' AJMAL MIAN, J.-- The appellant has been convicted under section 302, P.P.C. And awarded penalty of death and has also been fined a sum of Rs,10,000 to be paid to legal heirs of the deceased Javed by the learned IInd Additional Sessions Judge, Karachi, by his judgment dated 5-10-1983 in Criminal Case No,376 of 1978. The appellant has filed the present appeal against the above conviction and sentences whereas the learned Additional Sessions Judge has made the above reference for the confirmation of the death sentence.
2. The prosecution case was that the complainant P.W.1 Jan Muhammad and his brother deceased Javed who were carrying on tailoring business on 28-5-1978 at 1.00 a.m went to building known as Bulbul Hazar Dastan situated in Napier Road to recover the sewing charges from prostitutes. When they were on the third floor they met Amjad alias Kallu, the appellant in front of Room No,27.
Deceased Javed demanded from the appellant of his mother, Bilquis clothes sewing charges amounting to Rs,880 whereupon the appellant stated that the account was wrong, which followed by altercation between the appellant and deceased. It was further the case of the prosecution that the appellant took out from his pant pocket a double-edged dagger (Khanjar) with the intention to kill Javed and attacked him on his neck and also gave injury on the right side on ribs, consequently he fell down after being seriously injured. The above incident is said to have been witnessed on the spot by the complainant P.W.1 Jan Muhammad and P.Ws. Suhrab Mehmood, Shah Alam, Muhammad Younus and one Mumtaz. It was also the case of the prosecution that the injured Javed was taken to the Civil Hospital by P.W.1 Jan Muhammad and his younger brother Nazir Ahmed but on the way he expired. It is further the case of the prosecution that the appellant was arrested by P.W.5 Muhammad Iqbal A.S.I, who was on duty from 12 o'clock in the night in the Napier Road area while the appellant came down from the staircase with bloodstained Khanjar and wanted to escape, in presence of Mashirs P.W. Suhrab Mehmood and one Mumtaz Hussain son of Sabir Hussain at 01.15 hours alongwith the blood-stained double-edged Khanjar under Mashirnama Exh.11. The recovery of blood-stained clothes from the person of the appellant was made under Mashirnama Exh.12 in presence of the same Mashirs on the same day at 01.25 hours.
The case was investigated by P.W.8 Abdul Sattar Shaikh, S.H.O., Napier Road Police Station.
3. The prosecution in support of the case examined the alleged eye-witnesses namely, P.W.1 Jan Muhammad, P.W.2 Suhrab Mehmood, P.W.3 Shah Alam and P.W.4 Muhammad Younus. To corroborate the above evidence P.W.5 A.S.I. Muhammad Iqbal was examined to prove the factum of arrest of the appellant at the spot with blood-stained Khanjar immediately after the commission of the offence. P.W.6 Dr. Muhammad Abbas, who carried out post-mortem on the dead body was also examined to prove the post-mortem report, P.W.7 Malik Muhammad Nawaz the duty officer at the Napier Police Station at the relevant time who recorded the F.I.R. And P.W.8 Abdul Sattar Shaikh the S.H.O. Who investigated the case. In addition to that the prosecution also produced Inquest Report Exh.8, memo. Of dead body Exh.9, memo. Of arrest and recovery of Khanjar Exh.11, memo. Of recovery of bloodstained clothes Exh.12 and post-mortem report Exh.22.
4. The appellant while questioned under section 342, Cr.P.C. By the learned Additional Sessions Judge denied the factum of having committed the offence and stated that the witnesses had deposed against him as they were interested. He also filed a statement Exh.27, stating therein that factually on the night of incident he, his mother and the other members of the family went to Gulshan-e-lqbal to the house of his sister's husband after locking the house in Bulbul Hazar Dastan Building to celebrate the birthday of his sister's daughter and that he had been falsely implicated and the witnesses were friendly with the complainant.
