' IJAZ AKMAD CHAUDHRY, J.- Through this Criminal Revision filed under sections 435/439, Cr.P.C., the petitioner has challenged the order, dated 22-2-2007 passed by the learned Additional Sessions Judge, Lahore, whereby he has accepted the application moved by the respondent No.3 (accused) and declared him as a juvenile under the meaning of Juvenile Justice System Ordinance, 2000. The said petition was admitted for regular hearing on 16-3-2007, when the learned counsel for respondent No.3 also put in appearance and the case was fixed for today for final hearing.
2. The learned counsel for the petitioner has contended that according to the certificates of Union Council No.24, which is at page No.82 of this petition, the date of birth of respondent No.3 was recorded as 13-4-1984 and the certificate got issued from the central computerized record of City District Government Lahore also find mention the same entry and both these certificates show that at the time of incident, the petitioner was more than 18 years of age and not a juvenile; that according to the report of Medical Board, the age of the petitioner could be .Presumed in between 19 to 22 years which also tallies with the age mentioned in the Birth Certificate; that in Sultan Ahmed v. Additional Sessions Judge-!, Mianwali and others (PLD 2004 SC .758) the Honorable Supreme Court has held that the plea of minor age of an accused raised at the belated stage should always be seen with doubt; that respondent No.3 had also got issued NIC according to which his date of birth was 12-12-1982 and it also shows that he was major at the time of the occurrence; that not only respondent No.3, but his two real brothers had also applied for NIC on the same day, and they were also issued NICs, which have never been challenged and they are using the same for their purposes; that the respondent-accused had taken inconsistent pleas even during the inquiry and he cannot be termed as a truthful in claiming him to be juvenile at a belated stage; that he got entered his date of birth in U.C. No.24 and U.C. No.22 13-3-1987 on different dates without any reason; that if birth entry of respondent No.3 had been made in one Union Council on the following day of his birth, then there was no need to get recorded his date of birth in another Union Council after more than 16 years on 31-12-2003, which would show that even both the entries were bogus and manoeuvred to falsely claim him juvenile; that the respondent No.3 himself admitted through his application dated 2-11-2005 moved to the NADRA that NIC had been issued in his favour wherein he had written his wrong date Of birth for the purpose to get his driving licence; that respondent No.3 is proved to have been playing fraud in showing him of different age; that the learned trial Court has committed material . Illegality while declaring respondent No.3 as minor against the evidence on the record, which order may be set aside and the application filed by respondent be dismissed.
3. On the other hand, the learned counsel for respondent No.3 (accused) has contended that all the points raised by the learned counsel for the petitioner have been thoroughly discussed by the learned trial Court and detailed reply thereto has been given in the impugned order; that there was conflict in both the parties, regarding the age of respondent No.3; that the very issuance of NIC in favour of,respondent No.3 could not be proved on record and he had been defrauded in this regard; that the petitioner failed to prove that respondent No. 3 had signed or put his thumb impression on the form submitted to NADRA; that Haji Bashir Ahmad denied the attestation of said form; that respondent No.3 was not matriculate as claimed in the form and after ruling out of all these documents only report of Medical Board is on record, which has rightly been considered by the learned trial Court from the lower end for declaring respondent No.3 as juvenile and according to it respondent No.3 was 17 years and 11 months of age at the time of incident. The learned counsel has placed reliance on 2000 PCr.LJ 1985, 2001 YLR 3096, 2005 YLR'821, 2006 YLR 10, and 2006 PCr.LJ 211.
4. The learned Additional Prosecutor General appearing on behalf of the State has supported the arguments of learned counsel for the petitioner.
5. I have heard the arguments advanced by the learned counsel for the parties and perused the record with due care and caution.
6. The occurrence in the present case had taken place on 18-9-2004 and . Respondent No.3 was alleged to have caught red handed at the spot. The case was registered against respondent No.3 under sections 302,- 392, 393 and 411, P.P.C. At Police Station Misri Shah vide F.I.R. No.587 of 2004 on the statement of the petitioner. Then after the submission of the report under section 173, Cr.P.C.
