YOUSAF Versus THE STATE

Z. A. CHANNA, J.‑Appellant Yousuf, a youth of 18 years, has been con victed by a learned Additional Sessions Judge, Nawabsahah, by his judgment delivered on 31‑7‑1973, under section 302, P. P. C., for the murder of a minor girl, by name Muradan, and has baen sentenced to death for the said offence. He has appealed to impugn his conviction and sentence and also the learced Additional Sessions Judge has referred his case to this Court for the confirmation of the capital sentence awarded to him. This judgment will dispose of both the appeal and the reference.

2. According to the prosecution case, Mst. Muradan, who was about 9 years old at the time of the incident which is the aubjzct‑matter of this case, was killed at about midday on 4‑9‑1971 in the courtyard of the house of the appellant in Doh Bahawal Shah, some 14 miles away from Sakrand Police Station. Deceased Muradan was the daughter of first informant, Shuja Muhammad, who is the uncle of the appellant. Some three years prior to this incident, Shuja Muhammad's son, Hanif, was married to Mst. Dayani, a sister of the appellant, and in return Shuja Muhammad pro mised to give the hands of his daughters, Miran alluj Mirzadi and Muradan, to the appellant's brother, Esso, and the appellant respectively. A month prior to the incident, appellant's father, Juman, asked Shuja Muhammad to fulfil his promise and to give Mat. Miran and Muradan in marriage to his sons. Shuja Muhammad was willing to have Mst. Miran married to Esso, but objected to Mst. Muradan's marriage on the ground that she was still too young. On the day of the incident, at noon time, Shuja Muhammad's brother, Gul Muhammad, who was putting up with Shuja Muhammad, was in the house alongwith Msts, Muradan, Miran and Fatima, when the appel lant gave a call from outside to Mst. Muradan, who thereupon went towards the house of the appellant. A short‑while thereafter there were cries of Mst. Muradan, whereupon Gul Muhammad, Msts. Miran and Fatima ran towards the house of the appellant and saw the latter giving hatchet blows to Ms(. Muradan, who fell down. Gul Muhammad challenged the appel lant, who ran away, taking the hatchet with himself. Mst. Muradan succumbed to her injuries and died on the spot. Leaving Msts. Miran and Mst. Fatima with the dead body, Gul Muhammad went and brought Shuja Muhammad from Chuttan Shah village, where he had gone for doing labour. Shuja Muhammad, after apprising Anwar Shah, the nekmard of the village, of the incident, reported the matter at Sakrand P. S. the same day at 5 P.M.

3. A. S. I. Ghulam Kadir accompanied Shuja Muhammad to the scene of offence where he arrived at some time after sunset. He found the dead body of Mst. Muradan lying on a cot near the latrine of the appellant's house. The house of Shuja Muhammad was three houses away from the appellant's house. On the following morning, the A. S. I. prepared the inspection memo of the wardat, Exh. 30, and secured from there blood stained earth which he sealed in the presence of mashirs. On the same day, the A. S. I. recorded the statements of P. Ws. Gul Muhammad, Mst. M iran, Mst. Fatima and others. On 5‑9‑1971. at 7 p.m., the appellant voluntarily surrendered himself before the A. S.1. at his village. At that time the appellant was wearing a loin cloth and a shirt, both of which were found stained with blood. The A. S. I. secured the same in the presence of mashirs, AKK and Ghulam Hussain, and prepared mashirnama, Exh.

32. On interrogation, the appellant led the mashirs and the A. S. I. to some sure bushes to the south of the village and produced a blood‑stained hatchet which was con cealed in a bush. The A. S. I. secured the hatchet and prepared mashirnama, Exh.

33. On 7‑9‑1971, the appellant was produced before ‑the mukhtiarkar and F. C. M. Sakrand, who recorded his judicial confession. The clothes of the appellant and the hatchet recovered at his instance were sent by the police to the chemical analyser whose report, Exh. 35, is to the effect that human blood was found on these articles.

4. The autopsy on the deceased was performed on 7‑9‑1971 at the scene of offence by Dr. Jamilur Rehman, who was then Medical Officer, Sakrand. The Medical Officer found the following injuries on the deceased, which in his opinion were caused by a sharp cutting weapon, such a hatchet, and of them, he has opined, that injury No. 1 was individually sufficient to cause death in the ordinary course of nature ‑

"(1) Incised wound 6 'x1 ' x cutting the scalp, skull bone, going to the brain deep. The brain matter was coming out of the wound, in the left front‑parietal region vertical.

(2) Incised wound 4' x 2' x cutting the muscles ulna and radius on the back of the left fore‑arm in the upper third horizontal.

