JUVENILE COURT
MIAN ASHRAF ASMI
ADVOCATE HIGH COURT
THE Provincial Government Shall IN
Consultations With Chief Justice OF High Court, BY Notification IN The Official
Gazette, Establish One Or More Juvenile Courts by notification in the official Gazette ,establish one or
more juvenile Courts for any local area with in its jurisdiction .
(2). The High Court may ..
(a) Confer powers of
juvenile Court on ..
(i) Court of sessions
,or
(ii) judicial
Magistrate of the First Class .and
(b) appoint from amongst practicing Advocates having at least
seven years standing at the Bar, Presiding Officers of juvenile Court with powers of a judicial Magistrate of
the first Class for the purposes of this Ordinance on such terms and conditions
as the High Court may determine .
(3) The juvenile
Court Shall have the exclusive jurisdiction to try cases in which a child is
accused of commission of an offence.
(4) Subject to sub – section (3) on commencement of this
ordinance all cases pending before trail Court in which a child is accused of
an offence shall stand transferred to the juvenile Court having jurisdiction.
(5) The juvenile
Court shall not merely by reason of a change in its composition or transfer of
a case under sub –section (4) be bound
to recall or rehear any witness who has given evidence and may act on the
evidence already recorded.
(6) On taking cognizance of an offence the juvenile Court
shall decide the case within four months.
No joint trail of a
child and adult person. juvenile Court shall have exclusive jurisdiction to try
,cases in which a child is accused of commission of an offence but the entire
ordinance is completely silent as to how and at what stage a case shall reach a
juvenile Court and at what point of time and by whom a determination is to be
made as whether an accused is a child or not .challan against a child and adult co- accused is to be
submitted jointly before a Court of ordinary jurisdiction. child s trail is to
be separately conducted by a juvenile Court. ordinance fails to specify the
mechanism whereby such Court of a ordinary jurisdiction may determine as to
whether an accused person is in fact a child or not . PLJ 2008 Cr .c. (Lahore )386.
Cases of persons below the age of 18 years at the time of
Commission of the offence under Control of Narcotic substance Act, 1997
transferred to the respective juvenile Court comprising Court of sessions and
Magistrates. The cases will be proceeded in accordance with the procedure
prescribed in juvenile justice System ordinance,2000 Such juvenile Court will
proceed with the cases from the stage at which they were transferred and
no recalling of witnesses or denovo
trail will be invoked .PLD 2006 Kar .331 +PLJ 2006 cr .c.(Karachi) 1340
(FB).
Accused less than
18 year .
Accused less than 18
year at the time o commission o crime should be tried by the juvenile Court.
Anti-Terrorist Court is debarred u/s.4(3) of Ordinance xxiii of 2000 to try
accused. PLG 2003 Cr.c. 128.
NO joint trial of a child and adult person.—Notwithstanding
any thing contained in section 239 of
the Code or any other law for the time being in force , no child Shall
be charged with or tried for an offence
together with an adult .
(2) if a child is charge with commission of an
offence for which under Section 239 of the Code or any other law for the time
being in force such child could be tried
together with an adult ,the Court taking
cognizance of the offence shall direct separate trial of the child by the the juvenile Court .
No joint trail of a child and adult person. Juvenile Court shall have
exclusive jurisdiction to try ,cases in which a child is accused of commission
of an offence ,but the entire Ordinance is completely silent as to how and at
what stage a case shall reach a juvenile Court and at what point of time and by
whom a determination is to be made as whether an accused person is a child or
hot .challan against a child and adult co-accused is to be submitted jointly
before a Court of ordinary jurisdiction
. child s trial is to be separately conducted by a juvenile Court .ordinance fails to specify the
mechanism whereby such court of a ordinary jurisdiction may determine as to
whether an accused person is in fact a child or not . PLG 2008cr.c (Lahore) 386.
