Through this petition the petitioner has assailed the order dated 13.7.2007 whereby the learned Additional Sessions Judge, Bhalwal while accepting the application filed by Respondent No, 1 under Section 7 of the Juvenile Justice System has declared him a minor at the time of occurrence and has ordered separation of this trial.
2. The facts of the case are that the petitioner lodged F.I.R. No, 67/2005 dated 23.3.2005 for offence under Section 324/109/34 P.P.C. at Police Station Mela, District Sargodha against Respondent No, 1 and two others. Since the injured succumbed to the injuries in the hospital, therefore, Section 302 P.P.C. was added. The petitioner not being satisfied with the manner in which the investigation was conducted by the local police preferred a private complaint in which all the accused including Respondent No, 1 were summoned, and charge was framed against them on 17A. 2006. Respondent No, 1 and his co-accused filed an application under Section 7 of the Juvenile Justice System Ordinance, 2000 on 18.2.2006 on the premise that they were juveniles at the time of occurrence, i,e, under the age of 18 years and, therefore, they can only be tired by a Special Court established under the Juvenile Justice System Ordinance, 2000. The learned trial Judge vide order dated 30th October, 2006 referred the matter to a Medical Board which in its report dated 30.11.2006 declared the age of Respondent No, 1 as between 21 and 22 years. The report was based on the opinion given by the Radiologist from D.H.Q. Hospital, Faisalabad as no Radiologist was available at the D.H.Q.
Hospital, Sargodha. On an objection raised by the accused the matter was again referred to the Medical Superintendent, D.H.Q. Hospital, Sargodha who constituted a Medical Board comprising of a Radiologist, Chief Physician, Orthopedic Surgeon and a Dental Surgeon. The Board submitted its report dated 21st March, 2007 to the trial Court in which it was opined that the age of Respondent No, 1 was about 22 years. In the meanwhile, the Presiding Officer was transferred and the new incumbent who has passed the impugned order proceeded to summon the original record of the school leaving certificate and the birth certificate and while relying thereupon and in complete disregard of the opinion of the Medical Boards declared Respondent No, 1 a juvenile and ordered separation of his trial. The petitioner being aggrieved of the said order has approached this Court through the instant petition.
3. The learned Counsel for the petitioner has contended that the impugned order suffers from gross illegality as the application under Section 7 of the Juvenile Justice. System Ordinance, 2000 was filed by the accused after the charge had been framed; that no plea of juvenility had been taken by the accused before the Police during investigation; that the learned trial Court erred in law in relying on the school leaving certificate and the birth certificate as against the opinion given by the Medical Boards wherein it had been opined that Respondent No, 1 was 21/22 years of age, thus an adult at the time of the occurrence; that although the trial Court had summoned the original record, however, without recording the statement of the record keeper and any other person acquainted with the facts proceeded to derive his own conclusions; that the conclusions arrived at by the trial Court are contrary to the law laid down by the honourable Supreme Court of Pakistan in the case of Sultan Ahmad vs. Additional Sessions Judge-I, Mianwali and others (PLD 2004 SC 758); that as has been observed by the honourable Supreme Court in the said judgment, school leaving certificates and the birth certificates are liable to interpolation, manipulation etc. and, therefore, no reliance can be placed thereon.
4. The learned Deputy Prosecutor-General Punjab has adopted the arguments advanced by the learned counsel for the petitioner.
5. The learned Counsel representing Respondent No, 1, the main accused of the F.I.R. has contended that the documents placed on the record i,e, the birth certificate as well as the school leaving certificate are genuine documents which were verified by the learned trial Court from the original record; that once it is established that the birth certificate and the school leaving certificates are genuine and authentic documents, the trial Court is not required to look any further into the matter; that the facts of the case relied upon by the petitioner are distinguishable from the facts of the instant case and that the order passed by the learned trial Court is in accordance with law which does not call for interference by this Court.
