' Muhammad Basit, petitioner herein, accompanied by Muhammad Bilal, co-accused, is confronting charge of homicide before a learned Addl. Sessions Judge at Talagang; he is attributed fatal Churri blows to Basharat A.I, deceased; the incident occurred on 2.9.2012. During the trial, the petitioner raised plea of juvenility, relying upon his date of birth as 11-12-1994, in support whereof, entries in the Birth Register, School Leaving Certificate and Form-B of NADRA were pressed into service; the claim was contested by the complainant and he was sent to undergo an ossification test. The Medical Board opined his age as between 19 to 20 and thus claim to juvenility was turned down vide order dated 8-6-2013, vires whereof, were challenged through Crl. Revision No. 144 of 2013 and a learned Judge in Chamber vide order dated 9-10-2013 remanded the issue for determination of petitioner's age after consideration of documents submitted in support thereof and report of medical board. The exercise was undertaken afresh but with no better results as the learned trial Judge once again declined to treat the petitioner as a juvenile vide order dated 15-11- 2014, he is again before the Court.
2. Learned counsel for the petitioner contends that according to the entries in the Union Council and Govt. High School Akwal accompanied by Form-B NADRA, petitioner's date of birth is 11.12.1994 and as such on the date of occurrence his age was 17-years and 10-months, squarely well within the ambit of juvenility; that findings of ossification test conducted on 6-2-2013 were not conclusive as Dental Surgeon and Radiologist are not unanimous in their opinions as according to the former, petitioner's age as on 6-2-2013 was between 19 to 20 whereas according to the later, it was 19 to 21, therefore, reckoned from even estimation of the Medical Board, the petitioner was of 18-years, 1- month and 25-days on the day of occurrence and as such the prosecution's claim was based upon the brink of a possibility alone. Reliance is placed on the case of Muhammad Zubair v. The State (2010 SCM R 182). Contrarily, the impugned order dated 15-11-2014 and findings of the Medical Board are defended by the learned Law Officer assisted by the learned counsel for the complainant by placing reliance on the cases of Muhammad Anwar v. Muhammad Sufyan & another (2009 SCM R 1073), Mst. Shabana Kousar v. Farhan Ahmad (2003 P.Cr.L.J. 1507), Muhammad Basharat v. The State & 4 others (PLD 2007 Lahore 392).
3. Heard. Record perused.
4. The Juvenile Justice System Ordinance (XXII of 2000), hereinafter referred to as the Ordinance, had been promulgated for protection of children in criminal litigation and for their rehabilitation in the society. The provisions of the Ordinance exclude infliction of death penalty on a juvenile; this is no ordinary concession given by the Statute. In the event of a question relating to the determination of age, an inquiry within the contemplation of Section 7 of the Ordinance is to be undertaken which is an integral part of dispensation of criminal justice to be regulated by considerations and principles which are in place since long to ensure safe administration of criminal justice. All the doctrinal and juridical protections are available to an accused claiming juvenile which certainly includes the benefit of doubt. It has been held in the case of Muhammad Zubair, relied upon by the learned counsel for the petitioner that in the face of two views, view favoring the accused is to be accepted. In all the official records referred to above, petitioner's date of birth is mentioned as 11-12-1994 and going by this date of birth, he was less than 18-years of age on the fateful day. The record was sent for from Union Council Akwal as well as Govt. High School Akwal and no discrepancy was noted in the official record which was much antedated to the incident. Case of Muhammad Anwar wherein opinion of medical board was preferred over the entries in the record proceeds on vastly distinguishable facts; in the said case, the findings of the board were not challenged by the accused and in addition thereto, the paper book relied upon did not carry accused's date of birth whereas no such ambiguity can be attributed to the record relied upon by the petitioner wherein the date of birth was incorporated about two decades back to the incident.
5. Ossification test is an important method to determine the age of a person; through this methodology, estimation of one's age is based upon study of progress of ossification in the bones; it is generally regarded as a good method with a fair deal of accuracy, however, with limitations. To supplement the exercise, examination of teeth particularly growth of wisdom tooth is also taken into account. Dr. K.S. Narayan Reddy in his book titled as The Essentials of Forensic Medicine and Toxicology observed as under:-.
"From 14 to 20 years, dental age estimation is based upon the stage of development of the third molar. There is much variation in these, and the accuracy of dental age estimation during this period varies by about plus/minus three years. The body of the jaw grows posteriorly, and the ramus is elongated after eruption of second molar teeth. If third molars are absent, it should be noted whether there is a space in the jaw behind the second molar teeth. If third molars are fully erupted, it indicates that an individual is above 17 years of age."
' However, as is common with every method, space on the either side cannot be ruled out; there are many factors which have bearings on the ossification of bones such as geographic conditions, diet, economic as well as demographic conditions which may accompany the researcher's bias and expertise as well. Digital x-ray imaging, is an advanced technology for more accurate radio graphic results which is not available even in many tertiary hospitals. In the infamous Mumbai rape case, this issue came up before Dehli High Court when one of the accused Surender Khare pleaded juvenile and a learned Division Bench of Dehli High Court relying upon the case of Arnit Das v. The State of Behar (2000) 5 SCC 488 ruled that a margin of error of two years has to be given on either side while determining the age of the accused. The view is supported by medical jurisprudence classifying ossification of different bones in different time frames. Bones of upper limbs and scapulae are completely ossified during a period between 17 to 20 years whereas bones of lower limbs and os coxae become completely ossified between 18 to 23 years. In the present case, it was observed that "as all hosepipes (at proximal ends of tibia, fibula, humerus, femur as well as at distal ends of radius, ulna and humerus) are fused except iliac crests which are partially fused, so the age of this individual is between 19-21 years". Given the date of occurrence, this analysis left enough space to entertain the plea raised by the petitioner as every hypothesis of juvenility is to be excluded so as to enable an accused to escape executioner's noose; juxtaposing petitioner's date of birth as 11-12-1994 in the official record with the findings of the medical board which bring his age as 18-year, 1-month and 25-days as on the day of occurrence with a margin of error, it would be unsafe to declare him an adult to face trial on a capital charge involving irreversible penalty of death. In criminal dispensation of justice, benefit of doubt is extensible at all stages of inquiry and trial. Same view has been taken in the case of Muhammad Zubair (2010 SCM R 182), relevant portion whereof is advantageously reproduced below: "Be that as it may, the fact remains that there is a doubt in respect of the age of the appellant because according to him he was about 18 years of age whereas according to the complainant he was 20 years of age at the time of incident. In such a situation, it is to be seen as to whether doubt is to be decided in favour of the accused or the complainant. A similar question was examined by this Court in the case of "Ijaz Hussain v. The State 2002 SCMR 1455" and it after relying upon the case of "Umar Hayat v. Jahangir 2002 SCMR 629" held that "in case where two views relating to the age of accused are possible, the view in favour of the accused is normally to be accepted. "In the case of "Sohail Iqbal v. The State 1993 SCMR 2377" it has been held as under:- "In view of discrepancy in recording the age of the appellant it is only fair that the benefits should .Be extended to him particularly in view of the precedent of this Court quoted by the learned counsel for the appellant i.e. Javid Iqbal v. The State 1982 SCMR 447. "
' The upshot of the above discussion is that impugned order dated 15-11-2014 is set aside; the petitioner shall be sent to face trial before a Court constituted under the Ordinance.