The Peshawar High Court has recently delivered two judgments ruling that preference should be given to documentary evidence over a medical board for determination of age of an accused person claiming to be a juvenile under the relevant law.

One of the judgments was delivered on Sept 7 by a single-bench of Justice Syed M. Attique Shah over a petition of a student who was arrested over two years ago on the charges of killing his college principal allegedly after he scolded him for skipping his classes so as to attend a sit-in of a religious group at Faizabad, Rawalpindi.

The second judgment was of the single-bench of Chief Justice Waqar Ahmad Seth whereby plea of a teenage suspect arrested for allegedly killing a blasphemy accused inside a courtroom in Peshawar was accepted on Sept 25. The said suspect had challenged order of an anti-terrorism court regarding determination of his age through a medical board.

In the first case, the grievance of the petitioner was that being a juvenile he was entitled to be tried under the Juvenile Justice System Act, 2018, and according to his Secondary School Certificate his age was 17 years at the time of commission of offence on Jan 22, 2018.

While framing charge against the petitioner the trial court observed that as per his confessional statement his age was 17 years, whereas as per medical certificate his age had been mentioned as 20 to 22 years.

The trial court had mentioned that during investigation when the plea of juvenility was raised by the accused a proper medical board was constituted which gave its report on Feb 28, 2018, showing that the age of the accused was 20 to 22 years. “Thus, it can safely be concluded that age of the accused at the time of occurrence was between 20 and 22 years, and was thus adult and not a minor in terms of Juvenile Justice System Ordinance, 2000. He must, thus, stand trial as an adult,” the trial court had ruled.

The high court has now accepted the plea of the petitioner and directed that the case of the accused-petitioner should be sent to a juvenile court established under the Juvenile Justice System Act for trial.

In the detailed judgment, Justice Syed M. Attique Shah also referred to an earlier judgment of the Supreme Court reported as 2017 SCMR 633. The high court ruled that the said judgment of the apex court explicitly provided that at the time of determination of age of an accused person in respect of his claim of juvenility preference should be given to the school leaving certificate and entries in the Nadra record as against the report of the medical board.

In both the cases the petitioners counsel was Shabbir Hussain Gigyani who explained the difference in the procedure in determination of age of an accused under the now repealed Juvenile Justice System Ordinance (JJSO), 2000, and Juvenile Justice System Act (JJSA), 2018. He also produced school record of both the petitioners showing that they were below 18 years of age at the time of occurrence.

The JJSO, 2000, was promulgated on July 1, 2000 and it was replaced with the JJSA, 2018, which was enacted in May 2018.

Certain relaxations have been provided to a juvenile accused under the law such as the offender could not be sentenced to death for offences carrying capital punishment. For the same reason, the mechanism provided for age determination in JJSO was elaborated in JJSA.

In the former JJSO, mechanism for age determination was given in section 7. It states; “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.”

Subsequently, in section 8 of the JJSA a more detailed mode of determination of age of an accused is given. Section 8 (1) now provides: “Where a person alleged to have committed an offence physically appears or claims to be a juvenile for the purpose of this Act, the officer-in-charge of the police station or the investigation officer shall make an inquiry to determine the age of such person on basis of his birth certificate, education certificate or any other pertinent documents. In absence of such documents, age of such accused person may be determined on the basis of a medical examination report by a medical officer.”

Furthermore, sub-section 2 of section 8 states: “When an accused person who physically appears to be a juvenile for the purpose of this Act is brought before a Court under section 167 of the Code (Code of Criminal Procedure), the Court before granting further detention shall record its findings regarding age on the basis of available record, including the report submitted by the police or medical examination report by a medical officer.”

Chief Justice Waqar Ahmad Seth in his judgment ruled that perusal of record further reveals that the Investigation Officer also annexed relevant documents, including school leaving certificate and entry/exit register, meaning thereby the IO had complied with the directions contained in section 8 of Juvenile Justice System Act, 2018; however, the learned judge ATC-III, Peshawar, while ignoring the documentary evidence had landed into the field of error.

Last year, the Lahore High Court had also delivered a judgment on the same point in a case “Criminal Revision No.64759 of 2017 (Tajammul Abbas vs. State)”. The said judgment was delivered by Justice Ch. Abdul Aziz on Nov 27, 2019.

The bench observed that according to the erstwhile JJSO, 2000, the inquiry to determine age of a juvenile was to be conducted solely by the trial court, whereas now in accordance with JJSA, 2018, the age controversy of a juvenile is to be decided though by the court but at the very initial stage of 167 CrPC proceedings and that too through enabling data collected by police.

Published in Dawn, October 12th, 2020