MALIK HAQ NAWAZ, J.---Through this petition the petitioner has assailed the judgment/order dated 04.10.2018, whereby the learned Addl. Sessions Judge Diamer while accepting the petition filed by the learned counsel for the petitioner has declared him a minor and has ordered for separation of his trial.
2. Suffice to say that respondent Kamran son of Juma Khan is an accused in FIR No 04/2018 of Police Station Goharabad Chilas which has been lodged under sections 302/114/34, P.P.C. on 08.03.2018.
3. The challan of the above case as evident from the impugned judgment/order was entrusted to the learned trial Court on 31.05.2018 and was fixed for framing of charge on 28.8.2018, when the learned counsel for the respondent submitted an application under section 7 of Juvenile Justice System. Ordinance, 2000, with the contention that the date of birth of the petitioner as per school leaving certificate is 14.3.2004, hence the petitioner is minor as per section 2(b) of Juvenile Justice System Ordinance, 2000. The learned trial Court as mentioned in the impugned judgment/order dated 04.10.2018, got the said certificate verified from the concerned authorities and found the same as a genuine one The learned trial Court after being satisfied passed the-impugned order.
4. The learned counsel for the petitioner submitted that the judgment/order of the learned trial Court is against the spirit of section 7 of Juvenile Justice Ordinance, 2000, as no proper inquiry has been conducted by the learned trial Court. The learned counsel submitted that constitution of a medical board was a pre-requisite, which exercise has not been under taken by the learned trial Court. The learned trial Court per learned counsel has passed the above order in a hasty manner, without proper application of judicial mind. Lastly that the respondent/accused has not taken the plea of juvenility during the investigation and the same was raised first time, when the case was fixed for framing of charge. The plea of minority was an afterthought after managing the supportive documents. The learned counsel relied on PLD 2008 Lah. 26, 2004 PCr.LJ 105 and 2006 PCr.LJ 1450.
5. On the other hand the learned counsel for the respondent submitted that the school leaving certificate shows date of birth of the respondent as 14.3.2004, which certificate was declared genuine, when sent for verification by the learned trial Court. After verification of the school leaving certificate no option was left with the trial Court except to declare the respondent as Juvenile. The judgment/order of learned trial Court is in accordance with law, which does not call for any interference by this Court. The learned counsel relied on 2002 SCM R 440.
6. The FIR was registered on 08.03.2018 and the accused was produced before the trial Court for framing of charge on 04.10.2018. No doubt that the respondent has not taken the plea of juvenility during investigation and first time raised the same at the time of framing of the charge, but the respondent cannot be penalized for late raising the plea of juvenility. However there is another aspect of the case, which escaped from the notice of the learned trial Court, that the school leaving certificate was hotly contested by the complainant party. NADRA record has not been made a part of the petition submitted before the learned trial Court as well as before this Court.
The contention of the learned counsel for the respondent that in presence of a genuine school leaving certificate there was no need of any other process is totally misconceived. The medical boards are constituted to further amplify that the school leaving certificate/birth certificate being susceptible to interpolation and manipulation and it becomes imperative to obtain opinion of a medical board. Both the parties must accept the constitution of a medical board, with an open heart. The opinion of medical board is not conclusive and it assists the Court to arrive at a just conclusion, when juxtaposed with other documentary evidence.
7. In view of above discussion, I, am of the view that the order of the learned trial Court date 04.10.2018 do not sound well and requires to be set aside. The revision petition is accepted. The case is remanded back to the learned trial Court to direct MS DHQ Hospital Chilas to constitute a medical board within 7 days positively and the medical board so constituted shall examine the respondent and the opinion of medical board shall positively be submitted to the trial Court within 10 working days. The learned trial Court shall ensure that the orders of this Court are followed in letter and spirit. The learned trial Court shall pass a fresh order after taking into account the documentary evidence as well as the opinion of medical board.
8. Another painful aspect of the case is that the learned trial Court released the respondent on bail, without any application under section 497, Cr.P.C. As evident from the impugned judgment/order dated 04.10.2018, that no application was filed by the accused under section 497, Cr.P.C. for his release on bail. The bail granted to the accused/respondent is re-called. He is present in the Court and directed to be taken into custody. The respondent shall be produced before the learned trial Court for his judicial remand. However the respondent will be at liberty to move a fresh bail application before 'the trial Court, if so advised and learned trial Court shall dispose of the same on merit without being influenced by any observations made in this judgment. If a bail application is filed by the respondent, the learned trial Court is directed to dispose the same within 15 days and no adjournment will be granted either to learned District Public Prosecutor, or to complainant to prolong the hearing of the bail petition. The bail facility of the petitioner is being recalled with a heavy heart to cure the illegality committed by the trial Court.
9. A copy of this judgment is also being sent "Dasti" to the learned trial Court for strict compliance.
10. File be consigned to record after completion.