1. ABDUL KADIR SHAIKH, J.-This case has come up before us for confirmation of the death sentence imposed upon the convict Gharib Shah son of Jindwado under section 302, P. P. C., and also on appeal filed by him. The incident occurred in Grain Bazar in Daharki Town on 5-10-1970 at about 3 p.m. Which led to the death of Lachhmangar, a boy aged about 11 years. At the relevant time, P. W.
2. Dhano Mal and Godogir, Hotel--keepers were present In the shop of D. W. Dhano Mal, who has a 7- Up Agency, for settling their accounts. All the three of them saw Lachhmangar passing, at a short distance, in front of the shop, going towards the bus-- stop. Simultaneously, they also saw Gharib Shah appellant following Lachhmangar, and soon thereafter they heard cries upon which they found Garib Shah stabbing Lachhmangar. P. Ws. Dhano Mal and Gurdas Mal, and so also Gudo Gir, immediately rushed to tho rescue of the victim Lachhmangar. P. W. Cheto Mal and Jhudomal were also coming from the opposite direction, and they also reached the wardat simultaneously. The assailant was overpowered, but in the meanwhile, he had caused the fatal wounds on his victim. It is said that the assailant wanted to have friendship with the victim and seeing that he did not agree to this, he caused his murder.
3. Gharib Shah appellant was then taken, with the blood-stained knife secured from him, to the Daharki Police Station, where Gudo Gir lodged the report within a matter of 20 minutes, at 3.20 p.m.
4. Head Constable Muhammad Ramzan was incharge of the police station and he after recording the F. I. R. (Exh. 16-A) arrested 6hartb Shah, and seized the blood-stained knife in the presence of Mashirs Mukhi Jumandas and Sitaldas, under Mashirnamas Exhs. 15-A and 15-B. The Head Constable then examined the witnesses Dhano Mal and gurdas Mal. And thereafter proceeded to the scene of crime where he secured blood-stained earth etc. And conducted the usual Police investigation.
5. Head Constable sent the dead body of Lachhmangar to the Medical Officer, Ubaro, for post- mortem examination and report. Dr. Abdul Qadeer, who conducted the post-mortem examination noticed the following three injuries on the person of the deceased
(1) One incised wound 1--" x --" as cavity deep on the right hypochondrium.
(2) One Incised wound x skin deep on the left side of the chest.
(3) One incised wound 1" x --"x cutting carotid vessels of the neck on right side.
6. On internal examination, the doctor noticed that the peritoneum was cut below the injury No. 1.
7. There was paste of food in the stomach. The left lobe of the liver was cut, and all other organs were normal. All the above injuries, in the opinion of the doctor, were ante-mortem, the Injuries Nos. 1 and 3 individually being sufficient to cause death in the ordinary course of nature.
8. During the course of investigation, the accused volunteered to confess the guilt of the crime, and he was therefore produced before Pir A.I Bux, Mukhtiar kar and F. C. M., Ubaro, on the following day of the crime. The Magistrate recorded his Judicial Confession (Exh. 5-A) which is to the following effect t "Arbab Shah is my brother-in-law who resides in Daharki Town. I have been living with him since last li years as I am studying in Sixth Standard in Daharki High School, about two months back I used to work on the Hotel of Sunromal Hindu. After serving there for about 15-16 days I left the service and went and served the Hotel of Maharaj Hindu. He used to give me Rs. 60 (in words sixty only) as salary. Deceased Lachman was son of that Maharaj. I and Lachman got friendship with each other. I served on the Hotel of that Maharaj for the period of 3/4th of a month and then left that job. Our friendship was not of a bad type. We only used to go together for a walk and used to be as friends. After expiry of 8 days, Lachman got annoyed with me and our friendship ass severed.
9. Godhomal Hindu lives on the Hotel of Maharaj as he is son-in-law of Maharai. Godhomal and Maharaj suspected that I was intimite with Lachman, and hence lest I may abduct him. Deceased Lachman had taken Rs. 150 from me in friendship, which I demanded back from him but ho refused.
10. Day before yesterday deceased Lachman brought his father and he fought with me. Yesterday at night time Bundo Sher came to me at my house and he told me that Lachman had misappropriated my money and so also your money and let us go and purchase knife and fight with him. On the same night at about 8-00 p .m. I and Bundo Sher went and purchased a knife from the shop of a Hindu, whose nacre I don't remember. That knife cost Rs. 2-50. Bundo Sher paid Rs. 2- 07 while eight annas were paid by me. Bundo Sher took au-ay the knife with himself. He again came to me yesterday in the morning at about 8-00 a.m. And said that 1-e had gone to market to purchase vegetable and that Lachman on seeing me ran away. After saying so, Bundo went away.
