Petitioner had moved an application for separate trial as. according to him, his case was to be tried under Section 5 of Juvenile Justice System Ordinance, 2000 (XXII of 2000) because jurisdiction to try the petitioner vests in Juvenile Court under Section 4 of the Ordinance, 2000.
2. Learned trial Court vide order dated 26.7.2007, directed Medical Superintendent Nishtar Hospital Multan, for ossification test of the accused petitioner and for a report as to his age. The age of the petitioner was assessed by the board, comprising of APMO, DHQ Khanewal, Surgeon DHQ Hospital Khanewal and Medical Superintendent, DHQ Hospital, Khanewal. Learned Additional Sessions Judge observed in his order dated 22.10.2007 that the board failed to hold proper inquiry, report is not sufficient and correct, thus the petitioner cannot succeed on this ground. It was also observed by the Court that the petitioner has not agitated the question of separate trial, after registration of case and at the time of framing of charge. Learned Court based its findings qua the age of petitioner, upon the birth certificate of the Union Council and discarded the school leaving certificate of the petitioner. The application was accordingly dismissed. Hence this petition.
4. It is contended by learned counsel for the petitioner that school leaving certificate is an authentic evidence as to the age of an accused. There was a conflict between two documents i,e, certificate by Union Council and school leaving certificate, therefore, it was incumbent upon learned Additional Sessions Judge to give weightage to the report of medical board. Learned counsel has submitted that ossification test is important material and in the absence thereof, the age of accused cannot be determined with absolute certainty. He, in support of his contention, has placed reliance on the cases of 'Muhammad Akram Vs. Muhammad Saleem alias Hamayun and others" (2004 SCM R 218) and 'Malik Sajjad Ahmad Vs. The State and another" (2006 P.Cr.L.J 211).
5. Learned counsel for Respondent No, 2, on the other hand, has stood behind the impugned order and submitted that the petitioner has not agitated the matter of his age at the relevant time, before learned Magistrate, when he was produced there or at the time of his application for post arrest bail or at the time, when the challan was submitted. Learned counsel has submitted that school leaving certificate is a fake document, as Respondent No, 2 has the birth entries of the petitioner, his younger brother and sister, which are available in the relevant registers of the Union Council. According to these entries, which were incorporated in the register at different intervals of time, the age of petitioner is more than 18 years.
5. Sh. Imtiaz Ahmad, Advocate for state adopted the line of arguments of Qazi Iftikhar Ahmad, learned counsel for Respondent No, 2.
6. Heard learned counsel for the parties and record perused.
7. Perusal of the impugned order reflects that learned counsel has not believed the report of medical board for the reasons that no dental surgeon was associated in the process, District Health Officer is member of District Medical Board, who has not joined the proceedings, conducted by the board and also for the reason that basis of the report is opinion of Assistant Radiologist, which has no sanctity. Learned Court, in these circumstances, believed the relevant entry in the register of Union Council as correct and dismissed the application of the petitioner.
8. Section 7 of Ordinance XXII of 2000 requires mention and same is reproduced as under: "Determination of age.--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."
9. The above provision of law provides for an inquiry for determination of the age of a child and the inquiry, according to the said provision, shall include a medical report. The term 'shall' has been used by the legislature, to make it mandatory for the Court to determine the age of a child, on the basis of an inquiry, wherein a medical report is an essential requirement.
10.The Court, while passing the impugned order, reached the conclusion that medical board has not been properly constituted and it's report is invalid for the reason of improper constitution of the board. It was obligatory upon the Court to refer back the matter to Medical Superintendent for reconstitution of the board, according to the provisions of law. The medical report is an essential requirement, therefore, determination of age of the petitioner, in the ignorance of such report, renders the impugned order nullity.
11. For the foregoing, this revision is accepted, the order impugned is set-aside and case in hand is remanded back to learned trial Court for determination of the age, of petitioner afresh. The application moved by the petitioner for separate trial is deemed to be pending. Learned Court will refer the matter for a medical report and after receiving the same, the Court will decide the question of petitioner's age on the basis of material provided by both the parties including the medical report.