This revision petition under section 439 read with section 561-A, Cr.P.0 filed by Syed Ghulam Mustafa Shah alias Pappa, petitioner, is directed against order dated 24-7-2003 of learned Judge, Juvenile Court, Dera Ismail Khan whereby the age of the petitioner having been determined above 18 years at the time of occurrence, the petitioner was declared major and the challan was returned to local police for submission before the Court of competent jurisdiction.
2. Brief facts of the case are that on 13-6-2002 Syed Naqi Shah complainant made a report at Police Station, Saddar, Dera Ismail Khan charging Pir Ghulam alias Aslam and Ghulam Mustafa Shah alias Pappa, petitioner, for the murder of his brother Syed Taqi Shah, a young boy of 18 years of age. The case was initially sent for trial to Anti Terrorism Court, Dera Ismail Khan , against which, petitioner filed revision in this Court praying for transfer of the case to ordinary Court. The application was accepted vide order dated 31-1-2003 and it was held that petitioner was minor at the relevant time and the case was ordered to be tried by Juvenile Court. The order of this Court was challenged before august Supreme Court of Pakistan. The Honourable Supreme Court of Pakistan while setting aside the order, held that it is for the Juvenile Court to determine the age of accused. In the light of that order, challan against the petitioner was submitted before Juvenile Court, Dera Ismail Khan where on application of counsel for the petitioner for determination of age, the petitioner was got examined by Standing Medical Board who vide its opinion dated 21-5-2003 determined the age of the petitioner as 19/20 years. The said report was resisted by complainant side and the parties were put to evidence in that respect. After recording evidence, learned Judge, Juvenile Court vide his order dated 24-7-2003 came to the conclusion that at the time of occurrence. Petitioner being above the age of 18 years, Juvenile Court was not competent to try the case and thus, challan was returned to the local police for its submission before the Court of competent jurisdiction.
3. Mr. Sanaullah Khan Gandapur, Advocate for the petitioner stated at the bar that since case has already been transferred to the Court of ordinary jurisdiction by order of this Court dated 14-5-2004 passed in Writ Petition No,160 of 2003, therefore, he will argue the case on the point of age only. He maintained that the petitioner was less than 18 years of age at the time of occurrence and learned trial Court has proceeded on wrong premises to place implicit reliance on ossification test report and ignore other documents i,e,, School Leaving Certificates and Kabin Nama dated 25-5-1984, which has materially -prejudiced the interest of the petitioner. In this regard, he placed reliance on Afsar Zamin v. The State (PLD 2002 Karachi 18). Muhammad Akram. v. Muhammad Haleem (2002 PCr.L.J 633 Lahore) and Muhammad Hayat, v. Muhammad lqbal (2002 PCr.LJ 1237 Lahore).
4. Mr. Muhammad Sharif Chaudhari, learned Deputy Advocate General for the State assisted by Mr. Muhammad Karim Anjum Qasuria, Advocate for the complainant while supporting the impugned order, maintained that learned lower Court has rightly relied upon ossification test and X-ray report of the petitioner for the purpose of determining the age of the petitioner by giving preference to it over school leaving certificates and Kabin Nama in question and the impugned order hardly calls for interference of this Court in its visitorial jurisdiction. To augment the contentions, reliance was placed on Arshad Razzaq v. The State (1998 PCr.LJ 1331 Shariat Court (AJ&K) and Muhammad Zakir v. The State and another (2004 SCMR 121).
5. Section 7 of Juvenile Justice System Ordinance, 2000 provides that if a question arises as to whether a person before it is a child for the purpose of the said 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:
6. Learned counsel for the petitioner mainly stressed that while determining the age of the petitioner, school leaving certificates reflecting the age of the petitioner and Kabin Nama dated 25-5-1984 written at the time of marriage of parents of the petitioner, should have been given preference and there was no need of proceeding further with the matter through asking of the medical report and making the same a basis of the impugned order. The submission of the learned counsel does not carry weight. The evidence led on behalf of the petitioner is highly discrepant and has been ignored and kept aside for valid reasons. The Kabin Nama also does not lead to a correct conclusion. It has not been proved satisfactorily. A relevant excerpt from the order of learned trial Judge is reproduced below in extensor:- It is the statement of the father of accused that the accused has studied in various schools.
