ZAFFAR HUSSAIN MIRZA, J.-Confirmation Case No. 52 of 1978 is a reference under section 374, Cr. Y.
C. In respect of the death sentence awarded to appellant Pir Jalal Shah who has filed appeal against his conviction and sentence bearing No. 236 of 1978. Criminal Revision No. 9 of 1979 has been filed by State against Shah Zewar Shah who was tried along with appellant Pir Jalal Shah and his case was referred for the decision and orders of the Provincial Government under section 26 of the Bombay Children Act, 1924 and Sind Children Act, 1955. All these cases arise out of the judgment dated 17-9-1978 passed by the learned V1I Additional Sessions judge, Karachi and have been heard together. This judgment will, therefore, dispose of all the aforesaid three cases.
2. Respondent Shah Zewar Shah, appellant Pir Jalal Shah and one Nawab Shah were jointly tried for offences under sections 302, 394 and 411/34, P; P. C. Alleged to have been committed in an incident which occurred on 11-2-1973 in which one Ismail son of Hassan Ali was murdered. By the aforesaid judgment the learned VII Additional Sessions Judge, Karachi acquitted accused Nawab Shah and found the other two co-accused guilty of the offences under sections 302 and 394, P. P. C.
Appellant Pir Jalal Shah was awarded capital punishment under section 302, P. P. C. And a sentence of Rigorous Imprisonment for seven years under section 394, P. P. C. However, since the learned Judge found respondent Shah Zewar Shah to be below the age of 16 years at the time of the commission of the offence, he referred the case of the said respondent, in purported exercise of powers under section 26 of the Bombay Children Act, 1924 and the provisions of the Sind Children Act, 1955 for the decision and the orders of the Provincial Govern--ment. As already stated, the learned Additional Sessions Judge referred the case for confirmation of death sentence to this Court and also appellant Pir Jalal Shah has filed appeal against his conviction' and sentence.
3. It seems on receipt of the judgment of the trial Court by the Government, it was felt that respondent Shah Zewar Shah being a child within the meaning of Sind Children Act, XII of 1955 at the time of his arrest in connection with this case, he could not be tried along with two adult co- accused, and thus the whole trial was-vitiated by-virtue of section 10 of the Sind Children Act, 1955 (hereinafter to be referred to as the Sind Act). Accordingly, Criminal Revision Application No. 9 of 1979 was filed on behalf of the State against all the three co-accused with a prayer for setting aside the judgment of conviction dated 17-9-1978 and for ordering fresh trial in accordance with the provisions of the Sind Act so far as respondent Shah Zewar Shah is concerned and separately of the adult co-accused under the ordinary law. However, when this revision application came up for summary hearing before the Court on 3-2-1979 the Assistant Advocate-General, who appeared for the State withdrew the revision application so far as it related to respondents Pir Jalal Shah and Nawab Shah since the one had been convicted and the other acquitted by the trial Court. This was apparently done out of the consideration that subsection (5) of section 439 provides that where under the Criminal Procedure Code an appeal lies and no appeal is brought, no proceedings by way of revision could be entertained at the instance of the party who could have appealed. The result, therefore, is, that at this stage the revision is only directed against the proceedings taken and orders passed in respect of the minor accused/respondent Shah Zewar Shah.
4. Before taking up the question of law raised in this revision, which seems also to affect the appeal filed by Pir Jalal Shah and confirmation case regarding death sentence awarded to him, the facts of the prosecution case may be briefly stated.
