' This Criminal Revision has been directed against the order, dated 2-5-2001, passed by the learned Sessions Judge, Sargodha with the powers as Juvenile Court, constituted under the Juvenile Justice System Ordinance, 2000, whereby the said learned Judge relying upon report of Medical Board to the effect that Muhammad Akhtar, petitioner is about 20 years of age returned the case to the Court of Mr. Muhammad Riaz Khokhar, learned Additional Sessions Judge, Sargodha, for its disposal.
2. Brief facts of the case are that the petitioner is an accused in case F.I.R. No,182 of 1999, dated 9-11- 1999, under section 302/34, P.P.C., with Police Station Jhawrian, District Sargodha and the challan was submitted to the Court of learned Sessions Judge, Sargodha, which was then entrusted to a learned Additional Sessions Judge who framed charge against the petitioner and his co-accused.
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 15/16 years of age was a child and the Court of learned Additional Sessions Judge was not competent to try the petitioner and the case should be transferred to the Court of learned Sessions Judge/ Juvenile Court. This application was not opposed by the learned DDA, assisted by a junior of learned counsel for the complainant.
Consequently, the said case was submitted before the learned Sessions Judge for resolving the controversy. He ordered the petitioner to appear before the Medical Superintendent, D.H.Q., Hospital, Sargodha for his medical examination with a direction to M.S. To submit his report regarding determination of age, who after medically examining the petitioner submitted his report declaring the age of the petitioner as 20 years. The learned Sessions Judge while holding that the case of the petitioner does not fall within the purview of Juvenile Justice System Ordinance, 2000 again sent it to the Court of the learned Additional Sessions Judge for disposal.
3. In support of this revision petition, learned counsel for the petitioner contends that the application moved by the petitioner before the learned Additional Sessions Judge was not opposed by the learned DDA as well as a junior of learned counsel for the complainant. Moreover, while allowing bail after arrest to the petitioner, learned Sessions Judge observed that age of the petitioner at the tithe of occurrence was 16 years, which was not challenged by the complainant or the learned DDA. This fact also restrains them from raising any objection subsequently in the enquiry under section 7 of the Juvenile Justice System Ordinance, 2000 before the Juvenile Court.
Further, submits that before referring the matter to the Medical Board for determination of age of the petitioner, he was not provided opportunity of being heard. Also contends that in numerous decisions of the Hon'ble Supreme Court of Pakistan, the Birth Certificate has been given preference over the Medical Superintendent's Report. According to School Leaving Certificate, date of birth of the petitioner is 20-12-1986 and as such his age was 12 years, 10 months and 19 days at the time of the alleged occurrence. Therefore, his case is triable by the Juvenile Court.
4. I have heard learned counsel for the petitioner at length and perused the record minutely and carefully. The main reliance placed by learned counsel for the petitioner in support of this case is upon School Leaving Certificate. The same cannot be relied upon being not a conclusive proof of age for the purposes of a criminal case. Hence merely on the basis of School Leaving Certificate, case of the petitioner cannot be transferred from the Court of Additional Sessions Judge to the Juvenile Court. The finding of the learned Sessions Judge in the bail granting order regarding age of the petitioner on the basis of School Leaving Certificate cannot be given preference over the report of Medical Superintendent due to the reason that normally the Courts are not in a practice to indulge into merits as well as deeper appreciation of evidence available on the record at bail stage. Factual controversies involved in the case and matters regarding guilt or innocence of the accused are to be considered after the trial. Moreover, the Medical Board has submitted report regarding determination of age of the petitioner after duly examining the petitioner and the same is based on expert opinion of Radiologist. Admittedly,' the petitioner has come forward with School Leaving Certificate and it is a tendency that the people while admitting the child into Schools got entered age less than the actual date of birth. Moreover, School Leaving Certificate can be obtained easily, particularly in villages. Hence, it is not safe to rely upon the same. The onus to prove that the petitioner is less than 18 years of age was upon him but he has failed to discharge the same. The report of Medical Superintendent clearly indicates that petitioner is 20 years of age.
Section 5(2) of Juvenile Justice System Ordinance, 2000 provides separate trial for a child and the 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 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 declaring a person as 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, as submitted above, since in this Country it is not difficult to obtain a School Leaving Certificate, hence it is not safe to rely upon the same. While deciding the question as to whether an accused is a child or not, the Juvenile Court has to keep in mind the consequences regarding the trial and the hardship likely to be suffered by production; hence the order should not be an Omni- bus 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 got determined through medical examination. In the case in hand the petitioner relies on the School Leaving Certificate and the observations made by the learned Sessions Judge in the bail granting order cannot be given preference over the report of Medical Board which is based on expert opinion of Radiologist and authenticity is attached to it.
5. In view of the above discussion the order passed by the learned Sessions Judge, Sargodha does not suffer from illegality, hence I am not inclined to interfere with the same. Accordingly this Criminal Revision has no merits and the same is dismissed in limine.
Revision .