MUHAMMAD ZAMIN Versus STATE

1. INAMULLAH, J.‑ This is an appeal by `one Muhammad Zamin under section 410, Cr. P. C. against the conviction and the sentence passed by' our brother Munshi, J. on 31‑1‑56. The appellant was convicted and sentenced tinder section 304 (2) of the Penal Code and was sentenced to R. I. for 7 years. The trial was held with the aid of Jury. The Jury was divided and the majority verdict of 6.3 was, that the appellant was guilty. The facts shortly put are these

2. The incident is alleged to have taken place at about noon' time on 4th November 1953 in the old barracks known as Polish Camp, Karachi. There is .a ration shop in the Polish Camp owned by the appellant Zamin and hip brother Yasin. The deceased Alihasan lived in one of the barracks of the Polish Camp. On the day of the incident the deceased Alihasan sent his daughter to purchase poppy pods from the rations shop of the appellant. The deceased Alihasan found the poppy pods to be unwholesome and brought it back to return. According to the prosecution stary Zamin was not prepared to take back the poppy pods with the result that there was altercation and exchange of abuses. Alihasan while going back to his house continued to abuse the appellant, the appellant pursued him and in the meantime one Abdul Rehman who was tried along with the appellant and was convicted, turned up and passed on a knife to the appellant Zamin grappled with the deceased Alihasan felled him down and asked Zamin to strike Alihasan. The appellant Zamin then struck the deceased with the knife passed on to him by Abdul Rehman. Alihasan died on the spot. Zamin was apprehended by the bye‑standers then and there and the knife was taken away from him.

3. The appellant Muhammad Zamin denied that he had stabbed Alihasan, both before the Committing Court and the Sessions Court. He has stated before the Sessions Judge that he was a student and that he was not running a ration shop but had gone to the ration shop in order to meet his brother.

4. Mr. Ghani, Advocate for the appellant, has urged before us that there was misdirection in the charge to the Jury which has caused failure of justice and therefore the sentence passed on the appellant should be set aside. He contended in the next place that the appellant Zamin was a child within the meaning of Bombay Children Act, 1924 and therefore the sentence passed on him is against the provisions of the Bombay Children Act. We would consider these contentions separately.

5. Mr. Ghani very strenuously contended that the learned Judge did not give any direction in the matter of the value to be attached to the statement of a hostile witness. Mr. Ghani urged that all that has been done by the learned Judge is that merely declared that the witnesses had been declared hostile and had been cross‑examined by the Public Prosecutor. In support of this contention Mr. Ghani relied on the case of Sailendra Nath Kuar (A I R 1948 Cal. 104). On perusal of the charge we however find that there is sufficient direction to the Jury to let them understand as to what value should be attached to a hostile witness. Under these circumstances we are of the view that there is not much force in this contention.

6. Mr. Ghani then urged that the learned Judge has failed to direct the Jury in respect of the following: (1) That the Jury was not told that what Qurban P. W. stated before the Com mitting Magistrate was because of the pressure put by the wife of the deceased. (2) That Rahimbux P. W. was a retired constable and therefore his evidence should not be believed. (3) That numbers of persons had witnessed the incident but were not produced by the prosecution

7. There is no force in these contentions of Mr. Ghani. The evidence of these witnesses before the Committing Magistrate and what they had stated before the Sessions Court was fully explained to the Jury by the learned Judge. We have read the charge to the jury. It is a very detailed charge. The learned Judge has drawn the attention of the jury to all the relevant contradictions in the statement of the prosecution witnesses. The mere failure to mention that there were other persons who must have witnessed the incident but have not been produced by the prosecution is not of material consequence. All the persons who have been examined by the investigating officer and who were willing to give their statements have been examined by the prosecution.

8. We would now consider the effect of the application of the provisions of the Bombay Children Act, 1924 to the case of the appellant. In this connection there are three questions which require consideration : (1) What was the age of the appellant at the time when he committed the offence? (2) If the appellant was child within the meaning of the Bombay Children Act was the trial of the appellant by the Sessions Court illegal (3) Could the provisions of the Bombay Children Act be applicable if the appellant attained the age of 16 years at the time of his convic tion? We would consider these questions separately.

9. The appellant Muhammad Zamin was sent to the Medical Officer, Civil Hospital, Karachi for medical examination as he had received some injuries on his person. Mr. Ansari examined the appellant on 4th November 1953, the day of the incident. The relevant portion of the certificate reads as under

10. "Certified that on examining one Muhammad Zamin son of Muhammad Ahmed aged 14 years on 14‑11‑53 at 10‑05 p.m, and found the following injuries on his person."

