' SHAHID ANWAR BAJWA, J.---F.I.R. No,2 of 2010 recorded at Police Station Excise DIO Camp Kashmore on the complaint of Excise Inspector DIP Camp Kashmore on 23-12-2010, alleging offence under section 9(c) of 'the Control of Narcotic Substances Act, 1997 and the present applicant was arrested on the same day. An application under section 4(4) of Juvenile Justice System Ordinance, 2000 read with section 5 thereof was filed before the trial Court claiming that the present applicant was a child and therefore his trial be separated from trial of the other accused persons. The trial Court in accordance with the provision of section 7 of the Juvenile Justice System Ordinance 2000 (hereinafter called the Ordinance of 2000) ordered that Medical Examination of the petitioner be conducted. Consequently a Medical Board was constituted by Medical Superintendent, Ghulam Muhammad Mahar Medical College and Hospital, Sukkur and the Medical Board after due proceedings and tests rendered the following opinion:-- "We the undersigned Members and Chairman of Medical Board have examined applicant/accused Shamal Khan son of Qalandar Shah in this Hospital on 8-4-2011, regarding his age assessment.
' From the General appearance, body development, Dental and Radiological Opinion, his age appears about 18 to 19, inwards (Eighteen to Nineteen) years.
2. Thereafter the trial Court below took' up the matter and on 19-5-2011 passed the following order:- "Mr. Bangwar I/C DPP strongly opposed the application and argued that Medical Board.Has determined the age of applicant accused to be 18 to 19 years. The applicant/accused didn't raise the plea of minority during investigation, nor produced any documentary proof before Investigation Officer but took such plea at the time of trial, such plea is afterthought. He has further argued that Narcotics of huge quantity has been recovered from the truck, in which applicant/accused was cleaner.
' Applicant/accused is matured and fully developed and he is not child to be tried under the Juvenile Justice System Ordinance 2000. In support of his contentions, he has relied upon the case of Hassan Zafar v. The State, reported in 2001 PCr.LJ 1939 (Lahore).
' I have carefully heard learned counsel for the parties, perused the relevant record and case-law.
' In my considered view, provisions of Jevenile Justice. System Ordinance 2000 are not be invoked in each and every case mechanically. In this case Medical Board has opined that applicant/accused was "aged about 18 to 19 years at the time of his determination of age on 8-4- 2011. F.I.R. Was lodged on 23-12-2010. Keeping in view the report of Medical Board, I have seen the accused on each and every date of hearing. Applicant/accused appears to be major and fully matured. At this stage, no useful purpose will be served by recording evidence of Medical Board as required by defence counsel for the reasons that report of Medical Board is already on record.
Accused cannot be allowed to delay the trial. Under National Judicial Policy, Narcotics cases are to be decided expeditiously. Moreover, applicant/accused had neither agitated the plea of his minority during investigation nor produced any documentary proof but took such plea for the first time before this Court at the time of framing of charge, which apparently appears to be an afterthought plea. Prima facie, allegation against the applicant/accused and another is that a huge quantity of heroin and opium were recovered from the truck, in which applicant/accused Shamal Khan was cleaner. I find no merit in the above applications and same are dismissed."
3. This order has been challenged in this Criminal Miscellaneous Application. Learned counsel for the applicant relied upon Yousaf v. State 1975 PCr.LJ 936, Afsar Zamin v. The State PLD 2002 Karachi 18, Abdul Qadoos v. State PLD 2005 Quetta 139, Abaidullah v. Sessions Judge Jhang 2004 PCr.LJ 1881 and contended that since the petitioner was arrested on 24-12-2009, even if the medical opinion is taken as certain and correct the petitioner cannot be said to be definitely more than eighteen years of age on the date that he was arrested.
' Mr. Naimtullah Bhurgari, learned State Counsel opposed the application and submitted that Medical Board has given an opinion that applicant's age was between 18 to 19 years and therefore in any case he was more than eighteen years.
4. We have considered the submissions made by the learned counsel and have also gone through the record.
5. First case relied upon by the learned counsel was Yousuf's case (supra). The doctor on the basis of general appearance and radiological test opined that the appellant appeared to be about 16 years of age. Supreme Court observed that ossification test, though a better guide to age of a person than other tests, still cannot give an accurate estimate of age and there would be margin on either side of at least a year. The case does not appear to be relevant to the controversy involved in the present case. In Abdul Qadoos's case (supra), trial Court primarily relied upon looks and observed that he looked to be a major and decided the matter. This was not proved by the Division Bench of Quetta High Court. Again it has no relevancy with the facts of le present case because in the present case the Court below has relied upon medical certificate and not mere appearance. In Abaidullah's case (supra) age of the accused according to the medical report was between 19/20 years on the date of occurrence and 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) observed that if margin of one year is given even then the age came to between 18/19 years. His lordship also noted entries made in the Birth Register. Last case relied upon by the learned counsel was Afsar Zamin's case (supra). It was held by a single Judge of this Court as under:-- "Order passed by the Courts below indicates that on the point of age of the applicant, the opinion of police recorded in the Hulia Form usually submitted along with report under section 173, Cr.P.C.
