1. ' Appellant Zar Muhammad son of Sher Ali was charged and tried under section 302, P.P.C. Before the learned IInd Additional Sessions Judge, South Karachi, who has convicted and sentenced him to suffer imprisonment for life and to pay fine of Rs,5,000, in default to undergo further R.I. For six months. The appellant is also directed to pay compensation of Rs,10,000 to the legal heirs of deceased 'Umber Ali as envisaged by section 544-A, Cr.P.C. And in default to suffer R.I. For six months. However, he was given benefit of section 382-B vide judgment, dated 30th July, 1989.
2. ' The brief facts giving rise to the present appeal are that on 24-11-1984, statement of Khan Bahadur was recorded by A.S.I.; Rahimdad of Police Station Bughdadi, Karachi which reads as under:-- "That I have my Fair Price Shop No,3065 at Agra Taj Colony. Today at about 11-15 a.m. I and my son Falaknaz were present at the shop when I saw two persons whose names were disclosed later as Khaiber Ali and Zar Muhammad and were sitting opposit my shop. I found that Khaiber Ali had a bullet injury while Zar Muhammad was armed with pistol. Khaiber Ali came running inside my shop in injured condition, on which Zar Muhammad chased him and fired two more shots at him with his pistol due to which he sustained more injuries. I tried to separate them. The clothes of Khaiber ALi were stained with blood. Zar Muhammad asked me that you should keep aside otherwise I will also be killed. Thereafter, I brought injured Khaiber Ali out of my shop; as soon as he came out Zar Muhammad took out knife and gave blows to Khaiber ALi again. There were no bullets in the pistol of Zar Muhammad and, as such, he started re-loading, but he was apprehended by P.W. Ashraf and others and they secured pistol, two empty bullets, six live bullets, the live bullets and knife were wrapped in handkerchief. They made the accused to sit there while injured Khaiber All was removed to hospital by Khan Bahadur. Later on accused/appellant and articles recovered from him were produced before S.H.O. Rahimdad."
3. ' The above statement was recorded by Sub-Inspector Rahimdad and incorporated in the Book kept under section 154, Cr.P.C. However, injured Khaiber Ali died in the hospital and, therefore, the case was converted into one, under section 302, P.P.C. After necessary investigation, the accused/appellant was challaned before the Court.
4. ' A formal charge was framed against the appellant to which he pleaded not guilty.
5. ' At the trial prosecution examined complainant Khan Bahadur, P.W.1, he has produced Mashirnama of dead body as Exh.7, inquest report Exh.8, memo. Regarding seizure of clothes of deceased as Exh.9. Statement made by him before Sub-Inspector Rahimdad as Exh.11. Muhammad Ashraf P.W.2, an eye-witness, he has produced Mashirnama of arrest and seizure of pistol, knife as Exh.13, Muhammad Ibrahim P.W.3, an eye-witness, he has produced his 164, Cr.P.C. Statement as Exh.15, Rahimdad S.I.P. P.W.4, (wrongly shown as P.W.5), he had carried on investigation of the case. He has produced Mashirnama of place of Wardat as Exh.18, certificate regarding cause of death as Exh.19, sketch of Wardat prepared by Tapedar as Exh.20 sketch of Wardat produced by him as Exh.21, Falknaz P.W.5, an eye-witness, he has produced his 164, Cr.P.C. Statement as Exh.24, process server Ayaz Ahmed, P.C. C.W.1 he had received process for service on P.W. Dr. Miss Naheed and he has produced summons as Exh.2, Muhammad Ramzan P.W.6, he had prepared sketch of Wardat which has been produced as Exh.30 Mr. Umer Khan, P.W.7, he had recorded the statements of witnesses under section 164, Cr.P.C. Which have been produced as Exh.32, Exh.33, Exh.34, and Exh.35. Dr. Ather Hussain, he has produced injury certificate as Exh.43 and post-mortem report as Exh.44. Hashim Khan retired Sub-Inspector, he has produced F.I.R. As Exh.46.
6. ' After close of the prosecution case, the statement of the appellant was recorded in which he denied the allegations. He has also examined himself on oath as envisaged by section 340(2), Cr.P.C. However, he did not examine any witness in his defence.
7. ' The learned trial Judge after taking into consideration the evidence produced by the prosecution, has convicted the appellant as described above and the present appeal is directed against the above judgment of conviction.
