1986 P Cr (PLP)

The respondent Salim Raze was tried on the charge of offence punishable under section 302, P.P.C. The charge against him read that he on or about 23‑3‑1974, at about 12‑15 hours, near the office of Pakistan Peoples Party at Liaquat Road, near Usmani Masjid behind Jacob Lines, Karachi did commit murder by intentionally causing death of Muhammad Yousuf by means of knife blows and thereby committed an offence punishable under section 302 of the Pakistan Penal Code. It is alleged that he struck the deceased Muhammad Yousuf by means of a knife, accusing him that he had levelled some aspersions against his sister. The deceased was caused two injuries and he succumbed to the injuries at the spot. The report of the incident was made at the Police Station Brigade by the deceased's brother Muhammad Younus. The incident is said to have been witnessed by the complainant Muhammad Younus, Ch. Suleman, Abdul Haq, Atiqur Rehman and Shabbir Raza and others. Prosecution examined at the trial the eye‑witnesses and other formal witnesses, in all thirteen persons. The respondent examined two witnesses in his defence. The learned trial Judge formulated following four points for determination:‑ (1)??????? Whether the accused Salim Raze is adult as defined in section 4 of the Sind Children Act, 1955? (2)??????? Whether the deceased Muhammad Yousuf son of Muhammad Ismail has died unnatural death? (3)??????? Whether the accused Salim Raze has committed murder of the deceased Muhammad Yousuf? (4)??????? What will be the sentence, if accused Salim Raze is proved guilty? The learned trial Judge held that the respondent Salim Raze was a child within the definition given in section 4 of the Sind Children Act, 1955. He further held that he i.e. Salim Raze had murdered the deceased Muhammad Yousuf. Finally, he gave benefit of the provisions of Sind Children, Act, 1955 to the respondent and instead of convicting him and awarding on him sentence under general law, directed that he should furnish two sureties for keeping good behaviour for three years. No appeal has been filed against the findings of the learned trial Judge on points Nos. 2 and

3. The findings on points Nos. 1 and 4 have been challenged under this Revision Application. The learned counsel for the applicant, who is complainant in the case has urged:, that the learned trial Judge was at error in holding that the respondent Salim Raze was a child within the definition given in section 4 of Sind Children Act, 1955. He has next urged that the evidence, before the trial Judge on the question of age of the respondent Salim Raze was produced in the form of a certificate issued from the Government Boys Secondary School No. 11, Jacob Lines, Karachi, Birth Certificate issued from the District Health Officer, Gujranwala, and the medical certificate issued by the Police Surgeon, Dr. Abdul Hadi, all the three furnishing different evidence. He has further urged that the School Certificate indicates the birth date as 15‑6‑1958, whereby age of the respondent Salim Raze on the day of incident viz. 23‑3‑1974 was just below 16 wears; whereas birth certificate Exh.38 shows the date of birth as 3‑2‑1958; and thereby he was more than 16 years old at that time i.e. at the time of incident; and medical certificate Exh.42 issued by Police Surgeon, Dr. Abdul Hadi shows his age to be between 15 and 16 years on 14‑11‑1974. He has contended that the learned trial Judge should have, preferred the birth certificate to the School Certificate and the medical certificate and has placed reliance on the cases reported it 1983 P Cr. L J 1750 and P L D 1979 Kar.

804. On the other hand, the learned counsel for the respondent Salim Raze has urged that the School Certificate and Medical Certificate indicate that age of the respondent was less than 16 years and preference was right, given to the medical certificate as against the birth certificate was not proved. He has placed reliance on the cases reported in 1975 P Cr. L J 1227; P L D 1972 Pesh. 27 and 1983 P Cr. L J 1750. The learned Advocate appearing for the State has contended that the inquiry into the question of age of respondent Salim Raze was not properly held and the matter may be remanded for making proper inquiry and giving findings on the question of age afresh. It appears from the evidence on the record that evidence in respect of age of the respondent Salim Raze was produced by him and no evidence was produced by the prosecution. Copies of School Certificate and the birth certificate were produced by the respondent in his statement under section 342, Cr.P.C. and the medical certificate issued, by Police Surgeon, Dr. Abdul Hadi was produced through another Police Surgeon, Dr. Qaiser Rasool, who was successor in office of Dr. Abdul Hadi. Obviously, no primary evidence was produced and all the three documents put in evidence were not proved. The birth certificate indicates that the respondent was more than sixteen years at the time of commission of offence. Evidently, there was no credible evidence before the trial Judge for holding that the respondent Salim Raza was a child within the definition given under the Sind Children Act, 1955, on the date the offence was committed i.e. 23‑3‑1974. The cases relied upon by the learned counsel for the parties, no doubt, throw light on determination of age in the case of like nature but guidance could be derived from them if there were proper evidence on the record, which was lacking in the instant case. Accordingly, the judgment of the trial Court is set aside to the extent it relates to the findings on points Nos. 1 and 4 and the case is remanded to the trial Court for recording evidence and determining the question of age of the respondent Salim Raza afresh and passing consequential order/judgment as warranted by law in view of the findings that may be recorded on point No.1. The respondent Salim Raza shall have the benefit of remaining on bail on his furnishing one surety solvent in the sum of Rs.20,000 and P.R. Bond in the like amount before the learned trial Judge. M.Y.H.??????????? ??????????????????????????????????????????????????????????????????????????????????? Case remanded.