P L D 2013 Lahore 92 (PLP)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

The petitioner Faisal Zawar having been charged with murder of one Muhammad Ali son of respondent No.2/complainant, is facing trial in case F.I.R. No.88 dated 2-3-2012 registered under sections 302 and 34, P.P.C. with Police Station City Kamalia District Toba Tek Singh and during trial proceedings, he filed an application with the learned trial court for declaring him as juvenile after getting his ossification test as required by section 7 of the Juvenile Justice System Ordinance, 2000. He claimed his age about 16-years at the time of occurrence as his date of birth has been shown as 8th December, 1996.

2. The application was resisted by learned counsel for the complainant on the ground that accused of the case was having the age of more than 18-years and in this connection he relied upon a birth certificate issued by the Chief Officer, Municipal Corporation showing date of birth of suspect as 2nd of March, 1993.

3. The learned trial court after having heard the parties dismissed the application holding that the same was filed at the belated stage that is at the stage after framing of charge.

4. Feeling aggrieved by the order of learned trial court, the same has been assailed by filing instant revision petition under sections 435 and 439, Cr.P.C.

5. It is contended by learned counsel for the petitioner that challan in the case was received in the court on 17-3-2012, in which charge was framed on 10-5-2012 when the instant application was filed by the petitioner which is not at the belated stage as observed by the learned trial court. He submitted that in order to avoid documents placed on record across the bar, it would be appropriate to have a report from the Medical Board about age of the petitioner. In this connection, the learned counsel has relied upon "Muhammad Akram v. Muhammad Haleem alias Hamayun and others" (2004 SCMR 218) and "Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others" (PLD 2004 Supreme Court 758).

6. The learned counsel for respondent No.2 while controverting the arguments submitted that as per dictum of the Apex Court recorded in case "Muhammad Aslam and others v. The State and another" (PLD 2009 Supreme Court 777) the plea of juvenileness mandatorily be taken during investigations of the case thus when the plea was not raised in that proceeding, then the petitioner is estopped from raising said plea after framing of the charge.

7. I have considered the submissions made by learned counsel for the parties and have examined the case-law cited at the bar.

8. In the case referred to by learned counsel for respondent No.2, accused of that case had raised plea of his being juvenile at the stage when his statement under section 342, Cr.P.C. was going to be recorded. That stage could be treated as a belated one as the whole trial has been concluded and after recording statement of the accused, only judgment was to be pronounced by the court. In the instant case, it is not the situation as the petitioner had filed a clear application for his ossification test at the stage when only charge has been framed against him, thus, this stage cannot be treated as belated one for the reason that prosecution evidence was summoned after framing of the charge which was yet to be produced in the court. There is a dispute between the parties about age of the petitioner. According to document produced by the petitioner, the petitioner was having the age of less than 18-years at the time of occurrence but according to documentary evidence produced by respondent No.2, he was having the age of about 19-years when the occurrence had taken place. The determination of these documents in accordance with the provisions of Qanun-e-Shahadat Order, 1984, may consume much time than the time to be consumed in having report from the Medical Board. So in this backdrop, I feel that normal course for the learned trial court was to secure a medical report from the concerned authorities for just decision of the case. The learned trial court in view of this legal position, has exercised the jurisdiction with material irregularity, therefore, the impugned order is liable to be set aside.

9. For the foregoing reasons, this petition is allowed and order dated 24-5-2012 passed by the learned Additional Sessions Judge, Kamalia District Toba Tek Singh is set aside resulting into acceptance of application filed by the petitioner for having his ossification test. The learned trial court is directed to obtain a report from validly constituted medical board determining the age of the petitioner whereafter further proceedings in the trial may be taken up. MWA/F-35/L Petition allowed.