1. ' Applicant who is accused of committing an offence under section 302, P.P.C. In Crime No,11 of 1998 of Bakrani Police Station, has filed instant criminal revision under section 435/439, read with section 561-A, Cr.P.C. Against the order, dated 8-9-1999 passed by the learned Vth Additional Sessions Judge, Larkana in the Sessions Case No,60 of 1998 (State v. Hubdar Ali and another).
2. It is the case of the present applicant that he being under the age of sixteen years, is to be tried separately as provided under section 10 of the Sindh Children Act, 1955. His plea was rejected by the learned Vth Additional Sessions Judge, Larkana through the impugned order.
3. ' I have heard Mr. Muhammad Afzal Soomro for the applicant/accused, Mr. Aftab Ahmed Gorar, Advocate for the complainant and Mr. Altaf Hussain Surahio, Advocate for the State.
4. ' Before the trial Court, the accused has filed only a School Leaving Certificate showing his date of birth as 10-3-1982, thus, claiming to be below the age of sixteen years at the time of the alleged offence which was committed on 27-1-1998. The learned trial Court also referred this accused to Police Surgeon namely Dr. P.R. Khatri who examined the present applicant/accused and vide his report, dated 9-6-1999 opined that the applicant/accused (after looking at the report of Dental Examination) appears to be about 18 years. Even if this report is accepted as gospel truth, the present accused was of the age 16 years and four months at the time of the alleged incident. In the circumstances, the learned Judge after considering the cases Muhammad Saleem v. The State 1985 PCr.LJ 708, Muhammad Ramzan v. The State 1992 PCr.LJ 1058 and Noor Khan v. The State 1992 PCr.LJ 2459 held that a School Leaving Certificate is not a conclusive proof of age as against medical opinion, based on the report of a Radiologist.
5. ' In order to resolve this controversy, on the 4th October, 1999, I directed the learned counsel for applicant to submit Admit Card and Matriculation Certificate issued by the Board of Intermediate and Secondary Education Larkana, Sindh, as it was claimed that the present accused has passed his Matriculation Examination. Through his statement Mr. Muhammad Afzal Soomro has placed photo copies of the same and today has placed originals of the same in Court. According to the admit card and the secondary school certificate, issued by Board of Intermediate and Secondary Education, Larkana, the date of birth of accused is 10-3-1982, and thus, he was of 15 years, 10 months and 17 days on the date of the alleged incident. Mr. Soomro has referred to the case of Muhammad Anwar v. The State 1983 SCM R 1001 where the plea of accused that he is of tender age based on the basis of an entry in his school leaving certificate was upheld as against the police who claimed accused to be of 19 years of age. Mr. Muhammad Afzal has also referred to an unreported case of Papoo alias Dost Muhammad and others v. The State (Criminal Appeals Nos.5 and 6 of 1994) wherein a learned Division Bench comprising Syed Deedar Hussain Shah and Anwar Zaheer Jamali, JJ., while sitting at Sukkur Bench, accepted appeal of the two of the accused and remanded the case for retrial on the grounds, inter alia, that these two appellants were of an age below 16 years at the time of the incident. Reliance was placed on the cases Peer Jalal Shah v. The State PLD 1982 Kar. 967 and Jamshaid v. Agha Suhail and another PLD 1998 Kar.
142. He has further referred to another unreported decision of a learned Single Judge of this Court Saeeduzzaman Siddiqui, J. (as his Lordship then was) in the matter of Criminal Bail Application No,432 of 1985 of Sukkur Bench (Muhammad Hayat v. The State) where school leaving certificate was preferred over a medical report in the following circumstances:- "... The accused was referred by the lower Court to the Medical Superintendent, Chandka Medical College and certified copy of the certificate is issued after examination of the accused which shows that he was between 18 and 19 years of age on the date of examination. However, the opinion given in the certificate does not appear to have been based on any ossification test which is considered to be most reliable. The learned counsel contends that in such cases the Courts have always preferred the entries in the school leaving certificate and has relied on the case of Muhammad Saleem v. The State 1985 PCr.LJ 708. The case cited by the learned counsel fully supports his contention as in that case the entries in the school leaving certificate were preferred to the medical evidence produced..."
