' KHAWAJA MUHAMMAD SHARIF, J---In continuation of my order dated 21-9-2005, learned counsel for the petitioner submits that according to the School Leaving Certificate and the Birth Certificate produced by the respondent his date of birth is 5-10-1987, so, he was about sixteen years of age at the time of occurrence; that according to the report of the Medical Board dated 9-3-2005 age of the respondent has been given as 21/22 years; that the Board has further opined that definite age of the respondent cannot be given and that in support of the above submissions he would rely on 2003 PCr.LJ 1889, 2002 SCM R 440, 2003 YLR 321 and 2002 PCr.LJ 2034.
2. On the other hand Ch. Muhammad Hanif Khatana, the learned Additional Advocate-General Punjab, submits that the respondent is involved in 4/5 other criminal cases of heinous nature but he has not taken the plea of minority; that according to the report of the Medical Board age of respondent is 21/22 years and that the Medical Report has to be preferred over other documents.
3. While advancing his arguments, learned counsel for the petitioner, in continuation of my earlier order dated 21-9-2005, further contends that the Hon'ble Supreme Court of Pakistan has laid down guidelines for determination of the age of accused during trial and has declared the medical opinion mandatory keeping in view the provisions of section 7 of the Juvenile Justice Systems Ordinance, 2000. In this regard he has placed reliance on 2004 SCMR 758.
4. I have heard learned counsel for the parties, have given consideration to the submissions made at the bar and have. Also gone through the precedent case-law cited at the bar.
5. According to the School Leaving Certificate and Birth Certificate of the respondent, his date of birth is 5-10-1987. When a dispute arose between the parties regarding age of the respondent, the learned trial Court, to reach at a just decision of the case, ordered constitution of Medical Board, according to which report dated 9-3-2005, respondent's age was given as 21/22 years but further opined that exact age cannot be determined. Learned counsel for the respondent has laid much stress on these words of approach.
6. In my view, if opinion of the Medical Board given by five doctors is taken into consideration in its entirety difference of six months to one year can be taken note of on either side. If that difference is cOnsidered even then respondent's age at the time of occurrence still remains more than eighteen years i.e, the date of occurrence is 29-9-2003, Medical Board gave opinion on 9-3-2005 who declared the respondent as 21/22 years of age meaning thereby that if the intervening period (from the date of occurrence and date of medical examination i.e, one and a half year) plus a further possible difference of one year (on either side) is calculated then the respondent is still more than eighteen years of age and he is a major for all intents and purposes. The precedent case-law relied upon by the learned counsel for the respondents is distinguishable and is not applicable in the facts and circumstances of the present case. The judgment of the august Supreme Court of Pakistan cited by the learned counsel for the respondent in support of his submissions is 2002 SCM R 440. I have gone through the same and find that no Medical Board was constituted in the said case.
7. To reach at a just decision of the point mooted in this revision petition, it is imperative to quote the mandatory provision of law i.e, section 7 of the Juvenile Justice Systems Ordinance, 2000 which reads as under:-- "7. Determination of age.---If a question arises-'as to whether a person before it is a child for the purposes of the Ordinance, the Juvenile Court shall record a finding after such inquiry shall include a medical report for determination of the age of the Child."
8. The matter of determination of age of an accused, in a criminal trial, came up for consideration before the apex Court of the country in the judicial hierarchy in a recently delivered judgment reported in Sultan Ahmad v. Additional Sessions Judge-I, Mianwali and 2 others (PLD 2004 Supreme Court 758), wherein, at page 767, the august Supreme Court of Pakistan commented as under:- "24 We know it by now from the judicial precedents that the purpose of holding an inquiry, amongst others, is to determine the existence or non-existence of a fact or the falsity or correctness thereof and further that aif inquiry is a judicial proceeding in which evidence could be legally taken.
' Therefore, whenever a Court is confronted with the question of age of an accused person, it is incumbent upon it to hold an inquiry and the learned Presiding Officers should always feel free to requisition the original record; to summon and examine the authors and the custodians of such record and documents to determine the genuineness of the same; to summon persons, if need be, who on account of some special knowledge, could depose about the age of the concerned accused person and to take such other and further steps which could help the Court in reaching a just conclusion about the age of the concerned accused person and to take such other and further steps which would help the Court in reaching a just conclusion about the said matter. As has been mentioned above, the issue about the age of an accused person at a trial which could result in a punishment of death, was now of vital significance and the learned Presiding Officers should never hasten to decide the said issue in summary or in a slipshod manner.
25. Medical report about the age of an accused person was a further aid placed at the disposal of a Court of law for the purpose of determining the age of an accused person.. The opinion of medical experts could offer a valuable guide to a learned Presiding Officer in resolving the controversy in issue. The impression that an ossification test could be ordered only as a last resort, was not correct and thus not legally tenable. The reluctance of the Courts to benefit from such a mandated material was not understandable. Therefore, whenever, a question of the age of an accused person is raised or arises, he must be subjected to a medical test unless strong reasons existed or could be offered for not doing so. Such is the only course which is in accord with the provisions of section 7 of Ordinance XXII of 2000 which command that "....Such inquiry shall include a Medical Report for Determination of the age.....".
(Emphasis is ours)
' In this regard, further benefit can be gathered from a judgment of the august Supreme Court regarding determination of age of an accused during the trial reported in Naseer Ahmad v. The State (PLD 2000 Supreme Court 813), wherein, at page 815, the apex Court of the country in the judicial hierarchy, observed as under:- " It may further be noted that mere reliance on the School Leaving Certificate by the trial Judge as also by the learned Single Judge of the High Court was not enough to come to a definite conclusion as to the age of the minor at the time of the commission of the offence. Additionally for that purpose, the ossification test or any other medical test should have also been got conducted and the age of the convict appellant determined in accordance therewith and then decided the case accordingly."
' I have further been able to dig out a case on the similar footings reported in Mst. Shabana Kausar v. Farhan Ahmad (2003 PCr.LJ 1507), wherein, it was concluded as under:-- "Section 302 P.P.C.---Juvenile Justice System Ordinance, 2000.---Section 7---Appreciation of evidence---Determination of age of accused---Accused during pendency of case, filed application for determination of his age which application was accepted by trial Court and it was found that accused was juvenile and his trial should be conducted in accordance with Juvenile Justice System Ordinance, 2000---Revision against order of trial Court---Accused had claimed that according to School Leaving Certificate and Form "B" of Registration Department his age was below 18 years whereas case of complainant was that on the day of occurrence age of accused was more than 18 years---With consent of the parties Medical Superintendent of the Hospital was directed to constitute Medical Board for determination of age of accused---Medical Board concluded that age of the accused was 20 to 23 years---Medical Board having been constituted with concurrence of the parties, accused could not raise objection to the report of Medical Board and thus it was established that at the time of occurrence age of accused was more than 18 years."
9 In the afore-referred circumstances, this revision petition is allowed, the impugned order dated 14-9-2005 passed by the learned Additional Sessions Judge, Faisalabad is set aside and the respondent is declared to be major under the Juvenile Justice System Ordinance, 2000 for all intents and purposes and his case shall be tried along with the other co-accused by the ordinary Court.
Revision .