Through this revision petition under section 435/439, Cr.P.C. Petitioner seeks setting aside of order dated 22-2-2003 passed by learned Additional Sessions Judge, Multan by which he has directed for constitution of Medical Board before the decision on the application of the petitioner seeking for trial under the Juvenile Justice System Ordinance, 2000.
2. The brief facts of the case are that the petitioner is an accused in a murder case F.I.R. No.67 dated 9-4-2002 under section 302, P.P.C. Registered at Police Station Lahori Gate, Multan on the statement of Abdul Hafeez. Report under section 173, Cr.P.C. Was submitted. During the pendency of the trial an application was moved by the petitioner claiming therein that he is juvenile being less than the age of 18 years and his trial may be conducted under the Juvenile Justice System Ordinance, 2000. As the dispute arose between the parties about the age of the petitioner, the learned trial Judge vide impugned order dated 22-2-2003 has referred the matter to Medical Board for determination of the age of the petitioner.
3. Learned counsel for the petitioner contends' that during the investigation cogent evidence was produced about age of the petitioner which was duly verified by the D. S. P. After visiting the office of Intermediate and Secondary Education and only then the petitioner was declared aged about 17 years, 7 months and 21 days at the time of commission of the offence, but in spite of definite opinion of the police about the age of the petitioner the matter has been referred to Medical Board unnecessarily as the opinion of the Medical Board cannot be preferred over the matriculation certificate. He has relied upon (PLD 2003 SC 1) titled as Muhammad Ajmal v. The State through Advocate-General, Punjab. It is further argued that the Robkar issued to Medical Board for conducting medical examination contains that according to the version of the complainant party the petitioner is aged about 21/22 years while the petitioner claims him to be 17 years, 7 months and 21 days old and as such the Medical Board has been indicated to decide the age of the petitioner in between the same, where for the petitioner does not expect independent opinion from the Medical Board as his case will be seriously prejudiced.
4. I have heard the learned counsel for the petitioner at length and also gone through the impugned order. Referring the matter to Medical Board is in accordance with section 7 of Juvenile Justice System Ordinance, 2000, which provides that 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. As the word 'shall' has been used in the said section, therefore, before forming the opinion as a result of the inquiry for determination of the age, referring the matter to Medical Board is mandatory which cannot be declared as illegal and unlawful as has been prayed in the present petition. The contention that the police has already verified the age of the petitioner and there was no need to refer the matter to Medical Board is repelled as the inquiry has to be conducted by the Court and the police opinion is not binding on the Court. As regards the contention that the Medical Board will be prejudiced due to contents of the Robkar issued by the Court, I am of the view that it only contains the dispute necessitating for constitution of the Medical Board, which has to give its reports about the age of the petitioner on the basis of certain tests required for the purpose and as such this contention is also repelled. As far as the contention of the learned counsel for the petitioner that Saza Slip finally prepared in this case contains the age of the petitioner as 17 years, 7 months and 21 days which should be admitted as correct is concerned, it is held that the contents of 'Saza Slip' cannot be accepted as a conclusive proof regarding age of the petitioner as admittedly during the inquiry the dispute arose between the parties about the age of the petitioner.
Admittedly, the police has recorded different age of the petitioner in Zimini No. 1 and Zimini No. 15 and contention of learned counsel for the petitioner that finding of the police contained in Zimini No. 15 being later in time should be preferred is misconceived as on the one hand the police opinion is not binding on the Courts and on the other hand in case of any dispute regarding age the report of the Medical Board is mandatory. At this stage the learned counsel for the petitioner has stressed that since the School Leaving Certificate was produced by the complainant himself during the investigation, hence it should be preferred. I have noticed that the complainant is objecting the age of the petitioner in the Court, hence, this ground is not available to the petitioner.
This petition is premature as inquiry is still in progress and the learned trial Court will definitely consider all the grounds at the time of deciding the matter finally whether the petitioner was juvenile or not?
5. For the foregoing reasons, I do not find any merit in this petition, which is dismissed in limine.