This Revision Application entitled to be under sections 435/439, Cr. P. C. Read with section 51(3) of the Bombay Children Act, 1924 moved on behalf of the applicant Muhammad Saleem arises under the following circumstances:-
2. On 10-11-1970 in Kashunawaz Building Picture House Street, M. A. Jinnah Road, Karachi at 4-30 p.m. a quarrel between the applicant Muhammad Salim and his brother Abdul Ghani on one side and Abdur Razzaq and his companion Aba A.I on the other side took place. The applicant, herein, is said to have caused injuries to Abdul Razzaq who is the complainant in the case giving rise to this revision and this applicant also stabbed Aba A.I, who subsequently died as a result of the stab injury. Risala Police registered a case against the applicant and his brother under sections 302 and 307, P. P. C. Under which they were sent up by interim challan to the Court of A. C. M. No. 11, Karachi on 26-I1-1970. Thereafter, it appears that the applicant Muhammad Saleem raised a question regarding his age being below 16 years at the time of the incident in question and, therefore, he was examined by the police Surgeon as to his age, who sent a report dated 16-11-1970, wherein his conclusions according to the radiological finding and clinical examination were that the age of the applicant was about 17 years. This report it will be seen was made barely 6 days after the occurrence. In other words it shoe s that the applicant was aged more than 16 years at the time of the said occurrence. It appears that the lower Court again sent the applicant for opinion as to his age and referred his case to the Civil Surgeon, Sind Government Hospital, Karachi who sent his report dated 7-7-1971 wherein he stated that the age of the applicant was about 15-16 years.
According to this certificate the applicant would be below the age of 16 years at the time of occurrence. Once again thereafter the applicant was referred as to the opinion about his age to the Special Medical Board of Doctors at Hyderabad which examined him and submitted its report dated 3-8-1971 wherein they stated that on the appearance, physical findings and radiological investigations they were of the opinion that the age of the applicant was between 17 to 18 years.
Therefore, it will be seen there are present now three medical reports which are conflicting as regards the exact age of the applicant. Subsequent to the report by the Special Medical Board of the Doctors the applicant through his Advocate moved an application before the City and Additional District Magistrate, Karachi for declaring him as a juvenile offender under the Bombay Children Act, 1924 as applicable to Karachi. On this application the learned City & A. D. M., Karachi, who exercised powers also of the District Magistrate passed a short order in the following terms :- "The Medical Certificate shows that accused is major for the case will be tried by regular Court. The application is, therefore, rejected."
3. It is contended on behalf of the counsel for the applicant that the impugned order of the learned City and A. D. M.; Karachi could not be passed by him on a mere application being made to him on behalf of the applicant herein and one of the accused in the main criminal case concerned, as the learned City and A. D. M. Could pass no Orders as he has done under any provision of the Bombay Children Act, 1924, therefore, this order of his is a nullity in law as what he should have done was to refer this application to the Court before whom the Police had submitted the interim challan against the applicant and another and directed that that Court should decide the question whether the applicant was to be tried as juvenile offender or not by the Juvenile Court. In my opinion the contention of the learned counsel for the applicant appears to be quite correct as this impugned order is not supported by any provisions of the Bombay Children Act, 1924 having been passed by the City and A. D. M. This order therefore, has to be set aside.
4. However, this does not conclude the present matter as the applicant at present stands committed to the Court of Session for his trial for the offence of murder and attempted murder. It is not known whether his brother is also facing trial before the same Court as a co-accused-with him or not? If he is and for the reasons which I shall mention hereinafter for the view which I am taking in the matter this brother of the applicant, namely, Abdul Ghani shall be tried separately applicant Muhammad Saleem if the latter is found to be a child as defined in the Bombay Children Act, 1924 and, there, fore, entitled to trial by the Sessions Court as a Juvenile Court.
5. Apart from the three medical certificates referred to above there are on the record before me four affidavits of the father of the applicant who is Haji Wali Muhammad, one being in support of the main revision petition which has been filed here and three subsequently filed by him later on.
There is also the affidavit of the mother of the applicant, namely, Mst. Safoora Wife of Haji Wali Muhammad. In the first mentioned affidavit of Haji Wali Muhammad he states that at the time of the alleged offence his son, the applicant Muhammad Saleem, was below the age of 16 years. He mentioned the same facts in his second affidavit also which he filed subsequently in this Court and ` in his third affidavit as well he his repeated the same fact about the age of his son, the present applicant.
6. But in his fourth affidavit he has given the exact date of birth of the applicant Muhammad Saleem, his son, and states that the latter was born on 10-10-1955. He has also therein mentioned the dates of birth of his other children as well. Then there is the affidavit of the mother of the applicant herein, namely, Mst. Safoora who has also given the same date of birth of the applicant as his father has mentioned in the last mentioned affidavit of his and the mother has also given the dates of birth of their other children as yell.
7. All this material consisting of three conflicting medical reports and the affidavits of the father and mother of the applicant are not substantive evidence before me and their contents will be only the substantive evidence if the doctors who have given the medical certificates in question and the deponents of the affidavits are examined in the Court on oath. No doubt this material raises in essence the question of the exact age of the applicant at the time of the incident and whether therefore, the applicant is entitled to be tried by a Juvenile Court under the relevant provision of the Bombay Children Act, 1924.
8. In view of the above position regarding the exact age of the applicant at the time of the incident I would order the trial Court i.e. The Sessions Court where the applicant now stands committed for trial to determine by evidence i.e. By recording the deposition of the witnesses whom the Court or the applicant would like to examine in support of his age, whether the applicant was a child at the time of commission of the offences alleged against him and, therefore, should be tried by a Juvenile Court which power the Sessions Court, I am informed at the Bar, is vested with in Karachi.
The Sessions Court may also examine the doctors who have already given their medical opinion on the age of the applicant if it thinks so necessary.
9. This revision petition is accordingly disposed of as ordered above and the Sessions Court or any other competent Court of Additional Sessions Judge to whom the case may be made over for trial by the learned Sessions Judge should proceed in accordance with the directions given above and then try the applicant.