' MUNIB AKHTAR, J.--- By means of this criminal revision application, the applicant challenges the order, dated 8-5-2009 made by the Anti-Terrorism Court No,1, Karachi. By means of the impugned order two applications moved by the applicant before the trial Court, one under sections 5 and 7 of the Juvenile Justice System Ordinance, 2000 and the second for constitution of t Medical Board, were dismissed. By means of the short order, dated 5-1-2010 we had dismissed the present revision application (along with two other connected revisions) with reasons to follow and the following are our reasons for having done so.##TE#
2. The applicant, along with other co-accused is undergoing trial before the Anti-Terrorism Court No,1 in respect of three separate cases being Special Cases Nos.34 of 2006, 36 of 2006 and 45 of 2006. These cases arose out of different F.I.Rs, registered at different police stations in respect of three separate incidents. For present purposes it is sufficient to note that the earliest of these incidents allegedly took place on 29-6-2006. When the applicant was produced before the Administrative Judge, ATCs of this Court, the applicant took the plea that he was a minor at the dates on which the alleged incidents took place and, therefore, he was liable to be tried by the Juvenile Court under the Juvenile justice System Ordinance, 2000. The honourable Administrative Judge, by means of an order, dated 30-10-2006 directed that the applicant be examined by the Police Surgeon in order to determine his age and the Police Surgeon, after duly examining the applicant and performing the necessary tests including bone ossification examination concluded that the applicant was between 18 and 19 years old and certified his findings by means of the age certificate dated 1-11-2006. It appears that thereafter the applicant did not challenge the finding of the Police Surgeon before any forum but participated in the trial before the Anti-Terrorism Court.
However, by means of two applications dated 21-4-2009 and 25-4-2009, being the applications under the Juvenile Justice System Ordinance, 2000 and for constitution of Medical Board, as referred to hereinabove, the applicant sought to re-agitate the question of his minority before the learned trial Court. Along with the said applications the applicant produced for the first time a copy of Birth Certificate dated 20-12-2006 purportedly issued by the Union Council Administration 5, Mona Khan Goth, Shah Faisal Town, Karachi. The said certificate stated the date of birth of the applicant as 26-12-1990 and it was, on that basis, contended on his behalf that he was a minor at the time of the alleged incidents and was, therefore, liable to be tried before the Juvenile Court. As noted above by means of the order; dated 8-5-2009, impugned herein, the said applications were dismissed by the Anti-Terrorism Court.
3. Learned counsel appearing on behalf of the applicant assailed the impugned order and submitted that the Birth Certificate, produced by the applicant, had clearly established his age as less than 18 at the date of the alleged incidents and the learned trial Court had erred materially in disregarding the same. He submitted that it was necessary that a Medical Board be constituted to properly establish the age of the applicant. He contended that the trial Court was duty bound to have allowed the applications in question and had committed an error in law in failing to do so. As regards the age certificate issued by the Police Surgeon, he submitted that ossification test was not an absolute and accurate determination of age and there was usually a margin of about one year on either side of the age as determined by such a test. He submitted that the benefit of this margin ought to go to the applicant and even on that basis he was a minor at the date of the alleged incidents and hence could not be tried before the Anti-Terrorism Court. Learned counsel also relied on certain case-law to which we will presently refer. He accordingly prayed that the impugned order be set aside and appropriate relief be granted to the applicant.
4. Learned counsel for the State opposed the revision application and submitted that no error at law had been made by the learned trial Court. He submitted that the applications which had been dismissed by the impugned order had been moved at a belated stage and that no credence could be placed on the Birth Certificate produced at the eleventh hour by the applicant. He submitted further that in any case the Birth Certificate was dated as of 20-12-2006 and was thus, on its face, issued after the alleged incidents and not at or around the time of the alleged date of birth of the applicant (i.e. In 1990) and hence its authenticity was open to serious question. He also reiterated that the age of the applicant had been determined at the initial stage on the specific request made by the applicant himself and that finding had not been challenged thereafter. He prayed that the application be dismissed.
5. In our view, the applicant had taken the plea of his minority at-the inception of the proceedings against him and on such plea being raised, he had been duly examined by the Police Surgeon and found to be over the age of 18 at the relevant time. It is well-settled that the onus of establishing minority lies on the person who raises such a claim and it was, therefore, incumbent on the applicant to have produced all the evidence favourable to him or on which he sought to place reliance at the stage when he himself had raised the plea of his minority. Quite obviously, he could have produced his Birth Certificate at that time and also supported the same by means of other evidence such as a school entering or leaving certificate or "B" Form of his father or guardian which would record his date of birth. No such material or evidence was, C however, produced at the relevant time and the applicant also did not challenge the finding recorded in the age certificate issued by the Police Surgeon. It was only after the passage of more than 2 years that the applicant sought to re-agitate the issue of his minority. It is to be noted that we are informed that the prosecution witnesses have been examined and the stage is now set for such evidence, if any, to be led as the accused, including the applicant, may choose or desire to do so. The trial proceedings are thus at an advanced stage and it would appear that the present attempt to revisit the same issue is quite belated. The honourable Supreme Court, in a recent decision, reported as Muhammad Aslam v. State PLD 2009 SC 777, reiterated a view taken earlier by it in Sultan Ahmed v.
