LIAQUAT alias BILOO and anothers vs THE STATE

1. ' FAIZ MUHAMMAD QURESHI, J.---These four appeals are arising out of the same judgment and we intend to dispose of the same by one judgment.

2. ' Appellants have assailed impugned judgment, dated 24-8-1999, passed by the learned Judge.

3. Special Court, Anti-Terrorism, Hyderabad Division. Hyderabad, whereby appellant Shabbaz son of Ajjaz Mughul has been convicted for death sentence under section 302, P.P.C. So also death sentence under section 365-A, P.P.C. And he be hanged by neck till he is dead. The execution of the sentences shall take effect after the confirmation by this Court, whereas appellant Liaquat alias Biloo son of Manzoor. Mughul and Babar alias Papa son of Bholoo, Yousuf Zai Pathan, who were below 18 years of age have been convicted under section 365A, P.P.C. To life imprisonment (25 years) and ordered forfeiture of their properties so also life imprisonment (25) years under section 302 both the sentences to run concurrently. All the three appellants have been awarded benefit of section 382-B, Cr.P.C. From the date of their arrest, dated 26-7-1999.

4. ' Criminal Reference for confirmation of death of appellant Shahbaz is also before us and we intend to dispose of criminal jail appeals and Criminal Reference by one judgment.

5. ' Without touching the merits of the case, Mr. Qurban Ali Chohan, learned counsel for the appellants Babar and Liaquat has submitted that admittedly both the afore named appellants were below 18 years of age and this has been observed by the learned trial Judge, yet no separate trial has been held of the Appellants Babar and Liaquat under sections 5, 68, 71, 72(2) and 81 of Sindh Children Act as joint trial of Juvenile offenders could not be conducted with a major offender and it is miscarriage of justice and thus, the entire trial stands vitiated. According to him, there should have been separate trial of accused Babar and Liaquat, which has not been done by the trial Court and mandatory provisions of Sindh Children Act has not been followed by the trial Court, therefore, this is a fit case for remand. In support of his contentions, he has placed reliance on 1993 SCM R 1551; 1994 PCr.LJ 420 and PLD 1982 Kar.

6. 567.

7. ' On the other hand Mr. Rasheed Qureshi, learned Assistant Advocate-General for the State has conceded this legal position and submitted that the trial has held being coram non judice and there should have been separate trial of the above two accused namely, Babar and Liaquat being Juvenile; he has wry frankly given his no objection for the remand of the case.

8. ' Mr. Qurban Ali Chohan, learned counsel for the appellants Babar and Liaquat has further argued that the charge is defective and has not been framed under clauses viz 302(a)(b)(c)

9. ' Mr. Allah Bachayo Soomro, learned counsel for the appellant Shahbaz also at the very outset and without touching the merits of the case contended that not only charge is defective but also the statements of accused under section 342, Cr.P.C. Have not been recorded in accordance with the mandatory provisions of section 364, Part 2, Cr.P.C. Which is an illegality committed by the trial Judge as the statements under section 342, Cr.P.C. Do not contain the signatures of the accused and such illegality is not curable under section 537, Cr.P.C. On two-fold grounds, firstly, charge being defective and, secondly, there is violation of mandatory provisions of section 364, Part 2, Cr.P.C. And has prayed for remand of the case of the appellant Shahbaz from the stage of charge..

10. ' Mr. Rasheed Qureshi, Assistant Advocate-General for the State has also conceded this illegality and has recorded his no objection if the case of Shahbaz is also remanded with direction to the trial Court to start the proceedings from the stage of Charge.

11. ' We have considered the arguments advanced by Mr. Qurban Ali Chohan, learned counsel for the appellants Babar and Liaquat. Mr. Allah Bachayo Soomro, learned counsel for the appellant Shahbaz and Mr. Rasheed Qureshi, Assistant Advocate-General for the State at the bar and with their assistance we have also gone through the judgment and other material available on record.

12. Admittedly, two appellants namely, Liaquat and Babar were Juvenile of 17 years and 14 years of age respectively and their trial ought to have been held in accordance with the provisions of Sindh Children Act, there should have been a separate trial which has not been done by the trial Court.

13. The judgment itself shows that both appellants aforenamed were below the age of 18 years yet the trial Judge has not applied, his judicial mind on this very important aspect of the case. Admittedly, the charge is defective; admittedly, the statements of all the accused under section 342, Cr.P.C.

14. Have not been recorded in accordance with the mandatory provisions of section 364, Part 2, Cr.P.C.

15. Which is a illegality and not curable under section 537, Cr.P.C. We are fully in agreement with the contentions raised by the learned counsel for the parties, particularly, when no objection has been raised by Mr.Rasheed Qureshi, Assistant Advocate-General for the State for the remand of the case, on the grounds raised by the learned counsel for the parties. Accordingly the convictions and sentences of the appellants afore named are set aside; their cases are remanded to the trial Court with direction for fresh trial; trial Court is further directed to try the cases of accused Liaquat and Babar in accordance with Juvenile Act and separate trial is to be held in order to determine their age factor. The case of Shahbaz is to be started from the stage of Charge. In result, these appeals are allowed Criminal Reference for confirmation of death of Shahbaz is rejected. Juvenile Liaquat and Babar would be at liberty to move hail application, whenever they are advised.

16. ' The above are the reasons for our short order, dated 12-7-2001. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.