1. ' S. DEEDAR HUSSAIN SHAH, J.--By this judgment we intend to dispose of .The above appeals and references for confirmation of death sentences as these matters are outcome of the same judgment passed by the Judge, Special Court S.T.A. Larkana, dated 30th December, 1993.
2. ' Brief facts of the case are that on 22-6-1992 complainant Muhammad Hasan Brohi lodged F.I.R. At Police Post Sujawal of Police Station Mirokhan which was registered in daily diary by in charge of the police post, namely, A.S.I. Mir Muhammad. It is alleged that on said date at about sun-set time driver Ahmed Ali Detho and Imdad Chandio were ploughing the land through a tractor. It is stated that P.W. Imdad Ali came and informed the complainant that seven armed dacoits had robbed the tractor and were coming towards the complainant party. In the meantime the tractor reached near village. After that complainant, Imdad Ali, complainant's cousins Barkat Ali, Imam Ali, Suleman, Amir Ali and their relative Zahro all by caste Brohis went together there. Barkat Ali and Suleman both were carrying licensed guns. When they reached near tractor, they challenged the dacoits to leave the tractor but the dacoits resorted to firing at the complainant party with Kalashnikovs and rifles directly so as to cause their death. Complainant party fell down to save themselves. Barkat Ali and Suleman also filed at dacoits in self-defence. After that the dacoits got down from the tractor but continued firing. According to complainant faces of the dacoits were open and were seen on the light of tractor and that the complainant party would be able to identify the culprits if shown to them. It was further mentioned in the report that firing lasted for 15 minutes. After the firing was stopped complainant Muhammad Hasan and P.Ws Imdad and Ahmed Ali got up and found that Barkat Ali, Imam Ali, Suleman and Zahro were murdered in the firing by dacoits whereas Amir Ali and Lal Bux both had sustained injuries. The deceased persons and the injured sustained injuries on chest, abdomen, head and other parts of body. Blood was oozing out of the wounds. Beside the tractor, dead body of a dacoit was also seen having injuries on abdomen and left leg. On commotion and cries many persons of the village were attracted. Complainant narrated the facts to them. He further found that gun of his deceased cousin Barkat Ali was not there. Complainant party noticed that weapon of dead dacoit was also taken away by his accomplices. Leaving the P.
3. Ws. At the scene of offence, the complainant reached the police post by foot. Lateron Amir Ali also succumbed to the injuries.
4. ' After lodging of the F.I.R. Police started investigation and charge-sheet was filed before the Court having jurisdiction.
5. ' On conclusion of the trial, learned Special Judge S.T.A. Larkana convicted the appellants under section 302, read with sections 396 and 307/324 read with sections 397 and 395 read with section 398, P.P.C. For the offence of murder four appellants Allandino, Bashu alias Bashir, Papu alias Dost Muhammad and Kadu alias Kadir Bux were sentenced to death while appellant Mumtaz was sentenced to imprisonment for life. Additionally the appellants were ordered to pay a total fine of Rs,250,000. In respect of other offences the appellants were awarded various terms of imprisonment and fine as well. Being aggrieved by and dissatisfied with the impugned judgment, the appellants preferred above appeals to this Court which were admitted on 25-1-1994.
6. ' During pendency of appeals, Miscellaneous Application 706 of 1994 on behalf of appellant Papoo alias Dost Muhammad was filed contending therein that at the time of incident this appellant was under 16 years of age and was a child within the meaning of section 5 of Sindh Children Act. In support of this contention school leaving certificate of the appellant was filed showing the date of birth of appellant Papoo alias Dost Muhammad as 20-12-1976. Prayer in the application was that without touching merits/demerits of the appeal, the Court may be pleased to refer the case of the appellant to Provincial Government after setting aside the sentence of death. This application was placed in Court on 1-6-1994 when notice was issued to A.-G. And on 25-7-1994 the following order was passed: "Heard Mr. Abdul Waheed Katpar. Let this application come up for hearing along with the main appeal."
7. ' At the time of hearing of this miscellaneous application Mr. Imdad Ali Awan, learned counsel for appellant Mumtaz pointed out that even trial Court in the impugned judgment has observed that age of appellant Mumtaz may be 16/17 years and being a person of tender age he was awarded lesser sentence of imprisonment for life instead of death. Mr. Imdad, therefore, prayed that both the appellants Papoo and Mumtaz may be referred to the Medical Board for ascertaining their age. On 11-11-1998 the Court passed the following order: "By consent M.A. 706 of 1994 is granted. Director Health Services Sukkur Division Sukkur shall constitute Medical Board comprising at least three experts so as. To ascertain the ages of appellants Papoo alias Dost Muhammad son of Muhammad Sajjan Barejo and Mumtaz son of Ghous Bux Shabrani after conducting test of ossification of bones, radiological examination and other necessary tests. Director Health Services shall submit his report within two weeks time after receipt of this order.
8. ' Superintendent Central Prison I Sukkur shall produce the above appellants before the Board when summoned by the Board. Adjourned to 9-12-1998."