6. ' Learned counsel for complainant Mr. Aftab Ahmed Gorar has vehemently opposed the grant of this revision application on the ground that medical evidence is more authoritative and that tampering of board's certificates could not be ruled out in view of the conduct of the parties. Mr. Altaf Hussain Surahio has opposed the grant of this revision application on more or less the same grounds. The cases referred by the learned trial Court pertain to a simple school leaving certificate issued by the Head Masters. In the instant case there are two certificates which are issued by the Board of Intermediate and Secondary Education, Larkana including a matriculation certificate which is always accepted as an authoritative document determining the age of any person.
7. Importance of these documents could not be ignored. Even otherwise the medical opinion, if considered, also shows that the applicant/accused was about 16 years and 4 months at the time of commission of alleged offence.
8. ' Both the learned counsel contended that no age limit has been specified in the Act, 1955 in order to define the term "Juvenile Offender". They have referred to sections 4(a) and 4(s) of the Act, 1955.
9. It will be seen that in the Act, 1955 the adult has been defined as a person who is not a child but the term child has not been defined. At the same time the term youthful offender has been defined as any child who has been found to have committed an offence. However, section 65 of the Act, 1955 which deals with the release of juvenile offender on bail by the Juvenile Court provides that any boy or, girl under the age of 16 years if arrested on a charge of non-bailable offence and who cannot be brought forthwith before a Juvenile Court, may be, released on bail by the Incharge of the Police Station, if sufficient security is filed but such child shall not be released if there is genuine apprehension that his release may bring him in to association with any reputed criminal or expose him to moral danger and where the release defeat the ends of justice. I may quote a passage from the Book "Laws Relating to Children", by Ilyas Khan, Advocate, Supreme Court (Pakistan Law House, Karachi at page No,16), where it was observed by the said author as follows:-- "The word 'child' is not defined in the Sindh Children Act. Under section 4(a) of the Act 'adult' has been defined as a person who is not a child. Section 4(2) of the Act states that the words and expressions used and not defined in this Act but defined in the Code of Criminal Procedure shall have the meanings assigned to them in that Code. Neither the word 'child' nor the word 'adult' is defined in the Code of Criminal Procedure. Section 4(2) of the Code lays down that all words and expressions used herein and defined in the Pakistan Penal Code and not hereinbefore defined, shall be deemed to have the meanings respectively attributed to them by that Code. The P.P.C. Likewise, does not define either the term 'adult' or 'child'. Section 82 of the P.P.C. Deals with exceptions in respect of offences committed by children. Section 83 lays down:-- ' Nothing is an offence which is done by a child above seven years of age and under twelve who has not attained sufficient maturity of understanding to judge the nature of consequences of his conduct on that occasion.'
10. ' Section 5 of the Sindh Children Act, however, refers to the word 'child' as a person who has attained the age of sixteen years at the time of initiation of any proceedings against him under this Act or at the time of his arrest. Thus, the age of a child who is alleged to have committed a crime becomes very material for the determination of jurisdiction of the Court. Although compulsory registration of births is required in every town and city, the age old customs and traditions prevail and the majority of births still take place in homes. As a result, determining the exact date of birth becomes impossible. To determine the approximate age one has to resort to medical examinations and school register etc..."
11. ' There is no cavil to the proposition that as against the school leaving certificate, the report of Police Surgeon based on X-Ray test has to be preferred. I have already noted above several cases where some time preference was given to the school leaving certificate over medical opinion and at the same time, medical opinion was preferred over the school leaving certificate. For further reference see Kabal Shah v. The State 1995 PCr. LJ 2058, Muhammad Ilyas alias Chikna v. State 1987 PCr.LJ 1238, Muhammad Anwar and others v. State 1976 PCr.LJ 1325, Sirajuddin v. Saghiruddin 1970 SCM R 30 and Muhammad Saleem v. State 1985 PCr.LJ 708.
12. In the instant case, it is not merely the school leaving certificate upon which the applicant is claiming himself to be the Juvenile Offender but it is Matric Certificate which is also supported by the admit card which now-a-days also contain the date of birth of the applicant. Both these documents are originated from the Board of Secondary Education, Larkana. All these documents were prepared much prior to commission of alleged offence and in absence of any allegation of forgery and/or manipulation from the State, it cannot be ignored. As against that there is medical opinion which if accepted shows the date of birth as 16 years and 4 months, therefore, I am inclined to resolve this controversy in favour of accused by holding that he was a child at the time of commission of offence and, therefore, he should be tried by Juvenile Court.
13. As a result of above discussion, this revision application is accepted and the impugned order is set aside with the direction that now applicant/ accused shall be tried by the Juvenile Court as established under the Sindh Children Act, 1955.