Separate murder
trials .juvenile offender .Trial before two Court .According to FIR main accused
were facilitated by a juvenile accused in committing murder
.Adult accused were tried by one Court while juvenile accused was tried
under Section 5 of juvenile justice System 2000 by another Court one accused
was convicted and sentenced to death by trial Court and two others were
acquitted while juvenile accused was convicted and sentenced to life
imprisonment by juvenile Court .Appeal against acquittal of two accused
dismissed by high Court. later on juvenile accused was also acquitted by the
same bench of High Court on the ground hat his case was at par with that of the
accused acquitted by other trial Court .Leave to appeal was granted by supreme
Court to consider whether both the trials could
be conducted by same judicial officer in order to avoid conflicting
judgments . 2006 SCMR 1812.
6. Procedure of
juvenile Court
(1)juvenile Court shall unless provided
otherwise in the ordinance, follow the procedure provided for in the
Code.
(2)A juvenile Court shall not ordinarily take
up any other case on a day when the
case of a child accused is fixed for evidence on such day .
(3)No person shall be present at any sitting
of a juvenile Court except—
(a)member and officers of the juvenile Court .
(b) parties to the case before the juvenile
Court and such other persons who are
directly concerned with the proceedings including the police officers,
(c) such other persons as the juvenile Court
directs to be present, and
(d)guardian of the child
(4) At any stage during the course of the
trial of a case under this ordinance the juvenile Court may , in the interest
of such child decency or morality direct any person to withdraw form Court for
such period as the court may direct.
(5)where at any stage during the
course of the trial of a case the juvenile Court is satisfied that the attendance of the child is not
essential for the purpose of the trail the
juvenile Court may dispense with the attendance and proceed with the
trial of the case in absence of the child.
(6) when child who has been brought
before a juvenile Court and if found to be suffering from serious illness
,ether physical or mental and require
treatment the Court shall send such child to a hospital or a medical
institution where treatment shall be given to the child ay the expense of the
State.
7 Determination of
age –
If a question arises as to whether a person before it is a child for the
purposes of this Ordinance , the
juvenile Court shall record a finding after such inquiry which shall include a medical report for determination of
the age of the child.
Ossification test for juvenile. Determination of the age of accused
.Opinion about the age .Medical report was mandatory. Accused was willing to
have an ossification test as contemplated in the said ordinance .Order passed
by A.S.J. set aside and case remitted back for decision afresh in accordance
with law after having a report from Medical Board of District Head quarter
Hospital with regard the age of the accused .Revision allowed .PLJ 2000
Cr.C(Lah.) 941 =2006 YLR 1093 (Pesh.)
Entries of birth certificate and the
ID card were different and so disputed by the parties. In such situation and
even under the provision of s.7,a person
claiming childhood is required to be medically examined by the Medical
Board .PLJ 2008 Cr.c (Lahore ) 632.
Best test for determination of age
is ossification and report of radiologist. 2006 YLR 10 (Lah).
Medical evidence cannot over ride the evidence of other documents such
as Nikahnama or marriage certificate of parents and birth certificates
,if found to be genuine and truthful , 2006 YLR 2052.
During inquiry ,if any accused person is found to be a child at the time
of the alleged occurrence than the case against such accused person is to be
separated from that against his adult
co- accused for its trial by a juvenile Court . PLJ 2008 Cr .c .(Lahore)386.
When a challan has already
been submitted by the state before the juvenile Court and the accused person as
already before it .Ordinance ,2000 is once again silent as to how and by whom a
decision is to br taken that the challan in the case is to be submitted before
a juvenile Court because the accused person concerned is achild for the
purposes of the juvenile System Ordinance , 2000PLJ 2008Cr.C(Lahore)386.