11. Again yesterday at 1-00 p.m. He came to me and said let us go and fight with Lachman. We then both started together for this work and we came to the Hotel of Holomal and had tea there. He then told me to go and fight with Lachman and that he himself would turn up from the other direction. At that time Bundo gave me the knife. We then came out of the Hotel. I went by my direction. I told him to give me the money and he said he had no money. Lachman lay his hand on a brick and in the meanwhile I whipped him knife with sharp side in his stomach and subsequently gage him two more knife blows. Due to Mows Lachman fell down on the ground and died there. In the meanwhile other people came. I went to Police Station Daharki along with the knife, and gave the whole fact to the Police Munshi. In the meanwhile Hindus also came there. Police arrested me. I gave the knife to police."
12. Since the name of Bundoo son of Haji Rajah transpired In the Judicial Confession, he was arrested, and challaned along with Gharib Shah appellant, but the learned III Additional Sessions Judge, Sukkur, who tried the case, gave him the benefit of doubt and acquitted this accused.
13. So far as Gharib Sliah is concerned, the prosecution sought to prove the charge of murder against him on the basis of testimony of three witnesses P. Ws. Dhano "vial, Gurdas Mal and Cheto Mal, apart from the circum--stantial evidence as to his arrest in the course of the crime, along with the crime weapon. In addition to this, reliance was also placed on the admission of the accused in the Judicial Confession (Exh. 5-A). It may be said that the First informant, Ghudo sir, could not be examined at the trial because he left Pakistan shortly after the report of the crime was lodged. The fact that he has migrated to India was proved at the trial through the Process-Server Irshad (P. W.
14. 4) and was also testified by P. W. Dhaho Mal and others. The F. I. R. Was therefore, proved by Head Constable Muhammad Ramzan who had recorded it.
15. P. W. Dhano Mal stated that at the time of the occurrence in this case, he was settling accounts with Gurdas Mal in his shop, and Godogir was also present for the same purpose. He as well as Dhano Mal and Godogir saw Lachhmangar (deceased) passing in front of the shop at some distance followed by Gharib Shah, and after a while they heard cries upon which they saw that Gharib Shah was stubbing Lachhmangar with a knife. Dhano Mal said that he also heard Gharib Shah asking Lachhmangar to keep friendship with him. According to Dhano Mal, he and his two companions ran to save the victim, and they saw Cheto Mal are Jhudomal also rushing towards the wardat from the opposite direction. Further, Dhanomal went on to say that he and his companions caught hold of the culprit and snatched the blood stained knife from him ;but in the meanwhile Lachh= manger had succumbed to the injuries received by him. Dhano Mal stated that lie, Gurdas Mal and dodogir then took Gharib Shah along with his blood-stained knife to the Daharki Police Station where Godogir-lodged the F. I. R. His statement was recorded by Head Constable Muhammad Ramzan soon after the F. I. R. Was written by him. He also affirmed that Godogir had migrated to India about two years before the incident took place.
16. The version of the incident given by Dhano Mal was fully confirmed by P. W. Gurdas Mal in his statement at the trial. He confirmed that P. W. Dhano Mal and the first informant Godogir had come to his shop to settle accounts just before the incident in this case. Gurdas Mal has a 7 Up Beverage Agency in Daharki Town and his presence at the wardat could not admit of any doubt. He claimed that he as well as Dhano Mal and Godogir saw Lachhmangar coming from the Eastern direction, going towards bus stand, followed by Gharib Shah, and after to or three minutes they hand cries of Lachhmangar upon which they noticed that Gnarib Shah was holding him by vac collar of the shit and giving knife blows to him. Gardas Mal stated that upon seeing this occurrence, he, Dhano Mal and Godogir went running towards the spot. Cheto Mal and Jhudomal also reavhed the spot simultaneously, and they ail overpowered the assailant. The victim, however, expired soon after the receipt of the injuries on his person, and they then took the culprit to the police station along with the crime weapon.
17. P. W. Cheto Mal stated that hp owns a Kariana Shop in Daharki, and at the relevant time, he was going frond his shop toward, the Market for the recovery of business dues. According to him, Jhudomal was following Run. He heard commotion upon which lie saw Gharib Shah giving knife glows to Lachhmangar as a result of which Lachhmangar fell down. He ran towards the wardat, and also saw Gurdas Mal, Dhano Mal and Ghudo Gir coming from the opposite direction. According to him, Godogir, Dhano Mal and Gurdas Mat caught hold of the culprit on the spot along with his blood-stained knife. They then took the accused to the police station, and he was later on examined by the police.
