PROVINCE OF SINDH Versus DIN MUHAMMAD

1. SALEEM AKHTAR, J.‑‑‑ This appeal by the leave of this Court impugns the judgment of the Division Bench of the High Court of Sindh passed in Constitution Petition setting aside the order passed by appellant No.1 and the detenu Muhammad Jamil alias Nakoo was released.

2. The detenu Muhammad Jamil and one Hanif were accused of murdering Khalid Baig on 6‑2‑1982. The detenu was tried by 2nd Additional Sessions Judge, Karachi. As at the time of trial the detenu was below sixteen years of age the learned Additional Sessions Judge by judgment dated 1‑4‑1989 concluded that factually the murder was committed by the detenu but no sentence was imposed on him on the ground that he was below the age of sixteen years. Consequently as provided by section 68 of the Sindh Children Act, 1955 (hereinafter referred as the Act), the learned Additional Sessions Judge reported the case for orders of the Provincial Government. The appellant by its order dated 11‑5‑1989 ordered detention of Muhammad Jamil in Juvenile Jail, Landhi for a period of seven years starting from 1‑4‑1989 under subsection (2) of section 68 of the Act. Respondent No‑1 filed petition for habeas corpus in the High Court challenging the detention as illegal and without jurisdiction. The detention was challenged on the ground that under section 71 of the Act a child could not be detained beyond the time when he will attain the age of eighteen years. Admittedly on 29‑3‑1984 a Medical Board after examining the detenu had opined that he was aged about eighteen years. The offence was committed on 12‑2‑1982 and the trial had commenced the same year when the detenu was about sixteen years. In the High Court reference was made to Sh. Muhammad Yousuf v. State (1971 PCr.LJ 786) and Raja Mal v. State (PLD 1977 Kar. 13). In both these cases it was held that detenu could not be detained beyond the age of eighteen years. The learned counsel for the appellant has contended that another judgment of the same Court, namely, Ashiq Ali alias Ghulam Murtaza Somro v. State (1984 PCr.LJ 2000) was not noticed in which, according to him, a contrary view has been expressed. Leave was granted to consider this aspect of the case.

3. 3 Before examining the contention and the authority referred above it would be appropriate to reproduce the relevant provisions of the Act which require interpretation and application:

4. S. 4(1)(s). "youthful offender" means any child who has been found to have committed an offence.

5. S.5. For the purpose of this Act; a person shall be deemed to be a child, if at the time of the initiation of any proceedings against him under this Act or at the time of his arrest in connection with which any proceedings are initiated against him under this Act, such person has not attained the age of sixteen years:

6. Provided that if during the course of the proceedings under this Act such person attains the age of sixteen years the proceedings already commenced shall be continued and ‑orders may be passed in respect of such person under this Act as if such person was a child notwithstanding anything to the contrary in this Act.

7. S. 68: ‑(1) Notwithstanding anything to the contrary contained in any law, no youthful offender shall be sentenced to death or transportation or imprisonment.

(2) When a child is found to have committed an offence of so serious a nature that the Court is of opinion that no punishment, which under the provisions of this Act it is authorised to inflict, is sufficient or when the Court is satisfied that the child is of so unruly or of so depraved a character that he cannot be committed to a certified school or detained in a place of safety and that none of the other methods in which the case may be legally dealt with is suitable, the Court shall order the offender to be kept in safe custody in such place or manner as it thinks fit and shall report the case for the orders of the Provincial Government.

8. S. 71. Where a child is found to have committed an offence, the Court, if satisfied on inquiry that it is expedient so to deal with the child, may order him to be committed to a certified school or recognised institution for such period of detention as will not, subject to the provisions of section 5, extend beyond the time when the child will attain the age of eighteen years or in exceptional cases for a shorter period, the reasons for such shorter period to be recorded in writing."

