' This revision is directed against the order, dated 3-9-2004 passed by the learned Additional Sessions Judge, Pishin, whereby application filed 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, along with 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, P.P.C. In the Court of Additional Sessions Judge, Pishin. Since at the time of occurrence the B 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 pleased 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 along with other evidence, the medical evidence and if he was not satisfied, would have further inquired 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 therefor, 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:-- "7. Determination of age. --- 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."
' 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 v. Additional Sessions Judge-I PLD 2004 SC 758; Muhammad Zakir v. The State and another 2004 SCM R 121; Hassan Zafar v. The State 2001 PCr.LJ 1930 and PLD 1972 Pesh.
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, tampering 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 no consistency in appearance of the accused and the medical evidence. No doubt, under section 7 of "the Ordinance" duty is cast 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 Qanun-eShahadat 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 v. Allah Loke and others 1996 SCM R 575; State (Delhi Administration) v. Pali Ram AIR 1979 SC 14; Darshan Singh v Parbhu Singh and others AIR (33) 1946 Allah. 67; Konda Sesha Reddy and others v. Muthayala China Pullaiah and another AIR 1958 Andh.
Pra. 595 (V 45 171); Superintendent and Remembrancer of Legal Affairs, Bengal, Puma Chandra Ghosh AIR 1924 Cal. 611; Mt. Bibi Kaniz Zainab and others v. Syed Mobarak Hossain and others AIR 1924 Pat. 284; Azmat Ullah Khan and another v. M. Shiam Lal and another AIR (34) 1947 All. 411 and Akamat Ali Khandakar and another v. Abdul Hai 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 abruptly 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.