5. We have gone through the evidence of the eye-witnesses and we find that P.W.1 Jan Muhammad has reiterated the contents of the F.I.R., which contained the prosecution version. He has deposed that he had accompanied deceased Javed for recovering the sewing charges from the prostitutes at the aforesaid time and date. He has further deposed that his brother was attacked by the appellant in the manner referred to hereinabove. P.W. Suhrab Mehmood has corroborated the evidence of P.W.1 Jan Muhammad and has deposed that on 28-5-1978 he was present in Room No,29 at about 1.00 a.m. In Bulbul Hazar Dastan Building, when he heard noise, he went outside and saw the deceased and accused quarrelling with each other. He has further deposed that the accused was disputing the correctness of the amount, whereas deceased was insisting that the amount was outstanding since seven months, upon which accused took out Khanjar and stabbed at the neck and also on the right side of the stomach. In cross-examination, he denied the suggestion that he was present in Room No,9 and not in 29. He further stated that Perveen and Yaseen singing girls were residing in Room No,29 and he was talking to them at the time of the incident after the dancing was over. P.W.3 Shah Alam and P.W.4 Muhammad Younus, who are inter se friends, have also corroborated the statement of the above two witnesses. They have stated that they went to visit their relative in Room No,25 in the building in question and they were waiting outside the above room as it was locked. They have given the name of their relation Munawar All Khan. The testimony of the above witnesses has been corroborated by the evidence of P.W.5 A.S.I.
Muhammad Iqbal, who arrested the accused at the spot with blood-stained Khanjar. Medical evidence comprising of deposition of P.W.6 Dr. Muhammad Abbas and post-mortem report also lends support to the ocular evidence inasmuch as the same indicates that the deceased had injuries on the neck as well as on the stomach at the right side of the rib on the stomach. The F.I.R.
Was lodged promptly within 20 minutes from the time of incident. The defence has not brought anything on record to indicate that the complainant and the other eye-witnesses had any motive to falsely implicate the appellant in substitution of the real culprit. Nor there is any material on record to indicate that P.Ws.2 to 3 were so much close to P.W.1 the complainant that in order to oblige him they would have falsely deposed against the appellant. P,W.2 Suhrab Mehmood in his cross-examination stated that at the relevant time he was residing in Bara Imam Compound where the complainant also used to reside. This fact by itself, in our view, will not make this witness as an interested witness. Similarly, P.W.3 in his cross-examination has stated that he knew the complainant since 10-15 years and was on visiting terms with him though he is not his friend. In our view, this fact alone will not make this witness as an interested witness.
6. However, it was urged by Mr.Iqtadar Hashmi that factually these witnesses have not witnessed the incident. In furtherance of the above submission, he has invited our attention to the fact that post-mortem report Exh.22 does not mention the name of P.W.1 Jan Muhammad as the person, who had identified the deceased but the names of Nazir Ahmad son of Bashir Ahmad and Gulzar Hussain son of Haji Muhammad Hussain a friend are mentioned as the persons who had identified the deceased. In our view, this does not adversely reflect on the testimony of P.W.1 Jan Muhammad as he has deposed that after leaving the dead body in the hospital he immediately came to the police station for lodging the report. The fact that he had not identified the dead body to the doctor has been sufficiently explained. Furthermore, he left behind his younger brother Nazir Ahmed son of Bashir Ahmad who had factually identified the dead body. Admittedly Inquest Report Exh.9 which was prepared at 2.30 a.m. Indicates that P.W.1 Jan Muhammad was one of the witnesses to the above document.
' It was next contended that P.W.1 Jan Muhammad in his examination has mentioned the name of Suhrab Mehmood, Muhammad Yousuf, Mumtaz Hussain and other persons and not of all the above alleged eye-witnesses and therefore their presence is doubtful. In this regard, it may be observed that the F.I.R. Which was lodged within 20 minutes from the time of incident contained the names of the above eye-witnesses, they were examined by the police under section 161 as well as by the Magistrate under section 164, Cr.P.C. Factually P.W.1 Jan Muhammad has expressly referred to the above witnesses in his cross-examination.
Mr. Hashmi has also referred to certain portions of 164 statements of the above eye-witnesses in order to contradict the statements made by the witnesses before the learned Additional Sessions Judge. However, A it was pointed out to him that since these portions were not specifically confronted by the defence in the cross-examination to the above witnesses, the same cannot be relied upon.
' The factums that the Khanjar recovered from the appellant was stained with human blood and that the appellant was wearing human blood-stained clothes have not been proved as no Chemical Analyst's report has been brought by the prosecution on record. However, the fact that the appellant was arrested at the spot with a blood-stained Khanjar has been proved by P.W.5 A.S.I.
Muhammad Iqbal and the Mashirs to the recoveries. Even otherwise, the testimony of the above eye-witnesses coupled with the circumstance of appellant's arrest at the spot is sufficient to hold that the prosecution was able to prove the case against the appellant beyond reasonable doubt.
7. (a) It was then contended by Mr.Hashmi that at the time of the arrest the appellant was aged 15 years and, therefore, his trial should have been conducted in accordance with the provisions of the Sind Children Act, 1955 (hereinafter referred to as the Act) and hence the trial under the general law was not warranted by law and that in any case the appellant could not have been awarded sentence of death or life imprisonment in view of the express prohibition contained in subsection
(1) of section 68 of the Act.
