HAFIZ SHAHID NADEEM KAHLOON, J.---Through this criminal revision petitioner has called in question order dated 06.07.2015 whereby application of the petitioner for declaring him juvenile was dismissed by learned Additional Sessions Judge, Dera Ghazi Khan.
2. Brevity of facts as garnered from petition in hand are that petitioner was a nominated accused of case FIR No,207/14 dated 07.07.2014, registered under sections 302/34/109, P.P.C. At Police Station Kala, Tehsil and District Dera Ghazi Khan, after chalking out of said FIR petitioner was arrested and sent up for trial according to report under section 173, Cr.P.C. On 31.08.2014, wherefore after his arrest, he forthwith put forth his request to the concerned police officer about his minority, who after probing recorded his age on 17.08.2014 at the time of his arrest as 17/18 years. During the course of summoning to face trial petitioner also preferred application under section 7 of the Juvenile Justice System Ordinance, 2000 (hereinafter referred as Ordinance) for declaring him as juvenile, relying upon School Leaving Certificate, whereto his date of birth was 11.12.1998, thus made his case within the purview of section 7 supra of the Ordinance as on 07.07.2014 his age was approximately 16-years and 07-months. In response thereto medical board was constituted comprising of Radiologist, Dental Surgeon, General Physician, Orthopedic Surgeon and Medical Superintendent of DHQ Hospital Dera Ghazi Khan. After process of X-Ray examination, dental age of petitioner was determined as more than 16-years, as regards opinions of Radiologist, Physician, Orthopedic Surgeon and Physical Examination of the petitioner unanimous opinion, was formed regarding the age of the petitioner between 18 to 20 years. Learned trial Court directed the complainant to produce his documentary evidence, who produced a certificate of the same school declaring the School Leaving Certificate produced by the father of the petitioner as bogus and Identity Card issued by the NADRA, taking into consideration documentary evidence as well as submissions made by learned counsel for the parties learned trial Court declined the plea of accused- petitioner for declaring him as juvenile, hence this criminal revision.
3. Learned counsel for the petitioner submits that learned trial Court did not take care of the School Leaving Certificate and without dilating upon declared it as bogus even without matching with the original record and no witness was summoned from the concerned school in order to take light for right determination of the things in a discrete manner, so surreptitiously and capriciously passed impugned order and also did not advert to core document which resulted into non-application of its judicious mind, so, the learned trial Court was not justified to get aside the things which were more prime and vital in determination of age of petitioner; further submits that according to the opinion of the Medical Board accused was below 18-years at the time Of alleged occurrence because Medical Board was constituted after the occurrence about 11-months and 11-days; further submits that as regard Identity Card which was got issued by the petitioner for just getting employment/ service in Army before attaining age of majority due to financial conditions of his family, mentioning of wrong date of birth in the record of NADRA was mere a result of solacing and eliminating poverty of his family. In this regard he has placed reliance on following case law:-
1. "Umar Havat v. Jahangir etc " (2002 SCMR 629)
2. "Sultan Ahmad v. ASJ, etc." (PLD 2004 SC 758)
3. "Om Prakash v. State of Rajhastan etc." (2012 SCMR 1400)
4. "Shehar Yar @ Shahri v. The State, etc." (2006 YLR 10)
5. "Malik Sajjad Ahmad v. The State, etc." (2006 PCr.LJ 211)
6. "Afsar Zamin v. The State, etc." (PLD 2002 Karachi 18)
7. "Sadam v. The State, etc." (2014 PCr.LJ 542)
8. "Yousaf v. The State, etc." (1975 PCr:LJ 936)
9. "Muhammad Zubiar v. The State" (2010 SCMR 182)
10. "Muhammad Anwar v. M. Sufyan and another" (2009 SCMR 1073)
11. "Mst. Shabana Kausar v. Farhan Ahmad (2003 PCr.LJ 1507)
12. "Muhammad Basharat .v. The State and 4 others (PLD 2007 Lahore 392)
4. On the other hand learned counsel for the complainant has reiteratedly opposed the contention raised by learned counsel for the petitioner and endorsed the order dated 06.07.2015.
5. After giving profound consideration to the arguments put forth by learned counsel for the parties the premise of this revision petition relies upon section 7 of the said Ordinance while determination of age, if a question arises as to whether an accused before the Court is a child for the purpose of this Ordinance the Court shall record a finding after such inquiry, which shall include a medical report for determination of age of the child so the mode for determination of age had not been rightly followed by the learned trial Court by omitting to consider the medical report. As per record of the case the occurrence took place on 06.07.2014, the ossification test was conducted on 17.06.2015, the age of the accused-petitioner was declared 18 to 20 at the time of examination, whereas age of the accused was considered as 18-years on 17.06.2015, then he was 17-years 19- days old; if it was considered that he was 20-years old on 17.06.2015 i,e. Date of ossification test then he was 19-years 19-days old at the time of occurrence. These core issues were not dealt with by the learned trial Court which were prime in nature and required to be thrashed according to the mandate of section 7 of the Ordinance and did not follow the requisites of section 7 of the said Ordinance as set forth by the apex Courts so it was mandatory upon the learned trial Court to give due weight to the true facts and then by adopting proper mode must have observed the sanctity attached to the ossification report as well as the material in the shape of documentary evidence submitted by the learned counsel for the parties. As regard CNIC of the petitioner-accused which reflected his date of birth as 01.01.1994 which shows on 06.07.2014 he was more than 20-years but if the things submitted by learned counsel for the petitioner in the shape of arguments that due to poverty and man of no means he got issued the said CNIC in order to get livelihood so that he might generate sources for his family, learned trial Court should have taken note of entire scenario of the case and then should have arrived at just and right conclusion. Other vital limb of the case was ossification report as well as School Leaving Certificate which were not properly looked into by the learned trial Court because in case of any lesser or more things in determining the age of the juvenile the benefit tilted normally towards lesser things favouring the accused.
6. While scanning section 7 of the said Ordinance, it is evident that the view of beneficial scope of Ordinance, as had been observed in numerous cases, the provisions are to be interpreted liberally and that when two views are possible, one favouring the accused has to be taken particularly qua the juvenility inasmuch as it can be proved to be helpful for his rehabilitation on account of aid of Ordinance, the accused is held to be entitled to the benefit of a year's margin and he is declared as juvenile as such with the result that his trial is ordered to be sent to juvenile Court.
7. According to my mind the best test for determination of the age was ossification and report of Radiologist because there was a rare chance of wrong decision because the same was based upon result given by highly technical and advance equipments, so time and again Hon'ble Superior Courts of the country had laid down dictum that best test for determination of age was ossification and report of Radiologist, these things were negated by the learned trial Court and without dilating upon true facts passed the order in a mechanical and stereo type way.
8. In criminal dispensation of justice, benefit of doubt is extendible at all stages of inquiry and trial.
Same view has been taken in the case of Muhammad Zubair (2010 SCMR 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).
9. The upshot of the above discussion is that impugned order dated 06.07.2015 is hereby, set aside, the petitioner shall be sent to face trial before a Court constituted under the Ordinance.