' The petitioner is accused of commission of offence under section 302, P.P.C. Vide case F.I.R. No,435, dated 20-11-2002 at Police Station City Burewala, District Vehari. After completion of necessary investigation, the petitioner was sent up for trial. The learned Additional Sessions Judge, Burewala framed the charge on 13-6-2003. Evidence of the prosecution has been recorded and the defence evidence is being recorded.
2. On 27-11-2004 the petitioner filed an application before the learned Additional Sessions Judge stating that he was a juvenile at the time of occurrence. The learned Additional Sessions Judge ordered a medical test to be conducted by an approved Board. A report was filed stating that the age of the petitioner is between 20/21 years as on 7-2-2005. The petitioner relied upon a Birth Certificate, according to which, his date of birth is 4-2-1985 and another Birth Certificate of his brother who is stated to have been born on 13-2-1984 and the original Nikah Nama of his parents, according to which, the Nikah was performed on 20-9-1983. The respondent party relied upon a copy of Matriculation Certificate wherein his date of birth is recorded as 13-11-1983. A voter list containing his name issued on 1-1-2002 and an admission form for Matriculation Examination stating the same age as in certificate. The learned Additional Sessions Judge proceeded to dismiss the application vide order, dated 25-2-2005.
3. Learned counsel for the petitioner urges that without recording a finding of course, after some inquiry that the documents relied upon by the petitioner are forged or fabricated, the learned Additional Sessions Judge discarded the same. According to learned counsel it was not at all safe to rely upon the medical report and if at all it was relied upon then it should have been read in a matter beneficial to the petitioner. Regarding the Matriculation Certificate it is being stated that in juxta position a birth certificate, the latter document is to prevail.
4. Learned counsel for the respondents, on the other hand, contends that the medical report is not reliable. He in fact alleged that a Medical Board in favor of the petitioner was got constituted.
According to him, the Matriculation Certificate is more reliable than the said birth certificate and the Nikah Nama.
5. I have gone through the copies of records. I find that after entertaining the application, the learned Additional Sessions Judge proceeded with the trial and recorded evidence of the prosecution as well as the statement of the accused and the defence evidence. Side-by side he was conducting proceedings in the application. I have examined the impugned order. He has not given any reason recognized by law for disbelieving the Birth Certificate and Nikah Nama. I am a bit shocked at A his observation that the Birth Certificate entries have no sanctity in this country. He is wrong. Unless and until proved to be forged or fabricated; the birth entry does constitute evidence of its contents. On the other hand, he has accepted the Matriculate Certificate. He has opted to count the age backward from 21 years with reference to the Medical Board and without mentioning as to why he is not doing so from 20 years. I may note here that it is by now settled that the age recorded in the Matriculation Certificate is not conclusive evidence of age. Reference be made to a Division Bench judgment of this Court in case of Malik Ghulam Dastgir v. S.M.A. Kazmi, Secretary, Government of West Pakistan, Food Department, Lahore and another PLD 1970 Lah.
33. So far as the medical report is concerned, both the learned counsel are stating that it was not reliable for their own reasons.
6. Now the position that emerged on record is that there are some documents produced by the petitioner and some by the prosecution. It was the duty of the learned Additional Sessions Judge to have summoned the record pertaining to the Birth Certificate as also the Nikah Nama to satisfy himself as to their genuineness and similarly to have summoned C the records pertaining to the Matriculation Certificate being relied upon by the prosecution, as held by the Honourable Supreme Court of Pakistan in the case of Sultan Ahmad v. Additional Sessions Judge-L Mianwah and others PLD 2004 SC 758.
7. This criminal revision is allowed, the impugned order dated 25-2-2005 of the learned Additional Sessions Judge is set aside and he is directed to proceed further in the matter as follows:--
(i) To order a medical examination by a duly approved Board or by a Board to be constituted by the head of Nishtar Hospital, Multan.
(ii) to summon the records pertaining to the Birth Certificate and the Nikah Nama produced by the petitioner, and
(iii) to summon the record pertaining to the Matriculation Certificate or any other document being relied upon by the prosecution and after examining the said record to decide the matter after considering each piece of evidence.
' A copy of this order along with the records be immediately remitted to the learned trial Court.