1. ' By this Revision the applicant has challenged the order dated 29-5-1997 passed by the learned 4th Additional Sessions Judge, Hyderabad hereinafter called the trial Court whereby two applications dated 1-9-1996 requesting the trial Court for summoning the Record of Births from Cantonment Board, Hyderabad and dated 21-11-1996 requesting to refer the respondent No,1 to some other Medical Board for determination of his age, have been dismissed. Briefly stated the facts of the case are that the applicant had lodged F.I.R. No,22 of 1991 at Hussainabad Police Station on 7-3-1991 at 4-00 p.m. Wherein he alleged that his brother deceased Aftab, was student of Public School, Lateefabad, Hyderabad. On 7-3-1991 the applicant, his deceased brother Aftab and relative Naveed Ahmed Samma went to Public School in a car to take back Adnan. Their relative Aziz Asad also met them. They asked him to change the dress and meet them at the gate to proceed to the village. It is alleged that while all the three were present at the gate, where Lakhadino Babar was also present, they saw there accused Ghulam Nabi Siyal, Agha Sohail (respondent No,1) Shahzad Memon alias Bablu and Rizwan Shaikh who were already available in the car of Rizwan Shaikh. All the accused seeing the applicant and others came down from the car. They were armed with pistols and mausers. Agha Sohail grappled with Aftab and Ghulam Nabi Saiyal fired at Aftab which hit on the head of the Aftab, who fell down. The accused opened bursts at the applicant and others and then made their escape good. The injured Aftab was taken to hospital but he succumbed to the injuries at Jamshoro.
2. ' The police after usual investigation challaned the respondent No,1 and other co-accused namely Ghulam Nabi Saiyal, Rizwan Shaikh and Shahzad Memon alias Bablu, who are facing trial under section 302/34, P.P.C. In the trial Court in Sessions Case No,292 of 1991.
3. ' The respondent No,1, hereinafter called the accused moved application under section 5 of Sindh Children Act, 1955 on 12-5-1996 for separate trial under section 10 of the said Act on the ground that he having been born on 20-9-1975 was below the age of 16 years on the date of commission of offence.
4. ' The learned trial Court after hearing the learned counsel for the accused as well as counsel for the present applicant and State, by the order dated 5-9-1996 referred the accused to Director- General, Health, Hyderabad for determination of his age.
5. ' The accused appears to have been examined by the Medical Board on 9-10-1996 consisting of three doctors and after medically examining the accused issued such certificate No, C.S/Hyd/5516 dated 12-10-1996, certifying that From physical examination, radiological investigation and general appearance of the opinion, that his age is between 21-22 (Twenty-one and Twenty-two) years".
6. ' That the applicant seems to be aggrieved by the aforesaid Medical Certificates, as such he filed the application dated 21-11-1996 requesting the trial Court to refer the accused to some other Medical Board for re-determination of his age.
7. ' The learned trial Court after hearing all the concerned rejected the application and also the application dated 1-9-1996 by the impugned order, applicant has challenged the impugned order as stated above.
8. ' The above revision came to hearing on 1-9-1997 for admission, when it was ordered by my brother Mr. Justice Zakir Hussain Mirza for issuance of notices to the parties including Additional Advocate- General.
9. ' In pursuance of the notice Mr. Qurban Ali H. Chohan, Advocate has appeared for the respondent No,1.
10. ' I have heard Mr. Hidayatullah Abbasi, learned counsel for the applicant, Mr. Qurban Ali H. Chohan, learned counsel for the respondent No,1 and Mr. Agha Khuda Bux for the State. I have also perused the impugned order and various applications and the Medical Certificate available on the record.
