' This petition under Sections 435/439, read with Section 561-A, Cr. P.C, calls in question order dated 21-8-2013, passed by the learned ASJ, Kabirwala, whereby, he while accepting the application filed by respondent No, 2-Muhammad Asif, accused in a private complaint under Section 302/324/337- F(v0/148/149, PPC, declared him a juvenile within the meaning of Section 7 of the Juvenile Justice System Ordinance 2000.
2. It appears that in the connected state case, the said accused was mentioned as 17/18 years old, whereas, in the Register of Births maintained by U.0 (052) Hashmat Merali, district Khanewal, his date of birth was mentioned as 26.5.1993. Similar was the date mentioned in the school leaving certificate of the said accused. However, the Medical Board constituted under the direction of the learned trial Court opined that the age of the accused was between 18 to 20 years It appears that the learned trial Court ignored the school leaving certificate and the extract from the Register of Births and mainly relied upon the report of the Medical Board and thereby concluded as under:-- "The report of Medical Board reveals that the age of accused Muhammad Asif son of Allah Ditta is between Eighteen to Twenty years (18.20 years). The date of examining of accused Muhammad Asif by the Medical Beard is 7.8.2013 while the date of occurrence is 6.8.2012, so it is clear that the age of the accused Muhammad Asif was seventeen to nineteen years (1719 years) at the time of occurrence i,e, 7.8.2012."
3. Being dis-satisfied with the impugned order, the petitioner who is complainant in the private complaint has assailed the same through filing the instant criminal revision petition.
4. I have heard the learned counsel for the parties and have also gone through the case law cited at the bar.
5. It is mandate of Section 7 of the Juvenile Justice System ordinance 2000, that where a question arises as to whether an accused person is juvenile or not, the Court shall record a finding after such inquiry which shall include a medical report for determination of the age of such person. Thus it is quite clear that such an inquiry is not only confined to the report of Medical Board rather other documents can also be looked into in order to determine the age of an accused who claims himself to be juvenile. It has been ruled in the case of Muhammad Akram reported as "2002 PCr.L.J'
683" that ossification test could only give a clue as to the age, but could not be a conclusive proof and that such exercise had to be resorted to only when there was no, other proof available like school leaving certificate or the birth certificate and the Court was in a quandary about the age of' the accused. The relevant portion of the said judgment is reproduced below for the sake of convenience:-- "When we speak of the medical evidence, it obviously means clinical and radiological examination or what is commonly called as the ossification test. It is a well-known fact that the ossification test can only give a clue as to the age but cannot be a conclusive proof and this exercise has to be resorted only when there is no other proof available like the school leaving certificate or the birth certificate and a Court is in a quandary about the age of an accused. Even where matters are referred for ossification test, a margin has to be given for doctor's opinion as it is not absolute. In this connection, reference is made to the following cases:-
(1) Banney Khan v. The State 1975 PCrl. L.J 453, (2) Jhanda Khan vs. Nawab Din and others 1970 SCMR 31, (3) Sarja v. The Crown PLD 1951 Lah. 226, (4) Yousaf v. The State 1975 P.Cr. LJ 936, (5) Rajat Kunda alias Ranajit and another v. The state 1968 P Cr. LJ 529) and (6) Muhammad Ahmad alias Anjum us. The State PLD 1974 Karachi 459)".
6. In this case, the complainant had relied upon the birth certificate of the petitioner maintained by the UC concerned. It appears that in the said certificate the date of birth of the accused has been mentioned as 26.5.1993. The said record was maintained in the ordinary course of performance of duty by the government officials and presumption of truth was also attached to it, hence, if the learned trial Court had conducted inquiry into the genuineness of the said certificate it could furnish an exact proof of the age of the accused instead of considering his age on the basis of estimation as given by the medical board. It has been held in the case of Sultan Ahmad reported as "PLD 2004 SC 758" that while holding an inquiry to determine the age of an accused, the Court should always feel free to requisition the original record, to summon and examine the authors and 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 and to take such other further steps which could help the Court in reaching a just conclusion about the said matter. Therefore, the learned trial Court could and should have determined the question of juvenility of the accused on the basis of documents which may be produced by the parties, especially the documents referred to above i,e, birth certificate of the accused and his school leaving certificate etc.
7. In the light of the above discussion, to my mind, mere placing reliance upon the report of the medical board in order to determine the age of the accused without considering the other material, was not appropriate on the part of the learned trial Court. The matter, is therefore, remanded to the learned trial Court with the direction to conduct an inquiry in the matter as envisaged under Section 7 of the Juvenile Justice System Ordinance, 2000, and considers the birth certificate and any other document which may be produced before it to determine the age of the accused. The learned trial Court may also consider the report of the medical board, but this will be a last resort and if other documents furnish a proof regarding exact date of birth of the accused then it will decide the matter in the light of the said documents. This petition is accordingly allowed by setting aside the impugned order.