PESHAWAR: The Child Protection Court, Mardan, has declined to indict a five-year-old boy for his brother’s accidental murder, observing that under the Pakistan Penal Code, no offence is punishable if it is committed by a child under the age of 10 years.

Judge Ijaz Ahmad sent the murder case back to Mardan’s sessions judge for its return to the relevant magistrate for formal rejection under the relevant provisions of the law.

The judge observed that when the case was submitted to the prosecution, the relevant additional public prosecutor, too, contended that the boy was a minor but suggested the filing of the case with the juvenile court for trial ignoring Section 82 of the Pakistan Penal Code, which declares that nothing is an offence, which is done by a child under 10 years of age.

Returns case to sessions judge for rejection

FIR of the murder was registered at the Sheikh Maltoon police station in Mardan on Jan 30, 2020, on the information of the boy’s mother.

She had told the police that her two minor sons were playing inside a room and one of them had accidentallyfired at the other killing him instantly.

The FIR was registered under Section 319 (accidental murder) of the Pakistan Penal Code and Section 15 of the Arms Act.

The minor boy was shown by the police arrested and was released on bail.

During investigation, the boy was examined by the medical officer and the department of pathology of the Bacha Khan Medical Institute, who had declared that the boy was five or six.

The case was placed before court for trial on June 20, 2020.

The judge observed that PPC Section 82 was quite clear that nothing was an offence, which was done by a child under the age of 10 years and therefore, the minor boy couldn’t be called an accused.

“When a person cannot be designated as accused, no formal charge can be framed against that person. The Chapter XIX of Code of Criminal Procedure relating to framing of charge is also clear that charge can only be framed when there is commission of an offence,” the court ruled, observing that since it is not an offence under section 82 of PPC, no charge can be framed.

It observed that even the police were not competent to lodge the FIR against the minor boy simply on the ground that it was neither an offence nor was it within the cognisance of the police to have it investigated.

“The police was required to have inquired into the matter and after finding that the boy is below the age of ten years of age, should have filed the inquiry,” it observed, adding that in such extraordinary circumstances the minor boy could not be proceeded to be tried under chapter XXII-A of CrPC.

The judge observed that this court was competent to acquit the accused under CrPC Section 265-K when there was no probability of the accused being convicted, but such application of the said section of law could only be pressed into action when the court was conducting trial of an accused.

“Since the minor is not an accused under the law therefore, this court is not competent to exercise its powers under section 265-K of CrPC rather it is a fit case for cancellation, which was initi8ally the duty of the prosecution to have applied.”

The court observed that it would have been in the fitness of the circumstances that the concerned judicial magistrate, who had initially taken cognizance under Section 190 of CrPC, should have looked into the matter.

It added that acting as a post office the concerned judicial magistrate forwarded the case to the sessions judge for trial without applying his mind as if it was a fit case for trial or to have it returned to the prosecution for cancellation.

Published in Dawn, November 12th, 2020