(Challan) has weighed with them and they have overlooked the significance assigned to this question under the law. Under section 2(b) of the Juvenile Justice System Ordinance, 2000 (hereinafter to be referred to as the Ordinance) 'child' has been defined to mean a person who, at the time of commission of an offence, has not attained the age of 18 years. Indeed, from this point of view the opinion expressed by police was enough to invoke the attention of learned trial Court to the issue. According to police, the age of applicant was 17/18 years that is to say between 17 and 18 years. Ex facie, the aforesaid opinion of police was sufficient to attract the provisions of the Ordinance as even one day less than 18 years would bring the accused within the aforementioned definition of 'child'. Nevertheless, it may be kept in mind that at any time the point of young age is agitated on behalf of an accused person the Court is under a statutory obligation under section 7 of the Ordinance to record a finding after an inquiry, which shall include a medical report, for determination of the age of the child. In such circumstances the Courts would be committing an error if they place unrestricted reliance solely on Hulia Form etc. About the age of an accused. In order to foster justice they have to follow, essentially, the procedure laid down in section 7 of the Ordinance."
6. In the same judgment 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." (emphasis supplied)
7. In the case of Muhammad Jaffar Ali v. The State, 2007 YLR 1679, the petitioner in support of his contention that he was child produced birth certificate and the Sessions Judge, ordered the Superintendent of the Hospital to conduct ossification test. Thereafter, Medical .Board consisting of five doctors gave its finding. In the light of the medical report, the learned Sessions Judge decided against the petitioner and declared him a major. It may be pointed out that Medical Board has determined his age as 18/19 years on 29-4-2006. F.I.R. Was dated 20-1-2006. A single Judge of the Lahore High Court observed that there are two views and therefore the view favourable to the accused is to be normally accepted.
8. As has been held by Mr. Justice Wahid Bux Brohi in Afsar Zamin's case (supra), the Ordinance of 2000 is aimed at extending protection to children and indeed under Article 25(2) of the Constitution of the Islamic Republic of Pakistan, the State has the power to frame laws for the protection of Women and Children, Juvenile Justice System Ordinance, 2000 is an example of such a legislation. It is 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. Therefore, the Ordinance is a peace of welfare legislation, aimed at a ameliorating the lot of this weaker segment of the society. In Principle of Statutory Interpretation by Justice G.P. Singh (2004 Edition; Page 736) 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.
9. Therefore, what admits of no doubt is that (i): Juvenile Justice System Ordinance, 2000 has been promulgated keeping in view the welfare of and it aims at protecting children (ii) The Ordinance of 2000 being a piece of welfare Legislation it must be construed liberally in such a way that more people are brought within the ambit of law without violating the letter of law; and if a question arises as to age of a person and there are two opinions available, the Court should lean in favour of the opinion which goes to the favour of the accused standing trial before it.
10. In the present case, Medical Board on 8-4-2011 gave opinion that age of the applicant is between 18-19 years. Assuming that the age has been accurately determined by the Medical Board with no margin of error, the applicant was determined by the Medical Board between age of 18-19 years as on 8-4-2011. The alleged incident took place on 23-12-2010 i,e, 3 months and 16 days prior to the date of medical examination and therefore on the date when the alleged offence took place the petitioner has been opined by the Medical Board to be between the age of 18 years, 8 months and 14 days and should he be treated more than 18 years or should he not be treated more than 18 years. In accordance with the principle declared above the law is to be interpreted in his favour and since the law is for his protection that protection can only be afforded to him if he is given the benefit by accepting lower of the age determined by the Medical Board.
11. There is yet another aspect of the matter as has been held by Mr. Justice Tassaduq Hussain Jillani in the case of Abaidullah (supra) margin of one year in the opinion of Medical Board cannot be overruled. Looked at from that angle, the applicant has to be given the benefit of the provision of the law. Result of the above discussion is that this Criminal Revision Application is allowed. The applicant is declared to be Juvenile and his trial is ordered to be separated from the case of the co-accused and he may be sent to the Juvenile Court. Listed applications are disposed of.