2002 PLP 711 (YLR)

Ch. Mumtaz Ahmad for Petitioner. Muhammad Yasin Farrukh Kamboh and Ch. Abdur Razzaq Kamboh for Respondents. M. Aslam Malik for the State. Through the instant petition order dated 27‑11‑2001 passed by learned Sessions Judge, Kasur has been assailed whereby Riaz son of Latif, respondent No.2 who was accused in case registered vide F.I.R. No.42 of 2001 dated 13‑3‑2001 with Police Station Raja Jhang under section 302/34, P.P.C. for commission of murder of Tariq Mehmood, was declared to be child and his trial was ordered to be conducted under Juvenile Justice System Ordinance, 2000. Learned counsel for the petitioner contends that according to birth certificate, date of birth of Riaz, respondent No.2 was 27‑11‑1982 and he was aged more than 18 years on the day when the alleged occurrence took place, who was also issued Identiy Card on 25‑10‑2001 wherein his date of birth has been mentioned in the year placing reliance on 1989 SCMR titled Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan and an unreported judgment of this Court Criminal Revision No.193 of 2002, learned counsel has argued that in presence of preliminary evidence i.e. entry in birth certificate there was no dispute about, the age to be resolved by examination through Medical Board and even the report of the Medical Board is mere "opinion" and cannot be given preference over the birth certificate and the case‑law relied upon by the learned Sessions Judge, titled PLD 2000 SC 813 is not applicable to the facts and circumstances of the instant case, therefore, it has been prayed that the impugned order be set aside and the trial of the accused/respondent No.2 be ordered to be conducted under ordinary law. Learned counsel for the State concedes to the stand taken by learned counsel for the petitioner. Learned counsel for respondent No.2 has opposed the petition and vehemently argued that under section 7 of Juvenile Justice System Ordinance, 2000, the report of the accused from the Medical Board was essential and the petitioner/complainant had not raised any objection to the examination of the accused from the Medical Board either by the learned Sessions Judge or by this Court and reliance has been placed on 2001 PCr.LJ 1939 titled Hassan Zafar v. State and PLD 2000 SC 813 titled Naseer Ahmad v. State. I have given consideration to the contentions raised at the bar and have also examined the relevant provisions of law and the case‑law referred to at the bar. According to birth certificate Annexure‑C the date of birth of Riaz, respondent No.2 was 27‑11‑1982 and the alleged occurrence took place on 13‑3‑2001 and at the time of commission of, crime he was 18 years 3 months old. The Identity Card was issued to respondent No.2 on his own application on 25‑1‑2002 prior to the date of occurrence and his name was also added in the electoral roll Annexure‑D which is sufficient proof that on the day of occurrence he was more than 18 years of age. In the medical report of M.S. Services Hospital, Lahore whereby respondent No.2 was medically examined it has been stated that his bone age is between 17/18 years and according to the settled law reported as 1975, PCr.LJ, 453 (Bunnay Khan v. State), X‑Ray Report and ossification test does not establish the age with certainty or exactitude and possibility of difference of one year on either side is possible. Secondly it is only the opinion and cannot exactitude the conclusive proof brought on record by the complainant through entry in birth register and copy of the Identity Card, issued in favour of respondent No.2 and the case‑law referred to by learned counsel for respondent No.2 is not applicable to the circumstances of the instant case as there was no dispute regarding the age. By mere making an application dispute has been created, therefore, taking into consideration all the circumstances of the case I find that the accused/respondent No.2 was not child to be tried under Juvenile Justice System Ordinance, 2000 and the petition is allowed by setting aside the impugned order and the learned Trial Judge is directed to proceed with the trial of the accused/respondent No.2 under ordinary law. N.H.Q./M‑1156/L Petition allowed.