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Criminal Appeal No. 72 and Confirmation Case No. 15 of 1962, decided on 21st August 1962.

S. 302 read with Bombay Children Act (XIII of 1924), Ss. 22 & 26‑Murder‑Accused, a child, one month less than 16 years of age convicted and sentenced to death‑Case being covered by provisions of Act XIII of 1924, sentence of death set aside‑Case directed to be reported to Provincial Government for orders.

Crown v. Kauro Mazari I L R 1939 Kar. 1.89 and Mst. Rajan v. Crown I L R 1944 Kar. 260 and Dino Ramza4 v. Crown I L R 1944 Kar. 272 ref.

Ss. 369 & 394 read with Bombay Children Act (XIII of 1924), Ss. 22, proviso '& 27(h) Accused "child" of over 14 years of age enticing away a young and defenceless girl of 6 years, removing her golden valies and throttling her to death‑Conduct of accused, held, of a "depraved" character‑Convictions and sentences under Ss. 369 & 394, P. P. C. upheld.

Dino Ramzan and others v. The Crown I t. R 1944 Kar. 272 distinguished.

Muhammad Hayat Junejo for Appellant.

Khalid Ishaq, A. A.‑G. for the State.

Dates of hearing : 16th and 17th August 1962.

.‑The appellant was convicted by the Additional Sessions Judge, Larkana, of offences under sections 369, 394 any. 302, P. P. C. .Under the two former sections he was sentenced to undergo rigorous imprisonment for five years respectively and under section 302, P. P. C. he has been sentenced to death. This appeal is against these convictions and sentences. This matter is also before us for confirmation of the death sentence. This judgment will, therefore, dispose of both the appeal as well as the murder reference.

2. This matter first came tip for hearing in this High Court during the last summer vacation before a Bench composed of the two Vacation Judges Waheeduddin Ahmed and Illahi Bakhsh Khamisani, JJ. on 22‑6‑1962. On that day an application made by the learned Advocate appearing on behalf of the appellant requesting that his client be examined by a radiologist to facilitate this Court in arriving at a correct conclusion about the age of the appellant was accepted and an order passed directing that a radiologist should examine the appellant and report on the question of his age to this Court. The order also stated that after the opinion of the radiologist had been received in this High Court a fresh date of hearing should be fixed for the hearing of this matter on which the radiologist should be summoned for giving evidence and the appellant should also be produced in Court. Dr. Muhammad Ibrahim Disgnostician, Liaqat Medical College Hospital, Hyderabad, examined the appellant and sub mitted his report to this High Court. At the hearing of this matter in Court before us Dr. Mohammed ‑Ibrahim was present and his evidence was recorded by us. The appellant was also in attendance. Dr. Muhammad Ibrahim stated that in his opinion the appellant was between 16 and 18 years on the day he examined him namely the 25th July 1962. He, however, added in answer to a Court question that in October 1961 the appellant may have been a month less than 16 years or a little more than 16 years.

3. The facts giving rise to this case are that the appellant resides in village Gabar Masan, Taluka Dokri, District Larkana, in a house which is only one house away from the house of Hafiz Umedali complainant P. W. 4. Hafiz Umedali has three children the eldest being a boy Ghulam Kadir P. W. 5 aged nine, the deceased Mst. Amnat aged 61 years and a younger daughter by name Fatima. On 27‑10‑1961 Hafiz Umedali had gone to the mosque for the afternoon Juma prayers when his son Ghulam Kadir came and informed him that his daughter Mst. Amnat whom the complainant had left with his other two children playing outside his house before proceeding to mosque was missing and that there was no trace of her. Her elder brother Ghulam Kadir who that day had also been playing with his two sisters outside their house had seen the appellant taking away Mst. Amnat on the pretext of buying her some sweet drops from the shop of Ali Akbar. Hafiz Umedali searched for his missing daughter and on being unable to find her he informed Abdul Haq P. W. 6 the Nekmard of the village, Sadullah and others and requested them to assist in the search of his missing daughter. It is said that Mst. Amnat before her disappearance was wearing on that day six gold valies. Hafiz Umedali went to the Badah Police Station that evening to report the matter to the police but was advised by the Head Constable there to make a further search with the result that it was only on the morning of the 29th October 1961 at 8‑30 a.m. that the F. I. R. was lodged at Dokri Police Station by complainant Hafiz Umedali.

