1. ' MUNIB AHMED KHAN, J.--- The allegations against the appellant vide F.I.R. No,92 of 1994 of Police Station City Jacobabad, registered under sections 302, 506(2), 109, 34, P.P.C. And 13(d), Arms Ordinance, is that he along with other accused, namely, Sardar alias Mashal, Abdul Aziz Marhato and Tikku, armed with knife and pistol, attacked one Aijaz Ali Shah. According to allegation in the F.I.R., appellant was holding pistol in his hand, while Tikku was off-handed and Sardar was armed with a knife. Aijaz Ali Shah died of the knife injuries while no pistol fire was recorded.
2. ' According to history of the case, the appellant in the first round was convicted for life imprisonment and fine of Rs,1,000 vide judgment, dated 28-6-2001. The said judgment was set aside by this Court and case was remanded back with the direction that case to proceed afresh from the stage of statement of the appellant under section 342, Cr.P.C. The learned trial Court again passed the impugned judgment, dated 13-6-2002 and has convicted appellant, while co- accused Sardar and Tikku have been declared absconder and Abdul Aziz Marhato has been acquitted by giving benefit of doubt. It will be pertinent to point out that Abdul Aziz Marhato is father, while co-accused Sardar and appellant Shahid Aziz are his sons and Tikku is their servant.
3. As per story coming out on record, the father instigated the sons and in pursuance to that Sardar caused knife injuries to deceased Aijaz Ali Shah.
4. ' Now the learned counsel for the appellant Mr. Asif Ali Abdul Razzak Soomro, has mainly emphasized on the ground that appellant at the day of incident i.e. 21-1-1994 was a minor as his date of birth is 1-3-1982 and he was below twelve years at that time. He submits that the case suffers from coram non judice, as the trial Court had no power to try the case of juvenile offender as there was no authorization for it under the Sindh Children Act, 1955. He submits that according to section 5 of the said Act a person below the age of sixteen years is a child within the meaning of that Act and according to section 8, the powers of Juvenile Court are to be conferred on certain hierarchy of judiciary. He further submits that even on merits the case is not made out as the appellant was alleged to had a pistol with him, which was not used nor there is any allegation against him of taking part in causing injuries to deceased Aijaz All Shah, as the allegation in this respect is against his brother Sardar, who remained absconder. He has further submitted that according to allegation Abdul Aziz Marhato, father of the appellant, was the main instigator and was booked under the case but despite the motive and the cause attributed to him, he has been given benefit of doubt, therefore, apart from being juvenile the appellant could nbt be convicted on said series of evidence, in which his father has been acquitted. He has relied upon the case of Noor Ahmed v. The State PLD 2005 Kar. 177 and the case of Hasan Din v. Muhammad Mushtaq 1978 SCM R 49 and has submitted that the appellant could not be held vicariously liable when no specific allegation has been alleged nor any active role has been assigned, and nor any such thing could be expected from a child of twelve years.
5. ' On the other hand, Mr. Bilawal Khan Buriro, counsel representing the complainant, has not disputed the minority of the appellant at the time of incident, but has submitted that the trial has proceeded in an impartial way and appellant has been convicted for the guilt for which he was found to be involved. He further submitted that there is no fault on the part of the complainant as they have produced trustworthy evidence and that the appellant was all along with Sardar i.e., his brother, who caused knife blows causing death of deceased Aijaz Ali Shah. He has further submitted that even if it is found that trial Court had no jurisdiction to try the juvenile, then case may be remanded for its trial under the Juvenile Justice System Ordinance, 2000, as the appellant has shared common intention.
6. ' After hearing the learned counsel and keeping in mind the undisputed factum in respect to the age of the appellant, which is admittedly between twelve and thirteen years, it is seen that according to section 5 of Sindh Children Act, 1955, reproduced below, a person who has not attained the age of sixteen years is the child.
7. "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: ' 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."
