GHAUS ALI SHAH J.---This appeal under section 410, Cr. P. C. Is directed against the judgment dated 1July, 1976, of the learned I. Additional Sessions Judge, Larkana, whereby he convicted the appellant under section 302, P. P. C. And sentenced him to suffer imprisonment for life.
2. The facts of the case are that one Attaullah s/o Suleman, caste Kalhoro, resident of Duro Sanari, Taluka Larkana, of District Larkana, lodged a F. I. R. On 8th March, 1975, at 1-45 p. m. At Police Station Town, which reads as under:- ---I had got married my daughter Mst. Najabat Khatoon with Mohd. Ali son of Bachal, caste Kalhoro, resident of Gajan Pur, Larkana about 7/8 years back, whenever, I used to come to Larkana for my work, I used to visit my daughter Mst. Najabat Khatoon. About a week back, I had come to visit my daughter Mst. Najabat Khatoon. My daughter had informed me that Bachal alias Jabbar son of Rasool Bux is keeping evil-eye on her, and he cuts indecent jokes with her. I directed Bachal to refrain from such act, as Mst. Najabat was his aunt and it was matter of relationship. Thereafter I went to my village. Today in the morning, I accompanied by my nephew Nasrullah son of Abdul Karim came to Larkana for selling the grain. After selling the grain in Anaj-Mandi, we went to my daughter Mst. Najabat Khatoon at about noontime. She was present in the house. I asked her about her husband. She replied that he had gone out for purchasing paddy-straws. We were sitting in the house and Mst. Najabat Khatoon went to the house of Rasool Bux, brother of her husband. After a short-while, there were cries of "murder" ! "murder" ! From the street, I and Nasrullah went running there, Dost Mohd. Son of Mohd caste Kalhoro resident of Gajan Pur also arrived there. We found that Bachal alias Jabbar son of Rasool Bux was inflicting knife blows to Mst. Najabat Khatoon at the thres--hold of his house, and was saying her that she had levelled allegations against him andst therefore be would kill her. As a result of receiv--ing blows, Mst. Najabat Khatoon fell down. We gave him Hakkal whereupon accused said that in case we would go near him we would be killed.
As we were empty handed therefore we did not go there due to fear. Other people also arrived there on hearing our cries. Thereafter accused went into his house with the knife. We went and found that Mst. Najabat Khatoon had received knife blows on her stomach, Chest and head and had expired. He; injuries were bleeding. Thereafter I left Nasrullah and Dos, Mohammad in charge of dead body and I, myself, have come here at the police station to lodge report. I lodge report that Bachai alias Jabbar has murdered my daughter Mst. Najabat Khatoon be--cause he used to keep an evil eye on her and I had prevented him. Therefore he has murdered her by inflicting her knife blows."
3. The F. I. R. Exh. 15 was recorded by Noor Illahi P. W. 8 A. S. I. P. Own Police Station. Larkana, who proceeded to the scene of offence which was situated infront of the house of the door of Rasool Bux (father of the accused) in Gajan-Pur Mohallah, Larkana. He inspected the place of incident where dead body of Mst. Najabat-Khatoon was lying. He secured the blood stained earth and a blood-stained "Anghqsha" and prepared such Mashirnama Exh. 12 in presence of mashirs Abdul Fattah and Habibullah. He prepared the inquest report of the dead body of Mst. Najabat-Khatoon as Exh.
13. He then handed over the dead-body of Mst. Najabat-Khatoon to P. C. Ghulam Sarwar for post mortem examination. He then examined P. Ws. Nasrullah, Dost Mohammad and Mst. Islam Khatoon and went in search of the accused. He came to know that the accused had gone to one Fazal Mohammad. He therefore went towards that side and P. W. Fazeel Mohammad and the accused met him at the railway-crossing, where P. W. Fazal Mohammad produced the accused before him and also the blood-stained knife which was snatched by Fazal Mohammad from the accused He secured a blood-stained knife/and clothes from the person of the accused and prepared such mashirnama Exh. 10 in presence of mashirs Mohammad Ibrahim and Bashir Ahmed.
He sealed the blood-stained articles in their presence there and then. He after arresting the accused took him to the police station He thereafter recorded the statement of Mohammad Ali on 9March, 1975. He had also got recorded the statements of P. Ws. Dost Muhammad Nasrullah and Fazal Mohammad under section 164, Cr. P. C. On 27March, 1975, before the Resident Megistrate, Larkana. He then handed over the case papers to the S. I. P. Ghulam Mustafa Chandio, who challaned the accused. He had sent the blood-stained articles to the medical analyser for their analysis and such report of the medical analyser is produced as. Exh. 16.