(b) On the other hand, it was urged by Mr. Nazir Alam learned counsel for the State that the appellant was referred to the Police Surgeon, who submitted his report No,PS/AC/302, dated 26-8- 1978 certifying that in view of X-ray report and clinical finding his age is 20 years, and therefore the learned Additional Sessions Judge was justified in proceeding with the case on the assumption that the appellant was above 16 years at the relevant time. In this connection, it may be pertinent to point out that the appellant had applied for bail inter alia on the ground of age in the Sessions Court. Thereupon, the complainant's Advocate filed an application dated 10-8-1978 praying therein, that the accused be referred to the Police Surgeon for determining his age, which was allowed by the learned Additional Sessions Judge by his order, dated 10-8-1978. Thereupon, the appellant was referred to the police surgeon, which resulted in submission of the above report, which is on the file of the Additional Sessions Judge. After that the Advocate for the appellant filed applications dated 16-9-1978 and 16-10-1978 praying therein, that the appellant be referred to the Special Medical Board for determining his age but the same were declined by the learned Sessions Judge by his order dated 20-12-1979. The appellant did not file any revision against the above order. In the present appeal, in the memo. Of appeal the ground that the appellant was minor at the relevant time and that the trial Court failed to get him medically examined in order to ascertain his age has been pleaded. It seems that a Division Bench of this Court by its order, dated 12-3-1984 ordered the constitution of a Medical Board comprising of a Professor or Assistant Professor of Radiology, Liaquat Medical College Hyderabad and one other doctor to examine the appellant and to determine his age on 28-5-1978 without referring to the fact that factually the appellant was referred to the Police Surgeon by the learned Additional Sessions Judge and was certified as aged about 20 years. The Board has submitted its report dated 12-5-1984 stating that on the basis of X- rays the age of the appellant on 28-5-1978 was about 15 years. It may be advantageous to reproduce last two paras. Of the above report, which read as follows: "Opinion of the Prof. Of Radiology:- All the epiphysis in the right elbow joint, the epiphysis for the distal ends of rt: radius, ulna, the proximal end of rt: humerus and the rt: iliac crest have all fused with their respective principal bones. The epiphysis for the medical end of rt: clavicle is yet in the process of fusion.The age therefore of Amjad Ali alias Kaloo son of Qamaruddin is about twenty- one years.
Opinion of the Board:- From physical examination, radiological investigations and general appearance the board is of the opinion that the age of the appellant Amjad All alias Kaloo son of Qamaruddin on 28-5-1978 was about/between 15 (fifteen) years."
8. It has been contended by Mr. Nazir Alam learned counsel for the State that since the appellant had not filed any revision against the order of the learned Additional Sessions Judge dated 20-12- 1979 declining his request to refer him for the medical examination to the Medical Board, the appellant cannot raise this issue in the appeal. We are unable to subscribe to the above contention, as in our view there cannot be any estoppel against an accused person. Even otherwise, it is well-settled principle of law that even in a civil case if an adverse interlocutory order which goes to the root of the matter, is passed by the trial Court, the aggrieved party can agitate the legality and propriety of such interlocutory order in an appeal filed against the final order. In the present case since a Division Bench had referred the appellant to the Medical Board in our view it will not be proper not to allow the appellant to take the benefit of the above medical report dated 12-5-1984.
9. It may be pertinent to refer to the relevant sections of the Sind Children Act, 1955 (hereinafter referred to as the Act). It may be observed that section 5 of the Act provides that 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 the Act, such person has not attained the age of sixteen years. Proviso to the above section provides that if during the course of proceedings under the Act such person attains the age of 16 years, the proceedings already commenced shall be continued and orders may be passed in respect of such person under the Act as if such person was a child notwithstanding anything to the contrary in the Act. Whereas section 7 provides that the Provincial Government may, by notification in the official Gazette, establish one or more Juvenile Courts for any local area. Furthermore, section 8 lays down that the power conferred on a Juvenile Court under this Act shall be exerciseable by the High Court, a Court of Sessions, a District Magistrate, a Sub-Divisional Magistrate and a Magistrate of the First Class, whether trying any case originally or on appeal or in revision. It may be mentioned that subsection (3) of section 9 provides that when it appears to Juvenile Court or a Court empowered under the provisions of section 8, such Court being subordinate to the Court of Sessions, that the offence with which a child is charged is triable exclusively by the Court of Sessions, the Court shall immediately transfer the case to the Court of Sessions for trial in accordance with the procedure outlined in the Act. It may further be mentioned that section 11 lays down that a Juvenile Court or a Court empowered under section 8 to exercise the powers of Juvenile Court shall, as far as practicable, follow the procedure in the Code (which has been defined under section 4 (1) (T) as the Code of Criminal Procedure, 1898) for summary trials in summons cases in which an appeal lies. There are certain provisions in the Act dealing with the mode of trial before the Juvenile Court. It is not necessary to dilate on the above provisions.
