This criminal revision petition under Section 439, Cr.P.C. has been directed against the order dated 12.10.2009 passed by the learned Additional Sessions Judge, Lahore.
2. Brief facts of the case are that the petitioner has been facing trial in the above case before the learned Additional Sessions Judge, Lahore. On 14.04.2009, the petitioner submitted an application under Section 7 of Juvenile Justice System Ordinance, 2000 to separate his case from the other co- accused, as the petitioner was having age less than 18 years at the time of alleged occurrence. The application submitted by the petitioner for declaring him juvenile was dismissed by the learned Additional Sessions Judge/trial Court vide order dated 30.03.2006 without holding any inquiry into the matter. The petitioner filed a revision petition against the order dated 30.03.2006 through Revision Petition No,289/2006, which was accepted by this Court and the matter was remanded to the learned Additional Sessions Judge, Lahore with the direction to decide the application of the petitioner after holding inquiry in the light of judgment passed by the Full Bench of this Court reported in PLD 2007 Lhr. 650 and after considering Birth Certificate as well as School Leaving Certificate.
3. During the inquiry conducted by the learned trial Court after remand of the case, the petitioner produced Secretary Union Council concerned who got recorded his statement in the inquiry proceedings and also produced copy of birth certificate along with relevant record. The petitioner also produced Headmaster of the concerned school where the petitioner remained admitted in his education career who also got recorded his statement in the inquiry proceedings and produced copy of School Leaving Certificate along with the relevant record before the learned trial Court. The petitioner also produced birth certificates of his brothers and sisters namely Ashraf, Mst. Naseem Akhtar, Asghar, Abbas, Mst. Rukhsana and llyas before the learned trial Court to ascertain the factum of age of the petitioner. The learned Additional Sessions Judge/trial Court after conducting the inquiry but without touching the documentary evidence produced by the petitioner during the inquiry, again, dismissed the application of the petitioner. Hence this criminal revision.
4. Learned counsel for the petitioner contends that the learned trial Court has based his finding on the sole result of ossification test and has ignored the documentary evidence produced in respect of the birth of the petitioner which is fully proved and has not been challenged by the respondents till today. Learned counsel further contends that the findings of the medical board could be relied in the absence of documentary evidence but when an unrebutted documentary evidence is available, the contents of the documents will prevail against the findings of the medical board.
Therefore, the writ petition be allowed, the order dated 12.10.2009 passed by the learned trial Court be set aside declaring it illegal, null and void and the petitioner be declared as juvenile.
5. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed this criminal revision and has fully supported the impugned order.
6. Learned counsel for the respondents has contended that the ossification test will have precedence over the documentary evidence. In this regard, he has relied on 2004 SCM R 121 and 2005 SCM R 1542. Learned counsel further contends that neither the mother nor the father of the petitioner has made any statement in favour of the petitioner that he is juvenile and further that no such question was raised during the investigation, the challan of the case had already been submitted on 22.04.2004, so at this stage, this objection could neither be raised nor agitated.
7. I have heard the learned counsel for the parties as well as the learned DPG and have also gone through the record.
8. There are two documents which are important for the disposal of this case: First is Exh. E-I which is a school leaving certificate and the other is the birth certificate of the petitioner which is Exh. E-II.
According to both the said certificates, the date of birth of the petitioner is 01.12.1985. These documents are further supported by the statement of Abdul Rasheed, Senior Headmaster, Government High School Raiwind, Lahore,' who appeared in the Court with the relevant record, i,e, the Admission and School Leaving Register and made his statement on oath. According to the contents of the said register, the petitioner was admitted in the school on 08.05.2001 in the 9th Class at Serial No,8719 and his date of birth stands recorded as 01.12.1985. After the statement of the said Senior Headmaster, an opportunity was given, but he was not cross-examined by the other side, meaning thereby that his statement was admittedly to the extent of the date of birth of the petitioner. Similarly, the Secretary, Union Council No, 147, who produced the Birth Register, also made a statement on oath that Exh. E-II, i,e, the birth certificate of the petitioner is correct.
According to the said register, the date of birth of the petitioner was 01.12.1985, which was recorded on 31.12.1985, i,e, about one month after his birth. The statement of the said Secretary, Union Council also remained unrebutted because despite, opportunity, he too was not cross-examined. Further, these documents, i,e, the School Leaving Certificate and the Birth Certificate issued by the school and the union council concerned were never challenged by anybody till today before any Court of law.
9. The special medical board had examined the petitioner on 14.05.2005 and opined that the petitioner was about 22 years of age. The petitioner was medically examined after about two years of the alleged occurrence. According to the F.I.R., the occurrence took place on 17.10.2003, which means that at the time of occurrence, the age of the petitioner was 17 years, 10 months and 16 days, which clearly indicates that at the time of the occurrence, the petitioner was minor and was juvenile. Unrebutted documentary evidence could not be rebutted by the opinion made by medical board because in ossification test, the medical board always give the tentative opinion.
10. In view of what has been discussed above, this criminal revision is allowed, the impugned order dated 12.10.2009 passed by the learned Additional Sessions Judge, Lahore is set aside and the case is remanded to the learned Additional Sessions Judge Lahore with the direction to conduct the trial of the petitioner under the Juvenile Justice System Ordinance 2000. Disposed of.