11. Mr. Hidayatullah Abbasi, learned counsel for the applicant has assailed the impugned order on the ground that the accused filed application under section 5 of the Sindh Children Act, 1955 after 5 years and that earlier such ground of minority of the accused was never raised at any stage. The learned counsel further contended that the birth certificate issued by the Cantonment Board was not genuine for various reasons, as such, the learned trial Court should have summoned the record from the concerned quarters and accused should have been referred to some other Medical Board. The learned counsel has argued that the trial Court has not acted judicially in rejecting the applications.
12. ' On the other hand Mr. Qurban Ali H. Chohan learned counsel for the respondent No,1 has submitted that plea of minority of age of the accused had earlier been raised as one of the grounds of bail. He referred to the order dated 16-6-1991 passed by the learned In charge Sessions Judge, Hyderabad, confirming pre-arrest bail earlier granted to the respondent No,1 wherein plea of minority was also taken into consideration. The learned counsel has further referred to photo stat copy of the bail application of the accused/respondent No,1 which also shows that ground of minority of age of the accused had earlier been raised in 1991. The learned counsel has placed such photo stat copies on the record.
13. ' Learned counsel for the respondent No,1 has further argued that after Medical Examination and Radiological test of the accused by three eminent Doctors, there was no necessity of any further proof of minority of age of the accused nor there was any need of summoning the record, from the Cantonment Board as the certificate issued by the Medical Board is otherwise to be given preference to the Birth Certificate.
14. ' The learned counsel appearing for the State has supported the impugned order as according to law, there appears no illegality in the impugned order, which has been passed by the learned trial Court after considering all aspects of the case.
15. ' I have heard learned advocates for the parties and have considered their respective submissions.
16. I have also perused the impugned order. The main question requires consideration, in the case will be as to whether the accused was "child" at the time of commission of the alleged offence on 7-3- 1991 and whether he is to be separately tried as required under section 1 of Sindh Children Act, 1955.
17. ' The word "child" has not been defined in Sindh Children Act, 1955. The word "adult" has been defined under section 4(1)(a) of the Act as "adult" means a person who is not a child. Section 5 of the Sindh Children Act, 1955 is relevant, which is reproduced as under:-- "Continuation of proceedings against child on his attaining specified age for the purpose of this Act, a person shall be deemed to be a child, if at the time of the initiation of any proceedings against him under this Act or at the time of his arrest in connection with which any proceedings are initiated against him under this Act, such person has not attained the age of 16 years."
18. ' Section 10 of Sindh Children Act, 1955 lays down that "No child shall be charged with or tried and for any offence together with adult".
19. ' In view of section 5 of the said Act the relevant age of the child is "At the time of initiation of any proceedings against him under this Act or at the time of his arrest in connection with which proceedings are initiated against him under this Act. Such person has not attained the age of 16 years", as referred to above.
20. ' The accused as per birth certificate issued by the Cantonment Board was born on 20-9-1975, as such, according to the certificate, the accused was below 16 years at the time of alleged offence, but the learned trial Court instead of relying the birth certificate, thought it better to refer them to the Medical Board for purpose of proper determination of the age of the accused and the Medical Board comprising of three doctors after Radiological examination were of the opinion that the age of accused at the time of his examination was between 21-22 years and such certificate has been issued by the Board.
21. ' In the case of Noor Khan v. State, reported as 1992 PCr.LJ 2459, late Mr. Justice Qaiser Ahmed Hamidi (as his lordship then was) held that best evidence to prove age was that of Radiologist and his report should be given preference to a School Leaving Certificate. In the Division Bench case of Peshawar reported as Iftikhar v. State PLD 1972 Pesh. 27 it was held by their lordships that evidence of Radiologist to be preferred to School Leaving Certificate for the proof of age.
