AFTAB AHMED GORAR, J.---Through this Criminal Revision, order dated 08.10.2018 passed by the trial court i.e. Anti-Terrorism Court No. II, Karachi has been called in question whereby application under section 7 of the Juvenile Justice System Ordinance, 2000, filed by the applicant to declare him juvenile, was dismissed.
2. Learned counsel for the applicant has argued that the impugned order passed by learned trial court is illegal and result of misreading of record. He contended that at the time of alleged incident the age of applicant as per birth certificate and educational certificates was 16 years one month and fifteen days, which documents were verified by the concerned departments and the trial court solely on the basis of report of Medical Board declined the application of the applicant which is against the fundamental right and spirit of well settled principles of laid down by the superior courts. He further contended that the report of medical board has no authenticity and the learned trial Court should have relied on the birth certificates and educational certificates. Lastly, he prayed for setting aside the impugned order passed by learned trial Court. To support his contentions, learned counsel for the applicant has relied upon the cases reported in PLD 2004 Supreme Court 758, 2017 SCM R 633 and 2014 PCr.LJ 542.
3. On the other hand, learned counsel for the complainant assisted by learned Assistant Prosecutor General Sindh has opposed this Criminal Revision with vehemence. He has stated that trial court after examining the entire record has passed the order on application under section 7 of the Juvenile Justice System Ordinance, 2000 filed by the applicant. To support his contentions he has relied upon the cases reported in PLD 2015 SC 145, 2004 SCMR 121, 2012 SCMR 242, 2003 PCr.LJ 623, PLD 2004 Peshawar 70, 2007 YLR 2151, PLD 2007 Lahore 392, PLD 2008 Lahore 26 and PLD 2004 Supreme Court 758.
4. Arguments heard, record perused.
5. It is a well settled principle of law that when during a trial, an accused claims himself to be minor, then the proceedings as required under the Juvenile Justice System Ordinance, 2000 should be carried on. In the said proceedings, first step is determination of age of the accused. For convenience the said section reproduced herein below; "Determination of age---If a question arises as to whether a person before it is a child for the purposes 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."
6. In our opinion, a plain reading of section 7 shows that this is mandatory unless there are strong reasons to dispense with the same. On the conclusion of the inquiry, the Court should give its findings after considering all the evidence brought before it in accordance with the established principles of criminal jurisprudence. We are fortified in this view by the following dictum laid down by the august Supreme Court of Pakistan in "Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others" (PLD 2004 SC 758): "24. The word INQU IRY is defined by clause (k) of subsection (1) of section 4 of the Cr.P.C. but the said definition is not exhaustive. Various kinds of inquiries are envisaged by the Code of Criminal Procedure e.g. the one ordained by section 117 thereof. We know it by now from the judicial precedents that the purpose of holding an inquiry, amongst others, is to determine the existence or non-existence of a fact or the falsity or correctness thereof and further that an inquiry is a judicial proceeding in which evidence could be legally taken. 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 a just conclusion about the said matter.
As has been mentioned above, the issue about the age of an accused person at a trial which could result in a punishment of death, was now of vital significance and the learned Presiding officers should never hasten to decide the said issue in 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 thus not legally tenable. The reluctance of the Courts to benefit from such a mandated material was not understandable. Therefore, a question of the 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 command that "...such inquiry shall include a Medical Report for determination of the age..."
7. In the present case, the trial court being not satisfied with the documents produced by the applicant for proving him to be juvenile ordered medical examination/ossification of the applicant and it will be appropriate to reproduce the report of Medical Superintendent Services Hospital, Karachi which reads as under: "As per bony ossification and physical appearance the age of accused Ali son of Lal Dino is between 19 and 20 years nearer to 20 years."
8. Perusal of record reveals that the applicant had filed two applications before the trial court for treating him as juvenile. Both the applications were dismissed by the trial court vide orders 03.8.2013 and 08.10.2018. Record further reveals that after passing the order dated 03.08.2013 the applicant remained silent for five years and moved another application after five years for same relief. The learned trial court in its order, impugned herein, in para 9 has observed as follows: "9. Accused Ali Dino was born at Shaikh Zayed Hospital Larkana, they have not provided any certificate from the hospital. They have also not provided Bay Form of NADRA to show that birth of the accused was entered promptly many years before the incident; in fact the certificate provided by the accused from the Union Council shows that the birth date was entered on 09.01.2013 after occurrence of this incident on 09.03.2012. Entering the birth in the Union Council is an afterthought as it was entered on 09.01.2013 whereas the incident had occurred on 09.03.2012. Once the court had passed order on 03.08.2015 and had relied on the report of the medical board that accused Ali Dino at the time of commission of crime was 18 years old the advocate of the accused should have challenged that order instead on 29.09.2018 after five years he filed another application on the same ground giving the same documents. The application is rejected. The learned advocate of the accused Mr. Wazeer Hussain Khoso was fined of Rs.5000/- on 22.03.2018 for taking 3rd time consecutive adjournment which as yet he has not paid to delay the matter and this application has been filed to delay the same."
9. It may not be out of place to mention here that whenever a Court is confronted with question of age of an accused person, it is incumbent upon it to hold an inquiry. Presiding Officers should always feel free to requisition the original record, to summon and examine the authors custodians of such record/documents to determine genuineness of the same, to summon persons, if need be, who on account of some special knowledge could depose about age of concerned accused person and to take such other and further steps which could help the Court in reaching a just conclusion about the said matter. The issue about the age of an accused person at a trial which could result in punishment, is now of vital significance. Presiding Officers should never hasten to decide the said issue in a summary or in a slipshod manner. In the present case the documents i.e. birth certificate and educational certificates have been provided by the applicant himself to prove that he was a minor at the time of incident which question has already been dealt by the trial court by passing the order impugned herein. In the case in hand, birth certificate and educational certificates were available before the learned trial court but when it has considered the said documents to be insufficient for reaching at just and fair conclusion, has directed, examination of the petitioner, through the Medical Board. When for medico-legal work, the said board has been established and constituted as third tier, then its utilization, for the purpose of determination of age could not be termed objectionable or strange. According to father of the applicant, the applicant was born in hospital but no certificate of hospital or discharge card in this respect has been placed on the record. There is no illegality in the impugned order and the same has rightly been passed by learned trial Court, therefore, by upholding the order dated 08.10.2018 passed by the trial court, instant revision application is dismissed, being devoid of any force and merit, is dismissed.