MUHAMMAD AKRAM QURESHI, J.--- Atta Muhammad son of Alam Sher has assailed the order, dated 4-4-2008 passed by the learned Additional Sessions Judge, Khushab directing Medical Superintendent D.H.Q. Hospital, Khushab at Joharabad to constitute a Medical Board for the determination of the age of the said accused and to submit the report on or before 25-4-2008.
2. Learned counsel for the petitioner contends that when respondent No,1 was arrested on 27-11- 2007, he mentioned his age as 18/19 years. This fact is mentioned in the case diary of the instant case. He further states that after his arrest, respondent No,1 was produced before the learned Illaqa Magistrate for obtaining his remand but he never disclosed before him that he was a child and his age may be determined. After the investigation the challan against him was submitted before the learned Illaqa Magistrate who sent it up to the Court of learned Sessions Judge, Khushab.
Respondent No,1 did not submit an application even at this occasion for the determination of his childhood. He further submits that on 3-3-2008, respondent No,1 submitted an application under section 7 of the Juvenile Justice System Ordinance, 2000 praying that he may be declared child.
Respondent No,1 alsoproduced a birth certificate in support of his plea. The petitioner contested this application and produced the copy of Identity Card of respondent No,1 in which his date of birth was given as 1-6-1989. He submits that in view of the documentary evidence of his National Identity Card, the petitioner was a major and not a child. The learned counsel further states that despite this context the learned Additional Sessions Judge, Khushab proceeded to allow the application of respondent No,1 and referred the matter to the Medical Superintendent D.H.Q.
Hospital, Khushab with a direction to constitute a Medical Board for the determination of the age of the accused and to report on or before 25-4-2008. The learned counsel for the petitioner further submits that the impugned order of the learned Additional Sessions Judge was illegal, incorrect and improper. The learned Additional Sessions Judge has failed to appreciate that the petitioner had submitted before him a document which cannot be denied and as per this document respondent No,1 attained majority much before the commission of 'murder. While relying upon Babar Ali v. The State and 2 others PLD 2007 Lah. 650 the learned --counsel submits that the petitioner did not disclose his tender age before the Investigating Officer, learned Magistrate or before the learned Additional Sessions Judge at the initial stage and that present application is afterthought and cannot be entertained at this belated stage. He submits that the same view was taken by the apex Court in case reported as Muhammad Ajmal v. The State through Advocate- General, Punjab PLD 2003 SC 1. He also submits that the medical opinion cannot be given more weight than the entries of school certificate or birth certificate. He also states that the National Identity Card issued by NADRA is the most authentic document and the opinion of Medical Board cannot be given preference over it. Lastly he submits that the impugned order directing the medical .Examination of respondent No,1 may be set aside and the learned trial Court be directed to decide the petition on the basis of available record.
3. Conversely the learned counsel for respondent No,1, while placing reliance on the provisions of section 7 of the Juvenile Justice System Ordinance (XXII of 2000) and case of Sultan Ahmed v.
Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758 submits that when genuineness of two documents produced by the accused and the complainant party have been seriously questioned by the parties, in such circumstances in order to reach to a correct and just decision, the Court should have summoned the original record relating to the said documents and examine the author and custodian of the same. In such a situation normal course for the learned trial Court was to have the accused medically examined by a competent Medical Board to reach a just decision about his age. Reliance of the learned trial Court on the entry in police record to resolve the issue was misconceived as the Investigating Officer had not mentioned the said age of accused after proper investigation about the same. Apex Court also laid down guidelines for the determination of the age of the accused are as under:--- "----S. 7---Determination of age of accused---Guidelines stated---Irrespective of the fact whether the issue of the age of an accused person is or is not raised before the Court, it is the obligation of the Court to suspend all further proceedings in a trial and to hold an inquiry to determine the age of the accused, if and whenever it appears to be necessary---Court should always feel free to requisition the original record, to summon and examine the authors and 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 and to take such other further steps which could help the Court in reaching a just conclusion about the said matter---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 Courts should never hasten to decide the said issue in a summary or in a slipshod manner---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---Claim of minority should be lodged by an accused at the earliest possible opportunity and preferably during the course of investigation, so that the Investigating Officer could collect evidence even in this connection for the assistance of the Court---Adverse inferences could be drawn where the concession in question was claimed after undue and unexplained delay."
' Learned counsel for the respondent No,1 does not dispute the issuance of National Identity Card in his favour. He submits that the said I.D. Card was got issued Against the factual age and the same was got issued by the political people just to increase one of their voters. He also submits that as a matter of fact respondent No,1 was a child and the said fact is evident from his birth certificate issued by the concerned authorities. He also states that the medical examination of the applicant claiming the trial under Juvenile System of law is mandatory. Lastly he submits that the learned trial Court has not committed any error by asking for the medical . Examination of respondent No,1 through a Medical Board. He prayed for the dismissal of the present revision petition.
4. I have considered the respective contentions of the learned counsel for the parties and also perused the record.
5. The respondent No,1 has produced the birth entry in which his date of birth was mentioned as 23- 8-1991. This birth entry was entered on the same day when one Umar Farooq was born. In National Identity Card the date of birth of Umar Farooq is mentioned as 1-6-1989. The learned counsel for the petitioner disputes the entries, mentioned in the birth certificate whereas the learned counsel for respondent No,1 claims that the entries made in the National Identity Card qua the age of respondent No,1 are incorrect. There is a controversy between the parties regarding the date of birth of respondent No,1 mentioned in the birth certificate and National Identity Card. The learned trial Court should have summoned the record of both the documents and examined the relevant officials in the presence of the parties. The assertions of the learned counsel for the petitioner are not well-based. Case-law relied upon by the learned counsel for the petitioner does not create an embargo to rely upon the document in order to avoid the medical examination of the respondent No,
1. Consequently, the judgments relied upon by the learned counsel for the petitioner are of no help to him.
6. In the above circumstances the medical examination of respondent No,1 becomes expedient for the ends of justice. Even otherwise section 7 of the Juvenile Justice System Ordinance XXII of 2000 requires that the person claiming childhood is required to be medically examined by the Medical Board. Thus, to my mind no illegality has been committed by the learned trial Court while passing the impugned order, dated 4-4-2008. The impugned order is perfectly legal, correct and proper.
Result of the Medical Board will help the Court in determining the age of respondent No,1.
7. In view of the above the present revision petition stands dismissed.