2014 P Cr (PLP)

RIAZAT ALI SAHAR, J.

Applicant Sadam has called in question the validity of order dated 28-1-2013, passed by learned Special Judge for C.N.S., Sukkur in Special Case No. 6 of 2011, culminating from Crime No. 53 of 2011, registered with Police Station A-Section, Sukkur for offence under section 9(c) of C.N.S. Act, 1997, whereby an application moved by applicant under section 4(4) read with section 5 of the Juvenile Justice System Ordinance, 2000 (for short, the Ordinance) for declaring him as juvenile, was turned down.

2. Record reveals that the applicant moved an application under section 4(4) read with section 5 of the Ordinance before the trial Court claiming that he was child at the time of alleged recovery of contrabands and, therefore, his trial be conducted under the Ordinance. The learned trial Court, in accordance with the provision of section 7 of the Ordinance, ordered the Medical Examination of the applicant to be conducted. Consequently, a Medical Board was constituted, which, after due proceedings and tests, opined that the applicant Sadam is 20 years of age on 8-9-2012. Thereafter, the trial Court passed the impugned order.

3. Learned counsel for the applicant contended that since the applicant was arrested on 17-3-2011 and even if the medical opinion is taken as certain and correct, the applicant cannot be said to be definitely of more than 19 years of age on the date he was arrested.

4. Learned State counsel opposed the application and submitted that Medical Board has given an opinion that applicant's age was 20 years and, thus, in any case, he was more than eighteen years at the time of alleged recovery.

5. In case of Afsar Zamin reported in PLD 2002 Karachi 18, regarding aims of the Ordinance, the learned Judge observed as under:-- "....The Ordinance is aimed at extending protection to the children involved in criminal litigation and their rehabilitation in society. In a way, it safeguards the human rights of a section of society who deserve reasonable concession because of their tender age, therefore, the Ordinance is to be construed liberally in order to achieve the said object. In view of the figures 17/18 years and in absence of any medical report to the contrary the benefit arising out of the circumstances is to be extended to the applicant." And, thereafter, it was observed that the Ordinance, being aimed at safeguarding rights of a segment of society which due to tenderness of age, needs providing, firstly, protection, secondly, speedy justice and, thirdly, separation from mature and hardened criminals, is a piece of welfare legislation, aimed at ameliorating the lot of this weaker segment of the society. Another Division Bench of this Court, in Shamaal Khan Shah v. The State (2012 PCr.LJ 897), referred to Principle of Statutory Interpretation by Justice G.P. Singh (2004 Edition; Page 736) wherein it has been observed by the author as under:-- "The rule as stated and explained above only means that if a section in a remedial statute is reasonably capable of two constructions that construction should be preferred which furthers the policy of the Act and is more beneficial to those in whose interest the Act may have been passed, and the doubt, if any, should be resolved in their favour. So in case of an exception which curtails the operation of beneficent legislation, the Court, in case of doubt, would construe it narrowly so as not to unduly expand the area or scope of exception." And, then, observed that in accordance with the principle, declared above, the law was to be interpreted in favour of accused and since the law was for his protection that could only be afforded to him if he was given the benefit by accepting lower of the age determined by the Medical Board. A Division Bench of this Court, in Yousaf v. the State (1975 PCr.LJ 936), observed that albeit the ossification test was a better guide to determination of age of a person, nonetheless, it could not be treated to be an accurate estimate and margin of one year on either side was possible. His Lordship Mr. Justice Tassaduq Hussain Jillani in the capacity of a single Judge of Lahore High Court (as his Lordship then was and now his lordship graces the Supreme Court), in the case of Abaidullah v. Sessions Judge, Jhang and others (2004 PCr.LJ 1881), where the age of the accused, according to the medical report, was between 19/20 years on the date of occurrence, observed that if margin of one year is given, the age comes between 18/19 years and, thus, declared the accused to be entitled to be juvenile.

6. Coming to the facts of the present case, it seems that on 8-9-2012, Medical Board has given opinion that age of the applicant is about 20 years. The alleged incident took place on 17-3-2011 i.e. 1 year, 5 months and 21 days prior to the date of medical examination and, as such, on the date the alleged offence took place, the age of the applicant was about 18 years 6 months and 9 days, therefore, he was aged about 18 to 19 years.

7. In view of the beneficial scope of the Ordinance, as has been observed in various cases, the provisions are to be interpreted liberally and that when two views are possible, one favouring the accused, has to be taken particularly qua the juvenility inasmuch as it can be proved to be helpful for his rehabilitation on account of aid of the Ordinance, the accused is held to be entitled to the benefit of a year's margin and he is declared as juvenile as such with the result that his trial is ordered to be separated from the case of the co-accused and he may be sent to the Juvenile Court.

8. Criminal revision application is allowed accordingly. HBT/S-110/K Revision allowed.