' KHALIL-UR-REHMAN RAMDAY, J.--- Abu Suffyian alias Muhammad Suffyian respondent was one of those who were accused of committing the murder of Afzal deceased and of having caused injuries to three others, who had, however, survived. The occurrence was reported at. Police Station City Nankana Sahib vide F.I.R. No,107, dated 4-6-2005.
2. After the commencement of the trial, Suffyian respondent pleaded minority and claimed trial under the Juvenile Justice System Ordinance of 2000. A special Medical Board was constituted to assess the age of the said accused person and according to the report of the said Board the age of the respondent, at the time of occurrence, was found to be about 19 years. The said accused submitted an application challenging the said report essentially on the ground that the said opinion of the Medical Board was a result of dishonesty and of collusion of the said Board with the complainant-party and prayed that he be directed to be reexamined. The said application was dismissed by the trial Judge through his order dated 31-7-2007 and through the same order it was declared that the said accused was not a "child" in terms of the said Ordinance of 2000 being more than 18 years of .Age at the time of occurrence.
2.(sic) On being approached through its revisional jurisdiction, the Lahore High Court remanded the matter back to the learned trial Judge for a fresh decision as according to the High Court, certain documents i,e, the school leaving certificate of Suffyian accused, the Nikah Nama evidencing the marriage of his parents and the birth certificates pertaining to his other brothers and sisters had not been read.
3. After the said remand order, the learned trial Judge, once again, applied his mind to the matter and declared, through his order, dated 29-2-2008, that Suffyian accused was more than 18 years of age.
4. On being approached once again, the High Court through the impugned order, dated 17-12- 2008, found that Suffyian respondent was a "child" within the purview of the Juvenile Justice System Ordinance of 2000 and that he was thus, entitled to a treatment and a trial in accordance with the provisions of the said Ordinance.
5. Hence this petition by Anwar complainant.
6. We have heard the learned counsel for the parties i,e, the complainant-petitioner, Suffyian accused and the learned Additional Prosecutor-General and have also perused the record with their assistance.
7. In order to establish that he was a "child" at the time of occurrence, Suffyian accused offered the following pieces of evidence:---
(i) the admission form dated 20-9-1994 submitted by him while seeking admission to class. I of Government Primary School Dhairay Da Wara;
(ii) an alleged copy of the Register Dakhil Kharij of Government Primary School Dhairay Da Wara of Markaz Nankana Sahib;
(iii) provisional result certificate issued by Board of Intermediate and Secondary Education, Lahore of the Class IX Examination;
(iv) Nikah Nama evidencing the marriage of his parents which had been solemnized on 14-3-1976; and
(v) the birth certificates of his eight brothers and sisters along with his own birth certificate.
8. The above mentioned admission form appearing at page 53 of Part II of the paper book does not carry any date of the respondent's birth. Another document which appears at page 52 of the said paper book, however, carries a certificate which also appears to have been submitted along with the said admission form and which carries the date of birth of the said respondent being 10-9- 1989. This document was required to carry a verification from the father/guardian of the child declaring that the date of birth mentioned in the same was in accord with the date of birth mentioned in the Register of Births. The name of Suffyian respondent's father is Mushtaq Ahmad but the one who had signed the said verification as his father was Muhammad Din. Secondly, at the time of making this verification, the said date of birth mentioned in the said document could not have been in conformity with the date mentioned in the Register of Births because from the birth certificate produced by Suffyian respondent himself, it is evident that his birth had been registered almost seventeen years after his birth i,e, on 26-6-2006 which was after one year of the present occurrence. The entry of date of birth in the above mentioned register Dakhil Kharij and in the above mentioned Provisional Result Certificate are not independent sources of information about the said respondent's date of birth because they only followed the information volunteered by the student himself or someone connected with him. Since such certificates are based on the information about the date of birth as volunteered as mentioned above, therefore, the same could never be found to be a conclusive proof of the concerned person's date of birth.
9. This brings us to a copy of the Register of Births relating to the said respondent's date of birth.
The said copy appears at page 50 of the above mentioned paper book. The date of birth mentioned therein is 10-9-1989 and the date of making of the entry relating to the birth of the said respondent is mentioned as 26-6-2006 which, as has been mentioned above, was almost seventeen years after his birth and almost one, year after the present occurrence. We have also had a look at the birth certificates of other brothers and sisters of Suffyian respondent and find that their births had been registered soon after their births and Suffyian accused was the only child of his parents whose birth had been reported to the concerned Union Council seventeen years after the birth of the said accused and that also after the murder in question had been committed.
Therefore, the possibility of the said birth certificate having been maneuvered after the present occurrence only to bring Suffyian accused within the ambit of Juvenile Justice System Ordinance of 2000, could not be ruled out. This is not all. There is yet another reason which renders the said date of Suffyian's birth as a doubtful affair.His brother immediately older to him whose birth certificate appears at page 48 of the paper book was born on 6-3-1986 but his brother immediately next to him in line i,e, Zohaib Mushtaq whose birth certificate appears at page 58 of the paper book was born on 7-2-1990. This means that Abu Suffyian accused had been born 3-1/2 years after the birth of his elder brother, namely, Sajid but the brother immediately next to Abu Suffyian accused had been born only four months and twenty-seven days after the birth of the said accused which is not a possibility by any standards of medical knowledge. Therefore, even the evidence of his date of birth offered through the said birth certificates was thus a dubious affair.
10. The only other material available on record with respect to the age of Suffyian accused was the opinion of the Medical Board. As has been noticed above, the said accused had challenged the said opinion as dishonest and collusive and had prayed for his re-examination by some other Board which prayer had been declined by the trial Court and which prayer does not appears to have been pressed before the High Court as would be evident from the order of the High Court, dated 27-9-2007 passed in Criminal Revision No,604 of 2007. This opinion had thus, attained finality. Needless to state that according to the said opinion, Suffyian accused was about 19 years of age at the time of the present occurrence and was thus not a "child" within the purview of Juvenile Justice System Ordinance of 2000.
11. In view of the above noticed material available on record with respect to the date of Suffyian respondent's birth, the finding of the learned trial Judge that Suffyian respondent was not a "child" at the time of occurrence, does not appear to be open to any exception.
12. Consequently, this petition is converted into an appeal which is allowed as a result whereof the impugned judgment of the Lahore High Court dated 17-12-2008 passed in Criminal Revision No,100 of 2000 is set aside.