' Through this petition, the petitioner has made the following prayer:- "it is most respectfully prayed that impugned order, dated 25-2-2003 regarding the determination of the age of the accused without medical examination may graciously be set aside and the trial Court be directed to get the accused medically examined in consonance with the provision contained in section 7 of the Juvenile Justice System Ordinance, 2000."
2. The relevant facts leading to this petition are as follows: Imroze Khan, who was an army personnel, lost his life due to firing caused by Muhammad Imran/ respondent No,2-accused and on that regard, case F.I.R. No,334 was registered at P.S. Civil Lines, Bahawalpur, on 12-9-2002 for offence under section 302, P.P.C. At the instance of Subedar Sabir Ali/petitioner-father of the deceased.
3. Muhammad Imran-accused moved an application on 8-1-2003 before the learned Trial Court, claiming therein that he was juvenile on the date of occurrence and, thus, he should be tried as a juvenile in accordance with the provisions of the Juvenile Justice System Ordinance, 2000 (hereinafter to be referred as the Ordinance or Juvenile Justice System Ordinance). The petitioner, who is also an army personnel, moved an application on 17-2-2003 before the learned trial Court, with the prayer that the accused be referred to a Medical Board, which should include a senior doctor of Artny Medical Corps. The accused/ respondent No,2, in support of his application, placed on record three school leaving certificates issued by three different schools, wherein he had been studying. The date of birth of respondent No,2, as mentioned in the school leaving certificates, was 1-1-1985. Respondent No,2 also placed on record the original Form 'B' ( ) maintained under section 4(1)(b) of the National Registration Act, 1973, wherein his date of birth was recorded as 10-10-1985.
4. Muhammad Imran-accused, while in custody, was got examined from a Medical Board by the police, after obtaining orders from the Magistrate, on 30-9-2002. According to the opinion of the Board, the age of Muhammad Imran was about 19 years.
5. In the interest of justice and at the instance of petitioner/complainant, the learned trial Court also perused the original record relating to the certificates placed on record by the accused, which were found to be genuine. After scanning the entire evidence and inquiry. The learned trial Court, through an elaborate order, recorded the finding that Muhammad Imran-accused was a juvenile.
As a sequel to that, the application of respondent/accused was accepted, while that of the petitioner/ complainant was dismissed. Hence, this petition.
6. During the course of hearing of this petition, in order to. Elicit the truth, on 23-1-2004, Medical Superintendent, BV Hospital, Bahawalpur, was directed to get Muhammad Imran examined by a duly constituted Medical Board to ascertain his age. In compliance with the said order, Muhammad Imran was examined by the Board on 14-2-2004 and according to the opinion of the Board, his age was between 19-20 years. As Muhammad Imran was an employee of a private security agency at the time of alleged occurrence, his service record was requisitioned through the learned A.A.-G., which has been placed before us.
7. Learned counsel appearing on behalf of the petitioner argued that the schopl leaving certificates were not reliable evidence; that the respondent/accused made a desperate attempt to obtain certificates from different schools in order to prove that he was juvenile at the time of occurrence; that there was a controversy between the dates of birth in the school leaving certificates, i.e, 1-1- 1985, and Form 'B' ( ), i.e, 10-10-1985 that according to the certificates issued by the Tehsil Municipal Administration, the date of birth was not recorded in the Birth Register of defunct Municipal Corporation; that the learned trial Court passed the impugned order on the basis of fake documents; and that according to the opinion of the Medical Board, which examined Muhammad Imran on 30-9-2002, the accused was about 19 years on the date of occurrence. Conversely, learned counsel for the respondent/accused has argued that original record relating to the certificates was perused by the learned trial Court and after perusal of the record, the same were found to be genuine; that according to the date of birth given in school leavine certificates and in Form '13', the accused, being less than 18 years of age, was a juvenile within the meaning of Juvenile Justice System Ordinance; that examination of the accused, while he was in the custody of police, could not be considered for the purposes of determination of age, as the same was conducted in compliance of an executive order and not under the direction of the learned trial Court as envisaged by section 7 of Juvenile Justice System Ordinance. Learned A.A.-G. Submitted that a perusal of the opinion of the Medical Board, . Which examined Muhammad Imran/accused under the directions of this Court, reveals that he was below the age of 18 years on the date of occurrence.
8. We have heard the learned counsel for the parties at a great length and have gone through the available record.
9. In order to better appreciate the arguments of the learned counsel, we feel it expedient to reproduce section 7 of the Juvenile Justice System Ordinance (JJSO) hereunder:-- '(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 age of the child."
' On our direction, Muhammad Imranrespondent/accused was examined by a Medical Board consisting of specialists working at B.V. Hospital, Bahawalpur. According to the opinion of the Board, the age of the accused on the date of examination was 19-20 years. The occurrence took place on 12-9-2002. Thus, the age of the accused in the light of the medical opinion would lie between 17 years seven months or 18 years seven months. There is consensus on the point that margin of error in determination of age through medical examination was about one year. The benefit of doubt, if any, is to be given to the accused and in case of two possibilities, the Court should tilt in favour of the accused for the purposes of determination of age. As far as the earlier examination of the accused by the Board, dated 30-9-2002 is concerned, the same was conducted, as already noted above, under the executive order and the same could not be considered for the purposes of section 7 of Juvenile Justice System Ordinance. We are fortified in our view by placing reliance on Ziaulalh v. Najeebullah and others (PLD 2003 SC 656), wherein it was observed by the apex Court as follows:-- "Essentially question relating to determination of the age of such claimant in terms of section 7 of the Juvenile Justice System Ordinance, 2000 can only be determined by a judicial forum because it is a question of fact which can be settled judiciously for the purpose of treating the accused to be juvenile offender. As far as Executive Authority or any Committee constituted by them is concerned, it enjoys no power to discharge the judicial function. If they are allowed to do so, it would be negation of the concept of independence of judiciary..."
' The evidence in the shape of school leaving certificates and Form '13' of National Identity Card also supports the claim of the accused/respondent that he was juvenile at the time of occurrence. We have also perused the record furnished by the Security Services of which accused was an C employee at the time of occurrence. It consists of the school leaving certificates and Form 'B', which have already been discussed. So there is no need to refer to the record of the Security Service further.
10. The upshot of the whole discussion is that we are of considered opinion that Muhammad Imran- accused/respondent No,2, being less than eighteen years on the date of occurrence, was a juvenile.
11. Resultantly, this petition is found to be without any substance and the same is dismissed, with no order as to costs.