2011 PLP 179 (YLR)

IJAZ AHMED CHAUDHRY, J.--This revision petition has been directed against the order dated 20-52010 passed by the learned Additional Sessions Judge, Kharian whereby the application filed by Mohsin Raza petitioner/accused in case F.I.R. No.120 of 2009 dated 26-3-2009 registered under sections 302/109/148/449, P.P.C. at Police Station Dinga District Gujrat, for declaring him minor at the time of the occurrence was dismissed.

2. Briefly the facts of the case are that the aforesaid F.I.R. was got registered by Azmatullah complainant against the petitioner and others which was investigated by the police and ultimately challan was submitted before the learned Additional Sessions Judge, Gujrat before whom the petitioner made an application for being declared him a juvenile on the ground that he was under 18 years of age at the time of occurrence, as such, he be tried under Juvenile Justice System Ordinance, 2000. Since the petitioner only relied upon the school leaving certificate, therefore, the learned trial Court got the petitioner medically examined by a Medical Board for the determination of his age. After receipt of the report of the Medical Board the learned trial court dismissed the said application through impugned order. Hence the present revision petition.

3. Learned counsel for the petitioner contends that the impugned order is illegal and incorrect; that all the members of the Medical Board assessed the age of the petitioner with the margin of two years and it was incumbent upon the learned trial court to take into consideration the lowest age mentioned in the report of the Medical Board, as such, the learned trial Court has illegally dismissed the application of the petitioner that if the age of the petitioner is considered as 18 years even then the petitioner is juvenile and the learned trial Court without applying its judicial mind passed the impugned order while dismissing the application of the petitioner.

4. I have heard the learned counsel for the petitioner and also perused the available record. It is settled principle of law that whosoever urges a specific plea that has to be proved by him by adducing evidence in support of that plea. Here in this case the petitioner has raised a specific plea that he was a juvenile at the time of occurrence being less than 18 year of age as his date of birth is 2-10-1993. This specific plea has to be proved by the petitioner through cogent and reliable evidence. In support of his plea the petitioner only produced a school leaving certificate before the learned trial court according to which his date of birth is 2-10-1993. The complainant also produced a school leaving certificate of the petitioner, according to which, date of birth of the petitioner is 15-6-1991. In view of the divergent pleas regarding age of the petitioner, the learned trial Court referred him to the Standing Medical Board for determination of his age. The said Medical Board after medical examination of the petitioner submitted report on 4-2-2010, according to which the members of the Medical Board gave different opinions. According to the opinion of the Radiologist the age of the petitioner is 18 to 20 years, Dr. Abdul Razzaq, Principal Dental Surgeon opined as 17 to 19 years, Dr. Muhammad Afzal Consultant Physician calculated as 18-20 years and Dr. Shahid Saeed, Chief Consultant Surgeon opined as 18-20 years. The Medical Board concluded that the average bone-age of the petitioner is 19 years. The occurrence in the instant case took place on 23-3-.2009 and the F.I.R. was registered on 26-3-2009 whereas the date of report of Medical Board is 4-2-2010. If the age of the petitioner is calculated as on 4-2-2010 when the Medical Board gave its opinion he was 18 years two months and 18 days old at the time of occurrence. In such circumstances, the learned court has rightly determined the petitioner to be more than 18 years of age at the time of occurrence and he was major for all intents and purposes. No other proof was tendered by the petitioner in support of his juvenility like the birth certificate from where the exact date of birth of the petitioner could be ascertained. The school leaving certificate is not an authenticated documents on which the reliance can be placed in order to determine the age of a person as it could very easily be maneuvered as is the situation in the present case that one school leaving certificate has been produced by the' petitioner and the other by the complainant and the date of birth of the petitioner in both the said certificates is different. The petitioner got the said certificate issued in his favour by got mentioning his date of birth of his own choice whereas the complainant got issued the said certificate by got mentioning the date of birth of the petitioner which suits him. So in the circumstances detailed above, it was not possible for the learned trial Court to determine the authenticity of both the school leaving certificates of the petitioner without conclusive proof of their genuineness and the learned trial Court had to refer the petitioner to the Medical Board for determination of his age which concluded that the age of the petitioner was 19 years, as such if his age is calculated according, to the opinion of the Medical Board he was 18 years 2 months and 18 days old at the time of occurrence. This specific plea raised by the petitioner before the learned trial Court remained unproved as the petitioner failed to produce any conclusive proof regarding his age, as such, the learned trial Court has rightly dismissed his application through impugned order which warrants no interference by this Court in its revisional jurisdiction as no illegality or material irregularity has been committed by the learned trial Court while passing, the impugned order and that there is also no jurisdictional defect in the impugned order.

5. Upshot of the above discussion is that I find no merit in this revision petition which is hereby dismissed in limine.

6. Before parting with this order I may observe here that keeping in view the divergent assessments made by the members of the Medical Board regarding the age of the petitioner, the question of determination of the age of the petitioner is left open to be determined by the learned trial Court at the time of conclusion of the trial in case the specific plea raised by the petitioner regarding his juvenility is proved through some cogent, reliable, un-rebutted and convincing evidence and in such an eventuality the learned trial Court would be competent to award sentence to the petitioner keeping in view the facutm of juvenility of majority of the petitioner. Revision petition dismissed. N.H.Q./M-499/L