P L D 1995 Karachi 202 (PLP)

Applicant Abdul Rasheed has impugned orders dated 21‑6‑1993, 9‑2‑1993 and 19‑7‑1993, passed by learned Ifnd Additional Sessions Judge, Karachi, West in Sessions Case No‑2283 of 1985 State v. Abdul Rasheed, which was registered under section 302, P.P.C.. The facts relevant for decision of this Revision are as follows: It is alleged that on 30-9-1977 the applicant has committed murder of one Ramzani by causing him Chuarri injuries within the jurisdiction of police e Station Pak Colony. He has arrested anti era completion o investigation charge‑sheet vas submitted against him before the Court having 'jurisdiction in the matter. On 8‑10‑1977 the applicant was referred to Abbasi Shaheed Hospital, Karachi for determination of his age. The Doctor examined him and opined that he was about 16/17 years of age. It appears that thereafter a Medical Board consisting of 4 Doctors namely, Ali Gohar, Taj Muhammad Soomro, Mohsin Ali Sheikh, and Malin Ahmed Khan was constituted for said purpose. He was examined by the Board on 21‑5‑1979. According to finding of the Board, on the date of examination he was between 19 and 20 years, which means that on the date of incident he was about 17 years and 8 months. One of the Members of Medical Board namely, Matin Ahmed Khan, was examined on 12‑1‑1993 and he produced the Medical Certificate issued by the Board. The applicant was granted bail. It appears that Complainant approached this Court as per Criminal Miscellaneous No.535/1978 under section 497(5) read with section 561‑A, CrY.C., for cancellation of his bail. This Court, as per order dated 28‑10‑1979, directed the trial Court to determine the age of the applicant by examining the concerned Doctors. It was observed in said order that in case the age was determined 16 years on the day of incident, the question of cancellation of bail was to be considered by the trial Court itself and this was to be done within 3 months from the date of said order. The trial Court by order dated 22‑10‑1980 held that the applicant was above 16 years of age at the time of incident. Criminal Revision No.114/1988 was filed in this Court and it was decided on 12‑8‑1990, whereby the trial Court was directed to record the evidence of the concerned Doctors. Learned trial Court, having taken into consideration the report of Medical Board and report of Police Surgeon, Karachi dated 8‑10‑1977, reached the conclusion that at the time of commission of offence the applicant, in any case, was above 16 years and as such was not child within the meaning of section 5 of the Sindh Children Act, 1955, Accordingly, the application was dismissed, by order dated 9th February, 1993, and the trial Court directed the prosecution to produce the witnesses on the next date of hearing. On 24-2-1993 the applicant again flied air application under said section of the Sindh Children Act, for reviewing the order dated 9‑2‑1993. This application was also discussed by the trial Court by detailed order dated 21st June, 1993. Again tine applicant on 18‑7‑1993 Ned an application for reviewing the aforesaid order arid this application was also dismissed by the trial Court dated 19‑7‑1993. Now in this, Revision the aforesaid orders have been challenged. It is contended on behalf of the applicant that learned trial Court has failed to appreciate the order data 2S‑1o‑1979 passed try this Court and was not justified in placing reliance upon the ,report of the Medical Board. Also according to Modi's Medical Jurisprudence, the margin of error in case of determination of age on tire basis ossification test falling it, the group as that of applicant, could be 2‑3 years (minus‑plus) and if this was applied in this matter, the applicant could well be below 16 years on the day of incident as such was entitled to be tried under the Sindh Children Act and by virtue of section 68 of the said Act could not be sentenced to death or imprisonment. Above contentions have no force. The order dated 28‑10‑1979 of this Court was passed much before evidence of Doctor Matin Ahmed Khan, Member of Medical Board was recorded. Said Doctor has deposed that the applicant, on the date of examination, was between 19/20. He categorically stated that there was no margin of error of age in this case and that he is an Authority on the subject relating to Radiology. Learned counsel for the applicant criticised the testimony of said Doctor on the ground that since he does not agree with Modi's view on the point of ossification test as such the Medical Certificate issued by the Board is of no significance. Generally the age is determined on the basis of (1) Teeth, (2) Height, (3) Weight and (4) Ossification of Bones. According to Modi's Medical Jurisprudence, the estimation of age on the basis of teeth with X‑Rays is only possible up to 17‑20 years of age and beyond that it would be merely guess work. Since increase in Height and Weight, according to age varies in individuals, therefore a fairly accurate opinion with regard to age on these bases would be difficult. Ossification of bones is a sign and it helps in determining the age. According to Modi owing to variations in climatic, dietetic, hereditary and other factors affecting the people, a uniform standard cannot be formulated for determination of age. He is also of the view that the union of epiphyses is taken into consideration for determining the age, and for determining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, and the opinion be given thereafter. It is true that according to Modi's Medical Jurisprudence, the range of errors may be up to 3 years, but nowhere in his jurisprudence he stated that in every case there would be margin of error. It will differ from case to case as the data collected by him was also of different places/provinces. Learned counsel for the applicant while cross examining Doctor Matin Ahmed Khan did not put any specific question regarding calcification of laryngeal and sternal cartilages and hyoid bone; changes in the sacrum; closure of the cranial sutures; condition of the symphyseal surface of the pubic bone; and changes in the joints nor gave any suggestion from which it could be inferred that the examination of the applicant by the Board was not according to the established principles of Medical Jurisprudence. Simply because on certain points said Doctor did not agree with Modi's view, it would not, ipso facto, mean that the report of the Board consisting of 4 Specialists was of no significance. Accordingly, I hold that the age of the applicant, as determined by the Board, is correct and the finding of the Board is to be preferred over the Medical Certificate dated 8‑10‑1977 issued by the Police Surgeon. Ghaffar Corporation, P.E.C.H. Society (Abdul Rahim Kazi, J) Learned counsel for the applicant cited Amjad Ali alias Kaloo v. The State 1985 PCr.LJ 428, Karachi to contend that it is well‑settled principle of Criminal Jurisprudence that if two views in a criminal case are possible, the view which is more favourable to the accused is to be accepted. He argued that in this case two Medical Certificates, are on record and the Medical Certificate dated 8‑10‑1977 shall be accepted and the benefit of margin of error be given to the applicant. The facts of the reported case are distinguishable. In the abovequoted case Police Surgeon found appellant/accused of 20 years and the Medical Board found him of 15 years. The view of the Medical Board was accepted. In this case the applicant. was above 16 years of age and margin of error was not established. In consequence, I do not find any merit in this Criminal Revision and the same is dismissed. The trial Court is directed to proceed with the matter day to day and submit progress report fortnightly to the MIT of this Court. N.H.Q./A‑1523/K Petition dismissed.