2003 PLP 431 (MLD)

Abdul Nasir Jasra for Petitioner. Hafiz Khalil Ahmad for Respondents. Mustafa Tariq petitioner is complainant in case F.I.R. No.199, dated 29-8-1998, registered at Qadirpur, District Jhang, under section 302 read with section 34, P.P.C. in which Pervaiz Ahmad respondent is being tried alongwith two others in the Court of learned Additional Sessions Judge, Jhang. The respondent/accused claiming to be a child within the meaning of section 2(c) of the Juvenile Justice System Ordinance, 2000, moved an application for the determination of his age under section 7 of the said Ordinance on the basis of a School Leaving Certificate, in which his date of birth is recorded as 1-3-1988. The learned trial Court referred the matter to the Medical Superintendent, D.H.Q. Hospital, Jhang, for the determination of the age of the accused by a Medical Board. The Board headed by the Medical Superintendent D.H.Q. Hospital, Jhang, which included the Radiologist and a Senior Consultant Physician in its report dated 21-5-2001 opined that Pervaiz Ahmad son of Haji Fateh Khan was above 17 years and below 21 years of age. The matter was referred back to the Board for reconsideration. The Radiologist exposed few more bones and opined that the bone age of Pervaiz Ahmad was between 18 years to 20 years as the medical end of the clavicle epiphysis which appears at 21 years had not appeared. On the basis of this report, the learned trial Court came to the conclusion that at the time of occurrence which took place on 28-7-1998, Pervaiz Ahmad accused was less than 18 years of age. Accordingly, he separated the case of Pervaiz Ahmad accused vide order dated 9-7-2001, which has been impugned before this Court under sections 439 and 435, Cr.P.C.

2. Learned counsel for the petitioner contended that the application for the determination of the age was at a belated stage before the trial Court, when the statements of as many as eight P.Ws. had been recorded. It is submitted that both the reports submitted by the Medical Board are contradictory, as such these could trot be relied upon.

3. Learned counsel for the respondent refuted the arguments and contended that an application under section 7 of the said Ordinance can be made at any stage and whenever such an issue is raised the Court is under an obligatory to record finding after an inquiry, which shall include a medical report for the determination of the age of the child.

4. I have considered the arguments and perused the record. The Juvenile Justice System Ordinance, 2000 is retrospective in its application as it appears from a plain reading of subsection (3) of section 4 of the said Ordinance, therefore, section 7 of the said Ordinance may equally be invoked in cases which were registered prior to the promulgation of the Ordinance. The stage at which the issue regarding the age of the accused is to be raised has not been specified in the Statues, therefore, it can be raised at any stage and, the Court is bound to record its finding.

5. In the case in hand, certain documents such as School Leaving Certificate and the record of birth entries have been produced on behalf of the accused but the learned trial Court has mainly relied upon the medical report. The Medical Board in its first report dated 21-5-2001 opined that age of the accused was above 17 years and below 21 years, whereas in the second report dated 9-7-2001, the members of the Board unanimously reported that the bone-age of the accused was 18 years to 20 years with the explanation that the medical end of the clavicle epiphysis, which appears at 21 years, had snot appeared. Thus, the report of the Medical Board cannot be described as conflicting. I find no illegality in the impugned order, therefore, this petition fails and is hereby dismissed. H.B.T./M-1642/L Revision dismissed.