ORDER SAGHEER AHMAD QADRI, J. Petitioner Muhammad Naeem, who is an accused in case F.I.R. No. 168 of 2008. Dated 28-4-2008 under sections 302, 379, 411 and 34, P.P.C. Registered at Police. Station City Mian Channu District Khanewal, has preferred this revision petition against the order dated 1- 12-2010 passed by learned Additional Sessions Judge, Mian Channu whereby application under section 7 of the Juvenile Justice System Ordinance, 2000 moved by the petitioner for declaring him as a child as defined under section 2(b) of the Ordinance, ibid, was dismissed.
2. Facts necessary for the disposal of this petition are that petitioner claiming himself as a child/less than 18 years of age at the time of alleged commission of the offence i.e. On 28-4-2008, moved petition which was initially allowed by the learned trial court, however, in Criminal Revision No.375 of 2009 moved by the complainant/ respondent No. 2 vide order dated 24-2-2010 while setting aside the order matter was remanded to the learned trial Court with the direction to conduct fresh inquiry and dispose of the matter in accordance with law.
3. Learned Additional Sessions Judge after passing of the above mentioned order recorded statement of Tasadduq Hussain son of Muhammad Ayyub Shah, Secretary Union Council No. 74, Siranwali, Tehsil Daska District Sialkot, who produced before him the record of birth register maintained in the said Union Council between the period of 1984 to 1989. According to him at Serial No.56 of the birth register name of Naeem Akhtar son of Ghous Muhammad was recorded and according to the birth entry date of birth of the petitioner was shown as 23-5-1989. Statement of Muhammad Naeem Shaheen, Deputy Education Officer, Mian Channu was recorded, who produced school leaving certificate (Exh.C/3) whereby date of birth of the petitioner Muhammad Naeem son of Ghous Muhammad was shown as 4-2-1991. Statement of Muhammad Iqbal son of Muhammad Ilyas Khan, Principal Pak Cadet School, Mianwali Bangla Tehsil Daska District Sialkot was recorded, wherein he submitted the school leaving certificate (Mark-A) and copy of register of admission and withdrawal (Mark-B) showing the date of birth of the petitioner as 4-2-1991. During the pendency of this petition twice Medical Boards were constituted under the direction of the learned trial court and according to the report of the first Medical Board, petitioner was examined on 6-10-2009 and the Board found him aged about 16/17 years. According to the second assessm ent by the Medical Board whereby petitioner was examined on 8-11-2010, his bone age was found between 18 to 19 years.
4. Learned trial court on the basis of statements of the witnesses, records as well as reports of the Medical Boards found the petitioner aged about more than 18 years at the time of alleged commission of the offence thus found him disentitled for any benefit under Juvenile Justice System Ordinance, 2000 vide order dated 1-12-2010, which is being impugned by the petitioner through the instant criminal revision.
5. Learned counsel for the petitioner argued that the birth certificate relied on by the complainant/State whereby date of birth of Muhammad Naeem petitioner was shown as 23-5- 1989, if seen in the light of statement of Tasadduq Hussain, Secretary Union Council No.74, this birth entry is doubtful as at Serial, No.56 of the register maintained in the said Union Council names of one Naeem Akhtar son of Ghous Muhammad and Mst. Maria Munawar daughter of Munawar Ahmad are also found recorded. In view of the circumstances this entry was not worth reliance; that if school leaving certificate as well as admission register are seen, date of birth of the petitioner is shown as 4-2-1991; that if the opinion of Medical Boards is seen, they on two occasions i.e. On 6-10-2009 assessed the bone age of the petitioner as 16 to 17 years and subsequently on 8- 11-2009 as 18 to 19 years and if this assessment is seen, at the time of alleged occurrence petitioner was aged less than 18 years, thus was a child as defined under section 2(b) of the Juvenile Justice System Ordinance, 2000 and was entitled for the benefit as such; that the learned trial Court did not advert to this aspect and wrongly while disbelieving the medical opinion preferred the birth certificate entry which itself is doubtful. While relying on Muhammad Zakir v. The State and another (2004 SCMR 121), Hassan Zafar v. The State (2001 PCr.LJ 1939), Tauseef alias Captain v. The State and another (PLD 2009 Lahore 535), Azmat Hussain Shah v. The State 2008 YLR 499, Mst. Shabana Kausar v. Farhan Ahmad and others 2003 PCr.LJ 1507, Subedar Sabir Ali v. The State and another (2005 YLR 821), Muhammad Anwar v. Muhammad Suffyian and another (2009 SCMR 1073), Sanaullah v. The State (2006 PCr.LJ 430), Muhammad Nasir v. The State (2007 MLD 148), Zafar Iqbal v. Ehsan Ali and another (PLD 2008 Lahore 26) and Allah Ditta v. The State (2010 PCr.LJ 909) prayed that impugned order be set aside.
