2010 PLP 847 (MLD)

MIAN FAISH-UL-MULK, J.

This criminal revision petition arises out of an order, dated 23-4-2009 whereby the learned Sessions Judge-IV, Haripur seized of trial by pressing into service the provisions of Juvenile Justice System Ordinance, 2000 (hereinafter referred to as the Ordinance), determined age of Dilawar respondent at the time of commission of offence below 18 years and his case was to be tried as provided under the Ordinance.

2. Briefly Dilawar respondent was charged for the murder of Rashid Mehmood vide F.I.R. No.337, dated 9-11-1997 under section 302, P.P.C. Police Station Khalabat Township. The respondent remained absconder for more than ten years and was arrested on 30-4-2008. On 19-9-2008 counsel for respondent submitted an application that on the day of occurrence the age of respondent was below 18 years and under the Ordinance, tie was required to be medically examined for determination of his age. He annexed certificate of date of birth issued by Union Council KTS Haripur. Accused was referred for Ossification test, however, his age could not be determined as all the Ossification Centres of accused were fused. Prosecution produced his school leaving certificate, according to which his date of birth was 29-5-1979, whereas defence relied on certificate of date of birth issued by Union Council KTS Haripur and NIC showing his date of birth as 15-2-1981. Finally, the learned Additional Sessions Judge, Haripur determined his age as17 years 5 months and 20 days at the time of commission of offence and directed to be tried under Juvenile Justice System. Aggrieved from the above order this revision by complainant.

3. Learned counsel for the petitioner mainly contended. that the learned Additional Sessions Judge-IV, Haripur has ignored the only authentic evidence i.e. school leaving certificate regarding the age of respondent and relied upon fake and manipulated evidence in the shape of birth certificate entered in the Union Council only on 27-5-2008 and NIC prepared on 21-10-2008. It was further contended that the margin of error of determination of age as held by superior courts was only based on medical examination whereas in the case in hand there was no medical report favouring the respondent. It was argued that the benefit of doubt could not be extended specially when school certificate has not been challenged so far. Finally, it was submitted that Juvenile Justice System Ordinance was promulgated on 1-7-2000 and shall have no retrospective application to the case in hand as the occurrence took place on 9-11-1997.

4. Conversely, learned counsel for the respondent while controverting the arguments of petitioner defended the impugned judgment and submitted that if the certificate of birth entered in the Union Council and NIC are not considered as correct and even date of birth mentioned in the school leaving certificate is presumed correct there will be a margin of only 5 months. The period if negligible and, the benefit of which would certainly be given to the accused as per rulings of superior Courts. It. was further contended that under section 7 of the Ordinance, the Court determines the age through various modes including reference to medical board so the margin of error of determination of age cannot be applied to the finding of medical board alone but to any other mode. It was lastly argued that the Ordinance, being procedural enactment shall have retrospective effect. Reliance was placed on 2004 PCr. LJ 2036 and PLD 2009 Lahore 535.

5. I have heard learned counsel for the parties and gone through the record with their able assistance.

6. Admittedly, identity card and birth certificate issued by Union Council were procured after arrest of respondent, therefore, cannot be considered as valid proof of age. In absence of medical opinion, the only evidence available on record to determine the age of-respondent is school leaving certificate but the margin of error cannot be ruled out even in this certificate. Superior courts have held that where two views were possible regarding the age of accused, the one in favour of accused was normally accepted. I do not agree with the reasons furnished by the learned trial Court but am inclined to concur with the conclusions drawn by extending benefit of doubt to the respondent. The margin of about six months error above the age of 18 years at the time of commission of offence as per school leaving certificate is given to the respondent. The impugned order is upheld to that extent that respondent shall be tried under the Juvenile Justice System Ordinance, 2000.

7. Resultantly, the petition in hand fails and is accordingly dismissed. H.B.T./104/P Petition dismissed.