2011 P Cr (PLP)

IJAZ AHMAD CHAUDHRY, J.

Through this revision petition under sections 435/439, Cr.P.C. the petitioner has sought setting aside the order dated 29-9-2010 passed by the learned Additional Sessions Judge, Jhang through which the petitioner was refused to be declared as Juvenile as he was booked in case F.I.R. No. 498 registered at Police Station 18-Hazari, District Jhang on 13-9-2009 in respect of offences under sections 302/34/201, P.P.C.

2. The learned counsel for the petitioner contends that sufficient documentary evidence was available before the learned Additional Sessions Judge, Jhang in shape of School Leaving Certificate and Form-B issued by NADRA but the same could not find favour and despite the learned Additional Sessions Judge has wholly relied upon the medical examination by illegally holding that the report of the Medical Board is reliable. The learned counsel for the petitioner states that even the result of Medical Board has also provided different opinions regarding the age of the petitioner as the report of Radiologist and Orthopedic Surgeon have not tally with each other. Thus, the medical opinion is self-contradictory and the learned trial Court has wrongly given preference over the solid documentary material. The learned trial Court even did not conduct proper inquiry regarding the documentary evidence provided by the petitioner. On the other hand the learned Additional Prosecutor-General and the learned counsel for respondents Nos. 2 and 3 have argued that the opinion of Medical Board is more plausible over the documentary material provided by the petitioner because the documents are not an independent proof to determine the age and could not be given preference over the opinion of Medical Board. The School Leaving Certificate and Form-B issued by the NADRA are documents which the petitioner has himself provided to the Court. The superior courts of the country has also given preference to the Medical Evidence over documents while declaring an accuse person to be a child. Reliance is placed on 2009 SCMR 1073.

3. I have heard the learned counsel for the parties and gone through the documents appended with this petition and case law cited by the learned counsel in this case. A bare perusal of the impugned order dated 29-9-2010 shows that the learned Additional Sessions Judge, Jhang has decided the matter of juvenility of the petitioner on the basis of School Leaving Certificate, Form-B and opinion of the Medical Board. One of the documents produced by the petitioner before the learned Additional Sessions Judge, Jhang was School Leaving Certificate. Admittedly the above said Certificate was issued on 31-1-2008 which bears the date of birth of the petitioner as 22-4-1992. The second documents relied by the petitioner is Form-B issued by NADRA. There is also no doubt that the said document was issued on 17-12-2007 which also bears the date of birth of the petitioner as 22-4-1992. Both the above said documents are in consonance with regard to the date of birth and that is 22-4-1992. The occurrence in this case has taken place on 13-9-2009, meaning thereby that before taking place of the occurrence both the documents had I already been issued by their respective departments.

4. Now adverting to the opinion of Medical Board which has been given preference over the documentary proof while deciding the question of juvenility of the petitioner. It is true that opinion of Medical Board should be taken even in presence of unimpeachable documentary evidence but it is equally true that possibility of variance of one year on both side cannot be ruled out of consideration. The opinion of Medical Board provides only a clue about the age of an accused person involved in a criminal case but it could not provide a conclusive age so as to be given preference over the documentary evidence: The medical opinion regarding the age of an accused is believed where the documentary evidence is missing. Reliance is placed on the cases of Muhammad Akram v. Muhammad Haleem (2000 PCr.LJ 633) and Hasan Zafar v. The State (2001 PCr.LJ 1939).

5. The case-law cited by the learned counsel for respondents Nos.2 and 3 (2009 SCMR 1073) having different facts and features which does not have any similarity with the facts of the instant case. A plain reading of paragraph No. 9 of the above cited judgment reflects that the entry made in Register of Births was after taking place of the occurrence whereas in this case the petitioner has provided School Leaving Certificate and Form-B of NADRA which both were issued before taking place of the occurrence. The learned counsel for respondents Nos. 2 and 3 has relied upon the above said judgment by only reading head-note and has not bothered to go through the whole judgment.

6. I have given anxious look to the impugned order passed by the learned Additional Sessions Judge, Jhang and found that the documents relied upon by the petitioner were not properly probed into by making a discrete inquiry or summoning the record from the concerned Departments. Thus, it will be more appropriate if the documents produced by the petitioner will be re-examined by conducting a discrete inquiry by the learned trial Court to determine the petitioner to be juvenile or otherwise. The impugned order dated 29-9-2010 is hereby set aside and this case is, therefore, remanded hack to the learned trial court to decide afresh after making an inquiry with regard to the School Leaving Certificate as well as Form-B issued by NADRA. This revision petition is disposed of with the observations made above. H.B.T./I-1/L Case remanded.