4. Head Constable Muhammad Ayub P. W. 8 took up the investigation into this case and proceeded to the Vardat where he inspected the scene and prepared the mashirnama thereof. He arrested the appellant who while in custody offered to point out the place where he had buried the dead body of Mst. Amnat. He led the police party to the deserted house of one Muhammad Sadique and dug out from underneath the ground a dead body which was identified by the complainant Umedali as being the body of his daughter Mst. Amnat. A memo. of this was prepared which is Exh. 9‑A in this case. It was observed that the gold valies were missing from the ears of this dead body and that both eyes were protruding and swollen with the tongue also hanging out of the mouth. The appellant then offered to produce these missing gold valies and leading the police party to the house of his brother Khan Muhammad he took out six gold valies from the roof of the cattle shed which was seized under memo. Exh. 9‑C. The next day 30‑10‑1961 the appellant was produced before Mr. Ahmad Ali P. W. 1, Sub‑Judge and F. C. M. Larkana, who recorded his judicial confession Exh. 3‑A. After completion of the investigation the police challaned the appellant in Court.

5. The appellant's statement in both the Committal as well as the Sessions Court is one of denial denying each and every allegation put to him. He denied his extra‑judicial con fession to the Nekmard Abdul Haq as well as his production of the dead body of Mst. Amnat and of her gold valies. He, however, admitted his judicial confession but added that it was the result of police torture.

6. There can be no manner of doubt that Mst. Amnat a young girl of about 6 years of age was strangulated to death. The evidence of Dr. Moidul Haq, Medical Officer, Dokri, who examined the dead body and latter performed the post‑mortem is plain that the death of this child was due to throttling and that the injuries on her person were anti‑mortem. Thus, the only question for determination in this case is whether it was the appellant who had committed the murder of this young child.

7. On this all important question we have on the record before us, in the first place, the oral evidence of Ghulam Kadir P. W. 5, his father Hafiz Umedali P. W. 4, and the Nekmard of the village Abdul Haq P. W. 6. The evidence of the boy Ghulam Kadir is that on that day he was playing outside his house with his two sisters Amnat and Fatima when his father had proceeded to the mosque for offering his Juma prayers. The appellant Allah Warrayo came there and asked Amnat to accompany him to the shop of Ali Akbar for purchasing sweet drops from there. Sometime later on finding that his sister had not returned Ghulam Kadir went and informed his father Umedali P. W. 4 in the mosque. Complainant Umedali also searched for his missing daughter and failing to find her he informed Master Abdul Haq P. W. 6 the Nekmard of the village and others about his missing child. Master Abdul Haq that very day sent for the appellant and enquired from him about the girl Amnat but the appellant denied all knowledge of her. On the following Sunday Master Abdul Haq went to the house of the appellant's brother Khan Muhammad and calling the appellant he again enquired from him as to the whereabouts of Mst. Amnat. The appellant then made an extra‑judicial confession confessing that he had murdered Mst. Amnat after removing her valies and he sought the assistance of Master Abdul Haq in the matter. P. W. Abdul Haq immedia tely produced the appellant before the police who took him into their custody.

8. The evidence of these three witnesses is corroborated by the conduct of the appellant who after his arrest led the police party to the deserted house of one Muhammad Sadique where he dug up the floor in the verandah and produced the dead body of Mst. Amnat which was buried only 1 deep as per mashirnama Exh. 9‑A. The appellant then offered ‑to produce the six gold valies and leading the police party to the house of his brother Khan Muhammad he produced from the roof of the cattle shed the six gold valies wrapped in a paper previously used over sweet drops as per mashirnama Exh. 9‑C. These valies were identified by complainant Umedali as belonging to his deceased daughter.

