JAWAID Versus STATE

SHOUKAT HUSSAIN ZUBEDI, J. --- The petitioner Abdul Ghani Khan son of Ghafoor Khan, father of detenu Abid Khan, has invoked the Constitutional jurisdiction of this Court challenging the order of the Government of Sindh dated 8-7-1992 whereby the said detenu was ordered to be detained in Juvenile Jail, Landhi, Karachi for a period of seven years starting from 10-6-1990 under section 68(2) of the Sindh Children Act, 1955.

2. The facts leading to the filing of this petition are that on 5-9-1978 a report was lodged at Nazimabad Police Station, Karachi by one Chand Muhammad in which he stated that two days prior to Eid, a programme was made by the boys of the Mohallah to go to Hawks Bay after Eid prayers. According to their programme, on 5-9-1978, the complainant alongwith Muhammad Yousuf, Akram, Ali Hussain and Zahooruddin made preparations for going to Hawks Bay after Eid prayers. In the meanwhile the detenu Abid Khan who also resides in the same Mohallah came and told them that he would also like to go to Hawks Bay alongwith them but he was refused. On the same day at about 10-30 a.m. the complainant alongwith his friends proceeded for Hawks Bay in a Suzuki but when they reached near a decoration shop at Paposh Nagar, they stopped the Suzuki and sent Akram to get a Dari from the said decoration shop. At that time, suddenly the detenu Abid Khan came there and sat in the Suzuki. One of the boys namely Yousuf objected and asked him to get down which led to an exchange of harsh words and abuses between them and thereafter they grappled with each other. The complainant and others came forward to separate them but by that time, Abid took out a Chhuri from a fold of his Shalwar and inflicted a Chhuri blow on the chest of Yousuf who after receiving the injury fell down on the road. The complainant and his companions caught hold of Abid and disarmed him. Thereafter injured Yousuf and Abid were taken by them to Abbasi Shaheed Hospital from where the Medical Officer informed Police Station Nazimabad on phone regarding the arrival of injured Yousuf, but by that time Yousuf expired. Thereafter, the police arrived at the hospital and recorded the 154, Cr.P.C. statement of the complainant and also took the custody of accused Abid alongwith blood stained Chhuri which was produced before the police. After the usual investigation, the detenu was challaned.

3. It may be mentioned that on 5-9-1978 when this incident took place, the detenu Abid Khan was a child of 10/11 years of age and in this regard he had produced his school leaving certificate as Exh.33. He was also examined by the jail doctor who had opined that the age of the detenu was 14 years which was not challenged by the prosecution. In his statement recorded under section 342, Cr.P.C. he. had mentioned his age as 12/13 years. The learned trial Judge after recording the evidence came to the conclusion that the complainant's evidence was supported by the evidence of P.Ws. Akram, Zahooruddin, Ali Hussain and Muhammad Majeed, but it was observed that even if the charge is proved against the detenu, he cannot be sentenced as the case of the detenu is covered by the Sindh Children Act, 1955 and under section 68(1) of the said Act, the trial Court is specifically barred from awarding any sentence of imprisonment. As such, within the meaning of section 68 of the Sindh Children Act, 1955, a report was submitted to the Provincial Government for passing appropriate orders while the detenu was remanded to Juvenile Jail, Landhi, Karachi till an order is passed by the Government.

4. On the reference made by the trial Court (11Ird Additional Sessions Judge, Karachi Central) the Government of Sindh vide its order, dated 8-7-1992 directed that the detenu Abid Khan be detained in Juvenile Jail, Landhi, Karachi for a period of seven years starting from 10-6-1990. It is in these circumstances that the; petitioner has challenged the aforesaid order passed by the Government.

5. We have heard Mr. Umer Farooq Khan learned counsel for the petitioner and Mr. Aftab Akhund, learned Advocate-General, Sindh.

6. Learned counsel for the petitioner submitted that the detenu cannot be detained in custody as at the time of the judgment and reference made by the trial Court, he had already crossed the age of 18 years and therefore, the impugned order passed by the Government was without lawful authority and is liable to be set aside. The learned Advocate-General, Sindh was also of the same view and therefore, he did not oppose the contention raised by the learned counsel for the petitioner.

7. We have gone through the material available on record and it is our considered view that since a legal question has been raised in this case which goes to the very root of the matter, therefore, it will not be necessary to refer to the evidence on record. The incident in. this case took place on 5-9-1978 and according to the school leaving certificate of the detenu, he was 10/11 years of age at the time of commission of the offence. He was examined by the Jail Doctor also who has opined that the detenu was 14 years of age as mentioned in the judgment of the trial Court. When the detenu was examined under section 342, Cr.P.C. by the trial Court. He had given his age 12/13 years. It is also obvious that the learned trial Judge had the opportunity of seeing the detenu in person during the trial proceedings and taking into consideration all these factors, the learned trial Judge had rightly come to the conclusion that the case of the detenu was covered by the provisions of Sindh Children Act, I 1955.

8. The point which has been raised by the learned counsel for the petitioner is that once a child has crossed the age of 18 years, thereafter he cannot be detained in custody even if he is found guilty. In this regard we may refer to section 71 of the Sindh Children Act, 1955 (hereinafter called the Act): --

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 recognized 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.

The plain reading of section 71 clearly implies that the Court may order a child to be committed to a certified school or a recognised institution for such period of detention which in any case shall not extend beyond the time when the said child will attain the age of 18 years. In other cases where a child cannot be detained as per the opinion of the Court, by it, in such cases the Court can make a report to the Government under section 68(2) of the Act and thereafter it is for the Provincial Government to pass the necessary orders. In the present case the latter mode was adopted by the trial Court and thus a 8 report was made to the Provincial Government in consequence of which the Provincial Government ordered the detention of the detenu Abid Khan for a period of seven years.

9. So far as the provisions of section 71 of the Act is concerned, an argument could be advanced that the said section only provides a limitation on the powers of the Court so as not to detain a child beyond the age of 18 years and that such a limitation or restriction is not imposed so far as the powers of the Provincial Government to detain a child under section 68(2) of the Act is concerned. This important question came up for consideration in a recent 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.

In this reported case the position was exactly the same as in the case in hand. In this case the detenu Muhammad Jameel was charged alongwith another for the murder of one Khalid Baig. The detenu was a child and at the conclusion of the trial, the trial Court vide its judgment observed that factually the murder was committed by the detenu but no sentence could be imposed as he was below the age of sixteen years. Accordingly, under section 68 of the Act, the learned trial Judge reported the case to the Provincial Government. The Government vide its order directed that the detenu Muhammad Jameel be detained in Juvenile Jail, Landhi, Karachi for a period of seven years starting from 1-4-1989 under subsection (2) of section 68 of the Act. While interpreting sections 68 and 71 of the Act the Honourable Supreme Court made the following observations: --

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 widen 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. While following the aforesaid authority of the Supreme Court, the impugned order passed by the Provincial Government whereby the detenu Abid Khan has been detained for a period of seven years is without lawful authority as the detenu had already crossed the age of eighteen years. Accordingly, we allow this Constitution Petition and direct that the detenu be released forthwith if not required in any other case.

11. This petition is disposed of with no order as to costs.

N.H.Q./A-1439/K Petition allowed.