Question of .juveniles under the age of 18 years . plea of juvenility at
the earliest as an adverse inference can be drawn against him .plea after a
lapse of one year and two months from the date of registration of FIR creates
doubt .Birth certificate and school leaving certificate . value of . Liable to
interpolation , manipulation . Opinion
given by medical exports has been
completely ignored . whenever a Court is vested with deciding a question as to the age of an accused person
it is incumbent upon it to hold an
inquiry thereof the Court has to requisition the original record ,summon and examine the authors and custodians of
such record and documents in order to determine the genuineness of the same and
should obtain opinion of the medical experts which an lend valuable guidance to
Court in resolving the controversy.
Documents like a birth certificate or a school leaving certificate are
Susceptible to interpolation and manipulation and therefore in order to adopt a
safe course it is imperative to obtain
Of medical experts. Question of
juvenility of respondent on surmises and conjectures and are not in consonance
with law .Case was remanded . PLG 2008 Cr.C(Lahore) 349.
Determination of ago. Issue about
the age of an accused person at a trial which can result in a punishment of
death is now of vital significance and
the Court should never hasten to decide the said issue in a summary or in a
slipshod manner .whenever a question of
age of an accused person is raised or arises ,he must be subjected to a medical test unless strong reasons
exists or can be offered for not doing so .PLD 2004 S.C .758.
Juvenile Court alone can decide
whether an accused is a child or not on the basis of unimpeachable documentary
evidence. 2001 P.crl. j 1939.
Medical opinion cannot override the
evidence of birth certificate . 2002P.Cr l.j 2034.
Ossification test can only give a clue as to the age but cannot be a
conclusive proof
Such exercise to be resorted only when there is no other proof available
like school leaving certificate or birth
certificate . 2002 p,cr L J 633.
If question arises as to whether a
person is child , Court would would record
a finding after such inquiry which would include a medical report for
determination of the age of child . 2002 pcr LJ 1237.
Provision of this section not to be invoked unless
question in respect to the age of the accused cannot be answered through any
documentary evidence on record . 2003 YLR 315.
Determination of age
,provision of having medical report mandatory ,2003 YLR 1337.
Age of accused maintained in his
statement u/s 342, if remained unrebutted presumption of correctness attached
to it as statement u/s 342 is part of judicial record PLJ 2003 s.c.90.
Supreme Court in the interest of justice and legal pleas raised remanded the case to trial
Court to re –determine the age o accused in terms of s.7.2004 SCMR218.
Determination of age has been unambiguously left to the judgment of the
trial Court but of in the event of inquiry medical report has to be
compulsorily obtained. 2004P.cr. LJ .105.
Best test for age is ossification and report of radiologist. 2004 YLR
2847.
Ossification test thought a better guide but not accurate estimate .
Margin of one year on either said possible which is to be given to accused .
P.L.D 2004 PESH 236.
Juvenile Court is required to record finding as to age of accused after inquiry which would include medical
report .2004 Y.L.R 2847.
School leaving certificate or form B of Registration Department will not
have any preference over the report of Medical Board. N.L.R 2004 Cr LJ 102.
Age recorded in the Matriculation Certificate
is not conclusive evidence of age . 2005 P.Cr.L.J. 1719.
Notification dated
13.12.2001.
Prior to commutation of death sentence to imprisonment
for life ,Provincial Government would ensure that the age as recorded by the
trial Court entitied the condemned prisoners to such commutation .Question of
age never aqitated before the Trial Court ,appellate court as well as Supreme
Court . too late in the day to raise such a plea before the supreme court in
petition under Art . 185(3)2004 SCMR 1861.
When question of minority is neither
raised before trial Court not before
High Court and for the first time after dismissal of mercy petition accused
taking the plea in his application
addressed to the Government initiating second round of litigation .Age of
accused as mentioned in his statement as recorded u/s. 342 Cr,p,c being 24 year
Which factor confirmed by trial
Court as well as by High Court leaving no
room for further probe . 2004 SCMR 187.