9. In addition to these recoveries made at the instance of the appellant there is also on the record of this case his judicial confession recorded the very next day by P. W. 1 Mr. Ahmed Ali Sub‑Judge and F.C.M., Larkana. In this confession the appellant has frankly admitted how four days previously he was at 12‑30 p.m. returning from the Station to the Go down when he saw the girl Mst. Amnat standing near the Go down wearing six golden valies in her ears. Overcome by temptation, the appellant took the girl to a deserted house where he strangulated her, removed her six valies and then buried her, under the ground. The appellant further admitted in this confession having produced this dead body as well as the six valies the previous day before the police after his arrest.

10. Thus, the evidence available on the record of this case is sufficient to establish the guilt of the appellant in respect of the three charges preferred against him. The three assessors also have unanimously found the appellant guilty of the three offences alleged against him. This finding was accepted by the learned trial Judge who convicted the appellant for each of these three offences. We find ourselves in complete agreement with these convictions.

11. There remains, however, the question as to whether the appellant at the time when he committed these offences, was a child within the meaning of the Bombay Children Act (Act XIII of 1924). This Act with the exception of Parts II and III was first extended to Sind by the then Government of Bombay through its notification in its Home Department Circular bearing No. 5039/3‑II dated 24th February 1936. In view of the opinion of Dr. Muhammad Ibrahim that the appellant in October 1961 may have been a month less than 16 years of age, it is clear that he is covered by the provisions of this Act. Now, section 22 which appears in Part IV of this Act provides that :‑

"no child shall be sentenced to death or transportation or committed to prison."

It would follow, then, that this appellant cannot be sentenced to death for the offence of murder committed by him and, therefore, that this death sentence obviously cannot be confirmed by us. In these circumstances, therefore, we must turn to section 2E of the Bombay Children Act because we find that this is the appropriate section to apply to a case such as this. There have been a number of appeals heard by the former Chief Court of Sind against convictions of children for the offence of murder and these cases are to be found in Crown v. Kauro Mazari (I L R 1939 Kar. 189), Mst. Rajan v. Crown (1 L R 1944 Kar. 260) Dino Ramzan v. Crown (I L R 1944 Kar. 272). In each of these cases the former Chief Court of Sind dealt with the appellant under section 26 of the Bombay Children Act. Accordingly, we set aside the sentence of death imposed upon the appellant under section 302, P. P. C. and direct that the appellant be detained where he is at present and that his case be reported to the Provincial Government for orders under subsection (1) of section 26 of the Bombay Children Act.

12. The appellant has also been convicted under sections 369 and 394, P. P. C. and sentenced to undergo five years rigorous imprisonment under each of these sections : both the sentences to run concurrently. We uphold these convictions and sentences. We are aware that section 22 of the Bombay Children Act contains a proviso which is in these words

"Provided that a child who is fourteen years of age or up wards may be committed to prison where the Court 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."

We are also cognizant of the judgment of a Bench of the former Chief Court of Sind in Dino Ramzan and others v. The Crown, where it was stated that‑

"the conviction of a child of murder does not by itself show that the child was of so unruly or depraved a character as to be unfit to be sent to a certified or a reformatory school, and generally such a finding must be based on an enquiry into the antecedents of the child."

Now, the appellant, when be committed this offence in October 1961 was clearly over fourteen years of age. The offence itself was so dastardly and so gruesome that it leaves no doubt in our mind that the appellant is of a depraved character. To entice away a young and defenceless girl of 6 years of age on the pretext of buying her sweets but actually for the purpose of removing her gold vanes and then without any compunction to throttle such a young child to death is certainly the conduct of a depraved character. We have closely applied our mind to the facts of the case reported in Dino Ramzan and others v. The Crown and to the facts of the present case and we are firmly of the view that the facts of the instant case are clearly distinguishable from the facts of the reported case. Therefore, the appellant being over fourteen years of age at the time be committed the offence and having been found by us to be of a depraved character he can under the provisions of section 27(h) be sentenced to imprisonment. We, therefore, uphold the convictions and sentences imposed upon the appellant under sections 369 and 394, P. P. C. and direct that these sentences will run concurrently and that the sentence to be imposed upon the appellant for the offence committed by him under section 302, P. P. C. by the Provincial Government under section 26 (1) of the Children Act 1924 will also run concurrently with these two sentence.

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