6. On the other hand, learned D.P.-G. Has opposed this petition on the grounds that according to the birth entry in the certificate issued by the concerned Union Council date of birth of the petitioner is shown as 23-5-1989; that Medical Boards submitted conflicting opinions about the age of the petitioner; that school leaving certificate was not an authentic source to determine the age of a person, therefore, learned trial court rightly believed the birth entry and dismissed petitioner's application while giving plausible reasons. Prayed that this petition be dismissed as petitioner raised the plea of juvenility at belated stage.
7. I have considered the contentions raised by learned counsel for the parties and have gone through the record.
8. If the evidence recorded by learned trial court to determine the age of the petitioner is seen, statements of Tassaduq Hussain son of M. Ayyub Shah, Secretary U.0.No.74, Muhammad Naeem Shaheen, Deputy Education Officer, Mian Channu and Muhammad Iqbal son of Muhammad Ilyas Khan, Principal, Pak Cadet School, Mianwali have been recorded. Documentary evidence in the shape of school leaving certificate, extract of the admission and withdrawal register maintained at the school and birth certificate issued by the concerned Union Council are available on record.
According to the school leaving certificate as well as extract of the register of admission and withdrawal date of birth of the petitioner is shown as 4-2-1991. Birth certificate issued by the concerned Secretary Union Council shows date of birth of the petitioner as 23-5-1989. Learned trial court has given preference to this birth certificate as according to his assessment the opinion of two medical boards was conflicting and the records of the school leaving certificate etc. Could not be believed having no authenticity about the age of any student admitted in educational institution. In order to resolve this controversy it is imperative to first look into the relevant provisions provided under Juvenile Justice System Ordinance, 2000 section 7 of the Ordinance, ibid, deals with the question of determination of age, which reads as under:- 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."
Definition of "child" is provided under section 2(b) of the Ordinance, ibid, wherein child is defined as under:-- "Child" means a person who at the time of commission of an offence has not attained the age of eighteen years."
If the language of section 7 reproduced above is seen, it has specifically been provided that in case any question arises, before a court to determine the age of an accused to provide him benefit under this Ordinance as a child i.e. Having committed an offence at the age of less than 18 years, then the Juvenile Court shall record findings after such inquiry and, "shall include a medical report for determination of age of the child." If the evidence recorded in this respect by the learned trial court is seen, as already mentioned, statements of three witnesses were recorded, who produced school leaving certificate as well, as extract from admission and withdrawal register whereby age of the petitioner is shown as 4-2-1991. Birth register entry shows the age of the petitioner as 23-5- 1989. However, if the statement of Tassaduq Hussain, Secretary Union Council No. 74 is seen, he during cross-examination by the learned counsel for, the petitioner specifically stated that:-- "There are two entries mentioned in Serial No.56. Against first entry at Serial No.56 name of Mst.
Maria Munawar Daughter of Munawar Ahmad son of Muhammad Anwar caste Mayoo, agriculturist, religion Islam, R/o. Village Mianwali was entered in the aforesaid birth register. There is also a second entry at Serial No.56 which pertain to Naeem Akhtar son of Ghous Muhammad son of Nawaz Khan, caste Mayoo Rajpoot, Agriculturist, Religion Islam, R/o. Village Mianwali was entered. It is correct that the papers in the - aforesaid birth register are in bounded form today.
There is no double entry of same serial number mentioned in the aforesaid register. Double Serial No. Shows that one of the entry is wrong however, there are other double serial numbers are also mentioned tm this page. "
If, this statement is seen, it is 'clear that entry in respect of the petitioner in this birth register in view of the circumstances that names of two persons are recorded against Entry No. 56, makes it doubtful. Remaining evidence i.e. Record of school leaving certificate as well as extract of admission and withdrawal register if seen, these are not conclusive proof of the age of the petitioner and in these circumstances the court only can rely on the medical evidence, which is present on record in the shape of report& of two Medical Boards whereby opinion was given on 6- 10-2009 and 8-11-2010. If these opinions are seen, keeping in view the alleged date of commission of the offence i.e. 28-4-2010, if first opinion is taken into consideration according to which petitioner was shown as 16 to 17 years of age and if subsequent opinion dated 8-11-2010 is seen whereby petitioner was shown as 18 to 19 years of age, at the relevant time petitioner's age can safely be calculated less than 18 years. As the language of section 7 of the Ordinance, ibid, itself provides that the court in order to determine the age of a person as child shall consider the medical report, therefore, in the light of above discussion when other documentary evidence is of doubtful nature, safe reliance can be made on the opinion of Medical Boards. In this respect this view can further be supported by the specific judgments cited by learned counsel for the petitioner i.e. Muhammad Anwar v. Muhammad Suffyian and another (2009 SCMR 1073) and Muhammad Zakir V. The State and another (2004 SCMR 121). Resultantly, for what has been discussed above, this criminal revision is allowed. Impugned order dated 1-12-2010 passed by learned Additional Sessions Judge, Mianchannu is set aside and petitioner is declared as a child as defined under section 2(b) of the Juvenile Justice System Ordinance, 2000. Learned trial court is directed to proceed further towards the trial in accordance with law. Disposed of..