5. The case of the prosecution is that Mohammed Rafiq Shaikh, Inspector of Police at Brigade police station on 12-2-1973 at about five minutes past midnight received information from the Emergency Centre that a murder had taken place at Bungalow No. G. M. 177/Jacob Lines, Karachi. On receipt of this information, Muhammad Rafiq made such entry in the Station Diary and proceeded to the scene of offence. On reaching there he saw dead body of a person identified as Ismail lying in the corridor of the said bungalow. He recorded the statement of complainant Tahir Ali, the son of the deceased under section 154, Cr. _P. C. And sent the statement to the police station for incorporation in the section 154, Cr. P. C. Book. Tahir Ali disclosed the facts in the following manner :- "That he was residing in the aforesaid bungalow along with his parents, wife and children since about 9 years. On the night of the incident at about 9:15 p.m. He along with his mother, wife and nieces left the house to attend a Muharram mourning leaving his father Ismail behind at home with their servant Zewar Shah also present in the house. On returning from the meeting at about 11-45 p.m. They received no answer to the knocking and the ringing of the bell at the outer door which was found closed from the inside. In these circumstances, the door open and t went to inside he found the light switched off but while walking in the verandah he staggered over something and on switching on the lights saw that his father was lying on the floor with his face covered with a table- cloth. Round the neck of the deceased was a scarf and the deceased was already dead with wound on his nose. The scarf was identified to be that of Pir Jalal Shah, the brother of Zewar Shah who was not present in the house. On checking the cupboard kept in the room of his father, the complainant saw things lying scattered. On his cries their neighbours Rashid, Ghani and Iqbal came on the scene and saw the dead body. It was found that golden ornaments, a watch, a transistor radio, cash etc. Described in the F. I. R. Were missing. Also a turban was found lying in the corridor which belonged to Pir Jalal Shah. In the aforesaid circumstances the complainant suspected that their servant Zewar Shah and his brother Pir Jalal Shah had committed the murder of his father Ismail."
6. The case was investigated by S. H. O. Muhammad Rafiq Bhatti, who arrested the aforesaid two accused and accused Nawab Shah on the same day and secured all the articles from their possession. On the post-mortem examination of the dead body Dr. M. S. A. Farooqui, Assistant Professor, D. M. C., Karachi found 11 injuries on the body of the deceased out of which, in his opinion, injuries 1, 2 and 3 were collectively sufficient to cause death in the ordinary course of nature. In the opinion of the doctor, the cause of death was due to the aforesaid injuries which showed an attempt to assault for homicidal suffocation possibly caused by hands, by blows, by clothes or any other similar object. The final opinion expressed by the doctor was that the death was due to suffocation "homicidal, as a result of assault on the deceased by closing the mouth and nostrils."
The respondent Zewar Shah was also sent to the same doctor for opinion as to his age and according to his opinion, as a result of clinical findings, the said respondent was of about 15 years of age at the time of examination.
7. The aforesaid three accused were then sent up for trial under sections 302, 394 and 411/34, P. P. C.
After the committal enquiry A. C. M. Court No. 13, Karachi committed the case for trial of the three accused to the Court of Session. They were jointly tried by the VII Additional Sessions Judge, Karachi. In their statements the_ accused denied the prosecution allegations and pleaded false implication in the case. They denied that any stolen articles were secured from their possession and alleged foisting. They also led defence by examining D. Ws. G.Hulam Sarwar and Kalandar Shah. The learned Additional Sessions Judge then passed the judgment already stated above whereby he convicted Pir Jalal Shah and awarded him sentences described above, whereas Nawab Shah was acquitted. As regards the last-mentioned accused the learned Sessions Judge in his judgment has observed that the witnesses had not implicated him and that even as regards the recovery of the property, the only circumstances appearing in the evidence was that while the property was recovered from the other co-accused, Nawab Shah was only sitting in the house which in the opinion of the learned Judge was not sufficient f9r purposes of his conviction. As regards respondent Zewar Shah, it has already been stated above that he was of the age of below 16 years at the time of the commission of the offence and, therefore, the learned Judge was of the opinion that his case was governed by Bombay Children Act and accordingly his case was referred to the Provincial Government for their decision.
8. We have heard Mr. M. A. Wahab Khan on behalf of the appellant Pir Jalal Shah anti respondent Zewar Shah. On behalf of the State we have heard Mr. Murtaza Husain, Advocate.