Board consist of Medical Superintendent . senior Radiologist, Dental Surgeon Orthopedic
Surgeon and a professor of Medical in order to record the actual age of respondent . procedure and practice would be adopted in all such cases in future
also.
petition accepted . P.L.J 2005
Lahore 964.
Appellant filed application on the
force of Notification issued by the Home
secretary .Govt. of the Punjab , before the Addl .Sessions judge
.Appellant was juvenile at the time of commission of offence and entitled to
special remission in sentence in view o notification .Contention of .Dismissal of
application .challenge to .validity notification was modified by president in
implementation of dictum of Hon ,ble supreme Court . Addl Session judge has
acted illegally in refusing to decide
the plea of the petitioner . petition allowed and case remanded . P.L.J
2005 Lahore 1181 (DB).
Incident took place before the promulgation of
juvenile justice System Ordinance .2000 petitioner nether raised question of
minority in trail nor in appeal but it was in second round of litigation.
petitioner recorded his age 24 year in statement u/s 342 Cr.P.C. Which was confirmed by
appellate Court P.L.J 2005 SC 455.
Juvenile Court would record a finding after inquiry which would include a medical report for determination of
age of the child . provision a large number of criminal cases witness a mini
–trial regarding age of accused person before or during even at fag end of main
trail of accused person and during exercise evidence , both oral and
documentary is received .P.L.J 2005 Lahore 1.
High Court on concurrence of both parties directed Medical Board
constituted foe the purpose for determination of age of respondent .Medical
Board found respondent to be aged about 20/22 year .Respondent at the time of
occurrence was thus .more than 18 year of age , therefore , he was not entitled
to claim his trial under juvenile
justice System Ordinance ,Respondent present in Court also appeared to be more
than 18 year of ago P.L.J. 2004 CrC (Lahore )69.
Petitioner could not point out any
defect in ossification test done by the Medical Board . trial Court has rightly
concluded the matters and order impugned does not suffer from any error of law.
P.L.J.2005 CrC (Lahore) 682.
When occurrence had taken place age of accused in the light of said
Medical Opinion would be between 7 year
,seven month or 18 year seven month .consensus was on the point that margin of
error in determination of age through medical examination was about one year
.Benefit of doubt ,if any was to be given to accused and in case of two
possibilities ,the Court should tilt in favour of accused for the purpose of
determination of age .Earlier examination of accused by Medical board which was
conducted under executive order ,could not be considered foe the purposes of
s.7of juvenile justice system Ordinance ,2000 Evidence in the shape of school
leaving certificate and form B of national identity Card also supported claim
of accused that he was juvenile at the
time of occurrence .Accused being less than eighteen year on the date of
occurrence , was a juvenile and was rightly ordered to be tried as juvenile in
accordance with provisions of juvenile justice System Ordinance ,2000.2005
Y.L.R 821.
8, Prohibition to publish
proceedings of cases .--- (1) unless the juvenile Court
specifically authorizes the Court proceedings shall not be published in any
newspaper ,magazine or journal in any form which may disclose the name ,
address ,school or any identification or particulars calculated to lead
directly to the identification of such child nor shall any picture of the child
be published.
9.
Probation Officer.—The probation Officer shall assist the juvenile Court
by making a report on the child ,s character educational social and moral
background.
(2) Subject to sub –section (3)the
report of the probation officer submitted to the juvenile Court shall be treated as
confidential .
(3) the juvenile Court may ,if it
so thinks fit ,communication the substance of the report to the child or his
guardian and where any one of them disputes the contents or view contained
there in the juvenile Court may given such child or ,as the case may be
guardian an opportunity of producing
such evidence as may be relevant to the matter stated in the report ..
10.Arrest and bail .—(1) Where a child is arrested for commission of an
offence ,the officer incharge of the
police station in which the child is detained shall ,as soon as may be inform
….
(a) The guardian of the child ,if he
can be found ,of such arrest and inform him of the time , date and name of the
juvenile Court before which the child shall be produced ,and.
