2008 PLP 498 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

The relevant facts of the case are that the respondent Muhammad Mudasar Raza, who is accused of the case registered vide F.I.R. No. 693 of 2003, dated 29-9-2003 under sections 302/392/353/324/186/34, P.P.C., Police Station Factory Area, Faisalabad, filed an application before the learned Trial Court for his trial by the Court constituted under the Juvenile Justice System Ordinance; 2000 claiming him to be minor at the time of occurrence. The learned Trial Court vide order, dated 14-9-2005 declared the respondent as minor and his case was separated for trial by a Court constituted under the Juvenile Justice System Ordinance, 2000 which order was assailed before this Court, the order of the learned Trial Court was set aside and the respondent was declared major. The said order of this Court, dated 28-9-2005, whereby respondent Muhammad Mudassar Raza was declared major, was assailed before the august Supreme Court of Pakistan and the apex Court, vide order, dated 2-12-2005 passed in Criminal Appeal No.476 of 2005 (Criminal Petition No. 369 of 2005) titled as Mudassar Raza v. Zafar Iqbal and another, was pleased to remand back the case to this Court with the following order: "(3) After hearing learned counsel for the parties and examination of the impugned order as well as the certificate and the report relied upon by the Trial Court as well as the High Court, we are of the considered opinion that in order to do complete justice High Court should summon the original Birth Certificate from the Municipal Administration in relation to the entry with regard to the birth of the petitioner and decide the criminal revision afresh. High Court should record reasons for accepting or discarding the birth entry as well as the medical opinion."

2. In compliance to the above order of the apex Court of the country both the parties and the record was summoned from the concerned quarter which has been produced today.

3. Learned counsel for the petitioner, in support of this petition, contends that he had personally checked the NADRA record but there was no son of Ghulam Mustafa by the name of Mudassar Raza; that two sons of Ghulam Mustafa were born in 1984 and probability was that they were twin brothers; that the respondent Mudassar Raza is using fictitious name; that in fact son of Ghulam Mustafa above mentioned by the name of Muhammad Asad has changed his name as Mudassar Raza; that record of NADRA is prior to the present occurrence; that according to Ghulam Mustafa, who is present in Court, he had no twin sons and that NADRA record may be summoned for a just decision of the case. In support of the, afore-referred submissions, learned counsel has relied on the precedent case-law reported in Ziaullah v. Najeebullah and others (PLD 2003 Supreme Court 656).

4. Learned counsel for the respondent No. 1 Muhammad Mudassar Raza submits that the law has been settled by the Hon'ble Supreme Court of Pakistan in the case of Abdul Khaliq and another v. Maulvi Muhammad Noor (PLD 2005 Supreme Court 962) and All Pakistan Newspapers Society and others v. Federation of Pakistan and others (PLD 2004 Supreme Court 600); that the birth certificate of the respondent Mudassar Raza is duly registered in the Birth Register of the concerned Union Council where date of birth of the respondent is mentioned as 5-10-1987, according to the said entry he was 16 years of age on the date occurrence i.e. on 29-9-2003.

5. The learned Additional Advocate General Punjab Ch. Muhammad Hanif Khatana, who has entered appearance along with Muhammad Shahzad Butt, Senior Clerk (Births and Deaths) Health Department, City District Government, Faisalabad, submits that according to the birth of the respondent Muhammad Mudassar Aza is 5-10-1987; that he is fully conscious of the fact that no forgery has been committed qua the said entry and that the respondent was minor at the time of occurrence.

6. I have heard learned counsel for the parties to their entire satisfaction, have given anxious consideration to their submissions and have also gone through the Original Birth Register produced by Muhammad Shahzad Butt, Senior Clerk (Births and Deaths), Health Department, City District Government, Faisalabad.

7. A bare perusal of the Original Register of Birth produced before this Court shows that at Serial No. 36903 name of Muhammad Mudassar Raza is duly mentioned and his date of birth is given as 5-10-1987. Not only the name of his father Ghulam Mustafa has been mentioned in the relevant Column No.5 but name of paternal grand, father of the respondent has also been mentioned as Faqeer Muhammad. So much so that name of midwife "Dai" is also appearing which is "Surraya Bibi". This entry, according to the Register, was made on 8-10-1987. The official, who has brought the Register, has also produced a certified copy of the relevant entries in the Register in question which has been placed on record of this file while the original register has been handed over to him. According to my opinion the above entries cannot be doubted at any cost because the same are genuine one and there is no interpolation or overwriting over the said entries.

8. Now this Court would like to discuss the opinion of the Medical Board which reads as under:-- "This Board is of the unanimous opinion that his age is between (21-22) twenty one and twenty two years. However, his definite age cannot be determined."

9. A bare perusal of the opinion of the Medical Board shows that the Medical Board has not definitely determined the age of the respondent. The Medical Board had given its opinion on 9-3-2005 and the occurrence in question had taken place on 29-9-2003, so, as a precautionary measure and keeping in view the observation made by the Apex Court of the country in the order referred to above, it would not be safe to rely upon the said opinion of the Board and the same is discarded accordingly. So far as contention of the learned counsel for the petitioner c qua summoning the record of NADRA is concerned the same is misconceived, has no substance and is hereby turned down while Criminal Miscellaneous No. 597-MJ of 2006 filed by him is dismissed. In the afore-referred circumstances, the order of the Court; dated 28-9-2005 is reviewed, the order of the learned Additional Sessions Judge, Faisalabad, dated 14-9-2005 is upheld and the respondent Muhammad Mudassar Raza is declared as juvenile to be tried under the Juvenile Justice System Ordinance, 2000. The matter is accordingly disposed of in compliance to the order of the Hon'ble Supreme Court quoted above. H.B.T./Z-33/L Order accordingly.