2019 PLP 1033 (YLR)

RAJA SAEED AKRAM KHAN, J.

The titled revision petition has been filed against the order passed by the Shariat Appellate Bench of the High Court (High Court) dated 26.03.2018, whereby, the revision petition filed by the petitioner, herein, has been dismissed.

2. The facts necessary for disposal of this revision petition are that the accused-respondent No.1, herein, was facing trial in a case registered against him, in the offences under sections 302 and 34, A.P.C. read with section 14 of The Offences Against Property (Enforcement of Hudood) Act, 1985. During the course of trial, the complainant-petitioner, herein, moved an application before District Court of Criminal Jurisdiction, Muzaffarabad (trial Court) that in the School Leaving Certificate and Form " " the date of birth of the accused has been mentioned as 04.03.2001, whereas, his age is more than the age shown in these documents, and sought determination of the age of the accused through Radiologist report/ Ossification test. The trial Court after hearing the parties rejected the application vide its order dated 19.09.2017. The petitioner challenged the order of the trial Court before the High Court by filing revision petition which has been dismissed through the impugned order dated 26.03.2018, hence, this revision petition.

3. Mr. Fayyaz Ahmed Janjua, Advocate, the learned counsel for the complainant-petitioner argued that the orders passed by both the Courts below are nullity in the eye of law as the same have been passed in clear departure from the law laid down by the superior Courts. He contended that both the Courts below fell in error of law while not taking into account that the accused murdered the brother of the petitioner and his date of birth shown in different documents is incorrect, if the exact age of the accused is not determined then the benefit of teenage may go in his favour. The learned counsel contended that for determining the age reliance cannot be placed on School Leaving Certificate or Form " ", etc., as suchlike documents can easily be managed. He added that apparently the age of the accused is more than the age shown in the documents, therefore, in such a situation, the proper course is to determine the exact age through Ossification test and Radiologist Report, but the trial Court without any justification rejected the application and the learned High Court committed the same illegality while upholding the order passed by the trial Court. The Courts below passed the orders in a slipshod manner without applying the judicial mind, hence, interference by this Court is required. The learned counsel referred to and relied upon the case law reported as Sultan Ahmed v. Additional Sessions Judge-I Mianwali and 2 others [PLD 2004 SC 758].

5. On the other hand, Mr. Jamshed Ahmed Butt, Advocate, the learned counsel appearing on behalf of the accused-respondent, strongly controverted the arguments advanced by the learned counsel for the petitioner. He submitted that the impugned order is perfectly legal which is not open for interference by this Court. He added that the date of birth of the accused mentioned in Secondary School Certificate, Form " " etc. is correct and the objection raised by the petitioner in this regard has no substance as these documents were issued much prior to the occurrence and at that time it was not in the knowledge of the accused that he shall be enroped in a murder case. Thus, in such circumstances, no mala fide is attributed on the part of the accused. He lastly submitted that the application filed by the petitioner was baseless which has rightly been rejected by the Courts below and the revision petition is liable to be dismissed. He referred to and relied upon the case law reported as Naeem alias Deemi v. The State [2013 PCr.LJ 1335] and Mohammad Ilyas v. The State [2017 YLR Note 71].

6. Sardar Karam Dad Khan, the learned Advocate-General adopted the arguments advanced by the learned counsel for the petitioner.

7. We have heard the arguments and gone through the record made available along with the impugned order. The petitioner wants Ossification test and Radiologist Report for determining the age of the accused. According to the annual result card issued by the Federal Board of Intermediate and Secondary Education, Islamabad and Registration Form issued by National Database and Registration Authority (NADRA), the date of birth of the accused-respondent is 04.03.2001. These documents come within the purview of reliable documents and admittedly the date of birth of the accused-respondent was registered by both the aforesaid institutions much prior to the occurrence, therefore, it cannot be said that the same are fabricated and procured just to avail any sort of benefit. It is also premature to hold that the trial Court shall extend the benefit in favour of the accused at any cost on the strength of the date of birth mentioned in the documents. The stance taken by the petitioner that apparently the age of the accused is more than the age shown in these documents is not a valid ground for determining the age through Ossification test. It may be observed here that determination of age by Ossification test is necessary when no reliable documentary evidence is available on record about the age of the accused, whereas, in the instant case the situation is quite otherwise as authentic documentary evidence regarding the age of the accused is available on record. Our this view find support from the case law referred to by the counsel for the accused reported as Mohammad Ilyas v. The State and another [2017 YLR Note 71], wherein, while dealing with the same proposition it has been held that:-- "Ossification test of the accused for determining his age would be necessary when no reliable documentary evidence was available on the record about the age. In presence of the authentic academic record available in the case file pertaining to the age of the accused, there was no necessity to refer the accused for the ossification test." It may also be observed that for the sake of arguments if the Ossification test/Radiologist report is obtained even then that cannot be given the preference over the undisputed reliable documents, i.e. result card of Secondary School Examination and Registration Form issued by NADRA, as the said report cannot be considered as a conclusive proof about the age of the accused. In this regard, reference may be made to a case reported as Muhammad Naeem v. The State and another [2003 YLR 321], wherein, it has been held that:-- "....So far as the unanimous opinion of the Medical Board is concerned it is not helpful for exact determination of the age because based on it, whatsoever is the assessment made by the Court, it would not be a conclusive proof about the age whereas the birth certificate (undisputed) always provides the conclusive proof about the age, therefore, when there is no dispute about the genuineness of the birth certificate, the medical evidence cannot be given preference over it." Thus, in view of the circumstances discussed hereinabove, we are convinced that the trial Court rightly rejected the application filed for determining the age of the accused-respondent through Ossification test/Radiologist report and the learned High Court has not committed any illegality while concurring with the findings recorded by the trial Court. The case law referred to by the counsel for the petitioner is not helpful to the case of the petitioner as in the referred case no reliable evidence regarding the date of birth of the accused was available, whereas, in the case in hand the situation is quite otherwise. Resultantly, this revision petition being devoid of any force is hereby dismissed. SA/10/SC(AJ&K) Petition dismissed.