9. The learned counsel for the appellants has contended that the High Court has misconstrued and misapplied the law and the restriction imposed by section 71 of the Act does not apply to the Government. The Act was previously known as Bombay Children Act, 1924, which was applied to the Province of Sindh, but in 1955 it was applied as Sindh Act XII of 1955 known as the Sindh Children Act, 1955. The object of the Act is to consolidate and amend the law for custody, protection, treatment and rehabilitation of children and youthful offenders and for the trial of youthful offenders in the Province of Sindh. The entire object of the Act is to protect, reform and rehabilitate child and youthful offenders. Section 5 provides for continuance of proceedings against a child and for the purposes of the Act a person who at the time of initiation of any proceeding against him under the Act or at the time of his arrest in connection with which any proceedings are initiated against him under the Act, shall be deemed to be a child up to the time he attains the age of sixteen years. It further provides that if the proceedings have commenced under the Act, but during the continuance of the proceedings he attains the age of sixteen years, then the proceeding shall continue and order shall be passed under the Act as if such person was a child. The question what sentence should be awarded when the Court finds a child to be guilty of an offence is provided in section 68 of the Act. Subsection (1) prohibits the Court from imposing sentence of death or transportation or imprisonment. Subsection (2) provides that if the Court considers that the offence committed by the youthful offender is so serious that the punishment prescribed under the Act which can be inflicted is not sufficient or that the child is so unruly or of so a depraved character that he cannot be committed to a certified school or detained at a place of safety and the other methods as provided in the Act cannot be employed, the Court shall report the case for orders of the Provincial Government. The modes of punishment provided under the Act are detention of the youthful offender in a certified school or recognised institution, discharge after due admonition, release on probation of good conduct and committal to the care of his parents or guardian or other relative or other fit person on execution of bond by such persons with or without sureties who may be responsible for good behaviour and well‑being of the youthful offender for a period not exceeding three years. The Court may impose such other conditions for securing that the youthful offender may lead an honest, virtuous and industrious life. Fine can also be imposed on the youthful offender and if he is under the age of fourteen years, his parents/guardian may be ordered to pay the fine. However, section 71 imposes a limitation that detention cannot exceed beyond the time when the child will attain the age of eighteen years or a shorter period for reasons recorded by the Court.

4. The learned counsel for the appellants relying on Ashiq Ali's case (supra) contended that section 71 provides a limitation on the power of the Court, but as no such restriction has been imposed on the Government it is empowered to pass any order of sentence and conviction. A perusal of sections 5, 68, 71 and 89 of the Act will show that they lay down limitations and restrictions on imposing sentence on a youthful offender. Section 68(1) specifically prohibits in general terms without reference to the Court or the Government that no youthful offender shall be sentenced to death or transportation or imprisonment. This provision overrides any provision of law which is contrary to it. It therefore, governs all the provisions of the Act or any other law which provides for imposing sentence on a youthful offender. Section 68(2) which empowers the Provincial Government to pass order is subject to subsection (1) of section 68. Therefore, the limitation placed by subsection (1) of section 68 will apply to the Government as well. The Provincial Government therefore does not have unlimited power to sentence a youthful offender in contravention of the provisions of the Act. Any Court, tribunal or functionary of the Government, in exercise of jurisdiction vested under law, can impose only such sentence/punishment which it is empowered under law. If the law does not provide specifically a power to pass sentence, then the Provincial Government would be acting beyond its authority to pass any sentence. The Government while passing any order on a report from the Court cannot have power wider than the Court itself. As provided by sections 71 and 89 no sentence can be imposed on a youthful offender which exceeds the period when he will reach the age of eighteen years. The limitation on power to impose punishment on a youthful offender as provided by section 89 is applicable to the Provincial Government. In cases where the Court reports the case to the Provincial Government under section 68(2), it may order for detention as provided by section 97(2) of the Act or at such place which may have been established by it under law for such purpose. Thus the order of detention passed by the Provincial Government was without jurisdiction.

10. In the impugned judgment it has been observed that as the offence of a serious nature was committed, one ingredient of section 68(2) of the Act was complied, but the finding of the learned trial Court as to the other two ingredients which are to be read disjunctively and not conjunctively was missing. We may clarify that section 68(2) provides for the following different situations in which the Court is empowered to report the matter to the Provincial Government for orders:‑‑

(i) The nature of the offence committed by the child is a serious one and in view of this the Court is of the opinion that the punishment provided under the Act is not sufficient; or

(ii) The Court is satisfied that the child is‑‑

(a) of so unruly, or

(b) of so depraved a character; that he cannot be committed to a certified school or detained in a safe place and the methods provided for dealing the case are not suitable.

11. If any one of the aforestated grounds is available to the Court, it can report to the Provincial Government for orders. It is not necessary for the Court to give finding on all the grounds mentioned above. A positive opinion, finding or satisfaction of the Court on any one of the grounds envisaged in section 68(2) is sufficient for reporting the matter to the Provincial Government.

12. The appeal is dismissed.

13. A.A./P‑208/S Appeal dismissed.