The copies required under section 265-C, Cr.P.C. Were supplied to respondent No.3 (accused) and charge was framed on 8-4-2005. The case was fixed for prosecution evidence when on 27-6-2005, after about 9 month' of the occurrence, respondent No.3 moved an application before the learned trial Court for the determination of his age and send the case for trial under Juvenile Justice System Ordinance relying upon the birth certificate and school leaving certificate, according to which the date of birth of respondent No.3 (accused) was recorded as 13-3-1987 and thus he was less than 18 years of age at the time of the alleged occurrence. Thereupon the learned trial Court as required under section 7 of the Juvenile Justice System Ordinance, 2000, initiated an inquiry.
Then on 11-7-2005 the petitioner moved an application that respondent No. 3 had already got issued computerized National Identity Card from NADRA, which fact was concealed from the Court and he got prepared forged documents to claim him juvenile. The learned trial Court got verified the record of NADRA through the S.H.O. And it was found that the date of birth was entered as 12-12- 1982. In view of the controversy regarding the age of respondent No.3, the learned trial Court referred the matter to the Medical Board for the determination of age of respondent No.3 and vide report dated 27-10-2005 made by the Medical Board constituted by the Medical Superintendent, Jinnah Hospital, Lahore the age of respondent No.3 was opined to be between 19 to 22 years. The learned trial Court after declaring that respondent No.3 was not juvenile dismissed the application vide order dated 29-10-2005.
7. The aforesaid order was challenged before this Court by filing Criminal Revision No.905 of 2005 and after hearihg both the parties, it was found that the learned trial Court had dismissed the application of respondent No.3 only on the basis of medical report without summoning the original record from the relevant departments regarding the documents produced by the petitioners to ascertain its authenticity and relying upon the case- law declared by the Honorable Supreme Court in Sultan Ahmad v. Additional Sessions Judge-I and others (PLD 2004 SC 758), vide orders dated 27-1-2006 the Criminal Revision was accepted and the case was remanded with th$ following observations :- "***that the application moved by the petitioner for declaring him juvenile, shall be deemed to be pending adjudication before the learned trial Court, which shall decide the same afresh within one month from the receipt of this order after summoning the original requisite record from the concerned department to ascertain. The genuineness of the documents relied upon by the petitioner. The record of NADRA regarding alleged issuance of NIC to the petitioner as claimed by the opposite side will also be considered. The report of the Medical Board will be considered in the context of result of the inquiry."
8. After the remand of the case on 13-2-2006 the present petitioner moved an application for summoning the record of birth entry ' of respondent . No. 3 and produced copy of Birth Certificate according to which respondent No.3 had born on 13-4-1984. A copy of computerized record was also produced showing the same entry. The learned trial Court recorded the statement of Muhammad Sagheer Junior Clerk, City District Government, Lahore (C.W.l),' Abdul Hameed, Secretary Union Council No.22, Lahore (C.W.2), Rana Muhammad Asif, Principal Oxford English School, 1-D, Sher Shah Road, Z-Block, Wassanpura Scheme No.2, Shadbagh, Lahore (C.W.3), Abdul Sattar, Asst. Director Legal, P.H.Q., NADRA, Lahore (C.W.4) and Niaz Ahmad Shakir Vaccinator EPI Centre Misrishah, Lahore (C.W.5). Respondent No.3 also moved an application on 11-3-2006 for summoning record from NADRA relating to the application for cancellation of NIC of the accused given by the accused Farasat Altaf dated 2-11-2005 and his brother Mubashar Altaf dated 29-11- 2005 along with enquiry proceedings being conducted by NADRA while the present petitioner moved an application praying that a birth register from Health Department, City Government, Lahore, regarding respondent No.3 starting from 13-3-1987 to 19-3-1987 Ward No.13, Halqa Faiz Bagh present Ward No.24, Serial Nos. 140 to 159 be summoned. Again the application, was dismissed by the learned trial Court, vide orders dated 13-3-2006.
9.