4. The prosecution case is mainly based on ocular testimony, extra judicial confession of the accused, before P. W. Fazal Mohammad, recovery of blood-stained knife and clothes from the person of the accused, medical evidence and the evidence of motive.
5. The accused however denied all the allegations against him and claimed to be innocent.
According to him it was in fact Mohammad Ali, husband of the deceased, who killed her due to sudden and grave provoca--tion in his presence as he had seen her in compromising position with Shamah Kalhoro. He also examined one Atta Mohammad in defence.
6. There is no dispute that Mst. Najabat Khatoon died on the day and place of incident as stated in the F. I. R. Due to knife injuries. The question therefore for determination is whether the offence was committed by the appellant Bacho alias Jabbar or somebody esle? In this regard, the prosecution led ocular evidence of P. Ws. Nasrullah and Dost Mohammad. Extra-judicial confession of the accused before P. W. Fazal Mohammad, recovery of blood-stained knife and clothes, medical evidence and evidence of motive.
7. Before assessing the ocular testimony, it would be necessary to mension that the Complainant Atta Mohammad who was also an eye--witness died before the trial of the case proceeded therefore only two eye--witnesses were examined. They are Nasrulluh and Dost Mohammad P. Ws 3 and 4 respectively, who stated before the trial Court that they saw accused /appellant givingth th knife blows to Mst. Najabat Khatoon at the outer-door of the house of Rasool Bux. When they went on the scene of offence attracted by cries of, "murder" ! "murder" ! Being raised by Mst. Najabat Khatoon, they also saw the accused going inside his house after killing Mst. Najabat Khatoon. The evidence of both these witnesses on material facts is quite natural and trust-worthy. No material contradic--tions have been brought out by the defence in cross-examination.
8. Now we come to the evidence of Fazal Mohammad P. W. 5 whom the accused met on the way with a blood-stained knife in his hand and his clothes were also stained with blood. He inquired from him and the accused admitted that he used to cut jokes with his aunt Mst. Najabat Khatoon and that on the fateful day, when she came to the house at noon-time, he again cut jokes with her.
She raised cries and he being armed with a knife gave knife-injuries to her and killed her. He also told him that Atta Ullah (since dead), Nasrullah and Dost Mohammad attracted to her cries had come out and had witnessed the incident. Thereafter he had gone into; his house, last they might not fight with him. He then took the accused to Town police station Larkana and on way ASI Noor Illahi met him at railway crossing where he handed over the accused to him and so also the blood- stained knife. A. S. I. Noor Illahi arrested the accused and secured the blood-stained knife which he sealed on the day of incident and thereafter he took the accused to police station. This witness is caste-fellow and nekmard of accused as well as the Complainant party as both the parties including this witness originally belonged to village Sanhri, which has been inundated by the river Indus. Though this witness has been crossed by the defence counsel at length but no such circumstance has come on the record so as to shake his evidence.
9. The A. S. I. Noor Illahi P. W. 8 and Bashir Ahmed mashir P. W. 6 have deposed to regarding the recovery of blood-stained knife effected vide Mashirnama Exh. 10 produced by Fazal Mohammad, which he snatched from the accused and was stained with blood. It was sealed on the spot. They have also deposed to that blood-stained clothes i.e. One shirt and one "Potro" (loin-cloth) were also recovered from the person of the accused under same Mashirnama Exh. 10 at the time of arrest and S. I. P. Noor Illahi has further deposed that they were went to Chemical Analyser whose report Exh. 16 shows that all the blood-stained articles consisting of blood-stained earth, "angosha", shirt loin cloth and knife were stained with human blood. Fazal Mohammad P. W. 5 has also deposed to as already discussed above that he had produced the blood-stained knife which was snatched by him from the accused thus recovery of blood-stained knife and clothes stand proved.
10. Dr. Mohammad Sharif who performed the autopsy of dead body of Mst. Najabat Khatoon has stated before the trial Court that:-- "On 8th March, 1975, Town police station sent dead body of Mst. Najabat Khatoon were of Mohammad Ali, by caste Abdasi through police constable Ghulam Sarwar for post-mortem examination and certificate. The dead body was of female, adult, aged about 22 years. I started post-mortem examination at 5.00 p. m. And finished the same at 6. 00 p.m. On the very same date.
On external examination I found the following injuries on the dead body of Mst. Najabat Khatoon:-
(1) One incised wound 1--" x 1" x --" chest cavity on the medial part of the tight breast below the nipple.
(2) One incised wound 1--' x 1" x --" x on the lateral part of the right breast below the nipple.