8. ' I have heard Mr. Abdul Qadir Halepota, learned counsel appearing for the appellant, Mr. Shaukat Zubedi, learned A.A.-G. Appearing for the State and have gone through the R & P of the case.
9. ' It was contended by Mr. Abdul Qadir Halepota, learned counsel appearing for the appellant that the appellant was a child at the time of present incident and he ought to have been tried under the provisions of Sindh Children Act, 1955 and the learned trial Judge has failed to try the appellant in accordance with the provisions of Sindh Children Act, which has seriously prejudiced the case of the appellant. In support of his contention, the learned counsel has relied upon application dated 21-1-1985, moved on behalf of the accused/appellant for referring him to the Medical Officer with regard to his age, and medical certificate dated 6-2-1985, issued by the Police Surgeon.
10. ' Mr. Shaukat H. Zubedi, learned A.A.-G. Appearing for the State has conceded that in view of the fact that the accused/appellant was below 16 years of age at the time of incident, he ought to have been tried under Sindh Children Act, 1955, and therefore, he has no objection if the matter was remanded back to the trial Judge for trying the case afresh in accordance with the provisions of Sindh Children Act, 1955.
11. ' I have considered the contentions of the learned counsel. The application dated 21-1-1989 at page 29 of the Sessions Court record, reads as under:-- "Application for medical examination of accused for determination of age.
12. ' It is prayed on behalf of the accused that this Honourable Court may be pleased to order Superintendent Landhi Jail to produce accused before the Police Surgeon/Civil Surgeon for medical checkup for the determination of age and medical certificate as accused is minor, aged about 15 years, Karachi.
13. Dated 21-1-1985 (Sd.)
14. Advocate for accused."
15. The learned Additional Sessions Judge was pleased to refer the accused to the Police Surgeon Karachi and he sent his opinion as under:-- "Combind both physical and X-ray findings, in my opinion, his age is about 16 years.
16. (Sd.)
17. Dr. Asghar Ali Baloch Police Surgeon Karachi."
18. ' In the above case, the incident took place on 24-11-1984, and the accused/appellant was examined by the Medical Officer on 6-2-1985, and according to the medical opinion the accused was about 16 years of age and thus he was below 16 years of age at the time when the offence was committed.
(1) In the case of Kalimullah alias Abdul Kadir v. The State 1984 P Cr. L J 2825; wherein the applicant was tried/convicted under section 302, P.P.C. And sentenced to suffer R.I. For ten years, the conviction was challenged before the High Court on the ground that the applicant ought to have been tried under Sindh Children Act and the under Bombay Children Act as the Bombay Children Act was repealed by Notification, dated 21st November, 1974. My learned brother Abdul Razzak A.
19. Thahim, J. (as he then was) allowed the revision and conviction and sentences were set aside and the matter was remanded back to the learned trial Judge to proceed with the case in accordance with the provisions of Sindh Children Act, 1955.
(2) In the case of Muhammad Issa v. Summary Military Court, Thatta and another 1980 P Cr. L J 550 a Division Bench of this Court was pleased to held that provisions of section 68 of Sindh Children Act were applicable to offences under Martial Law Regulation as well as trials before the Military Court. It was further held that youthful offenders for the purpose of Sindh Children Act cannot be sentenced to imprisonment or imprisonment for life and consequently the sentence imposed upon two young convicts was held to be contrary to the provision of Sindh Children Act.
(3) In the case of Bacho alias Abdul Jabbar v. The State 1981 P Cr. L J 299; a Division Bench of this Court, was pleased to observe that:-- "Since the appellant was under 16 years of age when proceedings on charge of murder were initiated against him, he was a child in terms of section 5 of Sindh Children Act, and therefore, sentence of imprisonment for life to the accused/appellant was held to be illegal and the case was referred to the Provincial Government for taking appropriate action under section 68(2) of the Act."
20. In view of the above factual as well as legal position I am of the considered view that since the appellant was a child being below 16 years of age when the present incident took place, therefore, he had to be tried under Sindh Children Act, 1955 and the sentence awarded to him was illegal. I, therefore, allow this appeal, set aside the conviction and sentence of the appellant and remand the matter back to the learned Sessions Judge (South), Karachi, to try the above case afresh either himself or he may transfer the same to any other Additional Sessions Judge for trial of the appellant under Sindh Children Act, 1955.
21. ' I had allowed the above appeal on 31-1-1990 by a short order and these are the reasons for the same. 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.