10. Then Criminal Revision No.232 of 2006 was moved before this Court against the dismissal of the application filed by respondent No.3. During the hearing of the same, the petitioner-complainant moved 'Criminal Miscellaneous N.519-M of 2006 for verification and summoning of the original record regarding the different birth entries of respondent No.3. At the time of the arguments the learned counsel for respondent No.3 contended that the report of the Medical Board had not been considered by the learned trial Court and learned counsel appearing on behalf of the petitioner also conceded that the proper inquiry had not been conducted. The representative of NADRA also produced photocopy of application form submitted by respondent No.3 for obtaining NIC. On the other hand it was denied if respondent No. 3 had applied for the same or affixed his thumb impressions or signatures thereon. It was offered that signatures and thumb impressions of respondent No.3 could not be got compared from the Head Office of NADRA at Islamabad. Vide order dated 21-4-2006, the aforesaid Criminal Revision was disposed of and the case was remanded while observing as under:- "6. After hearing the learned counsel for the parties and perusal of the impugned order, I am also of the view that proper inquiry had not been conducted by the learned trial Court before passing the impugned, order, which cannot be sustained in the eyes of law and is set aside.
' The learned trial Court is directed to decide the application of the petitioner-accused for declaring him juvenile afresh after summoning the original record relied upon both the parties in support of their respective claims regarding age of the petitioner, for which they can move separate applications there. Moreover, the specimen signatures and thumb impressions of the petitioner- . Accused will be obtained before the . Learned trial Court tomorrow when the main case is stated to be fixed there, for sending the same to the Head Office of NADRA, Islamabad in a sealed envelop for comparison with the signatures and thumb impressions affixed on the Form allegedly submitted by the petitioner to the NADRA for obtaining the NIC. The said report shall be submitted by the NADRA authorities at the earliest and considered by the learned trial Court while passing the fresh orders along. With the other material produced by the parties in support of their respective claims."
' Afterwards the learned trial Court recorded statements of two C.Ws. And vide ' order dated 22-2- 2007 declared respondent No. 3 as juvenile and accepted the application filed by him in this regard, which order has now been assailed by the petitioner/complainant through the instant Criminal Revision.
11. This is the third round of litigation and the parties have already been afforded sufficient opportunity to lead evidence in support of their respective claims. After having scanned all the available record, it reveals that the claim of respondent No.3 for declaring him as juvenile only rested upon on Birth Certificate and the School Leaving Certificate wherein the date of his birth had been entered as 13-3-1987. Admittedly the application in this regard had been moved by respondent No.3 before the learned trial Court after about 9 months of the alleged occurrence and after two months of framing of the charge when the case was fixed for the prosecution evidence.
No reason whatsoever was tendered in the application for moving the same with such delay. On the other hand in the police record the age of respondent No.3 was mentioned as 21/22 years.
12. I have perused Birth Certificate relied upon by respondent No.3 according to which his date of birth was entered as 13-3-1987. It is admitted position that the said entry was got incorporated in the record on 31-12-2003, the last day of the said year, with the delay of more than 16 years after the alleged date of birth on the orders of the Nazim without any sort of explanation for this long delay. Abdul Hameed, Secretary Union Council appeared as C.W.2 to prove the said Birth Certificate (Exh.C.W.1/1). During the cross- examination, he explained that the said entry had been made on the orders of Khawar Mehmood Bhatti, Nazim, on the application moved by Shahbaz Ahmad, uncle of respondent No.3. No sanctity is attached to the said delayed entry.
13. It is also strange that Niaz Ahmad Shakir, Vaccinator, EPI Centre, Misrishah, Lahore (C.W.5) was got summoned by the petitioner-complainant to prove the birth entry of respondent No.3 as 13-4- i984, who verified the Birth Certificate relied upon by the petitioner entered at Serial No,.
192. However, - during the cross- examination on the request of the learned counsel for respondent No.3, the witness produced the Birth Register relating to the year 1987 and three pages therefrom were brought on the file as Exh.,C.W.5/3 containing Serial No. 142 to 159, Entry No. 146 pertained to respondent No.3 according to which his date of birth was 13-3-1987 got entered on 14-3-1987. It is astonished to note that if the date of birth of respondent No.3 as such had already been got entered at the relevant time in the Union Council of Misri Shah, then what was the need for getting entered new entry regarding his date of birth in another Union Council on 31-12-2003 after obtaining orders from the Nazim. Even otherwise while submitting the application for declaring him as juvenile, respondent No.3 had not produced the said entry, which itself it sufficient to negate the same and the possibility cannot be ruled out that it was got entered through underhand means.
