1986 PLP 1083 (MLD)

Date of hearing: 17th May, 1985. This Criminal Revision Application under section

439. Cr.P.C. has been filed by applicant Adam against the order, dated 28‑10‑1985, of the 1st Additional Sessions Judge (West), Karachi.

2. The relevant facts of this case are that the applicant and two others are being tried by the lst Additional Sessions Judge, Karachi, (West) for the offence punishable under section 302/34, P.P.C. The applicant moved an application before the trial Judge that case against him he tried under "section 5 of Sind Children Act, 1955 as applicant was stated to be less than 16 years of age at the time of incident. His request has not been accepted, therefore, this Revision has been filed.

3. Mr. K . A . Wahab,, appearing for the applicant made an application on 17‑3‑1985 that this Revision be heard by some other Judge on the ground that while disposing bail application, some observations were made. On this I heard Mr. M.A.' xazi, appearing for the respondent and Mr. Abdul Ghafoor Mangi, learned A.A.‑G. for the State. They both stated that his application on the ground of age we dealt with by 2 other Judges and this is not disqualification for the Judges to hear this Criminal Revision. I agree with learned Advocates and proceeded to hear the Revision. At the first instance Mr. K.A. Wahab refused to advance his arguments. As soon as I started hearing the other counsel the learned Advocate Mr. M.A. Wahab submitted that he is prepared to argue the case. He was heard at length.

4. Mr. M.A. Wahab, contended that the applicant applied for bail in the Court of Sessions Judge, Karachi, who referred him to Police. Surgeon for determining his age. The Police Suregeon examined the applicant and found him to be between 15 and 16 years, but bail application was dismissed. He also contended that applicant being aggrieved against the order of learned Sessions Judge moved High Court for bail. It is contended that Mr. Justice Munawar Ali Khan, vide his order, dated 13‑1‑1985, observed that age of applicant appears to be 16 years, but in spite of applicant was referred by this Court to a Medical Board and his age was determined to be about 18 years. He has submitted that according to Modi's Medical Jurisprudence the margin of error could be of 2 to 3 years, therefore applicant was under 16 years and his case to be tried under the Sind Children Act, 1955. Mr. M.A. Wahab, referred to the cases 1970 S C M R 39, 1975 P.Cr.L.J. 937 and 94 and P L D 1982 Kar.

567. Mr. M.A. Kazi the learned counsel appearing for the complainant argued that the case is being delayed unnecessarily by the applicant as on each and every hearing, all witnesses do appear in the, Court. He has submitted that the applicant is of 18 years. Mr. Abdul Ghafoor Mang!, A. A.‑G. appearing for the State argued that case of applicant according to the Medical Board and School Leaving Certificate is more than 16 years and case is not covered by Sind Children Act, 1955.

5. The incident of this case took place on 19‑6‑1984. His age as per Police Surgeon Karachi's certificate is between 15 and 16 years. It is also stated in the certificate that on Physical and Radiological findings it could be near to 16 years. This certificate was issued on 19‑7‑1984. The learned Sessions Judge, Karachi, while rejecting his bail application on 30‑7‑1984 observed that according to copy of certificate issued by the Board of Intermediate and Secondary Education, the applicant's birth date is shown as 12‑4‑1984. Therefore he preferred that certificate and rejected the bail application. The applicant was referred to Medical Board under Order of this Court and the then Mr. Justice Fakhruddin Shaikh, dismissed his Criminal Bail Application No.805 of 1984. H observed that according to certificate issued by the Medical Board th age of applicant is 18 years, therefore, he is not entitled to ge benefit of ,first proviso of section 497, Cr.P.C. This opinion about ag of applicant was given by the Board on 30‑1‑1985, 6 months after incident. Before this applicant was referred to the Civil Surgeon, Karachi for determination of his age who came to the conclusion that age of, applicant is about 18 years. This certificate was issued on 8‑10‑1984. At the request of Mr. M.A. Wahab, the learned Additional Sessions Judge summoned all Doctors including 3 specialists. They were examined by the learned Addtional Sessions Judge while dealing with application filed for trial of applicant under Sind Children Act, 1955. They were cross‑examined. They have come to the conclusion that the applicant is 18 years as such at the time of incident, he was more than 16 years. The Medical Board report, the Civil Sergeon's certificate and certificate of Secondary, Board are against the applicant. The only point favourable to the applicant is a certificate issued by the Police Surgeon, Dr.1 Asghar Ali Balouch. The authorities cited by Mr. M.A. Wahab are no relevant. All relate to bail on the ground of age. He has not cited any case law specifically relevant to the circumstances of this case. Id these circumstances preference cannot be given to an opinion of Police Surgeon Dr. Asghar Ali Balouch. There are no reasons to dissolve the Medical Board's report and Civil Surgeon, Karachi's report and certificate of Board of Secondary Education. In my view the learned Additional Sessions Judge has rightly come to the conclusion that applicant at the time of incident, was about/ 16 years age. The case of applicant does not come under purview of Sind Children Act, 1955, The Application 'is dismissed. The learned Additional Sessions Judge is directed to proceed with the case. S. A. Application dismissed.