2007 PLP 148 (MLD)

MUHAMMAD AKHTAR SHABBIR, J.

This criminal revision has been filed qua the order, dated 8-3-2006 passed by the learned Sessions Judge, Lodhran, whereby he has determined the age of the accused/petitioner as 19 years and decided to proceed with the trial of the case.

2. Learned counsel for the petitioner contended that the learned Sessions Judge, Lodhran, has not determined the age of the petitioner/accused in accordance with the provision of section 7 of the Juvenile Justice System Ordinance, 2000. While on the other hand, learned counsel for the complainant as well as the State vehemently opposed the arguments of the learned counsel for the petitioner contending that the learned trail Court/learned Sessions Judge, Lodhran, has based his opinion on the basis of the material on the file and the report of the Medical Board of DHQ Hospital Lodhran.

3. I have heard the arguments of the learned counsel for the parties and perused the record.

4. A case F.I.R. No.177 of 2005 under section 302, P.P.C. at Police Station Jalla Arain, District Lodhran has been registered against the petitioner/accused and after investigation of the case the Investigating Officer submitted his report under section 173, Cr.P.C. to the Court of competent jurisdiction/Sessions Judge, Lodhran who has taken the cognizance of the matter and has determined the petitioner as 19 years old and proceeded with the trial of the case, charge sheeted the petitioner for the commission of Qatl-e-Amd of Shabbir Hussain Shah. Section 7 of the Juvenile Justice System Ordinance, 2000 has provided the criteria for determining the age of the accused which is reproduced as under:-- Section 7 Determination of age. "If a question arises as to whether person before it is a child for the purpose of this Ordinance, the Juvenile Court shall record a finding after such inquiry which shall include a medical report for determination of the age of the child."

5. Before framing the charge against the accused/petitioner the trial Court vide order, dated 13-2-2006 directed the Medical Superintendent, District Headquarter Hospital, Lodhran to constitute a Medical Board for determination of the age of the accused/petitioner and the accused was directed to be produced before the Medical Board on 1-2-2006. In compliance with the order of the trial Court, a Medical Board of District Headquarter Hospital Lodhran was constituted consisting of Dr. Fiaz Hussain Ch. Medical Superintendent, DHQ Hospital, Lodhran, Dr. Muhammad Aslam Baig, DMLO, Lodhran, Dr. Mehmoodul Hasan Mehmood, District Health Officer, Lodhran and Dr. Muhammad Ramzan Bhutta, Consultant Surgeon, DHQ Hospital, Lodhran. The report of the Radiological Department, Dental Surgeon B.V. Hospital, Bahawalpur was called for and after physical examination by the District Standing Medical Board DHQ Hospital Lodhran, the Board gave the unanimous opinion that the age of Mr. Muhammad Nasir son of Falak Sher is about 19 years and the learned Sessions Judge vide his order, dated 8-3-2006 passed the following order: "Present: D.A. for the State. Accused under custody. (2) Report of the Medical Board received, according to which the accused is 19 years old. He was major at the time of occurrence. (3) After perusing the police report and all other documents and statements filed by the police I am of the view that there is sufficient material available on the file to proceed with the trial of the accused. Let the charge be framed." It is settled principle of law laid down by the superior Courts that age of the accused can only be determined after obtaining the report from the Medical Board. Intention of the Legislature is very clear that determination of the age of an accused person merely on the basis of School Leaving Certificate or Birth Certificate is not safe, hence report from the Medical Board should be obtained for the said purpose due to the reason that the Birth Certificates or School Leaving Certificates are easily available. It has further been observed by the Courts that the Juvenile Court alone can decide whether the accused is a child or not on the basis of the unimpeachable documentary evidence and after obtaining medical opinion. In this context reference can be made to the case of Hassan Zafar v. The State (2001 PCr.LJ 1939), Javed Iqbal v. The State (PLJ 2003 SC 54) and Ahmad Khan v. The State (2003 YLR 315).