6. I have heard the learned counsel and gone through the record as well as the impugned order.
7. There is no cavil with the proposition that an accused who claims to be a juvenile at the time of occurrence should take such plea at the earliest as otherwise an adverse inference can be drawn against him. In the instant case the F.I.R. was lodged on 23.3.2005 and the plea of juvenility was taken by Respondent No, 1 for the first time before the learned trial Court in the private complaint filed by the petitioner on 18.5.2006 i,e, after a lapse of about one year and two months. Admittedly no such plea had been taken by Respondent. No, 1 and his co-accused Waqas before the police during the course of investigation. The very fact that the plea had been taken at a belated stage and after a lapse of one year and two months from the date of registration of the F.I.R. creates doubt about the veracity. of the same and cannot be out rightly accepted as true: It was for this reason that the predecessor of the learned Judge proceeded in the matter with caution and directed Constitution of a Medical Board for examination of the accused. Since the first report of the Medical Board was based on an opinion given by the Radiologist of the D.H.Q. Hospital, Faisalabad therefore, a second Medical Board was constituted which submitted its report on 21.3.2006 based on the findings of five doctors highly competent in their own fields. It appears that in the interregnum the learned Judge was transferred and the matter was entrusted for decision to the learned Additional Sessions Judge who has passed the impugned order. Although the learned.
Judge summoned the original record of the birth certificate as well as the school leaving certificate but did not consider it expedient to examine the record keeper and other persons acquainted with the facts. A perusal of the impugned order leaves an inescapable impression that much importance has been given to the birth certificate and the school leaving certificate by the learned Judge whereas the opinion given 'by the medical experts on two occasions has been completely ignored.
8. In the above background the issue which needs to be resolved is as to which of the two i,e, the birth and the school leaving certificate or the opinion of the Medical Board has precedence over the other? Admittedly the petitioner has seriously questioned the two certificates produced by Respondent No, 1 before the learned trial Court in support of his claim of minority. The learned trial Judge partially followed the procedure laid down under the law by summoning the original record relating to the two certificates however, he failed to examine the authors and custodians of the record. The learned counsel representing Respondent No, 1 has not been able to provide any plausible reason as to why this exercise was not undertaken by the learned trial Court. Further, where the veracity of the certificate relied upon by the accused is seriously disputed, the only course open to the trial Court, is to have the accused examined by a Medical Board in order to reach a just and a proper conclusion. Although the opinion of Medical Board was sought and provided twice but the learned trial Court without adverting to the same proceeded to determine the question of age of Respondent No, 1 solely on the basis of the documents referred to above.
9. Although there is no set procedure provided by the Code of Criminal Procedure for determining the age of an accused person, however, Section 7 of the Juvenile Justice System Ordinance, 2000 does provide a procedure in the said respect. Section 7. of the Ordinance is reproduced here under for easy reference: "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 the age of the child."
From a bare reading of Section 7 of the Ordinance it is evident that whenever a Court is vested with deciding a question as to the age of an accused person it is incumbent upon it to hold an inquiry and in furtherance thereof the Court has to requisition the original record, summon and examine the authors and custodians of such record and documents in order to determine the genuineness of the same and should obtain opinion of the medical experts which can lend valuable guidance to the Court in resolving the controversy. The argument of the learned Counsel for Respondent No, 1 that in the presence of an authentic birth certificate and a school leaving certificate there is no requirement of law for subjecting the accused to a medical examined and that once having arrived at the said conclusion the Court need not look any further into the matter is totally devoid of force. The impression that an ossification test can be ordered as a last resort is incorrect and, therefore, not tenable. The importance of the ossification test is further amplified by the fact that the documents like a birth certificate or a school leaving certificate are susceptible to interpolation and manipulation etc. and therefore, in order to adopt a safe course it is imperative to obtain opinion of medical experts. The law laid down by the Honourable Supreme Court of Pakistan in the case of Sultan Ahmad v. Additional Sessions Judge-I, Mianwali and others (PLD 2004 SC 758) is fully applicable to the instant case. Therefore, I have no hesitation in holding that the conclusions drawn by the learned trial Court while deciding the question of juvenility of Respondent No, 1 are based on surmises and conjectures and are not in consonance with the law.
10. For what has been discussed above, I accept this petition, set aside the order dated 13th of July- 2007 and remand the case to the learned Additional Sessions Judge, Bhalwal with a direction to decide the application filed by Respondent No, 1 under Section 7 of the Juvenile Justice System Ordinance, 2000 afresh after holding an inquiry as required under the law while taking into consideration the documents relied upon by Respondent No 1 in support of his claim of minority as well as the opinion of the Medical Boards.