(3) Incised wound 1'x x muscle deep on the outer surface of left arm in the lower third.

(4) Incised wound 4'x2 'x cutting the deltoid muscles chopping the head of left humours and spine of left scapula on the top and lateral surface of the left arm.

(5) Incised wound 1' x x muscle deep on the left infra‑clavicle region."

5. The defence of the appellant was that he was not present in his village at the time of the Incident, but had gone for working at Qazi Ahmad village. He denied that he had produced a blood‑stained hatchet before the police or that the police had secured any blood‑stained clothes from his person and alleged that these articles had been foisted on him. He admitted having made a confession before a Magistrate, but alleged that he gave that confession as he was maltreated by the police and also his women‑folk were driven out of the house and were maltreated and insulted by the police. He further alleged that he has been falsely implicated due to party politics as he belongs to the party of Rasool Bux, while the complainant's party are the men of Anwar Hussain Shah and belong to Shabbir Hussain Shah.

6. The main evidence against the appellant is the ocular testimony of P. Ws. Gul Muhammad and Mst. Miran. Both of them have deposed that while they and the deceased were sitting in their house, the appellant, at about midday, gave a call to the deceased, who went towards the house of the appellant, and almost immediately thereafter they heard cries, where upon they rushed towards the house of the appellant, and saw the appellant inflicting hatchet injuries on Mst. Muradan, who fell down and died on the spot. They have further deposed that after causing the fatal injuries to the deceased, the appellant ran away, taking with himself his hatchet. Both these witnesses are closely related to the appellant, both by blood as well as by marriage. P. W. Gul Muhammad is the brother of Shuja Muhammad and at the same time is the uncle of the appellant. Mst. Miran, as already stated, is a daughter of Shuja Muhammad and thus a cousin of the appel lant. Furthermore, the appellant's sister, Mst. Dayani, is married to the son of Shuja Muhammad. In view of such close relationship, these two witnesses are most unlikely to involve the appellant falsely unless they had a strong motive for doing so. The only motive alleged by the appellant is party politics, and according to him he belongs to the party of Fakir Muhammad, while the complainant's party belong to the party of Syed Anwar Shah. Even if the appellant's party and the complainant's party did support different political groups or parties in the elections that would not be an adequate or strong enough reason for P. Ws. Gul Muhammad and Miran to falsely involve a close relation. Since the incident occurred in the middle of the day, and at a distance of a few paces from their hause, Gul Muhammad and Mst. Miran are both natural witnesses and we see no reason to doubt their testimony that they had witnessed the incident and identified the assailant.

7. The strong circumstantial evidence against the appellant, which lends assurance to the testimony of the two eye‑witnesses, is the fact that the deceased was killed within the courtyard of the appellant's house. This fact raises a strong presumption that the murder was committed by a resident of that house. The appellant has given no explanation of how the deceased came to be killed in his house and by whom she was killed Another circumstantial piece of evidence which lends strong support to the ocular testimony is the fact that when the appellant surrendered to the police on the third day of the incident he was found wearing a loin‑cloth and a shirt, both of which were stained with blood. Furthermore, it was at the instance of the appellant that the police recovered a blood‑stained hatche which was concealed in a sur bush at some distance from the village. The evidence in regard to the securing of these articles has been given by A. S. 1. Ghulam Kadir and mashir AKK. We find no substance in the allegation of the appellant that the hatchet and the clothes were foisted upon him. No question was even suggested to the A. S.1. that the clothes were foisted upon him. As regards the hatchet, the A. S. I. denied that it had been foisted on the appellant. Mr. Nooruddin Sirki, the learned counsel for the appellant, tried to base his contention that the blood‑stained hatchet and clothes were foisted on the appellant on the contradiction between the testimony of mashir AKK and the A. S. I. as to the time when the hatchet was secured. According to mashir AKK, the hatchet was produced by the appel lant at about one pahar after sunrise, whereas according to the A. S. I. it was secured some time after 7 p.m. when the appellant was arrested. We are of the opinion that nothing material turns on this contradiction and that apparently, because the mashir was giving testimony almost two years after the incident, he appears to have forgotten the time when the hatchet was V.R. The evidence led in the case shows that the appellant had been engaged to the deceased, but Shuja Muhammad was not willing to have the marriage take place immediately on account of the fact that the deceased was still very young, being only 9 years of age, and this refusal on the part of Shuja Muhammad had greatly annoyed the appellant, who was a robust lad. Furthermore, he may have thought that Shuja Muhammad was backing out of his promise to give the deceased in marriage to him. The appellant thus had a motive for doing away with the deceased.

