AMIR BUX Versus STATE

1. This revision application is filed on behalf of applicant Amir Bux son of Muhammad Bux who is aggrieved by the judgment, dated 31-5-1992 passed by the learned First Additional Sessions Judge, Hyderabad whereby the applicant was found guilty of the offence' punishable under section 304(ii), P.P.C. in consequence of which the applicant was ordered to be detained in safe custody while the case was referred to the Government of Sindh under section 68(2) of the Sindh Children Act, 1955 for passing the necessary orders, as at the time of commission of the offence, the applicant was a child within the meaning of the said Act.

2. The facts leading to the filing of this revision application are that complainant Mahmood Ali lodged report at Police Station Latifabad, Hyderabad on 2-9-1974 in which he stated that he lives on Jail Road alongwith his father and brothers. His elder brother Muhammad Umar and he himself have married the daughters of Raheem Shaikh. On the day of Shab-e-Barat, he and his brother were invited to the house of his father-in-law for a feast. After taking meals, the complainant alongwith his brother Muhammad Umer, his brother-in-law Khalil and Shabuddin came out of the house and were firing crackers near the Pacca Road. At that time, Juman Makrani alongwith Ehsan and Amir Bux were coming from Giduu Town. When they reached near them, they told the complainant party to stop firing crackers. The complainant party stopped firing crackers, but when the said Juman Makrani and the two others went ahead, the complainant agaid:staked firing crackers, on account of which the said Juman Makrani and the others came back running, immediately Juman and Ehsan caught hold of Muhammad Umer while accused Amir Bux gave a knife injury on his chest. Muhammad Umer raised cries and fell down. The accused persons went away while the complainant alongwith his brother in-law Khalil removed Muhammad Umer to hospital in a taxi, but Muhammad Umer expired on reaching the hospital. The complainant then went to Police Station Latifabad and lodged the report.

3. The report of the complainant was registered by Khalil Ahmed; S.H.O. of Police Station Latifabad who himself took up the investigation of the case. He visited the place of Wardat, inspected the same and prepared such Mashirnama. A blood-stained stone was also secured from the spot. 'On 3-9-1974 he recorded the statements of witnesses and also got their 164, Cr.P.C. statements recorded by A.C.M., Hyderabad. Thereafter the said S.H.O. was transferred and his successor submitted the challan in which accused Amir Bux and Ehsan were shown as absconders. They subsequently surrendered before the Sessions Judge, Hyderabad and both were granted anticipatory bail before arrest.

4. On 3-8-1980, the charge against the three accused was framed for having committed an offence punishable under section 302/34, P.P.C. to which they did not plead guilty and claimed to be tried. Before the evidence could be recorded, an application was moved on behalf of accused Amir Bux praying that his case may be bifurcated on the ground that at the time of his trial the said accused Amir Bux was a minor and therefore, he cannot be tried alongwith an adult accused. By an order dated 3-8-1986, the case of accused Amir Bux was thus bifurcated and a fresh charge was framed on 5-10-1986 to which he did not plead guilty.

5. Thereafter the prosecution examined all the material witnesses namely P.W. Mehmood Ali, P.W. Sardar Ahmed, P.W. Khalil Ahmed, P.W. Shamsuddin are the eye-witnesses. P.W. Khalid Noor and P.W. Nizam Din are the Mashirs. P.W. Muhammad Edan is Tapedar, P.W. Dr. Abdul Majid and lastly Investigating Officer P.W. Khalil Ahmed.

6. After the prosecution side was closed, the statement of the applicant was recorded under section 342, Cr.P.C. The appellant denied the allegations of the prosecution and took the plea that the police had shown one Amir Bux son of Muhammad Bux by caste Halepota as an accused whereas the applicant is son of Muhammad Ibrahim by caste Pakhali, therefore, the actual culprit is somebody else and not the present applicant. In this regard he has produced his School Leaving Certificate as Exh.29/A and also Form "B" which shows that his father's name is Muhammad Ibrahim.

7. The learned trial Judge after evaluating the evidence on record passed the impugned judgment whereby he came to the conclusion that factually the applicant has committed the offence of murder, but since the murder of Muhammad Umer was without premeditation, therefore, the applicant was found guilty of an offence punishable under section 304(11), P.P.C. but no sentence was imposed as the applicant was a minor at the time of commission of the offence. As such by virtue of section 68(2) of the Sindh Children Act, 1955 a reference was made by the trial Court to the Government of Sindh for passing the necessary orders and in the meanwhile the applicant was ordered to be detained in Central Jail, Hyderabad in safe custody till the disposal of the said reference by the Government.

