' HASNAT AHMAD KHAN, J.---The facts giving rise to the filing of this petition are that on the complaint of Mumtaz Yasin, a case was registered against the petitioner and others vide F.I.R. No, 19/2007, registered at Police Station Sardar Mian Channun, in respect of offences under sections 302/337-D, 337-F(i), 337-F(ii), 148 and 149, P.P.C. According to the contents of the F.I.R., the only allegation levelled against the petitioner is that of raising a joint Lalkara along with Shahid Iqbal, co-accused, upon which their co-accused statedly inflicted sharp-edged injuries to Manzoor Ahmed-deceased as well as the injured P. Ws; the petitioner was arrested in this case on 26-1- 2007; at the time of this arrest, his age was recorded by the police as 16/17 years; the petitioner submitted an application for separation of his trial after declaring him a juvenile offender. By submitting the said application, the petitioner relied upon his School Leaving Certificate (Annex-C), which reflected his date of birth as 15th of March, 1992; the complainant contested the said application while placing reliance on a Birth Certificate issued by Union Council No, 92/15-L, Mian Channun, according to which the petitioner's date of birth was shown as 9-1-1988; however, the learned trial court refused to place reliance on both the said certificates after holding that both the said documents were unverified and consequently the matter was referred to the Medical Board for determination of petitioner's age; the petitioner was examined by a Medical Board comprising three doctors. According to their report, the age of the petitioner was found to be between 15/16 years. After receipt of the said report, the learned trial Court dismissed the application filed by the petitioner vide its order dated 22-10-2007 while relying upon the Birth Certificate issued by the Union Council. The said order was challenged by the petitioner before this Court trough Cr. R. No, 6/2008, which was accepted by this Court vide order dated 4-2-2008 in the following terms:-- "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."
2. In terms of the said remand order, passed by this Court, the matter was referred again to the Medical Board by the learned trial Court vide order dated 26-2-2008. Consequently, a Board comprising six doctors, including Dr. Muhammad Yousaf, dental Surgeon, found the age of the petitioner about 16/18 years. The report of Dental Surgeon as contained in the said report reads as under:-- "I have thoroughly examined the under trial person. In dental X-Ray, the third molar erupting is invisible, so in my, opinion the age is 16 to 17 years."
' Whereas opinion of the Medical Board is reproduced as under:-- "After the examination of the person, through examination of the report from Dental Suregon and Radiologist, Nishtar Hospital, Multan, Medical Board is of the opinion that the Radiological boney age is about 16 to 18 yrs."
' However the learned trial Court once again dismissed the application filed by the petitioner while placing reliance on the Birth Certificate of the petitioner issued by the Union Council. The report submitted by the Medical Board comprising six doctors was discarded by the learned trial Court.
3. Aggrieved by the said order dated 29-5-2008, passed by the learned trial Court, the petitioner filed in the instant revision petition.
4. In support of this petition learned counsel for the petitioner has contended that the impugned order is against the law and the facts; that instead of giving weight to the report of Medical Board regarding the age of the petitioner, the learned trial Court illegally placed reliance on the Birth Certificate, which on an earlier occasion, was not relied upon by the learned trial Court rather vide its order dated 27-6-2007, the School Leaving Certificate as well as the Birth Certificate of the petitioner were discarded after declaring both the said documents as unverified, and consequently the matter was referred to the Medical Board; that the petitioner was twice medically examined on the orders of the learned trial Court by the Board of doctors comprising three and six doctors respectively and on both the occasions the petitioner's age vis-a-vis date of occurrence was found to be less than 18 years; that under section 7 of the Juvenile Justice System Ordinance, 2000, the report of the Medical Board should have been preferred to the Birth Certificate issued by Union Council; that it is not the case of the complainant/prosecution that favourable reports were obtained by the petitioner in collusion with the Medical Board; that where two views are possible about the age of accused, the one in favour of the accused is normally to be accepted; that the only role attributed to the petitioner is that of raising Lalkara and that while lodging the F.I.R. The complainant has thrown the net very wide, inasmuch as almost all the members of petitioner's family were involved in this case. To shore up his contention learned counsel for the petitioner has relied upon case of Umar Hayat v. Jahangir and another (2002 SCM R 629), Muhammad Jafar Ali v.
The State (2007 YLR 1679), Muhammad Akram v. Muhammad Haleem alias Hamayun and others (2004 SCM R 218) and Subedar Sabir Ali v. The State and another (2005 YLR 821).
5. Conversely, learned counsel appearing on behalf of the complainant/respondent No,2 has defended the impugned order by submitting that the same is well-based; that the Certificate of Union Council vividly reflects the date of birth of the petitioner as 9-11-1988; that the petitioner never challenged the said Birth Certificate; that the reports of the Medical Boards are self- contradictory, a fact which shows that the same were procured by the petitioner with the connivance of the doctors; that according to the order passed by this Court whereby the learned trial Court was directed to refer the matter to the Medical Board, it was observed that the trial Court should decide the question of petitioner's age on the basis of material provided by both the parties including the Medical Board, therefore, it cannot be said that the report of Medical Board was the sole criterion for determining the petitioner's age and that the Birth Certificate of younger and elder siblings of the petitioner further corroborate the complainant's stance to the effect that on the day of occurrence, the petitioner was not a juvenile. In support of his contentions learned counsel has placed reliance on the case of Altaf Hussain v. The State (2003 PCr.LJ 1898).
5. Heard at length. Record appended with this petition perused.
6. I find that the petitioner is not the prime perpetrator of the offence, rather the only role attributed to him is that of raising a lalkara jointly with his elder brother Shahid Iqbal for launching an attack on the complainant party. Admittedly, barring the said role, no overt act is attributed to the petitioner. Though, the said fact is not directly relatable to the decision of this revision, however, while deciding the question involved in this case the said fact cannot be lost sight of by the Court completely.
