MUHAMMAD AKRAM vs MUHAMMAD HALEEM

ORDER

' Through this criminal revision, an order, dated 8-5-2001 passed by. Mr. Muhammad Akram Awan, learned Additional Sessions Judge, Rawalpindi, is assailed.

2. The learned Additional Sessions Judge had, after determining that the respondent/accused Muhammad Haleem was below the age of 18 years at the time of the occurrence, held that his trial had to take place under the Juvenile Justice System 'Ordinance, 2000.

3. The matter relates to case F.I.R. No,99 lodged on 10-4-2000 at Police Station Kahuta, District Rawalpindi, under sections 302, 364, 109, P.P.C.

4. A reference in this connection is made to section 7 of the Juvenile Justice System Ordinance, 2000, which says:-- "Determination of age.--- If a question arises as to whether a person before it is a child for the purposes of this Ordinance, the Juvenile Court shall record a finding after such inquiry which shall include a medical report for determination of the age of the child."

5. The main argument of the learned counsel for the petitioner is that while determining the age of the accused/respondent as below 18 years, the learned trial Court did not ask for a medical report and, therefore, the findings were infirm.

6. A relevant excerpt from the order of the learned Additional Sessions Judge is reproduced below in extenso:-- "I have perused the aforementioned evidence and have also considered the arguments of the learned counsel for the parties. As per copy of Result Card Mark D.1 and copy of School Leaving Certificate, Mark D.2, accused Haleem was below the age of 18 years a the time of this occurrence.

These copies further find support from the statement of Muhammad Akram, Assistant Director, Registration Office, coupled with the copy of Form Bay available on the record as mark 'W. In rebuttal, there is only one document which has been marked as P.1, according to which accused Muhammad Haleem was above the age of 18 years at the time of occurrence but this document Mark P.1 has not been confirmed from the original record of Registration Office. As per Form Bay (Mark 'P', the age of accused Muhammad Haleem was below 18 years at the time of this occurrence but according to Mark. P.1 the age of accused Muhammad Haleem was above 18 years at the time of the occurrence. Thus, the document marked P.1 does not tally with the original record of the National Registration Office, which is Form Bay (Mark B), and as such the authenticity of Mark P.1 is not above board. Hence, this document cannot be safely relied upon. Consequently, I hold that accused Muhammad Haleem was prima facie, below the age of 18 years at the time of this occurrence."

7. The learned counsel for the petitioner has not put across any cogent argument to suggest any error in the finding of the learned trial Court in this connection except that according to the learned counsel, the provision for obtaining a medical report was mandatory and the Court had no choice before it.

8. This argument has been controverted by the other side.

9. When we speak of the medical evidence, it obviously means clinical and radiological examination or what is commonly called as the ossification test. It is a well-known fact that the ossification test can only give a clue as to the age but cannot be a conclusive proof and this exercise has to be resorted only when there is no other proof available like the School Leaving Certificate or the Birth Certificate and a Court is in a quandary about the age of an accused. Even where matters are referred for ossification test, a margin has to be given for doctor's opinion as it is not absolute. In this connection, reference is made to the following cases:--

(1) Banney Khan v. The State 1975 PCr.LJ 453, (2) Jhanda Khan v. Nawab Din and others 1970 SCM R 31, (3) Sarja v. The Crown PLD 1951 Lah. 226, (4) Yousaf v. The State 1975 PCr.LJ 936, (5) Rajat Kunda alias Ranajit and another v. The State 1968 PCr.LJ 529 and (6) Muhammad Ahmad alias Anjum v.

The State PLD 1974 Kar.

459.

10. As has been observed by the trial Court, it had enough evidence before it for coming to the conclusion that the accused was a minor at the time of the occurrence. It appears that the documents which were produced by the petitioner's side, were found to be destitute of any authenticity. The trial Court had endeavoured to rely on an authentic document in this connection and had even called the concerned officials of the National Registration Office. Whereafter, there was no question left for determining the age and. For calling a medical report as the invocation of section 7 of the Juvenile Justice System Ordinance, 2000, was no longer the requirement. The provisions of section 7 of the Juvenile Justice System Ordinance, 2000, are not to be invoked on each and every case mechanically. Rather it is only where a question with respect to the age of an accused cannot be answered through any documentary evidence, that an inquiry is called for under this law.

11. In the present case, the certificate under the National Registration Act, 1973, and the Result Card of Secondary School Certificate Examination reflecting the age of the accused/respondent as under 18 years at the time of the occurrence provided sufficient proof in this connection and there was no need of proceeding further in the matte, through asking of a medical report. This Court, therefore, finds no infirmity in the order calling for interference through the exercise of its visitorial jurisdiction. The revision petition is dismissed.