8. ' According to section 8 of the said Act, the powers of Juvenile Court are to be conferred upon a Magistrate of 1st Class, a Sub-Divisional Magistrate, a District Magistrate, a Court of Session or the Chief Court of Sindh. According to section 14 of the Act, legal practitioners are not allowed to appear in the Juvenile Court until that Court feels it necessary nor any person is required to be present in Court in terms of. Sections 15 and 16. From other sections of the Act it has been observed that special procedure has been laid down to try the child in a reformatory way and Juvenile Court has to act in a parental way.
9. ' Leaving apart above Sindh Children Act, 1955, the Criminal Procedure Code, 1898 also provides special treatment to the juvenile offender by its section 29-B which is reproduced below:-- 29-B. Jurisdiction of the case of juveniles.--- Any offence, other than one punishable with death or transportation for life, committed by any person who at the date when he appears or is brought before the Court is under the age of fifteen years, may be tried by a District Magistrate or by any Magistrate specially empowered by the Provincial Government to exercise the powers conferred by section 8, subsection (1), of the Reformatory Schools Act, 1897 or, in any area in which the said Act is not applicable by any other law providing for the custody, trial or punishment of youthful offenders, by any Magistrate empowered by or under such law to exercise all or any of the powers conferred thereby.
10. ' Moreso, sections 82 and 83, P.P.C. Also deal with juvenile. According to section 82, nothing is offence which is done by a child under seven years of age and according to section 83, a child between seven to twelve years cannot lie treated as offender but that is subject to non-attainment of maturity of understanding. Even if a child is crossing the limit as provided under section 83, P.P.C.
11. And the trial Court finds him guilty then he deserve special treatment as provided under section 399 of the Cr.P.C. According to which the youthful offender is to be kept in reformatory instead of criminal jail.
12. Admittedly, the case of the appellant was not tried under the Sindh Children Act nor the learned trial Court acted in terms of section 29-B of Cr.P.C., nor the case of appellant was separated but retrained on the file and proceeded along with other co-accused, who were major, therefore, the trial of the juvenile by ordinary Court was illegal and the sentence awarded to the appellant by judgment, date 13-6-2002 cannot be sustained. The argument of the learned counsel for A the complainant that the case can now be remanded and retried under the Juvenile Justice System Ordinance, 2000, seems to be misconceived as the said law has been gazetted on 11-12-2001, while the crime was committed on 21-1-1994, therefore, the Ordinance, 2000 cannot be stretched backward to the year 1994, as it is not valid in its application retrospectively. It is worth to be noted that in the Ordinance, 2000 child has been defined "a person who has not attained the age of eighteen years", which shows more lenient view- has been adopted in respect to age. As far as the merit of the case is concerned, it is undisputed position' that the appellant has not used the pistol nor he look any part towards causing any injury to the deceased, nor even he has supported his brother co-accused Sardar in any way, therefore, common intention cannot be attributed to him, specifically when he is of tender age, during which period it was not possible for him to realize pros and cons of an act nor any action on his part has been attributed to show that he was quite mature to understand the consequences of the alleged act, which could disentitle him from lenient view, which can be taken by Court as the appellant even stood at the borderline of section 83, P.P.C.
13. It is further on record that although Abdul Aziz, father of the appellant, who was also alleged for common intention but has been released as there was no participation on his part towards causing death of deceased. In the circumstances, the appellant cannot be held vicariously liable for the act committed under the above noted crime. The authorities noted above relied upon by the learned counsel for the appellant do fit to the case. As far as the request of the complainant regarding remand of the case for retrial is concerned, is not tenable, as cases of juvenile are now to be tried under the Juvenile Justice System Ordinance, 2000, as the act alleged pertains to the year 1994. It is apparent that the case remained pending for a long period but neither the trial Court nor the respondent took any pain to ponder over that aspect, which cannot be corrected now. In the circumstances, the judgment, dated 13-6-2002 passed by the trial Court cannot be sustained against the appellant, who was minor at the time of commission of the offence and even otherwise there is no sufficient evidence to connect him with the, alleged crime, while his father, who is allegedly root cause of the crime, has been acquitted.
14. ' By the short order of today the appeal was allowed and above are the reasons in support thereof. 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.