11. This medical certificate was countersigned by the Medical Superintendent, Mr. Qureshi. The appellant before the Committing Magistrate on 27‑9‑54 gave his age to be about 15 years

12. The appellant before the Sessions Judge on 26th January 1956 gave his age to be about 151 years. It is however clear from t the medical certificate which has been produced by the prosecu tion that the age of the appellant was 14 years at the time when the offence was said to have been committed. Under the Bombay Children Act, 1924 child means a person under the age of 16 years and when used with reference to a child sent to a certified school applies to that child during the whole period of his detention, notwithstanding that the child may have attained the age of sixteen years. I may mention here that it was only by Bombay Act 7 of 1936 that the age of the child for the purposes of the Bombay Children Act was increased from 14 to 16. From the certificate which was produced by the prosecution itself and the statement that the appellant gave before the Committing Magistrate and the Sessions Judge it is clear that at least at the time when the appellant committed the offence he was a child within the meaning of Bombay Children Act. The statement of the appellant before the Committing Magistrate and the Sessions Judge regarding his age would be reconcilable if the certificate of the doctor is taken to give the approximate age. There is always some margin in the certificate of age given by the medical officer. The doctor cannot be sure about the exact age of a person. If we consider the age of the appellant to be a little over 13 years at the time of the incident even then the medical officer would be quite right in saying that he was of 14 years of age. The appellant was on bail and he appeared before us and gave us an impression by his thin built and stature that in 1953 he might have been of about 14 years of age. Under these circumstances we are of the view that the Bombay Children Act, 1924 would apply to the appellant.

13. The next question is whether in view of the existence of the Juvenile Court at Karachi the learned Sessions Judge had jurisdiction to try the appellant. We have perused the Bombay Children Act and we are clearly of the view that the jurisdiction of the Juvenile Court established under section 46 of the Bombay Children Act is not exclusive. The High Court had jurisdiction to try cases in which children were concerned. There are two‑fold A reasons for our taking this view. In the first place there is no section under the Bombay Children Act which bars the jurisdiction of the Courts other than Juvenile Court established under section 46 of the Act. In the second place section 5 of the Bombay Children Act is very clear so far as the present question is concerned. It real as under :‑

14. "The powers conferred on Courts by this Act shall be exercised only by (a) the High Court; (b) a Court of Session; (c) a District Magistrate ; (d) a Sub‑Divisional Magistrate ; (e) a salaried Presidency Magistrate; (f) any Juvenile Court constituted under section 46; and (g) any Magistrate of the first class and may be exercised by such Courts whether the case comes before them originally or on appeal or revision."

15. From a perusal of the above section it is clear that the High Court is one of the Courts that can have jurisdiction in respect of the powers that had been conferred under the Bombay Children Act. Our view finds support from the decision of Beaumont, C. J., in the case of Demodar Gopal v. Emperor (A I R1942 Bom. 341). The learned C. J. held in that case that the jurisdiction of the Children's Court was not exclusive and that the Presidency Magis trate could try cases in which children were concerned.

16. The last question for our consideration is whether the provision of the Bombay Children Act could be attracted if the appellant had attained the age of ‑ 16 years at the time of his conviction. Reading the various provisions of the Bombay Children Act we have no doubt that the material age when the provisions of the Bombay Children Act became applicable would be the age when the child is said to have committed the offence and not the age at the time of conviction. The various provisions of the Bombay Children Act become applicable as soon as a child is arrested by the police and then brought before the Magistrate.

17. The only question that now remains before us is whether the sentence passed by the learned Judge is maintainable under the Bombay Children Act of 1924. Relevant portion of section 22 of the Act reads as under "Notwithstanding anything to the contrary contained in any law no child shall be sentenced to death or transportation for life or committed to prison."

18. In view of the above provision we proceeded under section 27 of the Bombay Children Act, 1924 which deals with the methods of dealing with children charged with offences and passed the following order on 14‑12‑1957:

19. "We would for the reasons to be given later release their appellant on his furnishing two sureties for Rs. 5,000 each to be responsible for the good behaviour of the appellant Muhammad Zamin for a period of three years. The appellants is on bail, his bail bond will be discharged on his furnishing two sureties within one week."

20. In similar circumstances a Division Bench of the Sind Chief Court in the case of Hiromal v. Emperor (A I R 1948 Sind 63.), where the Sessions Judge had sentenced the appellant 13 transportation for life the sentence was set aside under the Bombay Children Act and the learned Judges proceeded under section 27 of the Act.

21. Appeal partly allowed.