(b) The concerned probation officer
to enable him to obtain such information about the child and other material
circumstances which may be of assistance to the juvenile Court for making
inquiry.
(2) where a child accused of a non
–bailable offence is arrested ,he shall without any delay and in no case later
than twenty four hours form such arrest
, be produced before the juvenile
Court .
(3) without prejudice to the
provisions of the code ,a child accused of a bail able offence shall , af
already not released undr Section 496 of code , be released by the juvenile Court onbail with or with out
surety ,unless it appears that there are reasonable grounds for believing that
the release of the child shall bring him anto association with any criminal or
export the child to any danger ,in which case the child shall be placed under
the custody of a probation officer or a suitable person or institution dealing
with the welfare of the children if parent or guardian of the child is not
present ,but shall not under any circumstances be kept in a police station
or jail in such cases .
(4)The juvenile Court shall in a
case where a child is not granted
,bail under sub –section
(3)direct for tracing the guardian of such child and where the guardian of the
child is traced out the juvenile Court may immediately release the child on
bail .
(5) where a child under the age of
fifteen years is arrested or detained for an offence which is punishable with imprisonment of less than ten years
shall be treated as if he was accused of commission of a bail able offence .
(6) No child under the age of
fifteen years shall be arrested under any of the laws dealing with preventive
detention or under the provisions of chapter viii of the code .
(7) Notwithstanding anything
contained in the Code and expect where a juvenile Court is of the opinion that the delay in the trial of the
accused has been occasioned by an act or omission of the accused or any other
person acting on his behalf or in exercise of any right or privilege under any
law for the time being in force , a child who for commission of an offence ,
has been detained shall be released on bail ,..
(a) if , being accused of an offence punishable with death , has been detained for such an offence for a
continuous period exceeding one year and whose trial for such an offence has
not been concluded,….
(b)if , being accused of any offence
not punishable for imprisonment for life
has been detained for such an offence for a continuous period exceeding six month and whose trial for such offence
has not concluded,. Or
(c) who being accused of any offence
not punishable with death or imprisonment for life , has been detained for such
an offence for a continuous period exceeding four months and whose trial for
such an offence has not concluded….
Provided that where a child of the
age fifteen years or above is arrested the Court may refuse to grant . bail if
there are reasonable grounds to believe that such child is involved in an
offence which in its opinion is serious ,heinous ,gruesome ,brutal ,sensational
in character of shocking to public morality or he is a previous convict of an
offence punishable with death or imprisonment for life.
Detention of minor children by
police tied up with hand –cuffs and fetter Magistrate allowed judicial remand .
Act of Magistrate was declared illegal ,contrary to law and against provision
of section 10 of the ordinance . PLJ 2007 SC
30.
Entitlement to concession of bail , being a minor
. delay of there days in f.l.r and five days delay in medical
examination of violation committeed
zina-bil-jabr on pistol point . no plausible explanation. Juvenile .
bail allowed . petitioner was a juvenile . Being a minor his case also falls
u/s . 7 of the Ordinance. In view of page of accused he become entitled to the
concession of bail as provided under law . petitioner was behind the bars more
than four months . Although the challn
has been submitted before the Court but without commencement of trial .
Accused cannot be kept behind the bars for an indefinite period as it
would amount to punishing him before
trial . Accused is admitted bail subject to his
furnishing bail bond .PLJ 2008 Cr.C (Lahore ) 21.
Person below 18 year of age at the time of commission of offence. Such
person in ordinary course would be released on bail or placed under custody of
a probation officer , but would not be handcuffed, put in fetters or given any
corporeal punishment. Where offence was not serious ,heinous or gruesome , than
release of such person on bail should be preferred . 2006 SCMR 1805.
