2005 PLP 1029 (YLR)

Petitioner seeks setting aside of order dated 12-4-2004 passed by learned trial Court through which application moved by the petitioner for declaring him as juvenile after his medical examination for determination of age has been dismissed.

2. As per brief facts of the case, the petitioner is an accused in case F.I.R. No.89 dated 18-3-2003 under section 302, P.P.C. at Police Station, Kot Chhutta Tehsil and District Dera Ghazi Khan registered on the statement of Khadim Hussain. The brief allegation against petitioner Farooq Ahmad is that he had murdered Mst. Amina daughter of the complainant by firing at her with Carbine.

3. After completion of the investigation report under section 173, Cr.P.C. was submitted in the Court, the charge was framed and evidence of the eye-witnesses was also recorded. Only statement of the Investigating Officer was yet to be recorded, when the petitioner moved an application under section 7 of the Juvenile Justice System Ordinance, 2000 for his medical examination and for declaring him as juvenile whereupon inquiry was conducted by the learned trial Court and application has been dismissed through the impugned order.

4. Learned counsel for the petitioner contends that it was mandatory upon the learned trial Court to refer the matter to the Medical Board for determining the age of the petitioner before any decision on his application for declaring him juvenile, hence the impugned order being against the law is liable to be set aside.

5. I have heard the learned counsel for the petitioner and also gone through the contents of this petition as well as the impugned order. In the present case after submission of report under section 173, Cr.P.C. charge was framed against the petitioner and statements of about 8 witnesses were recorded. On 16-3-2004 case was adjourned for recording the statement of the Investigating Officer who was the only witness left to be examined when the petitioner moved application for declaring him as juvenile. During the inquiry C.W.1, Nazar Muhammad Shakir, Headmaster Government High School Shairo District, D.G. Khan made statement that the petitioner was admitted in 6th Class on the basis of school leaving certificate Exh.C.A. according to which his date of birth was 8-8-1983. He produced relevant record and he was subjected to cross-examination. Then Muhammad Iqbal Secretary, Union Council, Jakhar Imam Shah was produced as C.W.2, certified copy of whose statement has been produced by the learned counsel for the petitioner during the arguments which is placed on the record. Muhammad Iqbal, C.W.2 stated that father of Farooq petitioner moved application on 10-3-2004 for recording requisite entry in the register of birth according to which date of birth of the petitioner was shown as 19-4-1986 and on the direction of Nazim Union Council this entry was made in the relevant register on 18-3-2004. The learned trial Court has not recommended the petitioner for medical examination on the ground that date of birth according to school leaving certificate was 8th of August, 1983, hence the petitioner was more than 18 years at the time of commission of the offence while the birth entry was made even after submission of the application of the petitioner and recording of the statements of the P.Ws. as well. Now it is settled law that if from the documents the age of the accused is proved beyond doubt, then there is no need to call for medical expert opinion regarding age.

6. In the circumstances discussed above, I do not find any illegality or improbability in the impugned order as there is nothing on the record to prima facie show that the petitioner was less than 18 years of age. Hence, this petition is dismissed. H.B.T./F-38/L Petition dismissed.