' This criminal revision has been directed against the order, dated 24-4-2001, passed by the learned Sessions Judge, Sargodha with the powers of Juvenile Court, constituted under the Juvenile Justice System Ordinance; 2000, whereby the said learned Judge relying upon report of the Medical Board coptaining opinion to the effect that petitioner's age is about 23 years, observed that case of the petitioner does not fall within the purview of Juvenile Justice System Ordinance, 2000.
2. Brief facts of the case are that the petitioner is an accused in case F.I.R. No.492 of 1999, dated 24- 12-1999, under section 302/34, P.P.C., registered with Police Station Midh Ranjha, District Sargodha, wherein challan was submitted in the Court of a learned Additional Sessions Judge, at Bhalwal.
Thereafter, the petitioner moved an application under section 7 of the Juvenile Justice System Ordinance, 2000 claiming that at the time of occurrence he being 17 years and 10 months of age was a child and the Court of learned Additional Sessions Judge was not competent to try the petitioner and his case should be transferred to the Court of learned Sessions Judge/Juvenile Court. He relied upon entries regarding his birth (Birth Certificate) in the Birth Register of the Union Council concerned (Midh Ranjha). District Attorney and counsel for the complainant questioned the veracity of the entries in the birth register. Consequently, the learned Sessions Judge summoned the original Register and at the same time directed the Medical Superintendent, D.H.Q.
Hospital, Sargodha to get the accused/ petitioner medically examined for determination of his age and to send the report on 24-4-2001.
3. The Medical Superintendent D.H.Q., Hospital, Sargodha submitted the report after medically examining the petitioner for the determination of his age. According to the report age of the petitioner is 23 years. Resultantly the abovesaid order, dated 24-4-2001 was passed by the learned Sessions Judge, relying upon the report of Medical Superintendent. This order has been impugned through the instant criminal revision.
4. Learned counsel contends that Birth Certificate of the petitioner was examined by the learned trial Court, which is annexed as Annexure "B" with this revision petition and according to entry dated 15-2-1982 at Serial No.20, the petitioner was born on 23-1-1982 and name of the petitioner is also mentioned therein, hence petitioner's father had not done so as after about 18 years he was to be involved in a murder case and to get benefit of his minor age under Juvenile Justice System Ordinance, 2000. In compliance of order, dated 31-3-2001, the Secretary, Union Council produced record and the learned Sessions Judge observed as under:- "Riaz-ul-Haoue Secretary, Union Council Midh Ranjha is present with birth register according to which at Serial No.20, the name of Hassan Zafar son of Zafar Alam figures with his date of birth recorded as 23-1-1982 and no interpolation of any kind is visible in the said entry."
' On 24-4-2001 the learned Sessions Judge mere on the basis of report of the Medical Board passed the impugned order. Learned counsel also referred the Medical Certificate and contended that the Medical Certificate is merely an assessment and it deals with only general appearance of the petitioner which might be wrong but the entries made 18 years ago cannot be held as wrong.
' Further contends that the birth certificate should be given preference over the Medical Certificate.
He has drawn my attention towards the definition contained in clause (b) of subsection (2) of the Ordinance, 2000 that a child means a person who at the time of commission of an offence has not attained the age of 18 years. He has further contended that under section 7 of the Juvenile Justice System Ordinance, 2000 the trial Court has to conduct inquiry, which shall include the medical certificate. The report of Medical Board is ambiguous and motivated. The report of Medical Board does not fall within the category mentioned in the reports, under section 510 of the Code of Criminal Procedure. Moreover, prejudice will be caused to the petitioner if an assessment based on general appearance is preferred over the birth register's entry. Birth/Death/Marriages Registration Act, 1986 provides voluntary registration of births, deaths and legal status. Under section 35 of this Act a copy of the certificate of the abovesaid entry it is admissible in evidence for proof of age.
Inquiry was not held by the learned Sessions Judge and he failed to give any reason while rejecting birth certificate of the petitioner and giving preference to the medical certificate. He has further contended that the Honourable Superior Courts in numerous cases have held that the birth certificate will be given preference over the Medical Board's report. He relies upon the following authorities:-- ' PLD 1966 (W.P.) Kar. 71, Yousaf v. The State 1975 PCr.LJ 936, 1975 PCr.LJ 453, 1975 PCr.LJ 732, Muhammad Anwar and others v. The State 1976 PCr.LJ 1325, Hazoor Baldish v. Allah Dad 1989 PCr.LJ 1758.
5. On the other hand learned counsel appearing on behalf of Advocate-General has contended that the birth certificate cannot be given preference over the medical certificate and if the birth certificate is based on the report of Radiologist, the only difference of age admissible is one year from the either side as has been held in Yousaf v. The State 1975 PCr.LJ 936. He placed his reliance on 1970 SCM R 30 and PLD 1966 Pesh. 97 wherein it was held that the best evidence is that of Radiologist's Report. He further submits that investigation was conducted and this order is sustainable.
