1. Z. A. CHANNA, J.-----The appellant has been convicted by the learned Additional Sessions Judge, Karachi, by his judgment delivered on 29th September, 1977, of an offence under section 302, P. P. C.
2. For committing murder of his relation, Nathan son of Jivan, and has been sentenced for the said offence to imprisonment for life. The appellant has been separately convicted under section 13(d) of the Arms Ordinance and has been sentenced to R. I. For six months. This judgment will dispose of the appeals in both the cases.
3. The prosecution case, shortly stated, is that on the night intervening between 29th and 30th May, 1974, at 22.55 hours on Kanji Street, Ranchore Lines, in front of the hotel of one Faqir Mohammad there was an altercation in consequence of which the appellant is said to have stabbed deceased Nathan with a knife causing two injuries to him in the side and in the chest as a result of which he died in the Civil Hospital the same night at 2 a.m. The incident is said to have been witnessed by Kishan son of Bhaiji, Yaseen son of Abdur Rehman and Nisar son of Haji. The first report in the case was lodged by Kishan at Nabi Bux Police Station at 01.00 hours on 30-5-74. However, earlier at 23-5 hours on 29-5-74, a telephonic message had been received from Doctor Ghulam Rasool of the Civil Hospital, at the Nabi Bux Police Station, to the effect that Nathan son of Jiva, who had received injuries in a quarrel, had been brought to the Civil Hospital by Gopal son of Jiva (appellant) and some officer should be sent for action. This information was entered in the daily station diary of Nabi Bux Police Station. Similarly, the information of the death of Nathan at 02-0 hours was also entered in the station diary of that Police Station. The same nigh, at about 4-00 a.m. The appellant was arrested by S. H. O. Ghulam Rabbani from Abbasi Hotel, about a furlong away from Faqira Hotel where Nathan was stabbed and a blood-stained knife was secured from him. This weapon was sent to the Chemical Examiner to the Government whose report is to the effect that the blood thereon is of human origin.
4. Doctor Ghulam Rasool, who had examined the deceased on his admission to the Civil Hospital and bad also sent the telephonic message about the admission of the injured at the hospital to the police, was not available at. The trial of the case, as he had left service, but the prosecution examined Doctor Syed Iqbal Ahmad who had conducted the post-mortem of the deceased.
5. According to Dr. Iqbal Ahmed, the following external injuries were found by him on the person of the deceased, both of which injuries, in his opinion, ware caused by a long knife or other similar weapon of assault:---
(1) Incised wound 2--- X 1" cavity deep left side part of chest at the level of 7th or 8th intercostal space.
(2) Incised wound 1----- X ----- into cavity deep right side part of chest at the level of 3rd and 4th intercostal space.
6. The Doctor has testified that both the injuries had penetrated into the heart muscle.
7. We are disturbed at finding that the learned Additional Sessions Judge has dealt with this case in contravention of the provisions of the Sind Children Act, 1955. The said Act was extended to Karachi by Sind Act XIV of 1975 and was made applicable to the said area by Notification, dated 5th March; 1976, published in the Sind Government Gazette, 1976, Part I, page 772, with effect from 5th March, 1976. Subsection (1) of section 68 of the said Act provides that no juvenile offender shall be sentenced to death or transportation or imprisonment. Subsection (2) of that section provides that when a child is found to have committed an offence of no serious nature that the Court is of opinion that no punishment which it is authorize to inflict under the said Act is sufficient the Court is to report the case for action to the Provincial Government. The expression "Juvenile offender" has been defined in the said Act to mean any child who has been found have committed an offence.
8. Section 5. Of the said Act lays down that person shall be deemed to be a child, if. At the time of the initiation of an Proceedings against him under the 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. The extract from, the register of births in the Municipal limits of Karachi, which was produced by the appellant at the time of his examination under section 342, Cr. P C shows that the appellant was born at Karachi on 5th July, 1960. Thus, at the time of his arrest in connection with the present case, be was below 16 years of age and consequently a juvenile offender for the purpose of the Sind Children Act, 1955. .He thus could not have been sentenced to imprison--ment for life as has been erroneously done by the learned Additional Session Judge.
9. The Bombay Children Act, 1924, contained similar provisions as those in the Sind Children Act, 1955, as to the ban on the imposition of sentence of imprisonment or transportation on children and juvenile offenders. In Heeromal v. Emperor (AIR 1948 Sind 63) the accused was tried on charge of murder. It was found that at the time when he committed the offence he was of 15 years of age. In the circumstances, it was held by the Sind Chief Court that the sentence of transportation for life passed on him by the learned Sessions Judge was illegal as the appellant clearly came within the definition of "child" as given in the Sind Children Act, 1924: A similar view was expressed in the case of Mohammad Zamir v. The State (1970 P Cr. L J 397.). In that case also a Juvenile offender was sentenced to imprisonment for 7 years under section 304(11), P. P. C. It was held that the sentence imposed on him was not maintainable in view of the provisions of section 22 of the Bombay Children Act and accordingly he was released on furnishing two sureties for being of good behaviour.
