MEHBOOB AHMAD vs THE STATE and 2 others

ORDER

' The petitioner is a complainant in case F.I.R. No,295 of 2000 registered under sections 302/148/149, P.P.C. Registered at Police Station Yazman sub judice before Additional Sessions Judge, Bahawalpur, who vide his reference, dated 25-4-2001 sent the file to the Sessions Judge, Bahawalpur on the ground that according to birth certificate, the accused persons-respondents Nos.2 and 3, herein, were minor and they have to be tried separately by the Juvenile Court constituted under Juvenile Justice System Ordinance, 2000. Resultantly, separate challan against said two accused persons was submitted in the Court. The complainant-present petitioner made an application for determination of the age of the accused persons-respondents Nos.2 and 3 and the Medical Expert gave opinion regarding age of Gulsher accused as 19 to 20 years and that of Shah Muhammad accused as 22 years. The learned Sessions Judge-Juvenile Court vide order, dated 19-7-2001 giving preference to the birth certificate of the accused observed that the accused persons are less than 18 years of age. The above said order has been impugned through the instant revision petition.

2. The learned counsel for the petitioner contended that the medical evidence has been illegally rejected by the Court and it is mandatory provision of law that the opinion of the Medical Expert be preferred.

3. Conversely, the arguments of the learned counsel for the petitioner have been opposed by the learned counsel for respondents and he supported the order passed by the lower Court.

4. I have heard the arguments of the learned counsel for the parties and perused the record.

5. Section 7 of the Juvenile Justice System Ordinance, 2001 envisages that if a question arises as to whether a person before it is a child for the purpose of this Ordinance, the Juvenile Court shall record a finding after such inquiry which shall include a medical report for determination of age of the child.

6. The learned trial Judge made an inquiry taking into consideration the birth certificate, the school certificate and the medical certificate. He was of the opinion that the age of the respondent is less than 18 years.

7. The question of the age of the accused persons has been dealt with by the Honourable Judge of Sindh High Court Mr. Justice Nasir Aslam Zahid (as he then was), in case of Muhammad Rafique v.

The State 1987 PCr.LJ 1360 observed as under:-- "In so far as the age factor is concerned, the certificate of the K.M.C. Showing the entry regarding the birth of the applicant is in favour of the applicant and shows that he was below the age of 16 years at the time the incident had taken place. No doubt, the opinion of the Police Surgeon is that the applicant is about 17 years of age, but then there is always some margin of error and on the basis of the ossification test the exact age can never be determined. There is always a margin of about one year or so in so far as the ossification test is concerned."

8. In another case titled Muhammad Ishaq v. Muhammad Nadeem and another 2001 M LD 1561, the Honourable Judge of the Karachi High Court has observed as under:-- "It is a settled law that where birth certificate and other documents issued by the Educational Institution giving date of birth of an accused are available on record then unless such certificates are held to be fraudulent and/or bogus, they are to be relied upon."

9. In another case titled Muhammad Anwar and others v. The State 1976 PCr.LJ 1325, the Honourable Judge of this Court has observed that medical opinion cannot override the evidence of birth certificate. This Court has also followed the above-referred case-law in Criminal Revision No,25 of 2001 titled as Tipu Sultan v. The State. The order impugned has been passed by the learned Sessions Judge validly. The learned Sessions Judge has preferred the birth certificate over the medical report as observed in the above noted case. He has not committed any illegality or material irregularity while determining the age of the respondent. The learned counsel for the petitioner has not been able to point out any illegality or irregularity in the impugned order.

' For the foregoing reasons, this criminal revision having no force is dismissed.