7. Now, coming to the merits of this petition, I find that at the time of the arrest, the petitioner's age was recorded by the police as 16/17 years as is reflected from the certified copy of identification certificate prepared by the Investigating Officer during the investigation. Nevertheless, the petitioner did not raise the plea of juvenility at the earliest. However, after framing of the charge, he did raise the said plea after basing his claim on a School Leaving Certificate, according to which his date of birth was shown as 15-3-1992 but the complainant challenged the said claim by relying upon Birth Certificate issued by the Union Council showing the petitioner's date of birth as 9-1-1988.
After hearing the arguments of both the parties, the learned trial Court refused to place reliance on either of the said documents, rather, it was held by the said Court vide order dated 27-6-2007 as under:-- "Both these records are unverified so no reliance can be placed on these records. The proper course in the circumstances will be to refer the accused to Medical Board for his ossification test and for determining his age."
' In view of the said order, the petitioner was medically examined by a Board comprising three doctors. After examining the petitioner, the said Board opined as under:-- ' 12-9-2007 "The Board agrees with the opinion of Radiologist Nishtar Hospital Multan that radiological bone age is 15 to 16 years. (fifteen to sixteen years)."
' However, after the receipt of the said report, the learned trial Court did not opt to place any reliance on the said report, rather while placing its reliance on the Birth Certificate issued by the Union Council, the application submitted by the petitioner was dismissed, but the reasons for dismissal of the petitioner's application vide order dated 26-6-2007 did not find favour with this Court. Consequently, the said order was set aside and the case was remanded with a direction to The learned trial Court to determine the petitioner's age afresh after referring the matter to the Medical Board for re-examination of the petitioner and deciding the matter after receiving the reports. In post-remand proceedings, the petitioner was medically examined by a Board comprising six doctors including a Dental Surgeon and according to the report submitted by the said Board, the petitioners age was found to be about 16/18 years. The petitioner was medically examined by the said Board on 6-4-2008,whereas the occurrence in this case took place on 15-1- 2007, meaning thereby that on the date of occurrence, according to the medical report, the petitioner's age was less than 18 years.
8. Now on the one hand the petitioner after placing reliance on a School Leaving Certificate and report of Medical Board is claiming himself to be a Juvenile offender, whereas the complainant is rebutting his claim while relying on his Birth Certificate. Insofar as Birth Certificate and School Leaving Certificate are concerned, on one stage the learned trial Court had opted not to place reliance on both the said documents but after the receipt of the report of Medical Board, constituted by it in pre-remand proceedings, the learned trial Court placed reliance on the Birth Certificate and dismissing the petitioner's application. However, the said finding was not affirmed by the Courts, rather, the said order was set aside after accepting the revision petition filed by the petitioner. According to section 7 of Juvenile Justice System Ordinance 2000, while holding the enquiry for deciding the question regarding the juvenility of the accused, the Court is bound to refer the matter to a Medical Board for determining the age of the child/accused. So, in view of the said section, the trial Court has to give due consideration to the report of the Medical Board and the said report cannot be brushed aside lightly, especially, when no allegation regarding the collusion of the doctors/members of the Board with any of the members is raised by any of the parties.
9. In this case, the complainant has not claimed that the report of the Medical Board comprising six doctors was obtained by the petitioner as a result of his collusion with the doctors/members of the said Board. However, the said reports were discarded by the learned trial Court on airy fairy grounds which are not sustainable in law. According to the learned trial Court the subsequent report dated 30-4-2008, submitted by the Medical Board, after remand of the case by this Court was contradictory to the report dated 12-9-2007 submitted by the earlier Medical Board. While holding so, it was not appreciated that the first report had already been discarded by the said Court on the earlier occasion. Therefore, the contradiction in the said two reports was hardly of any significance. Besides, there is a consensus of the Courts on the point that margin of error in determination of age of any accused through Medical Board was about one year. Even otherwise, according to both the reports, the petitioner was found less than 18 years. None of the reports declared the petitioner as more than 18 years of age. Be that as it A may, the subsequent report submitted by the Medical Board reconciles with petitioner's date of birth recorded by the police at the time of the petitioner's arrest.
10. The School Leaving Certificate produced by the petitioner was discarded without holding any enquiry into the genuineness of the same.
' Similarly, the Birth Certificate was preferred to the medical report of Medical Board without holding any enquiry regarding the genuineness of the certificate. Even in the absence of petitioner's objection regarding the genuineness of the said certificate, the Court was bound to hold an enquiry in terms of section 7 of Juvenile Justice System Ordinance 2000, especially when the same was contradicted by the Medical Board comprising six doctors including a Dental Surgeon. As per report of the Medical Board; the petitioner was minor on the date of occurrence, therefore, the observation of the learned trial Court to the contrary is not only against the mandatory provision of Juvenile Justice System Ordinance, 2000 but also against the principles of law settled by the superior Courts of the country. Moreover, it is an established law that where to views are possible regarding the age of the accused, the one in favour of the accused is normally accepted. Reliance in this regard is placed on the cases of Umar Hayat v. Jahangir and another (2002 SCM R 629)
Subedar Sabir Ali v. The State and another (2005 YLR 821) and Sanaullah v. The State (2006 PCr.LJ 430).
11. For what has been stated above, the revision petition is accepted, consequently, the impugned order dated 29-5-2008 is set aside and the petitioner is declared to be a juvenile offender under the Juvenile Justice System Ordinance 2000, therefore, his case is directed to be tried separately by the learned trial Court.