14. Similarly respondent No.3 had placed reliance on a School Leaving Certificate issued to Oxford English School, I-D. Sher Shah Road, Scheme No.2, Shadbagh, Lahore wherein 13-3-1987 was recorded as date of his birth. Rana Muhammad Asif, Principal of the said school appeared as C.W.3.
According to him, the Certificate (Exh.C.W.3/1) was issued by him in accordance with the record on the basis of the School Leaving Certificate (Exh.C.W.3/3) issued by the previous School (Al-Fatima Junior Model School, Wassanpura Scheme No.
2. Lahore).. During the cross-examination C.W.3 showed ignorance as to where the previous School was. On the other hand the petitioner/complainant also brought on record a letter dated 8-3-2006 issued by the Assistant Director (ACD) for Executive District Officer (Edu), City District Government, Lahore according to which Al-Fatima Junior Model School, Wassanpura Scheme No.2, Lahore was not registered with the Education Department as per available record^of the said office. No witness was produced in the Court who had issued the School Leaving Certificate (Exh.C.W.3/3) or could state about the existence of Al-Fatima Junior Model School, Wassanpura Scheme No.2 Lahore.
' Since the very foundation of the School Leavin'g Certificate relied upon by respondent No.3 has fallen on the ground, the date of birth entered therein cainnot be taken as a conclusive proof about the age of respondent No.3. It is also found doubtful that respondent No.3 was shown to be admitted in Class-I on 14-4-1991, when he was 1 month and four years of age and he was relieved from the School on 14-4-1996 after passing 5th class. From the above it is proved that respondent No.3 had not come to the Court with clean hands. In Sultan Ahmad v. Additional Sessions Judge-I, Mianwali and others (PLD 2004 SC 758), it was held by the Honorable Supreme Court that an adverse inference could be drawn where the claim of juvenile was claim after undue and unexplained delay. The relevant portion is reproduced as under:-- "Lastly we may add that we have seen in a number of cases that claim of hiinority was lodged by an accused person at a belated stage of trial and in certain cases even during the course of appellate proceedings. We find it difficult to approve such a conduct in the absence of any strong reason or explanation justifying such a delay. A claim of minority should be lodged at the earliest possible opportunity and preferably during the course of investigation, so that investigating officer could collect evidence in this connection for the assistance of the competent Court. And adverse interfere cduld be drawn where the concession in question was claimed ' after undue and un- explained delay. "
15. Conversely, the petitioner/ complainant' claimed that respondent No.3 had already got issued computerized NIC from NADRA wherein the date of his birth was entered as 12-12-1982. Abdul Sattar, Assistant Director (Legal), PHQ, NADRA, Lahore appeared as C.W.4, who produced the updated form of respondent No.3 (Exh.C.W.4/1-3) and complete Registration date (Exh.C.W.4/4). It shows that the said form was submitted on 16-5-2002 and distributed on 21-6-2002. The very issuance of the said NIC has not been denied by respondent No.3, but he claimed that he had already submitted application on 2-11-2005 from jail followed by another application moved by his brother Syed Mobashar Altaf Shah on 4-3-2006 for the cancellation of the said NIC, which was obtained only to get. Issued a driving licence by showing him overage. It is pertinent to mention here that the very factum of issuance of the said NIC had been concealed by respondent No.3 in the application moved by him on 27-6-2005 for declaring him juvenile, which shows mala fide on the part of respondent." Even the applications were allegedly moved to the NADRA authorities for cancellation of the said NIC after the disclosing of this fact by the petitioner/complainant before the learned trial Court. During the cross- examination C.W.4 denied that the NIC had been obtained by someone else through playing fraud. Subsection (4) of section 19 of NADRA Ordinance provides that the "a card -including a National Identity Card, issued to a person under this Ordinance shall be proof of his identity as could be established from the contents of such card for any purpose for which his identity is required to be established". Respondent No.3 failed to' produce any evidence on the record to show that any fraud had been played with him in the issuance of the said NIC and the photocopies of the two applications allegedly moved afterwards for the cancellation of the same appear to be based on the concocted story which cannot be accepted. Although direction issued by this Court in Criminal Revision No.232 of 2006 for comparison of the signatures and thumb impressions affixed on the form allegedly submitted by respondent No.3 to the NADRA for obtaining the NIC could not be complied with due to destruction of record, as confirmed by Muhammad Mushtaq, District Registrar, NADRA, Lahore (C.W.l), but this is of no help to respondent No.3, who himself admitted to have got issued the same. It cannot be accepted that at the age of 14 years, if his date of birth is taken as 13-3-1987, respondent No.3 had got issued NIC by showing him more than 18 years of age on 16-5-2002 only for obtaining the driving licence.