However, it will be pertinent to refer to section 68 of the Act. It may be stated that subsection (1) of section 68. Provides that notwithstanding to the contrary contained in any law, no youthful offender shall be sentenced to death or transportation or imprisonment for life whereas subsection (2) lays down that 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 unruly or of so depraved a character that he cannot be committed to a certified school or detaind 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.
10. After having dealt with the relevant provisions of the Act, we may revert back to the question, whether the appellant was a child within the purview of the Act. In this regard, there are three documents on the record namely, Exh.22 which is a report of the medical examination of the appellant dated 3-6-1978 in which in the column of age the appellant has been shown as 15 years.
The second document is the aforesaid report of the Police Surgeon dated 26-8-1978 certifying that the appellant was 20 years and the third document is the aforesaid medical Board's report dated 12-5-1984 in pursuance of the order dated 12-3-1984 passed by a Division Bench of this Court referred to herein-above. It is a well-settled principle of criminal jurisprudence that if two views in a criminal case are possible, the view which is more favourable to the accused is to be accepted or where two interpretations of a provision of law is possible the construction which favours the accused is to be preferred to the construction which may be unfavourable to the accused. In the present case the above Medical Board's report dated 12-5-1984 is a document favourable to the accused as compared to the Police Surgeon's aforesaid report dated 26-8-1978, we are inclined to prefer the above Medical Board's report in preference to the above Police Surgeon's report. In this view of the matter admittedly the appellant was below 16 years in terms of section 5 of the Act referred to hereinabove at the relevant time.
11. Mr.I.A.Hashmi has referred to the followsing cases:
(i) Muhammad Saleem v. The State PLD 1977 Kar. 75, in which a Division Bench while hearing a Confirmation Case in a murder case held that the opinion of doctor not based on ossification of bone test was properly rejected.
(ii) Bacho alias Abdul Jabbar v. The State 1981 P Cr.L J 299, in which a Division Bench of this Court while dealing with an appeal against the conviction under section 302 held that the appellant was a child in terms of section 5 of the Sind Children Act, 1955 being under 16 years of age when proceedings were initiated against him and therefore the sentence of imprisonment for life awarded to him was not legal. But at the same time it was held that the contention of defence that the appellant be dealt with under the provisions of sections 71 and 72 of the Sind Children Act, 1955 was not tenable. The Division Bench referred the case under section 68 (2) to the Provincial Government and ordered that till such decision the appellant be kept in the Juvenile Offenders' Jail, Landhi.
' Akbar and 2 others v. The State PLD 1982 Kar. 156 in which the three appellants were tried inter alia under sections 302/34, P.P.C. And were sentenced to imprisonment for life. Upon appeal in the High Court it was found that one of the appellants Kachkol was below 16 years at the time of the incident. He was sent to Juvenile Jail after conviction. The learned Single Judge reduced the sentence of the appellant to the period already undergone by him.
(iv) Pir Jalal Shah v. The State PLD 1982 Kar.
567. In the above case a Division Bench of this Court held that the trial of a child and an adult jointly was vitiated in view of the express prohibition under subsection (1) of section 10 of the Sind Children Act, 1955.
(v) Gopal V. The State 1979 P Cr. L J 590 in which a Division Bench of this Court, held that awarding of sentence of imprisonment to a Juvenile Offender meaning person below 16 years at the time of initiation of proceedings or at the time of arrest was illegal. The appeal was allowed on merits as the evidence was not found sufficient.
(vi) Hiromal v. Emperor AIR 1948 Sind 63. In the above case a Division Bench of the Sind Chief Court held that in a murder case where the age of the accused when he committed the offence was hardly fifteen years, the sentence of transportation for life passed upon him was illegal as he came within the definition of child given in the Bombay Children Act, 1924. The Court directed two respectable persons of the locality to execute bonds under section 27(b) in the sum of Rs,5,000 each for the good behaviour of the appellant for a period of three years and ordered that the appellant be released and be handed over to the sureties on the execution of the bonds.
