2013 PLP 804 (YLR)

SYED HASAN AZHAR RIZVI, J.

This Criminal Revision Application under section 435 & 439 r/w section 561-A, Cr.P.C. has been filed by the applicant to set aside the impugned order dated 11-11-2011 passed under section 4/5 of Juvenile Justice System 2000 by learned IInd Additional Sessions Judge Karachi (East).

2. I have heard Mr. Aaquib Rajpar, learned counsel for the applicant, Mr. Ghulam Mustafa Memon learned counsel for the respondent No.1 and Ms. Rahat Ehsan learned D.P.-G.

3. Learned counsel for the applicant has contended that the finding of the trial Court is totally against the factual position of the case. He drew attention of this Court to the opinion/report of the Medical Board constituted under the orders of the trial Court for ascertaining the age of respondent No.1. The Medical Board examined the accused/respondent No.1 and opined that "as per bony ossification and physical appearance, the age of accused Waseem Ahmed son of Aziz Ahmed is between 19 and 20 years." He contended that despite clear report of the Medical Board that the age of accused is between 19 and 20 years the trial Court has allowed the application filed on behalf of accused Waseem under section 4/5 of Juvenile Justice System 2000. He further contended that accused at the time of, committing offence was major. The accused is involved in a heinous crime and he does not fall within the definition of Child under Section 7 of Juvenile Justice System 2000. He also contended that the accused misguided the trial Court by submitting forged documents viz: birth certificate, admit card and mark-sheet. In the end, he submitted that the impugned order passed by the learned trial Court is erroneous, illegal and bad in law as well as it is against the evidence available on record. In support of his submission he has placed reliance upon the cases of MST. SHABANA KAUSAR v. FARHAN AHMED 2003 PCr.LJ 1507 and BABER SHAHZAD v. THE STATE (2007 YLR 2151).

4. On the other hand, learned counsel for the respondent No.1 strongly supported the view taken by the learned II-Additional District Judge Karachi (East) in his impugned order. He submitted that according to birth certificate and matriculation certificate the age of respondent No.1/accused at the time of his arrest was 17 years old. He also submitted that medical evidence alone, even if it is based on ossification test, is not a sure guide for determining the age of a person, as different charts have been prepared for such test and further the process of ossification is dependent on a number of facts, such as climate, heredity, eating habits and even environments, therefore, estimate of age on such consideration is not always correct. He, therefore, prayed that the instant revision may be dismissed with cost. In support of his submissions, he placed reliance on the case of BANNEY KHAN v. THE STATE (1975 PCr.LJ 453).

5. Ms. Rahat Ehsan, learned D.P.G. Sindh supported the case of applicant and states that the accused is involved in a heinous crime is not entitled for any leniency.

6. I have given due consideration to the arguments advanced by the learned counsel for the parties, perused the material available on record and the case-law cited at the bar. For ascertaining the genuineness of Birth Certificate or otherwise, this Court vide order dated 12-9-2012 issued notice to the Incharga, Birth and Death Section, Jamshed Town with direction to appear in person alongwith relevant record. In response to such notice, Muhammad Mehmood Alam, Sub-Registrar/Incharge Birth Certificate, Jamshed Town, Karachi brought the original record. According to the record, it transpired that the name and details as mentioned in the Birth Certificate enclosed as Annexure 'G' of the Court file are not available and no such Birth Certificate was ever issued to the accused. Now the only way left to ascertain the age of accused is medical evidence. The medical board examined the accused and opined that the age of accused is between 19 & 20 years. The F.I.R. of the present incident was lodged an 11-5-2010 and the report of the Medical Board is dated 4-10-2011. As per report of the medical board the age of the accused at the time of commission of crime was not less than 18 years. The accused/respondent No.1 has relied upon the Birth Certificate of the Municipal Corporation, but the same found bogus as no record for its issuance is available with concerned department. The accused Waseem Ahmed was present in Court on 31-10-2012 and from the general appearance his age is not less than 20 years. In these circumstances, I find that impugned order is not sustainable in the eyes of law. As such, the same is liable to be set aside.

7. Before parting with the judgment, it may be observed that the accused/persons involve in such a heinous crimes like in the present case should be dealt with iron hands as they do not deserve any leniency, particularly in the cases where not only the life and future of an innocent girl is ruined but the future of her whole family will be at stake.

8. Foregoing are the reasons for short order dated 31-10-2012 whereby revision application was allowed and impugned order dated 11-11-2011 was set aside. MWA/S-89/K Application allowed.