2005 PLP 42 (MLD)

5. Aggrieved of the above-referred to order of the High Court passed in Writ Petition No.2258 of 2003, Sultan Ahmad complainant filed a Criminal Petition for Leave to Appeal (No.782-L of 2003) in the Hon'ble Supreme Court of Pakistan. The said petition for leave to appeal was converted into appeal and the Hon'ble Supreme Court set aside the order of the trial Court dated 15-11-2002 and the order of the High Court dated 28-10-2003 and remanded the case to the learned trial Court for a fresh decision in the matter in accordance with the provisions of section 7 of the Juvenile Justice System Ordinance 2000 including a reference to a competent Medical Board for examination of the accused regarding his age. In its illuminating judgment the Hon'ble Supreme Court also provided guidelines to the Courts regarding the issue of juvenility as Their Lordships desired that no one was to be permitted to exploit unjustifiably and deceitfully various concessions allowed by the Juvenile Justice System Ordinance to the minors and the children as also to ensure that no minor or child was sent to gallows in violation of the provisions of the said Ordinance. The Hon'ble apex Court highlighted the importance of the medical report about the age of an accused person as an aid placed at the disposal of the Court of law for the purpose of determining the age of the accused persons. Their Lordships dispelled the impression that ossifiation test could be ordered only as a last resort, and did not approve of the reluctance of the Courts to benefit from the medical report. It was held that whenever question of age of an accused person is raised or arises he must be subjected to a medical test unless strong reasons existed or could be offered for not doing so. At the same time the Hon'ble Supreme Court deprecated the practice of lodging the claim of minority at belated stage of the trial or during the course of appellate proceedings and observed that adverse inference could be drawn where the claim of minority was raised after undue and unexplained delay.

6. On receipt of the order of the Hon'ble Supreme Court of Pakistan the complainant Sultan Ahmad on 26-6-2004 made an application to the learned trial Court wherein he submitted that the Hon'ble Supreme Court had ordered for constitution of a Medical Board for determining the age of the accused; that it has been proved on record that the family of the accused was very influential and his close relatives were holding important positions at Mianwali; that it was feared that the relatives of the accused would easily influence the decision of the Medical Board; that according to the verdict of the Hon'ble apex Court to constitute a Medical Board was a discretion of the trial Court as the word "competent medical board" has been used in the judgment of the Supreme Court. A prayer was made "The Medical Superintendent, Mayo Hospital, Lahore be directed to constitute the requisite medical board consisting of members who were experienced and renowned in their respective fields so that the dictates of law and justice could be met". The said plea of the complainant was turned down by the learned trial Judge vide his order dated 1-7-2004 in the following terms;-- "Due to the order of august Supreme Court of Pakistan dated 7-5-2004, the Medical Board is ordered to be constituted for the determination of the age of accused Tahir Hassan. The Medical Superintendent, DHQ Hospital, Mianwali will be written a letter for the above said purpose who will send the report on or before 10-7-2004. From the complainant's side an application has been moved to the effect that medical board be constituted for the determination of the age outside District Mianwali and the apprehension is shown that the accused party could influence the Medical Board at Mianwali. The version of the complainant is without any cogent reason. It will also be difficult to produce the accused for medical examination outside the district. Hence the application upto the extent for the constitution of medical board outside the district is hereby dismissed. After the receipt of report from Medical Board, the matter as to whether accused Tahir Hassan is to be tried under J.J.S. Ordinance, 2000 or under the general law, will be settled with the help of medical report as well as other record on file. "

7. In consequence of the order dated 1-7-2004 a medical board was constituted by .the Medical Superintendent, DHQ Hospital, Mianwali under his own Chairmanship. The other members of the board included Dr. Rana Hafeez Ullah Khan Surgical Specialist, DHQ Hospital Mianwali, Dr. Muhammad Irfan Latif Dental Surgeon, DHQ Hospital Mianwali and Dr. Muhammad Khan Niazi, Medical Officer (Radiology) of the said hospital. The Board in its report, which is Annex-'D' to this petition, observed "that after a thorough physical and radiological examination and the examination of the Dental Surgeon and in the light of the various examinations/reports, all the members of the Board were of the unanimous opinion that the age of the examinee (Tahir Hassan son of Inayat Ullah) is between 18 and 19 years".