(3) One incised wound 2" x --" x chest cavity present on the lower part- of the stomach.
(4) One incised wound 1--" x 1" x muscle deep on the right side of the upper part of the abdomen.
(5) One incised wound 1--' x --" x 1/3" on the left side of the tipper abdomen.
(6) One verticle incised wound 6" x 1--" muscle deep present on the right lumber region.
(7) One incised wound --" x 11/2" muscle deep on the right umblital region.
(8) One curved incised wound 1-- x --" x muscle deep --" lateral to injury No. 7.
(9) One incised wound --" x 1" x --" on the right upper lip.
(10) One abrasion --" x --" on the left elbow.
On internal examination I found the following damages:-
(1) 6th and 7th ribs on the right side were cut. Trenum bone was cut.
(2) Right pleura cut. Pleural cavity full of blood.
(3) Right lung cut in middle lobe.
(4) Right verticle cut through and through.
(5) Diagram on the right side was cut.
(6) Right cope of liver was cut.
From external as well as internal examination of the dead body, I am of the opinion that the death occurred due to haemorrhage and shock caused by the injuries on the chest. All the injuries were ante-mortem in nature and appeared to have been caused by some sharp cutting weapon such as knife. The time between death and post-mortem was about 4 hours. The time between injuries and death was about 15 minutes. I issued such post-mortem notes which I produce as Exh.
4. They are same, correct and bear my signatures." It reveals from the post mortem notes that Mst.
Najabat-Khatoon sustained as many as nine knife injuries and an abrasion. The prosecution case therefore stands supported in this regard also.
11. The last piece of evidence is the evidence of motive. This has been deposed to by Fazal Muhammad P. W. 5 Nasrullah P. W. 3 and Dost Mohammad P. W. 4 before the trial Court. There is a little difference n this respect which is quite under-standable as according to P. Ws. Nasrullah and Dost Mohammad, the accused after causing injuries to Mst. Najabat Khatoon disclosed that she had levelled false charge against him whereas P. W. Fazal Mohammad has stated that accused confessed before him of having cut jokes with Mst. Najabat Khatoon and killed her because she raised cries. In any case, the motive deposed to is of more or less of similar nature which is sufficient under the circumstances or commission of this offence.
12. Mr. Mohammad Hayat Junejo, the learned counsel for the appellant has attacked the ocular testimony on the ground that it consists of witnesses who are interrelated and has also laid stress that evidence of Atta Mohammad D. W. I. Who has also claimed to be an eye-witness of the incident be preferred over them as he was next-door neighbour of the deceased. There is no doubt that this witness has tried to support the case of the appellant put in by him in his statement under section 342 Cr, P. C. But has admitted in cross-examination that the husband of Mst. Najabat- Khatoon was not present in the house on the day of incident. We have not considered the iwo versious givsen by P. Ws. Nasrullah and Dost Mohammad and also the version given by Atta Mohammad. The version given by Atta Mohammad D. W. 1 does not appear to be natural as his admission that husband of Mst. Najabat Khatoon was not present in the house on the day of incident cuts the very root of his whole stand and we therefore discard his evidence and accept the version given by P. Ws. Nasrullah and Dost Mohammad duly supported by P. W Fazal Mohammad as their version is natural, true and acceptable.
The defence has also attacked extra-judicial confession but there is hardly any circumstance pointed out in this connection to disbelieve this witness Fazal Mohammad P. W. 5 whose evidence is quite satisfactory and substantial. The defence has tried in vain to attack recoveries of blood- stained knife, clothes and evidence of motive on the ground that it consists of P. Ws. Who are inter- related. There is no force in contentions of the defence as Noor-Illahi P. W. 8 has also deposed to Uri the recoveries and he is as good a witness as any other on this point. Therefore recoveries of knife and clothes which have been found stained with human blood stand proved and also the evidence of motive.
13. The defence has lastly contended on a legal point that the accused/appellant, being child on the day when the proceedings were initiated against him in view of sections 4 (s) and S of Sind Children Act of 1955, the trial-court was not empowered to sentence him to imprisonment for life as provided by section 6$ of the Sind Children Act of 1955. It would be of benefit to reproduce sections 4 (s), 5 and 68 of the Sind Children. Act of 1955, which are as under:- "4 (s) "Youthful offender" means any child who has been found to have committed an offence; and.
"5.-(1) For the purpose of this Act. a person shall be deemed to be a child, if at the time of the initiation of any proceedings against him under this Act or at the time of his arrest in connection with which any proceedings are initiated against him under this Act, such person has not attained the age of sixteen years, 68.-(1) Notwithstanding anything to the contrary contained in any law, no 3 youthful offender shall be sentenced to death or transpor--tation or imprisonment.
