2004 P Cr (PLP)

This petition is directed against order, dated 1-6-2004 vide which the learned District and Sessions Judge, Jhang seized of the trial in case registered vide F.I.R. No.265, dated 16-10-2001 under section 302, P.P.C. at Police Station 18-Hazari, District Jhang declared respondent accused namely Akhtar Hussain son of Karim Bukhsh to be a child i.e. below 18 years of age within the meaning of Juvenile Justice System Ordinance, 2000.

2. Facts in brief are that the afore-referred case was registered against the respondent accused Akhtar Hussain on the allegation that on the fateful day and time he came to complainant's house and caused the death of Najeebullah complainant's son by successive hatchet blows. Deceased received nine incised wounds in all. During trial, on the application of the respondent accused the learned trial Court declared him juvenile. This order was challenged in revision before this Court. The case was remanded with a direction to learned trial Court to decide the matter afresh, pursuant to which the impugned order has been passed. Notwithstanding the report of the Medical Board, dated 24-11-2003 to the effect that Akhtar Hussain was 21/22 years of age on the afore-referred date, the learned trial Court declared him less than 18 years of age at the time of occurrence on the ground as under:-- "It has been held in 2000 PCr.LJ 1985 (Karachi) that ossification test though a better guide to the age of a person than o her tests, still the same cannot give an accurate estimate of age and there would be margin of at least one year "

3. In support of this petition learned counsel for the petitioner; complainant made following submissions:-- (i) That a respondent is the single accused in a case of cold- blooded murder in which complainant had produced copy of the birth certificate which indicated that the date of birth of the respondent accused is 21-6-1983 which made him above 18 years of age at the time of occurrence. The entries made in this report were never challenged by the respondent accused. (ii) That a Medical Board was constituted with the consent of the respondent accused consisting of five doctors, which examined the respondent accused and gave a report, to the effect that he was 21/22 years of age at the time of examination i.e. 24-11-2003 thereby making him above 18 years of age at the time of occurrence (the date of occurrence is 16-10-2001). (iii) That the delay in moving the Court or apprising it of respondent's date of birth was on account of 'the fact that the learned trial Court is acting in two capacities i.e. tries the cases as a Court of general jurisdiction as District and Sessions Judge and tries the cases as a Special Court under the Juvenile Justice System Ordinance, 2000 which are referred to it. After the submission of challan petitioner/complainant was under the impression that he was being tried by a Court of general jurisdiction and it was only when Public Prosecutor gave a concession that petitioner/complainant challenged the age as claimed by the respondent before the learned trial Court in support of the submissions learned counsel relied on Muhammad Zakir v. The State and another 2004 SCMR 121.

4. Learned counsel for the respondent defended the impugned order as according to him, the conduct of the petitioner/complainant has been contumacious, that it kept quite even after the framing of the charge, that while considering the report of the Medical Board one year margin has to be given on either side and if the said report is examined with this aspect to mind the respondent accused is below 18 years of age. In support of the submissions made learned counsel relied on Jamshed v. Agha Suhail and another PLD 1998 Kar. 142 and Umar Hayat v. Jahangir and another 2002 SCMR 629.

5. Learned Additional Advocate-General did not defend the impugned order as according to him, the Medical Board was constituted with the consent of the parties, that in view of conflict between the birth certificate produced by the petitioner and school leaving certificate the Court has to give credence to the findings of the afore-referred Medical report in terms of which respondent accused was above 18 years of age at the time of occurrence. In support of the submissions made learned Law Officer relied on Hassan Zafar v. The State 2001 PCr.LJ 1939.

6. Heard.

7. As per the birth certificate issued by Union Council No.70. District Jhang the date of birth of the respondent accused is 21-6-1983. The veracity of this report has not been challenged by the accused before any competent forum in the hierarchy of the Local Council Department. However, since respondent accused has claimed that he was below 18 years of age on the basis of school leaving certificate issued by Government Primary School, the trial Court with the consent of the parties and on account of the observations made by the Court constituted a Board consisting of five doctors including Radiologist. The said Board vide its report, dated 24-11-2003 unanimously held that the age of respondent accused held as under:-- "In view of the above findings and report of Radiologist, the Medical Board unanimously agrees that the age of accused Akhtar Hussain son of Karim Bukhsh Caste Lak is about 21 years to 22 years (about twenty one to twenty two years)."

8. Keeping the afore-referred report in mind the age of respondent accused on the date of occurrence i.e. 16-10-2001 approximately comes to between 19/20 and if a margin of one year is given even then it comes to between 18/19 years. This finding is corroborative of the entries made in the Birth Register. The case-law relied, upon by the learned counsel for the respondent accused is distinguishable. In a judgment of the august Supreme Court reported in Muhammad Zakir's case (supra) the age determined on the basis of the finding given by the Medical Board was upheld, notwithstanding the fact that the accused had produced a copy of the birth certificate and the school leaving certificate to rebut the said finding given by the Board.

9. For what has been discussed above, this petition is allowed, the impugned order, dated 1-6-2004 passed by learned Sessions Judge, Jhang is set aside and the respondent accused Akhtar Hussain is declared to be above 18 years of age. N.H.,Q./A-215/L Revision petition allowed.