16. The petitioner also produced on the record Birth Certificate of respondent No.3 according to which his date of birth was recorded as 13-4-1984. Muhammad Sagheer, Junior Clerk, City District Government, Lahore (C.W.l) produced the record according to which Exh.C.W. 1/1 was the correct copy of the record relating to Serial No. 192 of Birth Register for the year, 1984. The same was got entered on 15-4-1984 without any delay by the father of respondent No.3 and during the cross- examination bn C.W.l it was only brought on the record that the NIC number of father of respondent No.3 was entered in the said entry, which alone is not sufficient to discard or disbelieve the said entry of date of birth, got made on the second day of the alleged date of birth of respondent No.3.
The respondent failed to rebut the said entry or prove it forged one through any piece of evidence.
17. The. Learned trial Court had also referred respondent No.3 to the Medical Board for determination of his age and according, to the report of the Medical Board constituted by the Medical Superintendent, Jinnah Hospital, Lahore dated 27-10-2005 the age of respondent No.3 was declared to be between 19 to 22 years. In the aforesaid judgment, the Honorable Supreme Court also held that the 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 valuable guide to a learned Presiding Officer in resolving the controversy in issue. This Court in the earlier order dated 27-1-2006 passed in Criminal Revision No.905 of 2005 also observed as under:- "Under section 7 of the Juvenile Justice .System Ordinance, 2000 in case of conflict regarding age between both the parties, the Court is bound to hold an inquiry for recording any finding regarding the age of accused and report of the Medical Board will be taken into consideration. However, in the said provision, it is not provided that the medical report in any way will be preferred over the other documentary evidence, but it is the part of the inquiry to be taken into consideration for determining the age of the accused."
It is thus clear that the opinion of the medical board should be seen in the context of the other evidence produced by the parties and it alone cannot be taken as a conclusive proof of age of the accused. It is not the case in which the age of respondent- accused determined by the medical board should be taken from the lower end, but the medical board had specifically determined the age of the respondent-accused _ in between 19 to 22 years. The case law relied upon by the learned counsel for respondent No.3 is not applicable to the facts and circumstances of this case.
After having gone through the whole evidence brought on the record and seeing from every possible angle, I am of the view that in this case the age of respondent No.3 can be taken in between the age of declared by the Medical Board/which tallies with the birth entry relied upon by 'the petitioner and respondent No.3 has failed to rebut the same. I am. Of the view that the Juvenile Justice System Ordinance, 2000 is a special law and if the accused comes up with the plea to have a concession thereunder claiming him to be juvenile, he must have supplemented his claim with the evidence of unimpeachable character and in its absence the Courts cannot stretch the law to favour the accused to save him from the extreme penalty provided by law for the offence by extending him the benefit of doubt.
18. From the above discussion, I have no hesitation in holding that respondent No.3 badly failed to prove him to be juvenile at the time of the alleged occurrence, but on the other hand the petitioner-complainant fully proved the j birth entry of respondent No. 3 as 13-4-1984 and the same also find support from the repot of the medical board. Resultantly, this Criminal Revision is accepted, the impugned order is set aside and the learned trial Court is directed to proceed with the trial against respondent No.3 while treating him major, which shall be concluded within four months after the receipt of this order.
Revision .