MUHAMMAD HAYAT vs THE STATE and another
This criminal petition assails an order passed by the Sessions Judge, Kasur, whereby the respondent No. 2 was declared a child and ordered to be tried under the Juvenile Justice System Ordinance, 2000. The core legal question was whether the accused was a child at the time of the alleged occurrence, given the conflicting evidence of a birth certificate and identity card indicating an age above eighteen years, and a medical board report suggesting bone age between seventeen and eighteen years. The Lahore High Court held that the entry in the birth certificate and the identity card constitute reliable proof of age, whereas an ossification test and medical report provide mere opinion that lacks exactitude and cannot override definitive documentary evidence. The Court laid down the principle that documentary proof such as a birth certificate and identity card takes precedence over a medical board's ossification report when determining whether an accused is a child for the purposes of trial under the Juvenile Justice System Ordinance, 2000.
- Whether a birth certificate and identity card take precedence over a medical board's ossification report for determining the age of an accused?
- Can an ossification test establish the exact age of an accused with absolute certainty?
- Whether an accused who is more than 18 years old at the time of the occurrence can be tried under the Juvenile Justice System Ordinance, 2000?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 7, Juvenile Justice System Ordinance 2000
ORDER
1. ' Through the instant petition order dated 27-11-2001 passed by learned Sessions Judge, Kasur has been assailed whereby Riaz son of Latif, respondent No,2 who was accused in case registered vide F.I.R. No,42 of 2001 dated 13-3-2001 with Police Station Raja Jhang under section 302/34, P.P.C. For commission of murder of Tariq Mehmood, was declared to be child and his trial was ordered to be conducted under Juvenile Justice System Ordinance, 2000 ' Learned counsel for the petitioner contends that according to birth certificate, date of birth of Riaz, respondent No,2 was 27-11-1982 and he was aged more than 18 years on the day when the alleged occurrence took place, who was also issued Identity Card on 25-10-2001 wherein his date of birth has been mentioned in the year 1982. By placing reliance on 1989 SCM R 704 titled Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan and an unreported judgment of this Court Criminal Revision No,193 of 2002, learned counsel has argued that in presence of preliminary evidence i,e, entry in birth certificate there was no dispute about the age to be resolved by examination through Medical Board and even the report of the Medical Board ' is mere "opinion" and cannot be given preference over the birth certificate and the case-law relied upon by the learned Sessions Judge, titled PLD 2000 SC 813 is not applicable to the facts and circumstances of the instant case, therefore, it has been prayed that the impugned order be set aside and the trial of the accused respondent No,2 be ordered to be conducted under ordinary law..
2. ' Learned counsel for the State concedes to the stand taken by learned counsel for the petitioner.
3. ' Learned counsel for respondent No,2 has opposed the petition and vehemently argued that under section 7 of Juvenile Justice System Ordinance, 2000, the report of the accused from the Medical Board was essential and the petitioner/complainant had not raised any objection to the examination of the accused from the Medical Board either by the learned Sessions Judge or by this Court and reliance has been placed on 2001 PCr.LJ 1939 titled Hassan Zafar v. State and PLD 2000 SC 813 titled Nateer Ahmad v. State.
4. ' I have given consideration to the contentions raised at the bar and have also examined the relevant provisions of law and the case-law referred to at the bar.
5. According to birth certificate Annexure-C the date of birth of Riaz respondent No,2 was '27-11-1982 and the alleged occurrence took place on 13-3-2001 and at the time of commission of crime he was 18 years 3 months old. The Identity Card was issued to respondent No,2 on his own application on 25-1-2002 prior to the date of occurrence and his name was also added in the electoral roll Annexure-D which is sufficient proof that on the day of occurrence he was more than 18 years of age. In the medical report of M.S. Services Hospital, Lahore whereby respondent No,2 was medically examined it has been stated that his bone age is between 17/18 years and according to the settled law reported as 1975, PCr.LJ. 453 (Bunnay Khan v. State), X-Ray Report and ossification test does not establish the age with certainty or exactitude and possibility of difference of one year on either side is possible. Secondly it is only the opinion and cannot A exactitude the conclusive proof brought on record by the complainant through entry in birth register and copy of the Identity Card issued in favour of respondent No,2 and the case-law referred to by learned counsel for respondent No,2 is not applicable to the circumstances of the instant case as there was no dispute regarding the age. By mere making an application dispute has been created, therefore, taking into consideration all the circumstances of the case I find that the accused/respondent No,2 was not child to be tried under Juvenile Justice Systems Ordinance, 2000 and the petition is allowed by setting aside the impugned order and the learned Trial Judge is directed to proceed with the trial of the accused/respondent No,2 under ordinary law.
Cited by 4 cases
- MUHAMMAD BASHARAT vs STATE & 4 others PLJ 2007 Cr.C. (Lahore) 662
- MUHAMMAD BASHARAT vs THE STATE and 4 others 2007 PLD Lahore 392
- ALTAF HUSSAIN vs THE STATE 2003 P Cr. L J 1898
- Mst. HAYAT BIBI vs THE STATE and 3 others 2004 YLR 3049