' TARIQ PARVEZ, J.--Our this order shall dispose of Criminal Appeal No.113 of 2003 filed by Sadique Khan and Criminal Revision No.20 of 2003 filed against him by Fazal Jalil from complainant side.
' Charge against the appellant is that he has caused the death of Abdul Hamid.
2. Trial Judge while believing the evidence of the prosecution, convicted the appellant vide judgment dated 28-10-2003, sentenced him to life imprisonment and also held him liable to pay Rs.80,000 as coMpensation to the legal heirs of the deceased. He has, therefore, challenged the judgment of conviction and sentence.
' Revision is filed for enhancement of the sentence on the ground that lesser sentence has been illegally awarded.
3. It appears that on 22-3-2003 after the evidence of the prosecution was recorded and after the accused was examined under section 342, Cr.P.C., an application was filed by learned counsel for defence with a school leaving certificate claiming the appellant to be minor and not adult as defined under Juvenile Justice System Ordinance, 2000.
' Such application was subjected to reply and arguments and through order sheet dated 10-5- 2003 the application was granted.
4. Learned counsel appearing for complainant at the very outset raised objection to order sheet dated 10-5-2003 and the impugned judgment dated 28-10-2003 where benefit of mitigation in sentence has been extended to the appellant but on the ground that he is held to be not adult.
5. Section 7 of the Juvenile Justice System Ordinance, 2000 lays the procedure for determination of the age which inter alia contains that the Juvenile Court shall record a finding after such inquiry which shall include a medical report for determining the age of the accused.
6. In this case the Court has merely relied on school leaving certificate and without caring to record any finding or make any inquiry much less subjecting the accused to the medical test.
A very novel way and approach was made by the trial Judge by accepting the school leaving certificate not even examining the person who had issued the same. He has also held that opinion of the medical expert cannot be given preference over the school leaving certificate which, we doubt, is totally incorrect as ruled by august Supreme Court of Pakistan and this Court in number of cases that the best test for the age is ossification and the report of the Radiologist.
7. Where benefit of life and death depends on some evidence, it should be cogent evidence and not the views of the Court.
Not only because procedure as 'prescribed was not followed but also because the Judge appears to have not applied its mind to the case for reasons known to him that he was so careless that when examining the accused under section 342, Cr.P.C. The first question reads as follow:-- "it is in the evidence that you on 25-4-2001 at about 20-00 hours in the street near the house of complainant/now dead in your village committed the Qatl-iAmd of Abdul Hamid through firing at him with 303 bore rifle, what do you say about it?"
' Astonishingly the date of occurrence is not 25-4-2001 but 24-5-2001. If this was the application of mind, we cannot maintain this conviction and sentence. We, therefore, allow this appeal. The conviction and sentence awarded are set aside. The case is remanded back to the learned Sessions Judge, Lakki Marwat who shall. Re-examine the accused under section 342, Cr.P.C. And if in case he takes the plea of not adult, the trial Judge shall make inquiry as contemplated under section 7 of the Ordinance ibid. ' Since we have allowed the appeal and remanded the case back, criminal revision has become infructuous.
8. Copy of our today's order shall be placed before Honourable the Chief Justice as well as on the personal file of Mr. Wilayat Ali Khan, Sessions Judge who is now posted as Sessions Judge, Karak.