8. In the aforesaid circumstances the present revision application has been filed challenging the detention of the applicant in safe custody as ordered by the trial Court and also on the ground that by virtue of section 71 of the Sindh Children Act, 1955, even the Government cannot pass any order of detention in respect of a child beyond the time when he will attain the age of eighteen years.

9. I have heard Mr. Syed Madad Ali Shah learned counsel for the applicant and so also Mr. Ahmed Khan Barakzai, Advocate appearing for the State. The latter has not opposed this application in view of the recent authoritative announcement of the Supreme Court in the case of Province of Sindh and 2 others v. Din Muhammad reported in 1993 S C M R 1551 as relied upon by the learned counsel for the applicant.

10. In the aforesaid reported case 1933 S C M R 1551, the detenu Muhammad Jamil alongwith one Hanif were accused of murdering Khalil Baig. At the conclusion of the trial, the learned trial Judge concluded that factually the murder was committed by the detenu but as he was below sixteen years of age at the time of trial, therefore, no sentence was imposed. Accordingly by virtue of section 68 of the Sindh Children Act, 1955 the trial Court reported the matter to the Provincial Government for passing the necessary orders. The Government by its order, dated 11-5-1989 ordered detention of Muhammad Jamil in Juvenile Jail, Landhi for a period of seven years under subsection (2) of section 68 of the said Act. The respondent filed a habeas corpus petition 'in the High Court challenging the detention of Muhammad Jamil as illegal and without jurisdiction on the ground that under section 71 of the said Act, a child could not be detained beyond the time when he will attain the age of eighteen years. The offence was committed on 12-2-1982 and the trial started in the same year when the detenu was about sixteen years of age. On 23-3-1984, the age of the detenu was determined to be eighteen years while the judgment of the trial Court is dated 1-4-1989. A Division Bench of this Court allowed the petition and ordered the release of the detenu on the ground that section 71 imposes a limitation that detention cannot be exceed beyond the time when the child will attain the age of eighteen years or a shorter period for reasons recorded by the Court.

11. The Provincial Government challenged the said decision of the High Court before the Supreme Court. Their Lordships of the Supreme Court while upholding the decision of the High Court observed as follows:--

12. "As provided by sections 71 and 89 no sentence can he 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."

13. In the aforesaid reported case, it will be noticed that the detenu had reached the age of eighteen years on 29-3-1984 and, when the judgment was announced on 1-4-1989, the detenu had already crossed the age of eighteen years when the reference was made to the Government for passing the necessary orders. The Government ordered the detention of Muhammad Jamil for 7 years, but the same was set aside by the High Court and upheld by the Supreme Court as aforesaid.

14. In the present case also the position is the same, though the Government has not yet passed any order. In the present case, the learned First Additional Sessions Judge, Hyderabad in the concluding portion of his judgment has observed as under:--

15. "The accused was minor at the time of commission of the offence. The offence is very heinous, in my opinion the punishment which I am authorised to inflict under the provision of Children Act is not sufficient. Accused has admittedly crossed 18 years, hence he cannot be sent to reformatory school or place of safety for detention and no method in which the case may be legally dealt is suitable."

16. In the above observation of the learned Trial Judge, it will at once be noticed ' that the trial Court was handicapped on account of the fact that the applicant had already crossed the age of 18 years and therefore, he could not be detained in a reformatory school or any place of safety for detention. This aspect of the matter has also been considered by the Supreme Court in the aforesaid reported case and it was observed:--

17. "The Government while passing any order on a report from the Court cannot have power wider than the Court itself."

18. It, therefore, follows that if the learned trial Court could not order the detention of the applicant in a reformatory school or any place of safety on account of the fact that the applicant had already crossed the age of 18 years, the Government cannot have a power wider than the trial Court as held by the Supreme Court and, therefore, the Government cannot pass any order of detention in respect of the applicant as he has already crossed the age of 18 years.

19. From the above discussion, the position which emerges is that the applicant had already crossed the age of 18 years when the impugned judgment was announced. Though the trial Court has made a reference to the Provincial Government under section 68(2) of the Sindh Children Act, 1955 but by virtue of the decision of the Honourable Supreme Court 1993 S C M R 1551 the Provincial Government cannot pass any order of detention as the applicant cannot be detained beyond the age of 18 years. This being the position, any order which may have been passed or which is likely to be passed by the Government will be without jurisdiction. In the circumstances, the detention of the applicant in Central Jail, Hyderabad, for safe custody as ordered by the trial Court virtually amounts to wrongfully confining the applicant.

20. In the light of my above discussion, this revision application is hereby allowed. Consequently the impugned order directing the applicant to be E detained in Central Jail for safe custody is hereby set aside and the applicant is set free. He is on bail, his bail bond is discharged.

21. N.H.Q./A-1409/K Revision petition allowed.