' Respondent Syed Yasir Ali Shah is facing trial of a murder case alongwith his co-accused, which took place on 17-10-1998, before the Court of learned IIIrd Additional Sessions Judge, Hyderabad.
Case against the respondent has been ordered to be tried in chamber under the Sindh Children Act, 1955 hereinafter to be referred to as the "Act" due to minority of the respondent, by the learned trial Court by its order, dated 1-9-1999.
2. The complainant/applicant Ahmed Khan has challenged the above said order through this revision under sections 435, 8 and 439, Cr.P.C.
3. It has been argued by Mr. Khadim Hussain Unnar, learned counsel for the applicant that the impugned order, dated 1-9-1999 is illegal and contrary to the facts and circumstances of the case.
It was further argued that the Medical Board constituted for the purpose by the learned trial Court, has found the respondent-accused Yasir Ali Shah to be about 17 years of age and therefore, the respondent cannot be termed as a child within the meaning of the Act. It was lastly contended that if the respondent is tried separately, it would prejudice the case of prosecution. In the aforesaid circumstances the learned counsel contended that the impugned order was liable to be set aside.
Reliance was placed upon the case of Kabal Shah v. The State reported in 1995 PCr.LJ 2058.
4. On the other hand Mr. Syed Madad Ally Shah learned counsel for the respondent No,1, contended that the alleged incident took place on 17-10-1998. The birth certificate of the respondent issued by Municipal Corporation, Hyderabad shows that the respondent was born on 19-10-1982, the applicant had at the alleged time of incident not attained the age of 16 years. His case would, thus, be covered by section 5 of the Act. He further argued that even as per the Medical Board the age of the accused has been opined to be about 17 years and since the Medical Science has still not attained such perfection in many fields including that of the age of a person, the Honourable Courts have been, time and again holding that there may be a margin of one year, minus or plus, for the determination of age. Learned counsel stressed that the law also stands settled that in such event the benefit will have to go to the accused. Learned counsel vehemently contends that in view of above propositions even as per the opinion of the Medical Board the age of the respondent- accused comes to be below 16 years. He has placed reliance upon:-- ' 1975 PCr.LJ 936, PLD 1998 Kar. 142 and 1995 PCr.LJ 2058.
5. Besides the above, the learned counsel contended that section 299, P.P.C. Defines "adult" as a person who has attained the age of 18 years and therefore, the respondent under the general law even would have to be' treated as a minor.
6. Mr. Mian Khan Malik, learned Additional Advocate-General while supporting the applicant has placed his reliance upon PLD 1972 Pesh. 28 and 1983 PCr.LJ 1750.
7. Since the impugned order was passed on a prayer made through an application under section 5 and section 10 of the Act, it will be advantageous to reproduce the abovesaid sections of law: Section 5: Continuation of proceedings against child on his attaining specified age.- If 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 sixteen years: ' Provided that if during the course of the proceedings under this Act, such person attains the age of sixteen years the proceedings already commenced shall be continued and ordered may be passed in respect of such person under this Act, as if such person was a child notwithstanding anything to the contrary in this Act.
Section 10: No joint trial of child and adult in area where Juvenile Court exists. --- (1) Notwithstanding anything contained in section 239 of the Code or any other law for the time being in force, no child shall be charged with or tried for any offence together with an adult.
(2) If a child is accused of an offence for which under section 239 of the Code or any other law for the time being in force, such child, but for the provisions of subsection (1) could have been tried together with an adult, the Court taking cognizance of the offence shall direct separate trials of the child and the adult.
8. In the case of Yousuf v. The State 1975 PCr.LJ 936 a Division Bench of this Court in the criminal appeal of the convict held that an ossification test, though a better guide to the age of a person than other test, A still cannot give an accurate estimate of age and there would be margin on either side of at least a year. In the case of Kabal Shah v. The State 1995 PCr.LJ 2058 a Single Bench of this Court while relying upon the age given in the Police Surgeon's certificate allowed the accused to be tried as a Juvenile Offender by the Sessions Judge, under section 8 of the Act, giving preference to the Police Surgeon's Report based upon X-ray to the School Certificate. In the case of Jamshed v. Agha Suhail and another PLD 1998 Kar. 142 in an identical application under section 5 and section 10 of the Act while relying upon the age given by the Medical Board, and keeping in view a margin of one year on either side, this Court has reiterated the view that the age based on the Radiologist Report was the best proof of age of the accused.
9. In the case of Ismail v. The State 1983 PCr.LJ 1750 while relying upon Division Bench decision of this Court in the case of Yousuf v. The State (supra) gave medical certificate of the Police Surgeon preference to the School Certificate and birth certificate issued by the K.M.C. And ordered the accused to be tried under the provisions of the Act. In the case of Iftikhar v. The State a learned D.B.
Of Peshawar High Court in criminal appeal of the convict has held that the best evidence is that of Radiologist and preference cannot be given to the School Certificate over the evidence of X-ray age.
10. There have been cases where, however, the ages of the, accused were determined on the basis other than ossification test and without their being referred for age through Radiological tests.
11. In the case of Ghulam Qasim and others v. The State 1996 SCM R 1087, the accused were granted bail on the basis of their ages shown in their School Leaving Certificates. In the case of Muhammad Saleem v. The State 1985 PCr.LJ 708 the accused was granted bail keeping in view the age given in the School Leaving Certificate rather than the age given by the hospital. The accused was granted bail as he was stated to be 11/12 years and such statement was based upon the birth certificate issued by the Secretary, Union Council. In still another unreported decision of this Court in Criminal Bail Application No,126 of 1983, in the case of Jumman and another v. The State his Lordship Sajjad Ali Shah, J. (as he then was) allowed bail to the accused on the basis of their ages given in their School Leaving Certificates without sending them for determination of their ages through Radiological tests.
12. Respondent's age certificate issued by the Municipal Corporation has at no stage been disputed to be ingenuine or fabricated. All that is pressed is that the age determined through ossification tests must be given preference to the age given by other sources. And eventually the age given in this case by the Medical Board must be relied upon for the determination of the jurisdiction of the trial Court.
13. Undisputedly as per the opinion of the Medical Board, Annexure "C" at page 19 of the Court file, which consisted of three doctors their opinion in their own words is that "From Physical Examination, Radiological investigation and general appearance we are of the opinion that his age is about 17 (seventeen only) years.
14. All that can be reasonably deduced from the above-quoted decisions is that no hard and fast rule can be laid down on the question relating to the mode of determination of the age of an accused in a criminal case.
15. In the instant case the age of the accused/respondent as per his birth certificate issued by Municipal Corporation, the respondent on the date of incident was below 16 years. Genuineness of such certificate has not at all been challenged. Even if the age of the respondent-accused given by the Corporation be placed out of consideration, the opinion of the Medical Board still places him within the purview of the word "child", as he would be entitled to the margin of one year.
16. There appears to be no illegality or incorrectness in the impugned decision. The revision application is accordingly dismissed and the decision, dated 1-9-1999 of the learned trial Court is maintained.