22. ' In the case of Haseeb v. Election Authority, Sindh and others reported in PLD 1986 Karachi 179 which was a Division Bench decision of this Court, relying on the decision of PLD 1972 Pesh. 27 it was held as under: "As against the aforesaid documents respondent No,2 has relied on the report of the Radiologist. No exceptions can be taken to it as the age could be proved by the opinion of Radiologist. In the case of Iftikhar v. The State (PLD 1972 Pesh. 27) a Division Bench of Peshawar High Court held that 'for the proof of age, the best evidence is that of Radiologist and preference cannot be given to the School Certificate over the evidence of X-Ray age' . "
23. ' In 1970 SCM R 30, the hon'ble Supreme Court of Pakistan granted bail to the accused whose age on X-Ray examination found to be 16-17 years. In recent decision of Kabil Shah v. The State reported in 1995 PCr.LJ 2058, it was held by Dr. Ghous Muhammad, J. That for the purpose of proof of age, Police Surgeon's report based upon Ex-Ray test has to be preferred to the School Certificate.
24. ' Yet in another case of D.B. Reported in PLD 1966 Pesh. 97, their lordships have held at page 99 as under: "The learned Additional Sessions Judge in para. 29 of the judgment thought that since the School Leaving Certificate was more beneficial to the accused he would accept that age as against the report of Radiologist. The finding of the learned Additional Sessions Judge in giving preference to the School Leaving Certificate over the report of the Radiologist is clearly erroneous in that it is well- settled proposition that the best evidence is the X-Ray test. We, therefore, accept the Radiologist's Report and take the accused to be 16 years of age, which is more beneficial to him."
25. While determining the age on the basis of ossification test margin of one year on either side possible in this respect I am fortified by a D.B. Decision of this Court (1975 PCr.LJ 936) considering this aspect of the case, such benefit of error is also to be extended to the accused. In view of the case-law referred to above, it is clear that certificate issued by the three doctors, which was bash on Radiologist Report was the best proof of the age of the respondent No,1 to be 21-22 years old.
26. Even though the birth certificate, which shows the date of his birth as 20-9-1975 may not be considered due to reasons advanced by the applicant in this revision, yet the report of the Medical Board determining the age of the accused under the circumstances of the case is conclusive proof of his age. In view of the Medical Certificate of the age of respondent No,1, the birth certificate has lost its efficacy as there seems no necessity to call for the record of birth from the Cantonment Board or Registrar Public School, Hyderabad. I hold accordingly. The contention of the learned counsel for the applicant that the application under section 5 of Sindh Children Act, 1955 was moved after more than 5 years of the date of the incident has also no force for the reasons that such plea was raised at the bail stage by the accused in the year 1991 as will be borne out from the copies placed on the record by the learned counsel for the respondent No, 1.
27. Be that as it may, the application under section 5 of Sindh Children Act, 1955 can even be moved at the appellate stage if the accused was child at the time of commission of offence if no such plea was taken during the trial. In this respect I am fortified by D.B. Decision of this Court reported as Pir Jalal Shah v. The State PLD 1982 Karachi 567, wherein it was considered at the appellate stage that one of the accused namely Shah Zewer Shah was below of the age of 16 years and he was illegally tried with the adult accused, with the result that the case was remanded to the Trial Court for fresh trial.
28. ' Thus, the contention of the learned counsel for the applicant that the application was filed after five years has no substance and is repelled.
29. ' The upshot of the above discussion is that there is no illegality or any error of jurisdiction in passing the impugned order by the learned trial Court, which has been passed by the learned Court on sound reasons and considering all aspects of the case. Under the circumstances discussed above there seems no necessity to refer the accused to another Medical Board for re- examination of his age.
30. ' Considering all aspects of the case and the case-law referred to above, I am of the view that whether the respondent No,1 is child within the meaning of section 5 of Sindh Children Act, 1955 or he is to be tried separately in accordance with provisions contained in section 10 of Sindh Children Act, 1955, is to be decided by the Trial Court as application under section 5 of Sindh Children Act, 1955 is still pending.
31. ' There is no substance in the present revision application which is dismissed in limine.
32. Consequently applications bearing Nos. 559 and 605 of 1997 also stand dismissed. Stay granted on 1-9-1997 stands recalled.