10. As to the merits of the case, the learned Additional Sessions Judge has based the conviction of the appellant on two pieces of evidence, namely, ocular - evidence of P. Ws. Kishan, Nisar and Yaseen, and the recovery of knife from the possession of the appellant, which knife is said to have been stained with human blood. As to the ocular evidence, it is an admitted position that at the time of the incident there was black-out. Since the incident occurred on the street and not in any closed room or courtyard, the possibility of there being some light, despite the black-out, can safely be ruled out. In any case, there is no evidence whatsoever of there being any light at or near the scene of offence at -the time of the incident. In such circumstances, it is not understood how the three eye--witnesses were in a position to identify the assailant of the deceased. The absence of any light at or near the scene of offence would seem to render their evidence as to identification of the culprits totally nugatory. Another circumstance which has to be borne in mind as to the identity of the culprits is whether there was any motive or reason for the appellant to have attacked or injured the deceased. None of the eye-witnesses or any other witness has stated that there was any fight, quarrel or dispute between the deceased and the appellant. On the other hand, the evidence on the record seems to indicate that there was a quarrel between Yaseen and the appellant. If this is correct, there was greater possibility of Yaseen causing the fatal injuries to the deceased if he had taken the side of the appellant in the quarrel, which was not unlikely as he was related to the appellant. Another circumstance which suggests that it cannot have been the appellant who caused the fatal. Injuries to the deceased is that admittedly the appellant took the deceased to the Civil Hospital for treatment. This fact is not only established by the medical certificate-recorded by Dr. Ghulam Rasool, but is also borne out by the entry in the station diary of Nabi Bux Police Station which was made on the information furnished by Dr. Ghulam Rasool over the telephone. It is most unlikely that the appellant would have taken the deceased to the Civil Hospital if he had been his assailant. According to the eye-witnesses, particularly P. W. Nisar, the appellant ran away with the blood-stained knife from the place of incident. This allegation clearly, is false. If the appellant had run away how could he have taken the deceased to the hospital.
11. As to the recovery of the blood-stained knife, we consider the evidence on this point is wholly unsatisfactory. In the first place, if the appellant had taken the deceased to the hospital, it is not understood why he should be at Abbasi Hotel at 4-00 a.m. That night. In fact the evidence on the point of his being apprehended at Abbasi Hotel is most unreliable. P. W. Yousuf Ali, who was one of the mashirs of the arrest of the appellant and the alleged recovery of the knife, has stated that he found the knife lying on the table of the S. H. O. At the Police Station when he went there. He has not at all supported the prosecution about the arrest of the appellant at Abbasi Hotel. The second mashir is Yaseen who himself could be considered as suspect in the case and, therefore, he would naturally be most anxious to divert suspicion from himself. We strongly deprecate the practice of the police making an important eye-witness a mashir of the arrest of the accused and the recovery of incriminating items from him. This practice can only give rise to the suspicion that the investigation is not conducted honestly. Another circumstance which is worthy of consideration in this case is that though the crime weapon and the blood-stained clothes of the deceased were allegedly recovered on the very night of the incident, no request seems to have been made by the police for arranging for grouping of the blood thereon. It should neither be difficult nor expensive, with that facilities available at the Hospital at Karachi, for blood grouping to be done so that if the blood on the clothes of the deceased matches with the blood on the allegedly crime weapon, it could be said with greater certainty that the injuries on the deceased were in all probability caused with that weapon. It is a matter of some regret that despite the observations made by Tufail Ali, Chief Justice in Bajoo v. State regarding the feasibility and the desirability of grouping of blood being arranged for by the prosecution in case of articles stained with human blood, in order that the Courts may be enabled to draw proper inference from the added material, which has a greater degree of accuracy, the prosecution still fail to arrange for grouping even in the most appropriate cases. The Courts can only draw an inference of inefficiency and deliberate negligence from such failure after the above exhortation from an eminent jurist.
12. Taking all the above circumstances into consideration, we are of opinion that the prosecution has failed to establish the guilt of the appellant. We accordingly accept this appeal and set aside the convictions and sentences of appellant, both in respect of the offence under section 302, P. P. C. As well as under section 13(d) of the Arms Ordinance. The appellant, if not required in any other case, should be released forthwith.