9. In addition to the above pieces of evidence, there is the confession of the appellant, which was recorded on 7‑9‑1971 by Mr. Ahmed Ali, who was then mukhtiarkar and F. C. M. Sakrand. This confession was record ed by the learned Magistrate after giving the appellant two hours for reflection and satisfying himself 'that the confession was voluntary. In his confession, which has been recorded in question and answer form, the appellant admitted having killed Mst. Muradan by giving her hatchet blows, as her father had refused to marry her to him and wanted to give her hand to some one else. The confession bears the signature of the appellant, who is apparently a literate person. We find no substance in the allegation of the appellant that the confession was extorted from him by the police, who had given him a beating and had also maltreated his women‑folk. Not only A. S. 1. Ghulam Kadir but mashir AKK, who is a caste fellow and co‑villager of the appellant, has deposed that neither the appellant was beaten by the police nor his women folk were insulted or mal‑treated. Furthermore, in his statement in the committal Court, the appellant levelled no allegation that he had been beaten by the police, but merely alleged maltreatment of his women folk. It was only in the Committal Court that he added the allegation of his being beaten by the police. The Magistrate, who recorded the confes sion, has been examined. He stated that he had specifically enquired from the appellant whether he had been beaten by the police, but the appellant did not complain of maltreatment or beating. The Magistrate has further stated that he had also examined the person of the appellant but found no marks of violence or injury on him. Mr. Nooruddin Sirki attempted to assail the confession on the ground that the appellant was unnecessarily detained by the police on 6‑9‑1971 and that A. S. 1., Ghulam Kadir has falsely deposed that he could not produce the appellant on the said date before a Magistrate as it was a Sunday. No doubt the calendar for the year 1971 shows that the said date was a Monday, but at the same time it is not disputed that this date was declared a holiday on account of the 1965 war with India. In the circumstance, the A. S. 1. could not be blamed for not producing the appellant before a Magistrate on 6th specially as he had arrested the appellant on 5‑9‑1971 at 7 p.m. and 24 hours of his arrest did not expire till 7 p.m. on 8‑9‑1971.

10. We are satisfied that there is overwhelming evidence to establish the guilt of the appellant and that the learned Additional Sessions Judge rightly convicted the appellant under section 302, P. P. C. The important point, however, which remains for consideration is whether the sentence awarded to the appellant is legal and can be confirmed. The learned Additional Sessions Judge awarded the death sentence to the appellant on the basis of the testimony of Radiologist Dr. Zafarul Haq that the appellant was over 18 years of age. The Additional Sessions Judge, however, seems to have lost sight of the fact that Dr. Zafarul Haq examined the appellant on 8‑5‑1973, over 20 months after the incident, and specifically deposed that at the time that he examined the appellant, he considered, that the latter was about 18 years of age. The appellant had earlier been examined on 8‑2‑1972 by Dr. Muhammad Sharif. This doctor, on the basis of the general appearance of the appellant and radiological test, opined that he appeared to be about 16 years of age. The evidence of this doctor clearly suggests that at the time of the incident the appellant was below 16 years of age. Even the evidence of Dr. Zafarul Haq does not exclude the possibility of the appellant at the relevant time being below 16 years of age, for an ossification test, though a better guide to the age of a person than other B tests, still cannot give an accurate estimate of age and there would be margin on either side of at least a year. In Sirajuddn v. Saghiruddin (1970 S C M R 30) the age of an accused based on X‑Ray examination was given as between 16 and 17 years. Cornelius, C. J. observed that in the circumstances, the accused was evidently a minor. The appellant, in view of the evidence of the two doctors discussed above, also evidently was a minor at the time of the incident and his case is to be dealt with in accordance with the provisions of the Bombay Children Act, 1924. Section 24 of the said Act prohibits the passing of a sentence of death or transportation on a youthful offender below 16 years of age. The said section, however, authorises the Court to commit to a prison a child who is not less than 14 years of age if the Curl certifies that he is of so unruly or of so depraved a character that he is not a fit person to be sent to a certified school and that none of the other methods in which the case may legally be dealt with is suitable. There i no material before us on the basis of which we can certify that the appellant is either of an unruly or depraved character. We are also of the c opinion that none of the methods specified in section 27 would be suitable: keeping in view the very heinous offence committed by the appellant. In the circumstances the only appropriate course would be to take resort to section 26 of the Act, which we are entitled to do, as we have concurred in the finding of the learned Additional Sessions Judge that the appellant committed the murder of Mst. Muradan. We accordingly direct that the offender be kept in safe custody in the jail where he is presently lodged, and that further the case be reported to the Provincial Government for orders as required by section 20 of the said Act. The appeal is allowed to this extent, while the reference for confirmation of the death sentence is rejected.

Order accordingly.