9. ' In compliance of the above order, Director Health Services Sukkur constituted the Medical Board headed by Civil Surgeon Sukkur. According to the certificate issued by the Board the age of appellant Mumtaz is between 20 to 22 years while that of appellant Papoo above 22 years and below 25 years. Therefore, at the time of commission of offence the case of the appellants were covered by section 5 of the Sindh Children Act.
10. ' In such a situation, it is argued, that the trial of these two appellants with adult accused violated the provisions of section 10 of the Act vitiating the whole trial and such defect was not curable under section 537, Cr.P.C. In support of this contention learned counsel referred to the following case-law:
(i) Pir Jalal Shah v. State (PLD 1982 Karachi 567); (ii) Shah Muhammad v. The Federation of Pakistan (1992 MLD 582); (iii) Jamshed v. Agha Suhail and another (PLD 1998 Karachi 142).
11. ' Mr. Sher Muhammad Shar, learned A.A.-G. Also pointed out that even during the trial plea of appellants Mumtaz and Papoo was that they were below 16 years of age and such question was put to Gulsher First Class Magistrate who was examined by the prosecution as P.W.8 on the point of judicial confession. He states that in view of the certificate of the Medical Board and case-law and also the observations of the trial Court in the impugned judgment about the age of appellant Mumtaz, he would raise no objection for allowing the appeals. He however, suggested that the case be remanded to the trial Court for retrial keeping in view of the provisions of section 10 of the Sindh Children Act.
12. ' Mr. M.A. Rashid learned counsel for complainant also in view of the above facts, circumstances and case-law conceded that the appeals are to be accepted and the case remanded back to the trial Court for fresh trial.
13. ' We have gone through the material placed with the case. There is no necessity to go into the appraisal of the evidence and discuss the merits of the case as the appeals are being disposed of on consideration of the provisions of Sindh Children Act.
14. ' Appellant Papoo alias Dost Muhammad during pendency of the appeal filed M.A. 706 of 1994 and this Court ordered that it should be decided alongwith the main appeal. When the appeals came up before this Court, by consent of the parties, appellants Mumtaz and Papoo were referred to Medical Board. The opinion of the Board is referred to hereinabove. There is no dispute that appellant Mumtaz was below 16 years at the time of occurrence. As for appellant Papoo is concerned, the opinion of the Board is that he appears to be above 22 years and below 25 years.
15. This incident took place in June 1992 while the appellant was produced before the Medical Board in November 1998 i,e, after more than 6-1/2 years of the incident. On this point a D.B. Decision of this Court in the case of Yousuf v. The State 1975 PC1.1-I 936 may be referred wherein it has been held that though ossification test is better guide to age of a person yet not an accurate estimate and margin of one year on either side is possible. Applying the above rule to the case of appellant Papoo, he is also held below 16 years of age at the nue of offence.
16. ' We will now advert to the authorities relied upon by learned counsel for the appellants.
17. ' PLD 1982 Karachi 567: ' In this case it has been observed that trial of minor accused jointly with adult accused being in disregard of provisions of section 10 of Sindh Children Act, entire proceedings were held illegal and vitiated the whole trial and such an irregularity was not curable under the provisions of section 537, Cr.P.C. Therefore, conviction was set aside a ,c1 retrial ordered.
18. 1992 MLD 582: ' This is a Division Bench judgment of this Court. It was found that the accused at the time of incident was 12 years of age. He being a child at the time of incident could neither be tried with other adult co-accused nor could be sentenced to death. Therefore, it was ordered that said accused be tried separately from other accused before the Court having jurisdiction.
19. ' PLD 1998 Kar. 142: ' In this case accused moved application under section 5 of the Sindh Children Act for separate trial under section 10 of the said Act on the ground that he was below 16 years on the date of commission of offence. The trial Court referred the accused to Director-General Health for determination of his age and Medical Board after examining accused issued certificate that from clinical examination and general appearance, age of the accused was between 20 and 22 years. In this case it has been held that application under section 5 of Sindh Children Act for determination of age could be moved even at the appellate stage if the accused was child and even if no such plea was taken at the time of trial.
20. The resume of the above discussion is that even during trial the plea of the two appellants Mumtaz and Papoo was that they were of tender age and in view of the opinion of the Medical Board, they were under 16 years of age at the time of incident. Even trial Court in its judgment has held appellant Mumtaz to be aged 16/17 years.
21. ' The case-law relied upon by the learned counsel for the appellants is relevant, helpful and applicable to the facts of the present case. In view of the above facts, circumstances and case- law, learned A.A.-G. As well as counsel for complainant have rightly raised no objection' for allowing the appeals and setting aside the sentences awarded to the appellants.
22. ' Accordingly we accept the appeals, set aside the sentence awarded by the learned trial Court to the appellants and decline the reference for confirmation of death sentence. The case is remanded back to the learned trial Court for < re-trial keeping in view the provisions of Sindh Children Act and the legal position enunciated in the above reported authorities.