OMAR SIAL, J.----Through these proceedings the applicant Samran has impugned an order dated 16-9-2019 passed by the learned 2nd Additional District and Sessions Judge, Karachi West. In terms of the said order an application under section 7 of the Juvenile Justice System Act, 2018 was disposed of with the following order:
2. Relevant facts are that the applicant Samran is accused of a crime under section 376 P.P.C. registered at the Madina Colony police station by virtue of F.I.R. No. 350 of 2017 dated 2-12-2017. Currently , the applicant is in custody .
3. I have heard the learned counsel for the applicant as well as the learned Addl. P.G. None appeared on behalf of the complainant. The learned Addl. P.G. quite categorically did not support the order passed by the learned trial court and according to him the learned trial court had erred and that the same should be set aside. My observations are as follows.
4. On 18-5-2018 a learned Single Judge of this Court disposed of a bail application filed by the applicant (Crl. Bail App. No. 581 of 2018) in terms of the following order: "At the outset, learned counsel for the applicant contends that the trial court has not declared the applicant as juvenile, however , medical record reflects that the age of applicant is 14/15 years, hence the applicant may prefer to move an application under section 7 of the Juvenile Justice System Ordinance, 2000 and thereafter would file bail application"
5. No such application was filed but that the applicant preferred to file another bail application in this Court. On 15- 12-2018 a learned Single Judge of this Court, dismissed the bail application filed by the applicant (Crl. Bail App.
No. 1300 of 2018).
6. On 7-8-2019 an application under section 7 of the Juvenile Justice System Ordinance 2000 was filed but which was dismissed through the impugned order .
7. It appears that apart from the impugne d order (which makes a correct reference) the reference to the Juvenile Justice System Ordinance, 2000 may be misplaced as on 18-5-2018 Juvenile Justice System Act, 2018 was enacted and was published in the Gazette on 24-5-2018. Section 25 of this Act repealed the JJSO. When the applicant was arrested in the crime, the JJSO was applicable however , when the application for determination of age was made, the JJSA had come into ef fect.
8. Section 7 of the JJSO provided as follows: Determination of age: If a question arises as to whether a person before it is 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.
In the JJSA, section 8 addresses the issue regarding determination of age. This section provides that: "Determination of age.---(1) 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 the basis of his birth certificate, educational certificates 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 .
(2) 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, the Court before granting further detention shall record its findings regarding age on the basis of available record includ ing the report submitted by the police or medical examination report by a medical officer ."
9. The principal difference between the two sections seems to be that in the JJSO, it was the Juvenile Court which was given the responsibility to hold an inquiry and determine the age of the child. On the other hand in the JJSA it is the officer-in-charge of the police station or the investigating officer who is empowered to hold an inquiry to determine the age of the accused. The Juvenile Court is also to record its findings regarding the age of the accused if he physically appears to be a juvenile.
10. In the case of Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others (PLD 2004 SC 758), the honorable Supreme Court gave certai n guidelines regarding applications under section 7 of the JJSO. Amongst others, the Court recorded that: "24 .......Therefore, whenever a Court is confronted with the question of the age of an accused person, it is incumbent upon it to hold an inquiry and the learned Presiding Officers should always feel free to requisition the original record; to summon and examine the authors and the custodians of such record and documents to determine the genuineness of the same; to, summon persons, if need be, who on account of some special knowledge, could depose about the age of the concerned accused person and to take such other arid further steps which could help the Court in reaching a just conclusion about the said matter . As has lleen mentioned above, the issue about the age of an accused perso n at a trial which could result in a punishment of death, was now of vital significance and the learned Presiding Officers should never hasten to decide the said issue in any or in a slipshold manner .
25. Medical report about the age of an accused person was a further aid placed at the disposal of a Court of law for the purpose of determining the age of an accused person. The opinion of medica l experts could offer a valuable guide to a learned Presiding Officer in resolving the controversy in issue. The impression that an ossification test could be ordered only as a last resort, was not correct and thus not legally tenable. The reluctance of the Courts to benefit from such a mandated material was not understandable. Therefore, whenever , a question of the 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. Such is the only course which is in accord with the provisions of section 7 of Ordinance XXII of 2000 which command that " such inquiry shall include a Medical Report for Determination of the age....... ".
11. As mentioned above, although the JJSO has been superseded by the JJSA, the guidance given by the honorable Supreme Court in the Sultan Ahmed case (supra) remains equally valuable.
12. It appears from the record that no proper determination of the applicant's age has been made by either the investigation officer or the trial court. The learned trial court has erred in holding that as it operates as a Sessions and Juvenile Court, there is no need to determine the age of the accused. It is important to mike such a determination on the age of the accused as the offence with which he is charged carries a potential death sentence.
13. In view of the above, the impugned order is set aside. The applicant may file a fresh application under the applicable provision of law, if he is so advised. If such an application is filed, the learned trial court is directed to first decide the same expeditiously keeping in mind the requirements of section 8 of the JJSA as well as the guidance given by the honorable Supreme Court in the Sultan Ahmed (supra) case. The suspension of proceedings in the learned trial court as ordered on 17-2-2020 is hereby recalled.