' SYED AFSAR SHAH, J.---This criminal appeal is directed against the judgment dated 30.03.2011 rendered by learned Addl. Sessions Judge-II, Swabi whereby the appellant was convicted under section 302(b), PPC and sentenced to imprisonment for life with compensation of Rs. 1,00,000/- (rupees one lac) was payable to the legal heirs of the deceased Radar Ali or in default thereof to undergo six months' SI further. He was also convicted and sentenced to imprisonment for life for the murder of deceased Tariq Zaman. Both the sentences were directed to run concurrently.
Benefit of Section 382-B, Cr.P.C. Was also extended to the convict-appellant.
2. The story of prosecution as disclosed in the F.I.R. Exh. PA may briefly be narrated as follows.
3. On 12.08.2012 Sher Bahadur, the complainant (PW-8) brought the dead-bodies of the deceased Badar Ali and Tariq Zaman to Police Station, Kalu Khan District Swabi and make a report to the effect that on the day of occurrence he alongwith his son Badar Ali and Tariq Zaman were present in Serai Chowk when in the meanwhile accused-appellant duly armed with pistol came to there and started tiring at the deceased Badar Ali and Tariq Zaman; that due to the firing of the appellant both Badar Ali and Tariq Zaman were hit and died at the spot. Motive behind the offence as stated by the complainant is that some eight days prior to the occurrence there was an oral altercation between the accused-appellant and deceased Radar Ali. The occurrence in addition to the complainant is stated to have been witnessed by PWs Jan Bahadur and Raj Wali Khan. The complainant has charged the accused-appellant for murder of the deceased Badar Ali and Tariq Zaman.
' After writing report of the complainant it was read over and explained to him who after admitting it to be correct thumb impressed the same in token of its correctness, whereafter, the author of the First Information Report inspected bodies of the deceased, prepare their injury sheets alongwith inquest reports and refer the same for post-mortem examination under the escort of FC Niaz Muhammad.
4. Investigation was started in the case and on its completion, challan was submitted to the Court of learned Addl. Sessions Judge-II, Swabi against the accused Fayyaz where at the commencement of the trial the prosecution produced as many as twelve witnesses whose statements were recorded and placed on file.
5. On close of the prosecution evidence accused was examined under section 342, Cr.P.C.
Describing himself as scapegoat he denied the charges professed innocence and stated to have falsely implicated. He also produced a copy of certificate with respect to his studies as Ex.D1. He, however, wished to produce no defence nor to examine himself on oath as required under section 340(2), Cr.P.C.
' The learned Trial Court on conclusion of the trial convicted and sentenced the appellant vide judgment herein impugned.
6. At the very outset learned counsel appearing on behalf of the convict-appellant contended that at the time of occurrence the age of the appellant was less than eighteen years and, therefore, he being a minor, his case is admittedly falls under the Juvenile Justice System Ordinance, 2000. He added that despite the fact that the appellant was below the age of eighteen years at the time of occurrence, he has not been tried by the learned Trial Court under the Juvenile Justice System Ordinance rather he was tried by the ordinary Court and in this view of the matter learned defence counsel vehemently contended that it is not safe to maintain conviction and sentence recorded on this quality and quantity of evidence. In support of his arguments learned defence counsel made reference to the School Leaving Certificate copy of which has already been produced by the appellant during his statement recorded under section 342, Cr.P.C. And which is Ex.D1. He also produced original NIC of the appellant for perusal of the Court copy of which is placed on record.
Learned defence counsel also made reference to the statement of accused recorded under section 342, Cr.P.C. Where the learned Addl. Sessions Judge-IL Swabi did not mention the age of the appellant.
7. As against that learned counsel appearing on behalf of the State assisted by learned 'counsel for the complainant contended that since the convict-appellant has not raised the plea of his minority at the Trial Court, therefore, at this stage he could not raise the same plea. Questioning the minority of the convict-appellant learned counsel for the complainant has also disputed the sanctity of the SS Certificate and NIC.
8. We have considered submissions of the learned counsel for the parties and gone through the record alongwith original National Identity Card (NIC) and School Leaving Certificate of the con- via-appellant.
9. It appears from the FIR Ex. PA that in this case, the occurrence took place on 12.8.2008 at about 1755 hours whereas the report has been lodged on the same day at about 1930 hours. Sher Bahadur is the complainant of the present case and he has charged the accused-appellant for commission of the offence.
10. Without entering into the merits of the case, it will be more appropriate to refer to Section 2(b) of the Juvenile Justice System Ordinance, 2000, according to which "Child" means a person who at the time of commission of an offence has not attained the age of eighteen years.
' From perusal of the copy of certificate as Ex.D1 original of which has already been perused by this Court, one could reach to an irresistible conclusion that in the said certificate the date of birth of the accused-appellant has been recorded as 31st March, 1991.(31.03.1991). In the original NIC copy of which is placed on record the same date of birth has been given i.e. 31.3.1991, meaning thereby that at the time of occurrence which is 12.8.2008 the accused-appellant was below the age of eighteen years and hence in the given circumstances he has to be tried by the Juvenile Court.
So far as this contention of the learned counsel for the complainant that the accused-appellant at the time of occurrence was more than eighteen years is concerned, wisdom is derived from a case-law "titled Muhammad Zubair v. The State (2010 SCM R 182) where the following observations have been made by their lordship:--- "Be that as it may, the fact remains that there is a doubt in respect of the age of the appellant because according to him he was about 18 years of age whereas according to the complainant he was 20 years of age at the time of incident. In such a situation, it is to be seen as to whether doubt is to be decided in favour of the accused of the complainant. A similar question was examined by this Court in the case of "Ijaz Hussain v. The State 2002 SCMR 1455" and it after relying upon the case of "Umar Hayat v. Jehangir 2002 SCMR 629" held that " in case where two views relating to the age of accused are possible, the view in favour of the accused is normally to be accepted in the case of "Sohail Iqbal v. The State 1993 SCMR 2377" it has been held as under-- "In view of discrepancy in recording the age of the appellant it is only fair that the benefits should be extended to him particularly in view of the precedent of this Court quoted by the learned counsel for the appellant i.e. Javid Iqbal v. The State 1982 SCMR 447".
' Adhering to this contention of the learned counsel for the complainant that the appellant has not raised the plea of his B minority in the Trial Court, we think he has misconceived the situation in that failure of the defence to raise such plea at the trial in the attending circumstances of the case could not disentitle him to be treated in accordance with law. In this respect guidance is derived from a case-law "titled Siraj-ud-Din v. Afzal Khan and another PLD 1997 Supreme Court 847.
11. Since at the time of occurrence the appellant was below the age of eighteen years and since under' the law referred to ibid his trial has to be conducted under the Juvenile Justice System Ordinance, 2000, therefore, without adhering to the merits of the case, we allow the appeal, set aside the convictions and sentences recorded by the learned Trial Court and while treating the convict-appellant as an under-trial prisoner send the case back to the Trial Court for trial de novo after observing/fulfilling all the requisite formalities under the Juvenile Justice System Ordinance, 2000.
12. Since the criminal appeal is allowed and the case is remanded to the learned Trial Court, therefore, the criminal revision No. 89/2011 "titled Sher Bahadur v. The State and Fayyaz" for enhancement of the sentence having become infructuous is dismissed as such. /Case Remanded.