6. Mr. Muhammad Aslam Sandhu, Advocate appearing on behalf of complainant has also supported the impugned order and has contended that the report of Medical Board has to be given preference as it has been mentioned under section 7 of the Juv.Enile Justice System Ordinance. He also relies upon 2001 M LD 1191 in which the report of the Medical Board was given preference over the birth certificate. He also relies upon 2000 SCM R 1557 in which it was held that the expert opinion cannot be a substitute.
7. I have heard respective arguments of both the sides and perused the record in the light of their arguments. The only question in this case is whether the birth certificate can be given preference over the Medical Board's Report or not. It has further to be decided whether the inquiry to be conducted by the Juvenile Court will be conducted like a criminal trial or only tentative assessment of age has to be made before the trial by the said Court. Section 2, clause (b) of the Juvenile Justice System Ordinance, 2000 reproduced hereunder:-- Section 2(b). Child means a person who at the time of commission of an offence has not attained the age of eighteen years.
' Moreover, section 7 of the Ordinance, 2000 requires the Juvenile Court to hold an inquiry which shall include a medical report for determination of the age of the child. Section 7 of the Ordinance, 2000 is reproduced as under:-- Section 7. 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.
This has been done intentionally, as in this country the entries of the birth certificate have got no sanctity. Moreover, not a single authority relied upon by learned counsel for the petitioner is attracted towards the facts of the instant case and also render no support to it. The age could only be determined after obtaining the medical report from the Board. Intention of the Legislature was very clear that determination of age of a person accused in the case, merely on the basis of School Leaving Certificate or Birth Certificate is not safe, hence report from the Medical Board should be obtained for the said purpose due to the reason that the Birth Certificate or School Leaving Certificate are easily available in this country. The onus to prove that he was less than 18 years of age at the time of occurrence was on the petitioner but he has failed to discharge his onus. The report of Medical Superintendent clearly indicates that petitioner is 23 years of age. Section 5(2) of the Ordinance, 2000 provides separate trial for a child. In case the trial is separated, prosecution has to submit another challan to the Juvenile Court alongwith original documents for the purpose and then the trial of accused in the said Court will commence, after conclusion whereof the challan of the other co-accused is to be submitted to the Sessions Court for fresh trial of the co-accused.
The prosecution witnesses will have to firstly appear for recording their evidence in the Juvenile Court and thereafter, they will appear before the Sessions Court. They will be subjected to cross- examination twice. Hence, an inordinate delay is likely to be caused in conclusion of the trial of a case in which an accused comes within the provisions of Juvenile Justice System Ordinance, 2000.
Due to delay in the trial of such cases, the co-accused will have the ground for bail merely on the statutory ground. Furthermore, there will be likelihood of passing of conflicting judgments by the two Courts and that too on the basis of same evidence. This aspect of the matter will also go in favour of the accused. The prosecution is likely to suffer a lot in such-like cases. Hence it requires due care and caution before declaration of a person to be a child and it is only the Juvenile Court which can decide whether a person is a child or not. This fact requires to be decided on the basis of unimpeachable documentary evidence and after obtaining medical opinion. Moreover, the order which is to be passed by the Juvenile Court regarding the decision whether the person accused is a child or not, the Court should keep in mind the hardships likely to be suffered by the prosecution in submission of challan and proving its case, hence this order should not be an omnibus order that whenever a person claims that he is a child and merely lays foundation on a Birth Certificate or School Leaving 'Certificate he may be declared so. His age should be determined in accordance with the provisions contained in the Juvenile Justice System Ordinance.
8. The authorities relied upon by learned counsel for the petitioner do not support case of the petitioner as in Barmy Khan v. The State PLD 1966 Kar. 71 the age has been determined merely on the basis of physical examination of the body and teeth in absence of Radiologist's Report, hence it does not attract to the facts of the instant case. The facts of the other case Muhammad Anwar and others v. The State 1976 PCr.LJ 1325 are not attracted to the facts of instant case. Whereas in the case cited by learned counsel for the complainant i.e. Ahmed Ali v. The State 2001 M LD 1191 direction was issued to the Sessions Judge to get age of the accused (minor) determined from "Medical Board" and if the minor found to be a minor at the time of occurrence then his case shall be tried by Sessions Judge/Juvenile Court while case of the co-accused shall be decided by the Additional Sessions Judge.
9. Even otherwise the trial under the Juvenile Justice System Ordinance is a feeble right and age of the petitioner according to the Medical Board's Report is 23 years. Possibility of difference of one year on both the sides cannot be ruled out as laid down in 1975 PCr.LJ 936. The difference of age is about 5 years in the case in hand as according to the Medical Board's Report age of the petitioner is about 23 years while age required for the trial under the Juvenile Justice System Ordinance is less than 18 years. In presence of such a difference between the Birth Certificate and Medical Board's Report definitely the preference will be given to the Medical Board's Report. Furthermore, the order passed by the learned Sessions Judge is based on Expert opinion made on the basis of Radiologist Report and authenticity is attached to it under the law. Hence the same does not suffer from any illegality or irregularity and is sustainable in the eye of law. I am not inclined to interfere with the same.
10. In view of the above discussion I find no merit in this Criminal Revision, hence the same is dismissed.
Revision .