8. After receipt of the report from the Medical Board the learned Additional Sessions Judge, Mianwali, took up the application dated 19-11-2002 which had been initially accepted by the trial Court vide order dated 25-10-2003 which order subsequently was challenged right up to the Supreme Court of Pakistan where it was finally set aside as stated hereinabove. After considering the medical report and birth certificate, etc, produced on behalf of the accused the learned Additional Sessions Judge vide his impugned order dated 3-9-2004 came to the conclusion that Tahir Hassan accused was a "child" on the date of occurrence i.e. 1-8-2002 and ordered that his trial would be conducted by him under the Juvenile Justice System Ordinance 2000. It is the said order dated 3-9-2004 which has been challenged in the instant revision petition.

9. Mr. M. Asghar Khan Rokhari, the learned counsel for the petitioner in support of the revision petition submitted that in the given facts and circumstances of the case the "competent medical board" which the Hon'ble Supreme Court had ordered to be constituted ought to have been constituted outside Mianwali District inasmuch as according to him it had been established on record during the previous round of litigation that the accused party wielded a considerable clout in the said District; that the impugned order of the learned Additional Sessions Judge whereby it had declined to refer the matter to the Medical Board outside Mianwali District in fact amounted to ignoring the order of the Hon'ble Supreme Court; that the opinion of the Medical Board could not be termed as unbiased on account of the influence that the accused party commanded.

10. On the other hand Malik Saeed Hassan, Advocate who has appeared on behalf of respondent No. 1, Tahir Hassan Khan, in response to pre-admission notice submitted that the order of the learned Additional Sessions Judge dated 3-9-2004 is absolutely legal; that the Honourable Supreme Court of Pakistan had directed for the constitution of a "competent Medical Board" and according to him the Dictionary meanings of the word "competent" was "someone having sufficient skill or training to do something" or "someone legally capable to do something"; that the Medical Board consisted of highly qualified doctors who had rendered their opinion on the basis of tests carried out in the hospital. He finally argued that there was no illegality or impropriety in the impugned order passed by the learned Additional Sessions Judge and as such the same does not warrant any interference by this Court.

11. Mr. Fazal-e-Miran Chouhan, the learned Additional Advocate -General who had appeared on Court's call also supported the impugned order and submitted that the petitioner had not been able to point out any legal defect in the impugned order and that filing of the instant revision petition appears to be an attempt to frustrate the trial which has already commenced.

12. I have considered the arguments of the learned counsel for the parties at considerable length and have carefully gone through the record.

13. It has been observed that the petitioner's plea for constitution of Medical Board outside District Mianwali had in fact been turned down by the learned trial Court vide its order dated 1-7-2004. This order had been passed on an application moved by the petitioner/complainant before the trial Court on 26-6-2004 wherein a prayer had been made for constitution of a Medical Board outside District of Mianwali. On 26-6-2004 the learned trail Court passed the following order:-- "Learned counsel for the complainant has filed an application for constitution of medical board before this Court along with copy of order of the august Supreme Court of Pakistan. Now to come up for further proceedings on 1-7-2004." The learned trial Court by means of its order dated 1-7-2004 turned down the said plea of the petitioner. The said order has been reproduced in verbatim in paragraph No.6 hereinabove.

14. It is thus clear that the petitioner's plea for constitution of Medical Board outside Mianwali District stood turned down as far back as on 1-7-2004. It is surprising that he allowed more than two months to elapse to wait for the passing of yet another order and then to challenge the same. The perusal of its order dated 7-5-2004 reveals that nowhere did not Hon'ble Supreme Court directed that the Medical Board be constituted outside Mianwail District. What the Hon'ble Supreme Court had stressed was the constitution of a competent medical board which direction stood fully complied with by the learned trial Court. Even otherwise it cannot be said as a universal rule that a Headmaster of a school or an executive officer in the Education Department can always influence a Medical Board consisting of four highly placed doctors. The petitioner has not been able to point out any material even worth its name to establish before the trial Court or even before this Court that the Medical Board had been influenced by the accused party. Even otherwise there is a presumption that all official acts have been regularly performed. I see no illegality or impropriety in the impugned order calling for interference by this Court in exercise of its revisional jurisdiction.

15. Resultantly this petition is hereby dismissed in limine. H.B.T./S-249/L Revision petition dismissed.