18. Mr. Muhammad Hayat Junejo, the learned counsel for the appellant, criticised the evidence of the three eye-witnesses in that they had admitted in their statements during the committal enquiry that they were inside the shop but they changed their version, noticing that the Tapedar A.I Gohar, who prepared the sketch of the wardat, had stated earlier at the trial that from the place inside the shop, the spot where the crime was committed could not be seen, According to the learned counsel, even otherwise, locking to the time of occurrence, Fn the; month it took place i.e. 3 p.m. Of 5th October, it cannot be believed that these witnesses were sitting outside the shop to settle their accounts. Another discrepancy pointed out by the learned counsel was regarding the recovery of the blood-stained knife. In this behalf, the learned counsel pointed out that in his statement before the committal Magistrate P. W. Dhano Mal had stated that : "We did not snatch the knife, from the accused. The knife was in the baud of the accused when we produced him before tie police", but at tine trial he denied having made such a statement. According to his subsequent version the knife was produced by Godogir at the police station. As against this, the learned counsel pointed out that according to the mashir, Mukhi Jumandas, the knife was secure by the police from the shirt pocket of the accused.
19. The learned counsel further contended that the a version given by the accused in his Judicial confession was contrary o the one stated by the alleged eye-witnesses in that, according to him, he had himself gone to the police station, along with his knife. And narrated all the facts before the "Hindus" came there. According to the learned counsel, if the confession is to be believed. Then the evidence given by the eye-witnesses that they had apprehended the culprit and produced him at the police station is false, and no reliance can, therefore, be placed on their word.
20. The learned counsel lastly urged that in any case the appellant, at the time of the Commission of the crime was hardly 15 years old, and he, there--fore, falls squarely within the definition of "child" within the meaning of sec--petition 3 of the Sind Children Act, 1924 for which he is entitled to the benefit of section 22. In this behalf of the learned counsel had made an application under section 375 read with section 428, Cr. P. C. For the recording of further evidence. We granted ibis application by the order dated 8-5-1974, and examined Dr. Khan Mohd. Jumani as a witness.
21. According to the Doctor, the age of the accused at the time of commission of the offence was 15/16 years. He stated that he had based his opinion on not only the physical examination of the accused but also on the report of .The Radiologist after Ossification test.
22. So far as the criticism of the learned counsel for the appellant against the testimony of the eye- witnesses is concerned it would be noteworthy, at the outset, to point out that the report of the crime committed in this case was lodged with the police within a matter of just 20 minutes. The entire prosecution case as sought to be proved at the trial was revealed in the First Information Report itself. No enmity or grudge, whatever. Was suggested against these three eye-witnesses so as to have prompted false accusation against the appellant. In the statements given by P. Ws.
23. Dhano Mal and Gurdas Mal before the Committal Magistrate. They bad no doubt stated that they were sitting "near the door inside the shop from where the place of incident is visible", and at the trial they claimed to be sitting outside the shop, but for this variation alone they cannot be condemned as liars. It is proved in evidence. Beyond doubt, that the shop of Gurdas Mal where Dhano Mal and Godogir were sitting is just opposite the spot where the deceased was done to death. There can also be no doubt to the claim made by these witnesses that they caught the appellant red-handed, In the course of the commission of the crime. P. W. Jumandas, the mashir is the Mukbi of the village, and he stated that the blood-stained knife was produced by Dhano Mal.
24. Gurdas Mal and Godogir saying that they had secured it from Gharib Shah. The mashi'rnama regarding of the knife was prepared at 3-45 p. m. On the day of in-ident. That is, almost within 45 minutes of the commission of the crime. There is, therefore, no reason at all to condemn P. Ws.
25. Dhano Mal. Gurda9 Mal and Cheto Mal as liars, and disbelieve the version of the incident stated by them. In the Judicial Confession the appellant no doubt stated that he had himself went to the police along with the knife, and he gave all the facts to the Read Munsbi and that "in the meanwhile Hindus came there", but this admission if believed would in no manner absolve the appellant of the charge against him, for if the reliance is to be place on this admission made by him then he, on his own showing can safely be held to be guilty of the charge of murder.
26. For these reasons, we have no hesitation in reaching the conclusion that the prosecution evidence proved against the appellant is very reliable in nature and is therefore sufficient to prove the guilt of the accused of the offence with which he was charged.
27. The question of sentence to be imposed upon the accused, however, requires consideration for the reason that he has beta proved by the evidence of Or. Khan Mohd. Jumani recorded by to be below the age of 16 years at the time of the commission of the crime. We are, however, of the opinion that the crime committed by trim is heinous, and so serious in nature that no punishment which under the provision of the Sind Children Act, 1924 is authorised to be insisted upon him is sufficient to meet the ends of justice, we, therefore, direct that case shall be reported to the Provincial Government for orders in regard to the sentence of the accused in term of section 26, and until such time the decision of the Government is received in this behalf the appellant shall be detained as "C Class" convict.
28. With modification in the sentence, the appeal is otherwise dismissed.
29. KHUDA BAKHSH MARRI, J.-I agree.