(2) When a child is found to have committed an offence of so serious a nature that the Court is of opinion that no punishment, which under the provisions of this Act, it is authorised to inflict, is sufficient or when the Court is satisfied that the child is of so unrully or of so depraved a character that he cannot be committed to a certified School or detained in a place of safety and that none of the other methods in which the case may be legally dealt with is suitable, the Court shall order the offender to be kept in safe custody in such place or manner as it thinks fit and shall report the case for the orders of the Provincial Government."
It was contended that the accused/appellant was under 16 years of age on the day when proceedings were initiated against him. We have consi--dered this aspect of the case and in order to be sure that age of the appellant we examined Dr. Zafarul Haq Siddiqui. Associate Professor of Radiology, Liaquat Medical College Hyderabad who deposed before us as under:- "I see the report which is filed in the record of the High Court in respect of the accused Bachoo. It has been signed by me. Its contents are correct. This report is based on Radiological findings in respect of the bones of the body. The X-rays of the accused Bachoo were taken in my presence after I had been directed by the High Court to examine him. The X-ray films had been read by me.
My report is based on the examination of the bones of right shoulder joint, right iliacrest (bone above the hip joint)", Medical end of right clavicle (right collar bone) and lateral view of the body sternum (the front chest bone). My findings have been given in my report and I found that the growing end bones of the shoulder joint had completely fused with the main bone. And similarly grow--ing end of the bones above the hip joint had also just fused with the main bone. And the growing end of the right collarbone had appeared but had not fused with main bone. Lastly` the pieces of the bone of the front chest (sternum) had fused together but the exphoid-process had not fused with he body of sternum and the manibrium sterni had also not fused with the body of the sternum. My assessm ent of the age of Bachoo at the time of my examination was about 19 years i.e. 26October, 1978. I would consider that there could be a margin of about 6 months above or below this age. I have not got the Dental structure of the accused examined because it is not considered as an authentic or accurate test for determining the age. I did not get accused Bachoo examined by another expert in respect of axillary hair because I had been directed by the High Court to examine the accused only Radiologically, which is my field of speciality. The Medical Science can ascertain the age up to 23 years and thereafter up to the age of 25 years. And thereafter between 25 years and 40 years, when there is a long range of error, and similarly between 40 years and 65 years, there is again a long range of error. The growing end of the shoulder bones in male fuses with the sin bone by 18 years, and the growing end of the right iliac bone uses with the main bone by 19 years. The growing end of medial end of the right clavicle fuses in males by 23 years. The pieces of the body of the sternum fuse between 18 years and 25 years. In giving my report I have relied upon English books on Radiology as well as Moodi and also on a report which had been compiled by my teacher and Senior, Dr. Mohammad Ibrahim, with whom I was associated in 1962."th The above evidence of Dr. Zafarul Haq Siddiqui is brought on record as Exh. H. C.
1. We are convinced that the appellant was child in term of section 5 of Sind Children Act of 1955.
14. The defence counsel has also contended that the accused/appel--lant be ordered to be committed to a certified School, recognised institution or discharged within the provisions of sections 71 and 72, of the Sind Children Act of 1955.
15. Mr. Ghulamally H. Agha, the learned counsel for the State has fully supported the judgment of the trial Court as far as the merits of the case are concerned. He is also of the view that the sentence of imprisonment for life awarded to the appellant was against the provisions of the Sind Children Act of 1955.
16. We have considered the contentions of the learned counsel for the appellant and State. We are satisfied that the accused/appellant was child it; terms of section 5 of Sind Children Act of 195: being under 16 years of age when the proceedings were initiated against him and therefore sentence of imprisonment for life awarded to him is not legal. We how--ever do not agree with the learned counsel for the defence that the appel--lant be dealt with under the provisions of sections 71 and 72 of Sind Children Act of 1955 as we are convinced that he has been rightly found guilty of offence under section 302, P. P. C. We therefore feel that it would be proper to refer him to the Provincial Government as provided by section 68 (2) of Sind Children Act of 1955 and it is hereby ordered that the appellant shall be kept forthwith in safe custody in the Juvenile offenders Jail at Landhi and his case is accordingly referred to the Provin--cial Government in terms of section 68
(2) of Sind Children Act. He shall be kept as such till the decision on the reference made by this Court is taken by the Provincial Government.
17. The result is that there is no substance in the appeal on merits which is accordingly dismissed with notification of the sentence as ordered above.