود پولیس اہلکار منشیات کے مقدمات میں قانون شہادت کے مطابق بر آمد ہونے والی منشیات،ملزم اور موقع واردات کی کریں تاکہ رنگے ہاتھوں پکڑے جانے والے ملزم موقع کے شواہد کو نہ جھٹلا سکے ،عدالت نے قرار دیا کہ موبائل فون ہر پولیس اہلکار کی جیب میں موجود ہوتا ہے اور قانون شہادت کے مطابق موقع کی تصاویر یا عکس بندی قابل قبول ثبوت ہے ،عدالت نے آرڈر لکھواتے ہوئے قراردیا کہ منشیات سے پورا معاشرہ تباہ ہوجاتا ہے ،نہ صرف منشیات کے عادی لوگ بلکہ ان سے جڑے ہوئے افراد کی زندگیاں مشکلات اور مسائل کا شکار ہوکر تباہ ہوجاتی ہیں،عدالت نے #انسداد منشیات ایکٹ کے مطابق علاقے کے #معززین کی #موجودگی میں تلاشیاں لینے کی ہدایت کی اور قرار دیا کہ #پولیس اور اے این ایف کے اہلکار کا استعمال نہیں کرتے ،کم ازکم #موقع کی #تصاویر اتارنے کیلئے موبائل فون کا استعمال کیا جائے ،قانون شہادت کے سیکشن 164کے تحت یہ قابل قبول ثبوت ہے ،عدالت نے چالان جمع کرنے میں تاخیر اور قانون کے مطابق شواہد جمع نہ کرنے پر ملزم کی ضمانت کی درخواست ایک لاکھ روپے کے ضمانتی مچلکوں کے عوض منظور کرلی ،دوران سماعت چیف جسٹس نے ریمارکس دئیے کہ صرف پنجاب میں #ہزاروں پراسیکیوٹرز تعینات ہیں جن پر اربوں روپے خرچ ہوجاتے ہیں ،چیف جسٹس نے پراسیکیوٹر کو مخاطب کرتے ہوئے کہا کہ کے اربوں روپے خرچ ہورہے ہیں ،بدلے میں ٹیکس دہندگان کو کیا دے رہے ہیں۔
حکم نامے کی #کاپی اینٹی نارکوٹکس فورس (اے این ایف) کے #سربراہ، سیکریٹری وزارت نارکوٹکس کنٹرول، تمام آئی جیز اور صوبائی ہوم ڈپارٹمنٹ کو بھجوائی جانے کا حکم بھی صادر کیا گیا۔

5. We are aware that section 25 of the Act excludes the applicability of section 103 of the Code of Criminal Procedure, 1898 which requires two or more respectable inhabitants of the locality to be associated when search is made. However, we fail to understand why the police and members of the Anti-Narcotics Force (‘ANF’) do not record or photograph when search, seizure and/or arrest is made. Article 164 of the Qanun-e-Shahadat, 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques, and its Article 165 overrides all other laws.

6. In narcotic cases the prosecution witnesses usually are ANF personnel or policemen who surely would have a cell phone with an in-built camera. In respect of those arrested with narcotic substances generally there are only a few witnesses, and most, if not all, are government servants. However, trials are unnecessarily delayed, and resultantly the accused seek bail first in the trial court which if not granted to them is then filed in the High Court and there too if it is declined, petitions seeking bail are then filed in this Court. If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure and arrest, it would be useful evidence to establish the presence of the accused at the crime scene, the possession by the accused of the narcotic substances, the search and its seizure. It may also prevent false allegations being levelled against ANF/police that the narcotic substance was foisted upon them for some ulterior motives.

7. Those selling narcotic substances make their buyers addicts, destroy their state of mind, health and productivity, and adversely affect the lives of their family members. The very fabric of society is damaged. ANF and the Police forces are paid out of the public exchequer. It is incumbent upon them to stem this societal ill. The Prosecution services, paid out of the public exchequer, is also not advising the ANF/police to be do this simple act of making a recording and/or taking photographs as stated above.

8. A consequence of poor investigation, not supported by evidence adversely affects the cases of the prosecution. The courts, which too are sustained by the public exchequer, are burdened with having to attend bail applications because the commencement and conclusion of the trial is delayed. It is time that all institutions act professionally and use all available lawful means to obtain evidence. A credible prosecution and adjudication process also improves public perception. We expect that all concerned will attend to these matters with the attention that they demand, because the menace of narcotic substances in society has far reaching consequences: by destroying entire households, creating societal problems and casting a heavy financial burden on the State when drug addicts are required to be treated. Moreover, research indicates that drugs addicts resort to all methods to obtain drugs, including committing crimes.

9. Copy of this order be sent to the Secretary Ministry of Narcotics Control, Government of Pakistan, Director-General, Anti-Narcotics Force, the Secretaries of the Home Departments of all the provinces, InspectorGenerals of Police of all the provinces and of the Islamabad Capital Territory. They may also consider whether they want to amend the ANF/Police rules to ensure making video recordings/taking photographs whenever possible with regard to capturing, preserving and using such evidence at trial.

Crl.P.1192/2023
Zahid Sarfaraz Gill v. The State thr. A.G., Islamabad
Mr. Justice Qazi Faez Isa
22-11-2023

06/12/2023

05/12/2023

Only jurisdiction of JOP which he could be exercised u/s 22-A(6),Cr.P.C. is to be examined whether the information disclosed by the applicant did or did not constitute a cognizable offence, and if it did then to direct to concerned SHO to record FIR without going into the veracity of the information, and no more.
*PLD 2007 SC 539*
*PLD 2016 SC 581*
*1993 SCMR 550*
*PLD 1975 Lahore 550*
*PLD 2005 Lahore 470*
*Askari Law Chambers*
*Najam Askari(AHC) *0321-7531431*

05/12/2023

Accused reporting his own crime to police, held such statement in FIR is not admissible because if its confessional character.
*PLD 1961 Lahore 146*
*PLD 1965 SC 366*
*Askari Law Chambers*
*Najam Askari(AHC)* *0321-7531431*

06/06/2023