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Petition for Special Leave to Appeal No. K‑58 of 1982, decided on 8^th December 1982.

(On appeal from the judgment of the High Court of Sind, Karachi, dated 15‑9‑1982 in Criminal Revision Application No. 96 of 1982).

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Sind Children Act (XIV of 1955), S. S‑Accused claiming himself to be a minor Determination of age‑‑Claim of accused that he being of minor age, should be tried under provisions of Sind Children Act‑‑Conflicting evidence produced by parties with regard to age/birth date of accused‑ Trial Court placing reliance on birth certificate was issued by Municipal Corporation‑‑High Court being of view that medical certificate to be preferred against other certificates‑‑In view of different conflicting age certificates, Supreme Court set aside both judgments of Courts below and directed trial Court to deal with application of accused afresh, after recording evidence as to his age produced by parties, for determination of question whether accused should be granted benefit of trial under provisions of Sind Children Act, 1955‑‑Petition converted into appeal and disposed of accordingly.

A I R 1944 Sind 132ref.

Petitioner in person.

Abdul Sattar Shaikh, Addl. A.‑G. Sind with Muzaffar Hassan, Advocate‑on‑Record for the State.

Azizullah K. Shaikh, Advocate Supreme Court with Aziz Dastgir, Advocate‑on‑Record for Accused.

Date of hearing: 13th November, 1982.

‑‑This is Petition for leave to appeal from the judgment of a learned Judge of Sind High Court, dated 15‑9‑1962 allowing a Revision Application and in result directing the trial of the case against Ismail accused under section 302, P.P.C. under the provisions of the Sind Children Act, 1955.

Accused Ismail was sent up for trial under section 302, P.P.C. for having caused the murder of Muhammad Saleem son of the petitioner herein on 30‑1‑1980. Before the trial commenced, the accused made an application to the Vth Additional Sessions Judge, Karachi that he being a minor is to be tried under the provisions of the Sind Children Act, 1955. In this connection, it was stated that the accused was referred to the Police Surgeon, Karachi, for determination of his age, and according to the medical report his age on 2‑8‑1980 was about 15 years. The accused also produced a school leaving certificate issued by the Headmaster, lass Memorial School, Karachi in which the date of his birth was stated as 16‑4‑1964. It was, however, submitted on this behalf that in the face of the medical certificate which was based on X‑Ray Report and Ossification Test, the school certificate should not be considered as more authentic and given preference over the medical certificate.

On the other hand, it was stated on behalf of the petitioner, who is first informant in the case, that according to the certificate of the Headmaster, Okhai Government Boys School, Kharadar, Karachi the date of birth of accused is 17‑12-1963 and on 31‑7‑1980 when the offence was committed he was over 16 years of age. Learned counsel appearing for the State, on the other hand, produced birth certificate of the accused issued by the Karachi Municipal Corporation which showed the date of birth of accused as 12‑12‑1963. He submitted that the date of birth of the accused was got recorded in this certificate by none other than the father of the accused, and he was, therefore, more than 17 years of age when the offence was committed.

On the basis of the document produced, learned Additional Sessions Judge, Karachi took the view that preference is to be given to the birth certificate issued by the Karachi Municipal Corporation wherein date of birth of the accused is stated as 12‑12‑1963. The reasons given by him for taking this view may be reproduced hereunder:

"I have considered the submissions made on behalf of the parties. Both the parties have relied upon different documents wherein different dates of birth of the accused have been given. Under the circumstances the only document which can be relied upon is the birth certificate issued by K.M.C. wherein date of birth of the accused has been mentioned as 12‑12‑1963. The learned counsel for the accused has not shown me any authority wherein the medical opinion was given preference over the birth certificate issued by the Municipality. On the other hand, the learned counsel for the complainant has referred to the authority reported in A I R 1944 Sind 132 wherein it was held that the medical evidence as to the age cannot stand against the evidence of Municipal register of births properly kept and properly authenticated."

The accused Ismail being aggrieved by the order of the learned Additional Sessions Judge filed a Revision Application in Sind High Court which succeeded as the learned Judge in the High Court took the view that the medical certificate is to be preferred as against the other certificates.

Petitioner who appeared in person in support of this petition for leave to appeal from the judgment of the High Court submits that learned Judge in the High Court has erred in preferring the medical certificate as against certificate of birth issued by the Karachi Municipal Corporation in which the date of birth of the accused was recorded by the father of the accused himself.

After hearing the learned counsel for the State and also the accused to whom notices were issued we are clearly of the view that in the presence of the conflicting certificates of age of the accused, that is, the medical certificates, school leaving certificate and birth certificate from the Register of Births and Deaths maintained by the K.M.C., which by themselves furnish no legal evidence, the trial Court should have recorded evidence as to the age of the accused that may have been produced by the parties for the determination of the question whether the accused should be granted the benefit of trial under the provisions of the Sind Children Act, 1955. On this view of the case, we convert this petition into an appeal, and allow it, with the result that the order of the Additional District Judge, dated 16‑8‑1982 and also the judgment of the High Court, dated 15‑9‑1982 are set aside with the result that the trial Court shall now deal with the application of the accused for trial under the Sind Children Act, 1955, afresh, as indicated above.

M.I Order accordingly.

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