Accused was juvenile and u/s . 10(7)(a) of juvenile justice System
ordinance he was in jail since his arrest .PLJ 20008 Cr,c (Lahore) 1237
Immunity from sentence of death
,lenience in matter of bail after arrest and prospects of release on probation
after conviction provided in juvenile justice System Ordinance ,2000 contained
incentives for and have tendency of not only encouraging persons below the age
of 18year to commit heinous crimes like murder, gang-rape terrorism and
trafficking in narcotics, but can embolden the older people in society to
prompt young ones to commit crimes with an underdtanding and assurance that
they would get away with lesser sentences apart from availing of concessions in
matters of bail and releasr on probation PLG 2005 Lahore 1.
Release on probation .---
where on conclusion of
an inquiry or trail the juvenile Court finds that a child has committed an
offence , then notwithstanding anything to the contrary contained in any law
for the time being in force , the juvenile Court may, if it thinks it----
(a) Direct the child offender to be released on probation for good conduct
and place such child under the care of guardian of any suitable person
executing a bond with or without surety as the Court may require, for the good
behavior and well –being of the child for any period not exceeding the period
of imprisonment awarded to such child .
Provided that the child released on probation
be produced before the juvenile Court periodically on such dates and time as it
may direct.
(b) Make an order directing the child offender to be sent to a Borstl institution until he attains the age of
eighteen year or for the period of imprisonment whichever is earlier .
(c) Reduce the period of imprisonment
or probation in the case where the court is satisfied that further imprisonment
or probation shall be unnecessary.
12. Orders that shall not be passed with respect to a child.----
Notwithstanding anything
to the contrary contained in any law foe the time being in force no child shall
be ----
(a) Awarded punishment of death , or ordered to labour during the time spent
in any borstal or such other institution ,and
(b)
Handcuffed put in fetters or given
any corporal punishment at any time while in custody .
(c) Provided that where there is reasonable apprehension of the escape of
the child from custody , he may be handcuffed .
Immediately upon the arrest of a young person
the arresting police afficer has to make a tentative assessment as to whether
the arrested young person is a child for
the purposes of the juvenile system ordinance , 2000 or not and thus can he be
handcuffed , or not. Tender age o the arrested young person may also he
relevant to the question of his medical treatment under section 6(6) and bail
under section 10 o the juvenile justice system ordinance . PLJ 2008 CrC .
(Lahore) 386
No child while in
custody put in borstal or any other institution ,can be ordeed to labour or
given corporal punishment . infliction of sentences of rigorous imprisonment
appears to be patently in violation of provision of law . sentence inflicted on
applicants are short ie only two and a half years each and already undergone
substantial portions . Ex-facie suspension of sentences . bail accepted . PLJ
2004 FSC 70.
13.APPeal etc .---(1) A child , convicted on a trail by a juvenile Court or any other
person on his behalf, may with in thirty days from the date of such order ,
prefer an appeal in accordance with the provisions of the code .
(2)the provincial
government or any person aggrieved by an order of acquittal passed by an appeal against such order in accordance
with the provision of section 417 of the code .
14. Ordinance not
to derogate from other laws .---
The provision of this
ordinance shall be in addition to and not I derogation of , any other law for
the time being in force.
After receipt of the
case from the magistrate the juvenile
Court may take cognizance of an offence committed by a child and may proceed
with the trial of the case . such submission of the report by the police qua a child and ats sending to a juvenile Court by the
magistrate make it a pre – requisite that some tentative determination about the age of the relevant
accused person is to be made by the police before submission of the report u/s
. 173 Cr. C and by the magistrate before sending the case to a juvenile Court
for taking of cognizance and trail . PLJ 2008 Cr,c. (Lahore )386.
15. Power to make
rules .-----The provincial Government may , by notification in the official
Gazette , make rules for carrying out the purposes of this Ordinance .
..................................................................................................................................................
WRTIER OF
THIS ARTICLE ,MIAN ASHRAF ASMI ADVOCATE
IS PRACTCISING LAWYER IN HIGH COURT.
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