Additional Sessions Judge-I PLD 2004 SC 758. In the latest pronouncement, the honourable Supreme Court has observed at page 786, in para.11 as follows (insofar as is presently relevant):--- "(b) the plea of minority by an accused is a special plea intended to take the accused off the noose and onus is thus on him to prove the same;
(c) such a plea of minority must be taken by the accused at- the earliest possible opportunity, preferably during the course of investigation so that the requisite evidence about the age of the accused could also be properly collected during the said exercise of collection of evidence and any delayed claim on the said account should be met by adverse inferences;
(d) whenever such a question of age is raised or arises at the trial, the courts should not deal with the same in .a cursory or in a slip-shod manner but must proceed to hold an inquiry in the matter as commanded by the provisions of section 7, of the Juvenile Justice System Ordinance including medical examination of the accused for the purpose;
(e) the said inquiry should not be understood to mean only to entertain documents from across the bar and, then giving a decision thereon. Such a practice need not only to be discouraged but, in fact, to be discontinued. Basing judicial decisions on untested and un-scrutinised documents was a dangerous path to tread;
(t) proper compliance of the said provisions of section 7 would be to call upon the parties to lead their evidence -- oral or documentary in accordance with the provisions of Qanun-eShahadat Order of 1984 with a right to the other party to test the veracity or the genuineness of the ,same in accordance with law and then to arrive at a judicial decision in terms thereof;
(g) a medical examination of the accused perSon could furnish a useful guideline in the matter and should be resorted to; ...."
6. It may be noted that the aforesaid two decisions were relied upon by the learned counsel for the applicant. However, as is clear from the observations of the honourable Supreme Court in Muhammad Aslam, reproduced hereinabove, the law on the point goes against the applicant insofar the facts and circumstances of the present case are concerned. In our view the sum and substance (as presently relevant) of the #TBS PCr.LJ #TBE observations made by the honourable Supreme Court is that the plea of minority should be taken at the earliest possible opportunity and a proper inquiry including medical examination should be held if such a plea is raised and the person raising such a plea must produce all the evidence that he seeks to rely upon at that time. In the present case, as already noted above, the applicant was medically examined at his own instance and chose neither to challenge the age certificate issued by the Police Surgeon nor to produce any evidence in his support including the Birth Certificate which has been presented at a belated stage. Thus, the applicant is not entitled to re-agitate an issue which has already been decided against him in the aforesaid manner.
7. Insofar as the other decisions referred to by the learned counsel for the applicant are concerned, the same also do not help him since, in our view, either the facts and circumstances of those cases were different or the point that required resolution was not the same as arose in the present case.
Thus, in Nazeer v. State PLD 2007 SC 202, it was the alleged minor who produced evidence in his favour without any material or evidence to the contrary being produced by the prosecution. In such circumstances, the failure of the trial Court to accept the evidence produced on behalf of the alleged minor (which supported his claim) was held to be contrary to law. In the present case, of course, the situation is the exact opposite.
8. In Sajjad Ahmad v. State 2006 PCr.LJ 211, the School Leaving Certificate showed the age of the accused to be 23 years and the authenticity of this certificate was challenged by the latter. The trial Court referred the matter to the Medical Board which determined that the age of the accused was 18 years (plus or minus one year) and therefore, concluded that the accused was a minor at the relevant time. A revision against this finding was dismissed by the Lahore High Court. In our view, this case is again a case that does not help the present applicant since there, the medical evidence was in favour of the accused whereas in the present case, the medical evidence, in fact, goes against him.
9. In Tauseef v. State PLD 2009 Lah. 535, there was a conflict between the School Leaving Certificate produced by the accused which purported to show his minority and a Birth Certificate produced by the complainant which purported to show that the accused was a major at the date of the incident. Because of this conflict, the trial Court referred the matter to the Medical Board which determined that the accused was a minor at the time of the incident. Despite this, the trial Court chose to place reliance on the Birth Certificate that had been produced by the complainant. In these circumstances, the Lahore High Court concluded that the trial Court had erred in placing reliance on the Birth Certiflcat and ignoring the medical evidence which established the minority of the accused. As is obvious, the facts and circumstances of this case are completely different from those applicable to the present applicant.
10. In Papoo v. State 1999 YLR 691 and Yousuf v. State 1975 PCr.LJ 936, two decisions of this Court, it has been observed that the ossification test is not an absolute determinant of the age of a person and that there is usually a margin of one year on either side. This proposition is, no doubt, correct insofar it goes. However, the question is whether it is applicable to the facts and circumstances of the present case. In our view, had there been any compelling evidence produced by the applicant at the relevant time, the trial Court, taking into consideration the totality of the material produced before it, may justifiably have come to the conclusion that the age certificate issued by the Police Surgeon (which is categorical as, to the majority of the applicant) should be disregarded and the other evidence should be given preference. However, in the present case nothing at all was produced at the relevant time before any forum and the applicant himself did not seek to challenge the finding recorded in the age certificate. Even the Birth Certificate, produced belatedly, is not such as would inspire confidence for the reasons stated above. In our view, therefore, the case-law relied upon by the learned counsel for the applicant is either distinguishable or in fact does not support the case sought to be made out by him.
11. In view of the foregoing, we had come to the conclusion that no ground had been raised as would justify interference with the impugned order, dated 8-5-2009 made by the learned Anti- Terrorism Court and had dismissed the revision by means of a short order.