' Mst. Hayat Bibi, the petitioner has brought the instant revision petition calling in question the order dated 14-2-2002 recorded by Ch. Habib-ur-Rehman, the learned Additional Sessions Judge, Kabirwala District Khanewal whereby, he has directed the filing of separate complaint against respondent No.3 in view of his minority and his order dated 12-4-2003 whereby he has dismissed the application brought by her (petitioner) for determination of his (respondent No.3) age.
2. Briefly the facts relevant for the disposal of the same are that Mst. Hayat Bibi, the petitioner had brought the private complaint under section 302/109, PPC against respondent No.3 Muhammad Aslam and Shaukat Hayat, respondent No.4. The same is pending adjudication in the Court of the said learned Additional Sessions Judge, Khanewal. The respondent No.3, Muhammad Aslam brought an application there for separation of his case from his co-accused Shaukat Hayat and his trial under the Juvenile Justice System Ordinance, 2000 in view of his age being less than 18 years at the time of the alleged incident. He in this regard relied upon his birth entry. According to the copy of his birth certificate, he had born on 13-1-1982 while the alleged incident, as mentioned in the complaint, brought by the petitioner had taken place on 15-9-1999. So if seen from that angle, he was less than 18 years of age at that time. In view of the same, the learned Additional Sessions Judge, Kabirwala seized of the complaint case vide his order dated 14-12-2002 directed the filing of separate complaint against him for the purpose of his separate trial in view of his minority. The petitioner then moved an application there for referring him to Radiologist Nishtar Hospital, Multan for ossification test for the determination of his age. The learned Additional Sessions Judge did not accede to her request for the purpose and dismissed her that application vide his order dated 12-4-2003.
3. She feeling aggrieved of both these orders has come up to this Court with the instant revision petition.
4. It has been contended on her behalf that, the birth entry-of respondent No.3 is not an authentic proof of his age and when the petitioner has disputed the age and then it was incumbent upon the learned Court concerned to have referred the matter to the Radiologist, or expert for the determination of his age as required by section 7 of the Juvenile Justice System Ordinance, 2000 but it has erroneously declined her such request and hence it's order dated 12-4-2003 was not in right direction and similarly the order dated 14-12-2002. In support of the submissions reliance has been placed upon the case of Hassan Zafar v. State 2001 PCr.LJ 1939 and Nazir Ahmad alias Kala v.
District and Sessions Judge, Kasur and 2 others PLJ 2002 Cr.C. (Lahore) 195.
5. As against the same, the learned Assistant Advocate-General assisted by the learned counsel for respondent No.3 had supported the impugned order saying that the birth record of a person is most authentic proof of his age and no other proof can take precedence over the same and hence in the presence of birth entry of respondent No.3 the learned Additional Sessions Judge concerned had rightly declined to direct his examination by the Radiologist for the determination of his age; that the opinion of the Radiologist can never be an exact proof of age of a person and it is always tentative in nature or approximate and it may vary either way i.e. Upper or less to a certain extent and hence the learned Additional Sessions Judge has rightly declined her (petitioner) request for the purpose. In support of their plea reliance has been placed upon the case of Muhammad Hayat v. State and another 2002 YLR 711 and Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ (Lahore) 633.
6. I have carefully considered the submissions made from both sides with the help of available record.
7. Respondent No.3 in support of his plea that he was less than 18 years of age at the time of alleged incident has relied upon his birth entry. He with his application for separation of his trial from his co-accused has appended the copy of such entry. In the same, his date of birth is mentioned as 13-1-1982. The alleged incident as said above had taken place on 15-9-1999. So from that angle, if seen, he was less than 18 years of age at the relevant time. In view of his less age than 18 years, the learned Additional Sessions Judge seized of the complaint case had directed the filing of the separate complaint against him, so that he may be tried separately from his coaccuwd as required under the Juvenil Justice System Ordinance, 2000.
8. The birth entry is authentic proof of age of a person. The entry, which was incorporated in the record about 21 years ago, can hardly be said to be forged or fabricated one. It may be of some importance to mention here that the said entry was incorporated in the record of the A Union Council No.51 Hamdal (Mauza Linda Sargana) on 18-1-1982. It, thus was about 8 days of his birth.
Nothing has been shown convincingly by other side to say that it is forged or fabricated one.
9. I may also mention here that about 20 years ago no one could know that such entry would be used for the purpose here under discussion. So, it is more reliable proof of age of respondent No.3 accused/ than any other.
10. As regards the opinion of the Radiologist or the expert in respect of the age of a person, it is always tentative in nature or approximate. It is on the basis of clinical observation or some test.
There is no cavil to the proposition that such method or test cannot deliver exact proof of age of a person. There can be some variation in the age of person determined by such method or test either way i.e. More or less. However, it is certain that it can never give exact age of a person.
11. The learned Additional Sessions Judge, when was having the proof of age of the respondent No.3 with him in the form of his birth entry, he then was right in declining the petitioner's request for determining his age by the Radiologist or through ossification test In such circumstances, it was not necessary for him to have referred him to the expert for his opinion in respect of his age. In this regard reference is made to the case of Muhammad. Hayat v. State and another 2002 YLR 711 and Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ (Lahore) 633. The view expressed in both these cases was fatter in time than the one expressed by my learned brother Mr. Ijaz Ahmad Chaudhary, J. In the case of Hassan Zafar v. State 2001 PCr.LJ 1939 and Nazir Ahmad alias Kala v.
District and Sessions Judge, Kasur and 2 others PLJ 2002 Cr.C. (Lahore)
195. As both these cases were decided on 11-6-2001 and 14-12-2001 respectively while the one of Muhammad Hayat v. State and another 2002 YLR 711 on 29-3-2002 and Muhammad Akram v.
Muhammad Haleem 2002 PCr.LJ (Lahore) 633 on 16-1-2002.
12. I am, therefore, very clear in my mind that the impugned orders neither suffer from any illegality nor impropriety in the above circumstances of the case. These are maintained.
13. The instant revision petition has been found to be without any substance and the same is dismissed as such.