This revision is directed against the Order dated 39,2004 passed by the learned Additional Sessions Judge, Pishin whereby application flied by the accused/petitioner under Section 7 of the Juvenile Justice System Ordinance, 2000 (hereinafter referred to as "the Ordinance") for transfer of his case to the Juvenile Court, was dismissed.
2. It has been stated by the learned counsel for the petitioner that the petitioner, alongwith other accused persons, is facing trial under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with Sections 212/214/411 PPC in the Court of Additional Sessions Judge, Pishin. Since at the time of occurrence the petitioner was not an adult, therefore, an application for transfer of his case to the Juvenile Court, was submitted before the trial Court which was dismissed vide the impugned order. Earlier, since the case was being tried by the Special Court constituted under Anti-Terrorism Act, Quetta therefore, similar application was filed, in consequence whereof the said Court was pleased. to refer the matter to the Medical Board for determination of the petitioner's age and after obtaining report dated 2.9.2003 and consulting opinions of the Dental Surgeon and Radiologist, was pleaded to hold vide Order dated 2.10.2003 that petitioner's case was required to be tried by a Juvenile Court under the Ordinance". He has contended that the learned trial Judge in passing the impugned order has unjustifiably ignored the medical evidence by observing that since there was no consistency in appearance of the accused and report of the Medical Board, therefore, his case was not required to be tried by a Juvenile Court.
3. Sheikh Ghulam Ahmad, Advocate, learned counsel for the State, has candidly, conceded that while recording his "finding" though it was incumbent on the learned trial Judge to consider alongwith other evidence, the medical evidence and if he was not satisfied, would have further inquiresl into the matter but could not have substituted the same by his own opinion. He has stated that since under Section 7 of "the Ordinance" it is mandatory for the Court to hold enquiry for the purpose of determination of age of the accused, which must include the medical evidence, therefore, it was incumbent on the Court to have given due importance to the. same. He suggested that since the learned trial Judge has not adopted the proper procedure in deciding the application therefore, the case may be remanded to the trial Court for decision of petitioner's application afresh, on the basis of material available on record or if deemed appropriate after holding further inquiry.
4. It would be pertinent to mention here that since trial of an accused under the Juvenile Justice System Ordinance 2000 is dependant upon determination of his age, therefore, the Court is bound to record a "finding" to the effect within the purview of Section 7 of "the Ordinance", which reads as follows:--
5. "7. Determination of age. If a question arises as to whether a persons 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."
And since Section 7 of "the Ordinance" provides, in explicit terms, that the inquiry "shall" include a medical report, therefore, it is not optional with the trial Court to dispense with, substitute or ignore the medical evidence in determining age of the accused though certain other factors may contribute to the "finding' and help the Court in reaching at a definite conclusion qua age of the accused. Use of word shall" in the provision indicates that it is obligatory for the Court to call for and consider the medical report, that is why, in a number, of cases, the medical evidence was not only given preference over the birth certificate or record maintained by the police, but it was directed that, in order to set the controversy at rest, a reference to a competent Medical Board for examination of accused regarding his age be made. Reference in this regard may usefully be made to the cases of Sultan Ahmad vs. Additional. Sessions Judge-I PLD 2004 SC 758, Muhammad Zakir vs. The State and another 2004 SCMR 121, Hassan Zafar vs. The State P.Cr.L.J. 1930 and PLD 1972 Peshawar 27.
It would also be not out of place to mention here that primary object of the inquiry under Section 7 of "the Ordinance" is that the Court shall be able to satisfy itself that a person is really a minor and though the goal can be achieved through various modes i.e. by calling witnesses, perusing birth and educational certificates or passport etc. of the accused but there appears logic in calling for medical evidence because the same despite its incapability to determine one's "definite age" can still hint at "probable" age of the accused and thus considerably minimize, the scope of concoction, tempoering or forgery etc. which cannot otherwise, while having a recourse to other means, be ruled out.
5. From perusal of the impugned order it appears that the learned trial Judge has not given weight to the medical evidence primarily, because as per his own estimation, there was not consistency in appearance of the accused and the medical evidence. No doubt, under Section 7 of "the Ordinance" duty is casted upon the Court to give its "finding" regarding age of the accused but in doing so, a Judge should not ordinarily, express himself or use his own knowledge gained otherwise than by the means allowed to him by law. Such practice has never been approved. Even in those matters, in which, the Court otherwise is empowered, it is never desired that Judge should take upon himself such a duty. For instance, under Article 84 of the Qanoon-e-Shahadat Order, 1984 Court is competent to make comparison of the disputed handwriting with the admitted writing but it has been in a number of cases laid down that Judge should as a matter of prudence and caution hesitate to base his finding solely on comparison made by himself. In this behalf reference may be made to the cases of Sirbaland vs. Allah Loke and others 1996 SCMR 575, State (Dehli Administration) vs. Pali Ram AIR 1979 Supreme Court 14, Darshan Singh vs. Parbhu Singh and others AIR (33) 1946 Allahabad 67, Konda Sesha Reddy and others vs. Muthyala China Pullaiah and another AIR 1958 Andhra Pradesh 595 (V 45 171), Superintendent and Remembrancer of Legal Affairs, Bengal, Purna Chandra Ghosh AIR 1924 Calcutta 611. Mst. Bibi Kaniz Zainab and others vs. Syed Mobarrak Hossain and others AIR 1924 Patna 284, Azmat Ullah Khan and another vs. M. Shiam Lai and another AIR (34) 1947 Allahabad 411 and Akamat Ali Khandakar and another vs. Abdul Haji Kazi and others PLD 1957 Dacca 165.
Hence, if the learned Judge was not satisfied with report of the Medical Board or had any doubt regarding age of the petitioner he should have, instead of abrupity forming an opinion himself, further inquired into the matter or re-referred the case to the Medical Board for a second opinion.
6. Upshot of the above discussion is that the impugned order dated 3.9.2004 passed by the learned Additional Sessions Judge, Pishin is set aside and the case, with consent of the parties, is remanded to the trial Court for decision of the application filed by the petitioner under Section 7 of "the Ordinance" afresh, in accordance with law.