' FAZAL-E-MIRAN CHAUHAN, J.---By filing this Criminal Revision, the petitioner has challenged the order dated 19-4-2005 passed by the Additional Sessions Judge, Kehror Pacca, whereby the application of the petitioner was dismissed for separate trial being minor under Juvenile Justice System Ordinance, 2000.
2. The brief facts of the case giving rise to the instant criminal revision are that the petitioner/accused Shaher Yar alias Shahri submitted an application along with school leaving certificate for separation of his case under Juvenile Justice System Ordinance, 2000 and maintained that he was 16 years of age at time of alleged occurrence. He is still 18 years; therefore, the case of the accused/petitioner comes within the ambit of Juvenile Justice System Ordinance, 2000 and prayed that his trial may be separated from the co-accused.
3. The prosecution denied the version of the petitioner and argued that the petitioner was adult at the time of alleged occurrence and in order to resolve the controversy between the parties on the application of the petitioner following issue was framed:-- "Whether the petitioner, accused Shaher Yar alias Shahri was adult at the time of commission of alleged offence? 0.P.Ps."
' The prosecution produced Muhammad Ashraf, Secretary Union Council No.55, Amirpur Saddat as A.W.1 and learned counsel for the complainant also produced certificate for preparation of Identity Card Exh.P.2, copy of birth certificate Exh.P.1. On the other hand the petitioner, accused tendered in evidence report of ossification Exh.R.1, school leaving certificate Exh.R.2 and copy of F.I.R. Marked-A.
The learned trial Court while deciding the issues observed that the birth certificate had more evidential value than the expert opinion and rejected the application of the petitioner vide impugned order.
4. It is argued on behalf of the petitioner that the order of the learned trial Court is contrary to the law and against the principle of natural justice. The learned trial Court committed grave error while rejecting the application of the petitioner for separation of challan. It is further argued that according to section 7 of the Juvenile System Ordinance, 2000, while determination of age, if a question arises as to whether an accused before the Court is a child for the purpose of this Ordinance, the Court shall record a finding after such inquiry, which shall include a medical report for determination of age of the child. So the mode for determination of age had not been rightly followed by the trial Court by omitting to consider the medical report. It is further argued that the birth certificate obtained by the complainant is bogus because Nazim Ghulam Mustafa Shah and Chowkidar Syed Mulazim Hussain Shah and complainant are closely related and they in order to favour the complainant had got issued a forged document. Learned counsel for the petitioner relies on Sadeeque Khan v. The State (2004 YLR 2847), wherein the learned D.B. Of Peshawar High Court declared that the best test for determination of age is ossification and report of Radiologist.
In the present case as, per ossification and report of Radiologist, the petitioner was declared to be about 17 years on 29-1-2005, according to which he was found below the age of 16 years at the time of alleged occurrence. Similar view was taken by the Hon'ble Supreme Court in Sultan Ahmad v. Additional Sessions Judge and others (PLD 2004 SC 758 and in Mst. Shabana Kausar A v. Farhan Ahmed and others (2003 PCr.LJ 1507).
5. Learned counsel for the respondent No.2 argued that the impugned order passed by the trial Court does not suffer from any illegality or irregularity. The learned trial Court while passing the impugned order rightly relied upon Exh. P.1, which is a public document and is admissible by virtue of Order 49 of the Qanun-e-Shahadat Order, 1984.
6. I have heard learned counsel for the parties and perused the record. The learned trial Court while deciding the application of the petitioner mainly relied upon the birth certificate produced by respondent No.2. The two documents produced by the petitioners i.e. School leaving certificate and the ossification report submitted by the Board dated 29-1-2005 declaring the petitioner to be of 17 years of age on 29-1-2005 according to which the age of the petitioner is apparently below 18 years in any case.
7. The case was registered against the petitioner and others on 20-8-2004 with P.S. Kahror Pacca on the complaint of Syed Ali Shah. The case of the petitioner is that on the day of occurrence dated 20-8-2004 his age was below 18 years.He produced school leaving certificate and ossification report of the Medical Board and of Radiologist declaring him to be of 17 years of age on 29-1-2005.
The school leaving certificate also shows him to be below 18 years on the day of occurrence. The documents produced by the complainant show the petitioner to be above 18 years of age on 28- 8-2004. To reach the just conclusion that Court to have the accused medical examined by the competent Board. In such situation relying of the trial Court on some document authority of which is challenged and the objection raised cannot be ruled out. The right course was adopted. The best test to my mind determination of age is ossification and report of Radiologist, because there is a rare chance of wrong decision because the same is based upon result given by the highly technical and advance equipment. Thus as already held by the Hon'ble Supreme Court of Pakistan that best test for determination of age is ossification and report of Radiologist. The criminal revision is allowed and the order dated 19-4-2005 of the trial Court is set aside. The application of the petitioner is allowed as prayed for.
Revision petitioner