FARHAN vs The STATE and another

' ABDUL SAMI KHAN, J.---Through this petition under sections 435 and 439, Cr.P.C. The petitioner has challenged the order dated 24.08.2013 handed down by the learned Sessions Judge, Mianwali through which he has dismissed the application filed by the petitioner under sections 5/7 of the Juvenile Justice System Ordinance, 2000.

2. The learned counsel for the petitioner submits that sufficient material in the shape of birth certificate as well as the report of ossification test showing the age of the petitioner to be 15/16 years at the time of occurrence was available before the learned trial court but it has failed to appreciate the material and has passed the impugned order illegally and without applying judicious mind. The age of the petitioner on the date of occurrence was less than sixteen years and in this way the petitioner was a juvenile and his trial should be separated. Moreover where two views are possible, the view in favour of the accused is normally given preference.

3. On the other hand the learned Deputy Prosecutor-General assisted learned counsel for the complainant while opposing the contentions raised at bar by the learned counsel for the petitioner submits that according to the school admission certificate of the petitioner, his date of birth is mentioned therein as 17.02.1993, which means that he was more than 19 years of age at the time of occurrence. Further submits that the decision of the learned trial Court is based on convincing grounds, therefore, the revision is devoid of any merit and the same should be dismissed.

4. I have heard the learned counsel for the parties and have gone through the record of this case with their able assistance. It has been observed by this Court that the matter in hands relates to occurrence dated 17.06.2012 reported through FIR No,190/12 dated 17.06.2012, under sections 302, 34, 109 P.P.C., Police Station Saddar Mianwali, wherein Imran Khan son of the complainant/respondent No,2 was allegedly murdered by the petitioner and his co-accused. The petitioner has relied upon his birth certificate wherefrom the age of the petitioner was commuted as fourteen years, seven months and seven days, but the fact remains that the same has shown to have been got entered in the record of the Union Council on 15.11.2014. As such birth certificate produced by the petitioner before this Court does not carry much force. On the other hand, the complainant/respondent No,2 has mainly based his arguments on the educational certificate of the petitioner, wherein date of birth of the petitioner is mentioned as 17.02.1993, but I am of the considered view that the same alone is not an independent source of information about the age of the petitioner, because, this document followed the information volunteered by the student himself or someone connected with him. Such document, therefore, cannot be found to be conclusive proof of the concerned person's date of birth. It is well settled by now that when controversy recording the age of an accused person could not be settled through documentary evidence and the medical opinion due to different opinion then preference is always given to the medical opinion. Reliance in this regard is placed on 2012 SCM R 1400. It has been noticed that on the application of the petitioner under sections 5/7 of the Juvenile Justice System ordinance, 2000.