1983 P Cr (PLP)

Appellant above-named, being aggrieved by judgment dated 1st October, 1981 of the learned Additional Sessions Judge, Hyderabad, in Sessions case No. 212; 79, whereby appellant has been convicted under section 307, P. P. C. and sentenced to suffer R. I. for 7 years and to of Rs. 2,000 or in default to suffer further R. I. for 6 months, has preferred the above appeal, on the following facts and grounds

2. Briefly stated on 25th August, 1979 one Abdul Majeed a complainant lodged a report in almost in the following words "That he has got a tea canteen and Shahb Cinema. That his son Muhammad Ilyas has got his Barrage adjacent to Baboo Hotel at Bakra Mandi and that he is also a Rikshaw driver. It is alleged that today i.e. 25-8-1979, when the complai nant was present in his said canteen, one Saleem Rickshaw driver, who is a friend of Muhammad Ilyas came and informed him that while Saleem, Salam and Rashid were sitting in tha garage of Muhammad Ilyas, Muhammad Ilyas went out to fetch tea far them for Baboo Hotel. It is alleged that appellant Anwar son of Mian Jan teased and abused Muhammad Ilyas and gave him also fist and kick blows, whereupon it is alleged that Muhammad Ilyas raised cries and that on commotion they i.e. Saleem, Salam and Rashid all the three came out of the garage and they saw the appellant took churry from the fold of his salwar and started giving cherry blows to Ilyas over his stomach, back side of neck left shoulder and left and right hands etc. The appellant on the challenges given by Saleem and his friends, be being provoked waiving churry in his hand ran away towards Achi Mori. It is alleged that meanwhile one Muhammad Rafiq, who happened to be Ustad of Muhammad Ilyas reached at the place of Wardat and he then took Muhammad Ilyas to Civil Hospital in his rikshaw. The complainant after receipt of this information about the above mentioned incident went to Civil hospital and saw his son Muhammad Ilyas admitted in Surgical Ward No. 4 at the bed No. 4, who had injuries over stomach, back side of neck left shoulder and left and right hand caused with churry and was bleeding". Case was registered by one Pir Bashir Ahmed A. S. I. He there after gave letter to the complainant to be taken to hospital for admission of his son Muhammad Ilyas formally. A. S. I. then himself went to the hospital, inspected the injuries of injured Muhammad Ilyas and prepared such mashirnama in presence of Mashir as Exh. 9/A A. S. I also recorded the statement of the injured, with the permission of the doctor. A. S.I. then along with complainant went at the place of Wardat. He inspected the scene of offence and prepared such mashirnamas in presence of Mashirs as Exh. 9/B. He also recorded the statements of P. Ws. Saleem, Salam and Muhammad Rafiq and Rashid etc. Then A. S. I. came back at the police station and also secured blood-stained clothes of injuries Muhammad Ilyas, which were brought from the hospital and he prepared such mashirnama in presence of mashirs Muhammad Yousaf and Abdul Kayoom as Exh. 9 C. On 26-8-1979 appellant was arrested from Haji Umed Ali Road Phuleli Hyderabad and such mashirnama of arrest was prepared, .in presence of mashirs as Exh. 9/D. Appellant then led A. S. I. to the gate of Bakra Mandi, from where he produced a cherry. It was hidden under the ground. It was secured and was sealed in presence of mashirs and later was sent for Chemical examination and report. After the chemical and medical reports were received and comple tion of necessary investigation, the case was handed over to S. H. O.; who subsequently challaned the appellant in the court to stand his trial.

3. Charge was framed and was read over to appellant in court, to which he pleaded not guilty. Appellant in his statement recorded under section 342, Cr. P. C. denied the allegations of the prosecution. He stated that prosecu tion witnesses have given evidence against me only because they are friends of the injured Muhammad Ilyas and, therefore, they are interested witnesses and that he is innocent. The appellant however, lead no evidence in defence.

4. Prosecution examined P. W. 1 Abdul Majid (complainant) Exh. 2,P. W. 2 Muhammad Ilyas (injured), Exh. 5, P. W. 3 Abdul Salattz Shaikh, (E. W. Exh 6, P. W 4 Abdul Rashid Telo (E. W) Exh. 7, P. W. 5 Saleem (E W.) Exh. 8, P. W. 6 Muhammad Yousuf (mashir) Exh. 9, P. W. 7 Dr. Akhtar Hussain Memon, Medieal Officer Civil Hospital Hyderabad. P. W. 7 Pir Basbir Ahmed I. O. Exh. 10.

5. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.

6. The learned Advocate for the appellant at the outset submitted, that he was not attacking the impugned judgment as far as the merits of the case are concerned, but since according to the Medical Certificate on record, age of the appellant at the time of the commission of offence in question was only 15/16 years, the sentence awarded to the appellant cannot legally be sustained, in view of the provisions of Sind Children Act, 1955. The learned Advocate further submitted, that in view of the provisions of section 71/72 of the Sind Children Act, the sentence of imprisonment cannot be awarded to the appellant beyond the age of 18 years. In support of these contentions, the learned Advocate for the appellant relied upon cases reported in A I R 1948 Sind 63 and 1970 P Cr. L J 397.

7. The learned Advocate appearing for the State rightly conceded to the above legal position and further submitted, that medical certificate regarding the age of the appellant, at the time of the commission of the offence. The learned Advocate for State also invited my attention to case reported in I L R 1944 Kar. 272.

8. I have carefully considered the above submissions made by the learned Advocate before me and have gone through the R & P of the learned trial Court as well as through the impugned judgment and cases cited by the learned Advocated before me.

9. Prosecution by the statements of P. Ws. as well as recovery of churry from the possession of appellant has satisfactorily proved its case against the appellant, beyond reasonable doubt, as rightly conceded by the learned Advocate for the appellant. I also find that the statements of the A P. Ws. are straight forward and convincing and the recovery of the churri has been established by the statement of mashir as well as I. O. and as such I see no reason to disagree with the findings of the learned trial Court and the impugned judgment, as far as the merits of the case are concerned.

10. However, it is an admitted position, according to certified copy of the medical certificate dated 17th Sptember 1979, which has been produced by the appellant along with his memo of appeal, that on the day of the incident B his age was about 15/16 years only. The learned trial Court has failed to take into consideration this medical certificate, which was available before him and consequently appellant was tried under ordinary laws and convicted there under, in utter disregard of the provisions of Sind Children Act, 1955.

11. In view of the above factual position on record, sentences awarded to the appellant cannot be maintained as rightly urged by the learned Advocate for the appellant and frankly conceded by the learned Advocate for the State before me.

12. Therefore, keeping in view provisions of section 72 of Sind Children Act, 1955, while maintaining the conviction of the appellant. I set aside sentences awarded to him and release him on probation of good conduct and commit him to the case of Mr. Mia Jan, who shall execute a personal bond to the sum of Rs. 20,000 for the said good behaviour of the appellant for the said period. On furnishing of such bond by Mr. Mian Jan before he learned trial Court, the bail bonds executed by the appellant in the above appeal shall stand discharged.

13. The above appeal stands dismissed in the terms of the above judgment. Appeal dismissed.