P L D 2003 Lahore 457 (PLP)

Date of hearing: 2nd April, 2003. TASSADUQ HUSSAIN JILANI, J.--This petition is directed against the order dated 30-6-2001 and the subsequent order dated 12-7-2001 passed by the learned Sessions Judge, Sargodha seized of the trial of the case registered vide F.I.R. No.256, dated 24-5-1998 under section 302/34, P.P.C. Police Station Kot Momin, Tehsil Bhalwal, District Sargodha in terms of which he declared respondent Muhammad Ikram to be less than eighteen years of age at the time of the occurrence dated 24-5-1998.

2. Facts in brief are that the afore-referred case was registered against the respondent and his co-accused wherein it was alleged that on the fateful day and time the complainant alongwith Ahmad Khan deceased were going on a motorbike, they were stopped by Muhammad Iqbal and Muhammad Ikram (respondent), the latter raised a Lalkara that Ahmad Khan would not be spared whereafter he fired at Ahmad Khan which hit him on his right shoulder. He fell down whereafter respondent Ikram again fired two shots hitting Ahmad Khan on his chest and shoulder. Bashir Ahmad was also injured. After due investigation the challan was submitted against respondent Muhammad Ikram only and the co-accused were found innocent. However, later on the learned trial Court summoned three other co-accused as well.

3. During trial respondent Muhammad Ikram, claiming himself to be a child within the meaning of the Juvenile Justice System Ordinance, 2000 moved an application that his trial be separated and he be dealt with in terms of the afore-referred Ordinance. In support of the, application respondent relied on a birth certificate indicating that, he was born on 23rd July, 1981 and Nikahnama of his parents to the effect that they got married on 9th July, 1979. Learned trial Court got the respondent medically- examined from a Road which reported that he was 23 years of age and accordingly at the time of occurrence he was above 20 years of age. The learned trial Court, however, summoned the radiologist Dr. Salahuddin and a Dental Surgeon Dr. Khuda Bakhsh Sohbi who gave an opinion that the age determined by the Board may not be exact and there could be a variation of two to three years. After the submission of the report of the Medical Board respondent placed on record Nikahnama of his parents ,which was objected to by the learned counsel for the complainant and the Court was obliged to have the matter inquired into i.e. whether respondent's father had two wives and whether the name of the wife mentioned in the afore-referred Nikahnama, namely Mst. A Muneera Sultana, was mother of the respondent or not? Interestingly this matter was referred to the local S.H.O. for inquiry who, on 12-7-2001, reported that respondent's father Ahmad Yar got married Mst. Muneera Sultana on 9-7-1979 and that respondent was born out of the said wedlock.' The same day, learned trial Court directed the S.H.O. to prepare separate, challan of the respondent treating him as a juvenile in terms of the Juvenile Justice System Ordinance, 2000.

4. The afore-referred order was challenged by the petitioner which matter is pending for the last 1-3/4 years. Since serious challenge was thrown to the entries made in the birth register as also the Nikah Register, with consent of both the parties, this Court vide order dated 25-3-2003 directed production of-the record of Union Council No.38, Kot Momin, with regard to the afore-referred entries, which has been produced by the Chief Officer, Kot Momin and the concerned Secretary of the Union Council.

5. Learned counsel for the petitioner submitted that the birth entries of the respondent were disputed right from the outset, that the respondent was medically examined by a Board which gave a categorical opinion that he was 23 years of age, that notwithstanding the said report, the learned trial Court initiated an inquiry and on the basis of a dishonest concession given by the Radiologist and the S.H.O., the respondent was declared as a child to be tried under the Juvenile Justice System Ordinance, 2000.

6. Learned counsel for the respondent, while defending the impugned order, submitted that the application was filed by the respondent immediately after the promulgation of the Juvenile Justice System Ordinance, 2000, that the name of the respondent's father is Allah Yar and merely because in the police record it is shown as Muhammad Yar should not make the entry in the birth register doubtful. Explaining the procedure regarding entries made in the birth register he submitted that since the entry with regard to respondent's birth was made after a one year of his birth, the Secretary Union Council could not have entered it of his own, that the order of the Chairman was required which order was duly made and the relevant column reflects that the entry made was pursuant to the said order. He added that by way of abundant caution and in the interest of justice the learned trial Court had called the Dentist and Radiologist and after having sought their opinion he came to the conclusion that at the relevant time respondent was less than 18 years of age. He lastly contended that the respondent has undertaken the rigors of a protracted trial and after five years it may not be fair to direct a fresh trial.

7. We have heard learned counsel for the parties and have examined the record with the assistant of the Chief Officer present in Court.

8. Ordinarily, this Court in these proceedings would not have summoned the original record, however, in view of the procedure adopted by the learned trial Court, mandate of the Juvenile Justice System Ordinance, 2000 and with concurrence of the parties we requisitioned the record which has been produced by Ameer Mukhtar Hussain, Chief Officer Kot Momin. We have examined the relevant entry of the birth register of Union Council Kot Momin and have seen the entry at Serial No.515 at page 58 of the said register. We note that the name of the child who was born is entered as Muhammad lkramullah and his father's name is mentioned as Allah Yar son of Muhammad Hussain whereas the name of the father of respondent Muhammad Ikram as shown in the police record, is Muhammad Yar, that the entries made in Columns Nos.9, 10 and 11 on the same page are with a different handwriting and of recent origin; that in the column pertaining to the name of the informer i.e. who informed about the birth of the child, no name is mentioned unlike of the preceding columns and even the name of the person/official who made this entry is not mentioned and that the only entry no endorsement as to who signed this entry. On a Court query, the Chief Officer submitted that if the entry is delayed i.e. made later than sixty days then the order of the Chairman is required but he conceded that there is no order of the Chairman in record. We further note that Column No.4, pertaining to the place of birth, is blank and no address is given as to where the child was born. This is unlike all the preceding entries of other births in the said register. We also take note of yet another unusual 'feature that pages Nos.57 to 61 are loose and not in the binding of the main register whereas the other pages are duly bound up. We have also examined the Nikah Register and note that the Nikah of Allah Yar, father of Muhammad Ikram respondent, is not entered anywhere, in the year 1979 although a Nikahnama dated 9-6-1979 was placed on record before the learned trial Court to indicate that respondent's father Allah Yar got married Mst. Muneera Sultana on 9th June, 1979. The fact that this Nikah is not entered anywhere in the Register is conceded by the Chief Officer present in Court. Coming to the report of the Medical Board we note that there was no occasion for the learned trial Court to summon the Radiologist and the Dentist. Even if they had been summoned, their opinion could be interpreted either way and there was nothing on record and there was no tenable reason either to interpret the opinion of those doctors in favour of the respondent.

9. For what has been discussed above we are of the view that the impugned orders passed by the learned Sessions Judge, Sargodha are against the weight of record and material placed before the learned trial Court. It was not open for it to declare the respondent to be of less than eighteen years of age at the time of the occurrence. Resultantly this petition is allowed, the impugned orders dated 30-6-2001 and 12-7-2001 passed by the learned Sessions Judge, Sargodha are set aside and the learned trial Court is directed to decide the case of the respondent as an ordinary Court. Since the record of the case has been produced by the Secretary Union Council No.38 Kot Momin, Tehsil Bhalwal, District Sargodha and the petition has been decided, the notice issued to him is hereby recalled. M.B.A./M-1819/L Order accordingly.