6. Learned counsel for the petitioner has contended that there is a variation of one year age and at the time of occurrence the petitioner/ accused was less than 18 years. The criteria laid down by the Courts for determining the age of the juvenile offender has been provided in section 7 of the Juvenile Justice System Ordinance, 2000. The learned Sessions Judge after obtaining the report of the Medical Board which has opined that at the time of examination on 6-3-2006 the petitioner was about 19 years. To contradict the opinion of the Medical Board the learned counsel for the petitioner has placed reliance on a School Leaving Certificate issued by the Head Master Government High School, Basti Malook, Multan. As per the entries in this Certificate the petitioner was admitted in 9th class on 13-4-2005 and discharged on 17-10-2005. He also placed reliance on another Certificate issued by the Head Mistress, Govt. Girls Primary School, 387/WB, Tehsil Dunyapur District Lodhran where the date of birth of the petitioner is entered as 1-1-1990 and he was admitted in 5th class of the school on 1-4-1996 and discharged on 31-3-2002. The School Leaving Certificate is not a conclusive proof of the age of the petitioner because it can be obtained at any time from any school. From the minute scrutiny of these documents/School Leaving Certificates Annex-C, C/1, it reveals that the petitioner has been discharged from one school on 31-3-2002 from 5th class and thereafter he was admitted on 13-4-2005 in another school. There is gap of three years between the discharge from school and admission in second school, which is unexplained. When confronted, learned counsel for the petitioner could not respond that during this interregnum period the petitioner has been studying in which school. Learned counsel for the complainant has placed a copy of the Birth Certificate of the petitioner according to the entries the date of birth of the petitioner is 11-7-1986. By calculating the date of birth in this certificate, age of the petitioner comes to 19 years and 3 months which corroborates the opinion of the Medical Board and the learned Sessions Judge/trial Court has given its opinion taking into consideration the report of the Medical Board statements filed by the police and other documents available on the file of the case. The trial Court is only competent to determine the age of the petitioner in view of the criteria laid down in section 7 of the Juvenile Justice System Ordinance, 2000.

7. Learned counsel for the petitioner when confronted with the Birth Certificate of the petitioner stated that the petitioner has challenged the entries made in this certificate, where he has challenged there is nothing on the record to establish that these entries were changed or declared bogus by the competent authority. The Medical Board has given its opinion on the basis of the ossification test. On the basis of the opinion of the Dentist and Consultant Surgeon of the hospital and the Birth Certificate, the learned Sessions Judge has determined the age of the petitioner. It is settled principle of law that when there is conflict between the Birth Certificates and the Medical Board, the opinion of the Medical Experts will prevail. In this context reference can be made to the case of Ahmad Ali v. The State (2001 MLD 1991). Learned counsel for the petitioner has not been able to contradict the medical opinion as well as the medical certificate both. There was sufficient evidence before the learned Sessions Judge while he has determined the age of the petitioner.

8. As to the arguments of the learned counsel for the petitioner that there can be variation of one year in the age of the petitioner despite the opinion of the medical experts, the answer would be that the alleged occurrence has taken place on 12-10-2005 and the medical examination of the petitioner was conducted by the board on 6-3-2006. As per the Birth Certificate the date of birth of the petitioner was entered as 11-7-1986, on the date of occurrence i.e. 12-10-2005 as per the Birth Certificate the age of the petitioner was 18 years and three months. If the variation of one year is excluded even then on the date of occurrence the petitioner was more than 18 years, thus he was not covered within the Juvenile Justice System Ordinance, 2000. The learned Sessions Judge has rightly, after determining the age of the petitioner proceeded against him, charge sheeted him and summoned the prosecution witnesses. The Birth Certificate produced by the learned counsel for the complainant is placed on record as Mark-A.

9. For the foregoing reasons, this criminal revision being devoid of force is dismissed. S.M.B./M-583/L Petition dismissed.