2003 PLP 321 (YLR)

Siraj Din v. Saghir Din alias Goga and another 1970 SCMR 30; Ahmad Ali v. The State 2001 MLD 1191; Hassan Zafar v. State 2001 PCr.LJ 1939; Messrs Arshad & Company v. Capital. Development Authority, Islamabad through Chairman 2000 SCMR 1557; Messrs Arshad & Co. v. Capital Development Authority, Islamabad through its Chairman 2004 SCMR 1557; Muhammad Akram v. Muhammad Haleem 2002 PCr.LJ 633; Bashinoo v. Abdul Hakim 1975 PCr.LJ 732 and Muhammad Anwar and others v. The State 1976 PCr.LJ 1325 ref. Pervaiz Inayat Malik for Petitioner. Fawad Malik for the Complainant. Mian Shahid Rasool for the State. Muhammad Naeem petitioner while facing the trial of the case bearing F.I.R. No. 178 of 2001, dated 1‑6‑2001 registered under sections 302/34, P.P.C. with Police Station Saddar, Gojra, as an accused moved an application for determination of his age by Medical Examination because according to him he was under the age of 18 years at the time of occurrence in this case. This application was opposed by the opposite side by producing the birth certificate which showed the date of birth of the petitioner/accused as 21‑8‑1981, anyhow, the petitioner was referred to Civil. Hospital, T.T. Singh for his examination through a Medical Board. Consequently, the Board gave unanimous opinion that the age of Muhammad Naeem petitioner was about 19 years. The learned trial Court preferred to rely upon the birth entry and school leaving certificate by relying on a, case reported in 2002 PCr.LJ 633 [Lahore], as a result of which it was determined that the age of the petitioner was above 18 years, consequently the application was rejected vide order; dated 2‑8‑2002. Hence this revision petition by the petitioner/accused.

2. Learned counsel for the petitioner argued that once the learned trial Court arrived to this conclusion that for determination of the age of the petitioner the medical examination is essential then the learned trial Court was bound to rely upon the opinion of the Medical Board which proved that on the day of examination the petitioner was aged about 19 years; that the alleged occurrence had taken place on 1‑6‑2001 and if the opinion of the Medical Board is taken into consideration, the age of the petitioner would appear as 17 years 11 months and 2 days, therefore, his case would cover the term of child as defined in section 2(b) of the Juvenile Justice System Ordinance, 2000 and being so he could not be tried as an adult by an ordinary Court. He further argued that no other document can be preferred to medical opinion for determination of the age. He referred to the cases reported in Siraj Din v. Saghir‑ud‑Din alias Goga and another, 1970 SCMR 30; Ahmad Ali v. The State, 2001 MLD 1191 [Lahore]; Hassan Zafar v. The State, 2001 PCr.LJ 1939; and Messrs Arshad & Company v. Capital Development Authority, Islamabad, through Chairman 2000 SCMR 1557 (Supreme Court of Pakistan) in support of his arguments.

3. On the other hand, the learned counsel for the complainant assisted by the learned State Counsel submitted that there is no dispute over the birth entry, school leaving certificate and an entry regarding the electoral role, then means there was no requirement of the opinion of the Medical Board and such opinion is required when dispute about determination of the age arises. He further submitted that the birth certificate, school leaving certificate and the entry in the electoral role were got recorded by the petitioner or his parents, therefore, no dispute can be raised about these documents by the petitioner. He placed reliance upon the cases reported in Messrs Arshad & Co. v. Capital Development Authority, Islamabad through its Chairman, 2000 SCMR 1557; Muhammad Akram v. Muhammad Haleem, 2002 PCr.LJ 633 [Lahore]; Bachinoo v. Abdul Hakim, 1975 PCr.LJ 732 [Lahore] and Muhammad Anwar and others v. State 1976 PCr.LJ 1325, in support of his contentions.

4. It is obvious that the point for determination is as to what is the criteria for determination of age of an accused person. This criteria has been provided in section 7 of the Juvenile Justice System Ordinance, 2000. In accordance with section 7 if a dispute, arises as to whether the accused before the Court is covered by the definition of the child under the Ordinance supra the Court is bound to record the findings after such an inquiry which shall include a Medical Report for determination of the age of the child. It certainly means that in order to resolve the controversy the Court must collect the medical evidence but it does not mean that there shall be sole reliance on the medical evidence. In other words it means that the Court has to examine all the material available including the medical evidence. Besides the medical evidence the other material may consist on birth entry, school leaving certificate and any other entry in the record which could convince that the entry being genuine is worth reliance. In fact the Court had to conduct the inquiry and, thereafter, a finding is to be given on the controversy involved. But such inquiry is not essential in each case particularly when the undisputed documents are brought on the record. Now here in the instant case the complainant side brought on the record, the birth entry which was admittedly got recorded by the parents of the accused after a few days of the birth of the petitioner. Learned counsel for the petitioner could not challenge the birth entry got recorded by the parents of the petitioner by any sound reason even he was silent on seeing the documents produced by the learned counsel for the complainant today consisting of (i) Report under section 173, Cr.P.C. (ii) Copy of electoral roll, (iii) Copy of Register of Birth and (iv) copy of order sheet of this Court. The birth entry and that of date of birth as provided in the school leaving certificate although differs with each other yet provide this fact on the record that at the time of occurrence the age of the petitioner was above 18 years. 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.

5. The perusal of the impugned order passed by the learned trial Court would show that it is in accordance with law and facts on the record. It makes no difference if the learned trial Court had fulfilled the requirements of section 7 of the Juvenile Justice System Ordinance, 2000 by inviting the opinion of the Medical Board which was simply a part of the inquiry and even after inviting such‑like opinion the Court is fully competent to believe or not to believe the medical evidence and to believe or disbelieve any other document but the findings must be based upon the principle of appreciation of evidence. Being so the order passed by the learned Additional Sessions Judge calls for no interference. In view of above the order passed by the learned trial Court, dated 2‑8‑2002 is upheld and this revision petition being without merits is hereby dismissed. Certified copies/original document may be returned to the learned counsel for the petitioner after obtaining the photostat copies, thereof. Petition dismissed. S.M.A.H./M‑1543/L