The Juvenile Justice System Ordinance (JJSO), 2000, introduced during the military government of retired General Pervez Musharraf, was replaced with Juvenile Justice System Act (JJSA) in 2018.

Apart from several other changes introduced through the new law, the mechanism provided for determination of age of an accused has also been further elaborated.

Ever since introduction of the previous law the age determination of an accused claiming to be a juvenile has often remain a thorny issue. From time to time the superior courts have delivered judgments in this regard wherein procedures were explained for determination of age of an accused, but still issues continue to surface before the courts in such cases.

Recently, a bench of the Peshawar High Court turned down bail plea of an accused, arrested in a murder case, whose age was 16-17 years according to the report of a medical board, but other documents showed that he was not a child.

A single-member bench of Justice Ishtiaq Ibrahim at PHC’s Mingora Bench (Darul Qaza) heard bail petition of the accused Mohammad Islam and had summoned the superintendent of police (investigation) to explain why the investigation officer (IO) of the case had not complied with the provision of section 8 of the Juvenile Justice System Act, 2018, regarding age of the petitioner/accused.

The SP stated that the petitioner had not taken the plea of his juvenility during investigation before the IO and even otherwise he was a major as per his school leaving certificate wherein his date of birth was mentioned as Aug 6, 2001. He stated that according to his CNIC his date of birth was Jan 1, 1998.

On the contrary, according to the opinion of a standing medical board he was aged about 16-17.

While dismissing the petition, the bench directed the trial court to first resolve the controversy regarding the age of the petitioner in accordance with section 8 of Juvenile Justice System Act by also considering the material already produced by both the parties and thereafter proceed with the trial in accordance with law.

Initially, an additional district and sessions judge at Swat had rejected bail petition of the accused on Oct 2, 2020. The court had also rejected his application seeking to issue directives for his age determination.

A bench of the high court had on Nov 27, 2020, disposed of his bail petition with the direction to the trial court to constitute a standing medical board for determination of the age of the accused/petitioner.

A medical board comprising professors of surgery and medicine, a radiologist and the medical superintendent of Saidu Group of Teaching Hospital in its report on Feb 2, 2021, opined that the age of the accused is about 16-17 years.

On the basis of this report the accused again moved the high court which rejected his plea on April 16.

Last year, the Peshawar High Court in two of its judgments had ruled that preference should be given to documentary evidence as compared to that of 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, 2020, by a single bench of Justice Syed M Attique Shah over a petition of a student who was arrested in 2018 on charges of killing his college’s principal allegedly after the deceased had scolded him for skipping his classes to attend a sit-in of a religious group at Faizabad, Rawalpindi.

The second judgment was of a single bench of then 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 JJSA, 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 that petitioner the trial court observed that as per his confessional statement his age was 17 years, while as per medical certificate his age had been mentioned as 20 to 22 years.

The high court had accepted the plea of that petitioner and directed that the case of the accused/petitioner should be sent to a juvenile court established under the JJSA 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 Nadra record as against report of the medical board.

In JJSO, mechanism for age determination was given in section 7. It states; “If a question arises as to whether a person 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.”

Published in Dawn, April 19th, 2021