' ZAFARULLAH KHAN KHAKWANI, J. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question validity of order dated 05.01.2012 passed by the learned Sessions Judge, Sahiwal whereby application of the petitioner for his separate trial by the Juvenile Court established under Section 4 of the Juvenile Justice System Ordinance, 2000 after ascertaining his age from the Medical Board, was dismissed.
2. Brief facts of the case are that case F.I.R. No, 167, dated 12.5.2011 under Section 302/34, P.P.C. Was registered at Police Station Sher Shah, District Sahiwal and the petitioner was shown as accused in the said case. The petitioner filed an application before the learned Sessions Judge on 6.7.2011 for separation of his trial on the ground that he was child within the meaning of Section 2(b) of the Juvenile Justice System Ordinance, 2000 and as such he should be tried by a Juvenile Court under Section 4(3) of the said Ordinance. The petitioner also produced birth certificate issued by the NADRA. The learned Sessions Judge referred the matter to the medical board for opinion and the medical board submitted its report dated 13.9.2011 with the opinion that the petitioner was nineteen years six months and thus was not a juvenile. Relying on the report of the Medical Board the learned Trial Court vide order dated 5.1.2012 declared that the petitioner was not juvenile at the time of occurrence and as such rejected his prayer for trial by Juvenile Court.
3. Learned' counsel for the petitioner while reiterating grounds mentioned in the Constitutional petition submits that the petitioner was issued birth certificate by NADRA in which date of birth of the petitioner has been shown as 30.06.1997 which prima facie shows that the petitioner was a juvenile at the time of alleged occurrence and that the birth certificate was issued according to record of the local government as such the impugned order was passed in derogation of law laid down by the Hon'ble Supreme Court and the petitioner should be ordered to be tried by Juvenile Court.
4. Conversely, learned Law Officer assisted by learned counsel for respondent No, 8 vehemently opposed the petition and submits that Medical Board's report dated 13.09.2011 negates the version of the petitioner as such the order dated 05.01.2012 was rightly passed by respondent No, 1.
5. Arguments heard. Record perused.
6. I have gone through the contents of birth certificate issued by NADRA (Annexure-A). It is an admitted fact that the occurrence took place on 12.5.2011. The petitioner filed application for constitution of Medical Board for ascertainment of his age on 6.7.2011. On the said application the learned Sessions Judge/Juvenile Court directed constitution of medical board which was constituted in District Head Quarter Hospital, Sahiwal and the said Board vide its report dated 15.9.2011 categorically opined that age of the petitioner as 19 years and six months meaning thereby that at the time of occurrence his age was 19 years two months. Perusal of birth certificate shows that date of birth of the petitioner was incorporated in the relevant record of NADRA on 20.6.2011 and he was thereafter issued certificate i.e, after registration of the F.I.R. According to the Ossification test of the Radiological bone age of the petitioner was about 18 years six months and the Medical Board after taking into consideration reports of the Radiologist, Dental Surgeon and physical appearance of the petitioner, declared age of the petitioner as 19 years six months.
7. Section of the Juvenile Justice Ordinance, 2000 pro vides the method for determination of age of an accused person for the purpose of jurisdiction of the Court. This Section runs as under:- "If a question arises as to whether a person before it is a child for the purpose 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."
' A bare reading of this provision of law would reveal that when a query is raised regarding determination of age of an accused, the juvenile Court shall conduct inquiry in this regard and this inquiry shall include a medical report to find out whether the accused was a child or not at the time of commission of an offence.. The Hon'ble Supreme Court while dealing with the issue of determination of age under the Juvenile Justice System Ordinance, 2000 in case Sultan Ahmed v.
Additional Sessions Judge-I, Mianwali and two others (PLD 2004 SC 758) observed as under:--- "Therefore, whenever a Court is confronted with the question of the age of an accused person, it is incumbent upon it to hold an inquiry and the learned Presiding Officers should always feel free to requisition the original record; to summon and examine the authors and the custodians of such record and documents to determine the genuineness of the same; to summon persons, if need be, who on account of some special knowledge, could depose about the age of the concerned accused person and to take such other and further steps which could help the Court in reaching the just conclusion about the said matter. As has been mentioned above, the issue about the age of an accused person at trial which could result in punishment of death, was now of vital significance and the learned presiding officer should never hasten to decide the said issue in a summery or a slipshod manner.
25. Medical report about the age of an accused person was a further aid placed at the disposal of a Court of law for the purpose of determining the age of an accused person. The opinion of medical experts could offer a valuable guide to a learned Presiding Officer in resolving the controversy in issue. The impression that an ossification test could be ordered only as a last resort was not correct and was thus not legally tenable. The reluctance of the Courts to benefit from such a mandated material was not understandable. Therefore, whenever, question of age of an accused person is raised or arises he must be subjected to a medical test unless strong reasons existed or could be offered for not doing so. Such is the only course which is in accord with the provisions of Section 7 of Ordinance XXII of 2000 which commands that "such inquiry shall include a medical report for determination of the age".
' I may be mentioned here that when there is a conflict between the birth certificate and the report of the Medical coard, the later one will be given preference. It has been held by this Court in Muhammad Nasir v. The State (2007 NM 148) as under:- It is settled principle of law laid down by the superior Courts that age of the accused can only be determined after obtaining the report from the Medical Board. Intention of the Legislature is very clears that determination of the age of an accused person merely on the basis of School Leaving Certificate or Birth Certificate is not safe, hence report from the Medical Board should be obtained for the said purpose due to the reason that the Birth Certificates or School Leaving Certificates are easily available. It has further been observed by the Courts that the Juvenile Court alone can decide whether the accused is a child or not on the basis of the unimpeachable documentary evidence and after obtaining medical opinion......
6.
7. It is settled principle of law that when there is conflict between the Birth Certificates and the Medical Board, the opinion of the Medical Experts will prevail."
' Thus, the findings of respondent No, 1 that entry of birth was got incorporated in the record of NADRA even after the occurrence, as such the same apparently seems to be manouvred, is plausible which does not call for any intenerence by this Court.
8. In view of the above, I find no illegality or irregularity, in the order dated 05.01.2012 passed by respondent No,
1. Resultantly, this petition being meritless is dismissed
9. Since, proceedings before learned Trial Court ware stayed by this Court vide order dated 23.2.2012 so office is directed to 'immediately transmit a copy of this judgment to the learned Trial Court for information.