Originally he was admitted to Government Primary School Basti Saidan where his date of birth was recorded as 10-12-1985. Later on he was shifted to Pasban Public School where he studied from 1st to 5th class. Then he attended Telecom Public School for 6th class after which he was shifted to Government High School Mandhran Saidan wherein he studied up to 8th class. In cross examination he was shown the certificate issued for Pasban Public School where his date of birth was recorded as 13-8-1989. He was also shown a certificate issued by Hira Public School were his date of birth was recorded as 25-12-1988. Similarly, he was shown a certificate issued by Headmistress Government Primary School New Basti Saidan wherein the date of birth of the sister of the accused namely Quratul Ain was recorded as 14-8-1988. Although the father of the accused in his Court statement deposed that the date of birth of the said daughter is 18/19 years. PW-1 could not confirm or deny the dates of birth recorded in all these Institution although all these were attended by the accused. The complainant brought to the Court a copy of Electoral Roll attested by Assistant Election Commissioner, Dera Ismail Khan, whereby accused Ghulam Mustafa Shah son of Zile Hasnain Shah has been entered as voter at serial No,449 and his age has been shown as 21 years.
From all this record it is crystal clear that the accused and his father has not been consistent in declaring his date of birth throughout his academic career. He has been attending more than five different educational Institutions and it is a matter of record that in all these educational Institutions his date of birth has been recorded differently. He has been changing his date of birth wherever it suited him. When it came to registration as a voter, he declared his age as 21 years, but when it comes to admission in the schools, he changes his date of birth. In this background, in my view, the only authentic method of determination of his age is the X-ray of bones called ossification test. It is now a matter of record that age of a person can be determined through these tests up to 60/70 years because various bones, feus while the advancement in age and by determining the fusion of a particular bone, the Radiologist can determine the age with very little variation. The X-ray report available on file is very clear which has found that ulna lower end was found fused which in boys happens as 18/19 years. The X-ray has also found lower end of the radius bone to have fused 80% and since 100% fusion of this bone would mean that the subject has attained the age of 20 years, therefore, the Radiologist opined that accused Ghulam Mustafa Shah has crossed 19 years; but has not yet attained the age of 20 years. This report is not only clear and in detail but by describing the fusion of various bones, it inspires confidence. Hence, I am of the view that in the presence of all the confusing certificates attributing various dates of birth to the accused, it is safe to rely upon the report of the Radiologist only. In this view of the matter, I am of the view that on 21-5-2003, accused Ghulam Mustafa Shah was between 19 and 20 years. Although the radius bones were fused up to 80% and the age should be calculated nearer to 20 yet to be on the safe side, I take it as 19 years and 6 months on 21-5-2003. The occurrence took place on 13-6-2002, hence, he was above 18 at the time of the occurrence and was thus major".
7. No doubt it is true that provisions of section 7 of Juvenile Justice System Ordinance, 2000, are not to be invoked in each and every case mechanically, rather it is only where a question with respect to the age of an accused cannot be answered through any documentary evidence that an inquiry is called for under the said law. Further the ossification test could only give a clue as to the age but could not be a conclusive proof and as such exercise had to be resorted only when there was no other proof available like school leaving certificate or the birth certificate of the child. In the instant case, as mentioned above, there was no convincing and reliable evidence before learned trial Judge to determine the age of the petitioner and in the circumstances, he was left with no alternative but to rely upon the report of Standing Medical Board duly constituted in pursuance to the orders of the Court and make the same, a basis of his finding. The report of Medical Board has been rightly given preference over other documents i,e,, school leaving certificates and Kabin Nama and the age of the petitioners has been validly determined above 18 years at the time of occurrence. No prejudice seems to have been caused to the petitioner.
8. Truly, ossification test though a better guide to age of a person, yet not an accurate estimate.
Margin of one year on either side is possible as held by the superior Courts. In this case, benefit of margin has been given to the petitioner.
9. The case law cited on behalf of the petitioner is distinguishable and proceeds on different facts.
It does not promote the case of the petitioner in any manner.
10. The impugned order is not illegal or perverse. Under the circumstances, there is no justification for interference in exercise of revisional jurisdiction of this Court. The revision petition is accordingly dismissed.