(vii) Muhammad Zamin v. The State 1970 P Cr. L J 397. In the above case a Division Bench of the Erstwhile High Court of West Pakistan, Karachi Bench held that Bombay Children Act, 1924 does not bar trial of Juvenile Offenders by Courts other than Juvenile Courts. It was further held that a juvenile accused could not be sentenced under general criminal law. The appellant accused was released on furnishing two sureties for Rs,5,000 each for the good behaviour. It may be advantageous to reproduce hereinbelow the observations on the question that the Bombay Children Act does not bar trial of Juvenile Offenders by Courts other than Juvenile Courts which read as follows: ' The next question is whether in view of the existence of the Juvenile Court at Karachi the learned Sessions Judge had jurisdiction to try the appellant. We have perused the Bombay Children Act and we are clearly of the view that the jurisdiction of the Juvenile Court established under section 46 of the Bombay Children Act is not exclusive. The High Court had jurisdiction to try cases in which children were concerned. There are two-fold reasons for our taking this view. In the first place there is no section under the Bombay Children Act which bars the jurisdiction of the Courts other than Juvenile Court established under section 46 of the Act. In the second place section 5 of the Bombay Children Act is very clear so far as the present question is concerned. It reads as under:- "The power conferred on Courts by this Act shall be exercised only by (a) the High Court; (b) a Court of Sessions; (c) a District Magistrate, (d) a Sub-Divisional Magistrate; (e) a salaried Presidency Magistrate; (f) any Juvenile Court constituted under section 46; and (g) any Magistrate of the first class and may be exercised by such Courts whether the case comes before them originally or on appeal or revision."
' From a perusal of the above section it is clear that the High Court is one of the Courts that can have jurisdiction in respect of the powers that had been conferred under the Bombay Children Act.
Our view finds support from the decision of Beaumont C.J, in the case of Demodar Gopal v.
Emperor AIR 1942 Bow.
341. The learned C.J held in that case that the jurisdiction of the Children's Court was not exclusive and that the Presidency Magistrate could try cases in which children were concerned."
(viii) Muhammad Issa v. Summary Military Court Thatta and another 1980 P Cr. L J 550 in which a Division Bench of this Court while allowing the writ petition held that section 68 of the Children Act, 1924 was also applicable to the youthful offender tried under Martial Law Regulation by the Military Court.
12. We are not inclined to agree with Mr. Hashmi that the trial was bad in law as under section 8 of the Act. Court of Sessions is one of the Courts which could exercise the power conferred under the Act. Furthermore, under subsection (3) of section 9 even a Juvenile Court or a Court empowered under the provision of section 8 such Court being subordinate to the Court of Sessions discovers that the offence with which a child is charged is triable exclusively by the Court of Sessions it is required to transfer the case to the Court of Sessions for trial in accordance with the procedure outlined in the Act. In the instant case admittedly the offence of murder could not have been tried by a Juvenile Court but it was exclusively triable by the Sessions Court and therefore, the case was to be tried by a Sessions Court in accordance with the procedure of the Act. It cannot therefore be urged that the learned Additional Sessions Judge lacks jurisdiction. At the most it can be contended that the proper procedure was not followed.The answer to this is provided in section 537 of the Cr.P.C. Which reads as follows: "537. Finding or sentence when reversible by reason of error or omission in charge or other proceedings.-- Subject to the provisions hereinbefore contained, no finding, sentence,or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision account--
(a) of any error, omission or irregularity in the complaint, report by police officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless such error, omission or irregularity has in fact occasioned a failure of justice."
A perusal of the above section indicates that any error, omission or irregularity in the mode of trial including any misjoinder of charges unless such error, omission or irregularity has in fact occasioned a failure of justice shall not entail the reversion of an order. The view which we are inclined to take is fortified with the above D.B. Judgment of the Erstwhile High Court of West Pakistan, Karachi Bench reported in 1970 P Cr. L J 397.
13. We are satisfied that in the instant case the mode of trial adopted by the learned Additional Sessions Judge has not occasioned a failure of justice as to exclude the application of clause (b) of above-quoted section 537, Cr.P.C. But the sentence awarded against the appellant is in violation of subsection (1) of section 68 of the Act. We, therefore, set aside the above sentence and forward the case to the Provincial Government through the Home Secretary in terms of subsection (2) of section 68 of the Sind Children Act, 1955 for appropriate orders of the Provincial Government. Till such order is passed the appellant shall be kept forthwith in safe custody in the Juvenile Offender& Jail at Landhi as was done by a Division Bench of this Court in the above-cited case of Bacho alias Abdul Jabber v. The State 1981 P Cr. L J 299. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.