9. It is common ground that the Sind Children Act, 1955 was extended to Karachi by the Sind Act XIV of 1975 and was made applicable to the said area by Notification dated 5-3-1976, published in the Sind Govern--ment Gazette, 1976, Part I, page 772, w.e.f. 5-3-1976. The charge against the accused was framed on 9-3-1978 and after recording their plea the Court of VII Additional Sessions Judge, Karachi proceeded with the trial resulting in the judgment dated 17-9-1978. It is, therefore, clear that the trial commenced against the accused after the Sind Children Act, 1955 had come into force in the Karachi area. Before passing of the Sind Act, the trial of youthful offenders in the Province of Sind was governed by the Bombay Children Act (XIII of 1924). The said Act was, however, repealed by section 110 of the Sind Act of 19.55. But as already mentioned, by virtue of section 2 of the said Act relating to commencement, the Act came into force in Karachi by the aforesaid Notification dated 5-3-1976.
10. Now section 5 of the -Sind Act XII of 1955 provides as under;-- "For purposes 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 16 years Provided that if during the course of the proceedings under this Act such person attains the age of 16 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."
In the Bombay Children Act, 1924 in section 3, clause (a) the word "child" has been defined to mean a person under the age of 16 years. There appears to be no bar in the Bombay Children Act, 1924 on holding a joint trial of a child accused along with adult accused. However, in the Sind Act of 1955 there is an express bar to that effect in section 10 which reads as follows :- "10:-(1) Notwithstanding anything contained in section 239 of the Code or any other law for the time being in force, no child shall be charged with or tried for any offence together with an adult. '
(2) If a child is accused of an offence for which under section 239 of the Code or any other law for the time being in force, such child, but for provisions of subsection (1) could have been tried together with an adult, the Court taking cognizance of the offence shall direct separate trials of the child and the adult."
Clearly, therefore, the joint trial of a child accused along with an adult accused would be illegal under section 10 and an order of conviction or acquittal passed as a result of such trial would be clearly unsustainable. In Qadar Dad v. Sultan BIN etc. (PLD 1956 FC 129a trial of two sets of accused persons jointly in respect of two distinct offences in disregard of the mandatory provisions of section 233, Criminal Procedure Code was held to be wholly illegal and entire proceedings were set aside. (See also Muhammad Mosaddar v. The State PLD 1958 SC (Pak.) 131The provisions of section 10 seem similarly to be mandatoryand the trial held in violation thereof would obvious)y be vitiated. Both counsel have conceded to this position of law and, therefore the trial of the minor accused Shah Zewar Shah jointly along with toe adult accused was wholly bad in law and the proceedings are, therefore, liable to be set aside.
11. We have no difficulty in holding that respondent Shah Zewar Shah was a child within the meaning of the said provisions of the Sind Act, 1955 at the relevant time. In the first place such finding has been given by the trial Court on the basis of the Police Surgeon's certificate who was examined at the trial. P. W. 11 Dr. M. S. A. Farooqui has 'stated that he had examined respon--dent Shah Zewar Shah on 18.6-1973 and found on the basis of clinical data that he was aged about 16 years at the time of examination and, therefore, on the date of his arrest viz. 12-2-1973 he must be below the age of 16 years. Subsequently, however, the learned Members of the Bench who first heard this case passed orders referring the case of respondent Shah Zewar Shah to the Medical Board for determination of his age at the time of occurrence viz. 11-2-1973 vide order dated 2-10- 1979. In consequence to the aforesaid order, the Secretary, Health and Social Welfare,, Government of Sind constituted a board for the purpose which after examining the aforesaid respondent gave the opinion that his age on the relevant date was between 15 and 16 years. The learned counsel for the State has not challenged the opinion and the findings of the medical experts regarding the age of the aforesaid respondent being below 16 years at the relevant time. In fact the whole basis of the revision filed by the State against the proceedings is the factum of the minority of respondent Shah Zewar Shah at the relevant time.
12. In the cases of Qadar Dad and Muhammad Mosaddar, already referred to, their Lordships have postulated the rule that where joint trial of accused has been held in violation of the mandatory provisions as to the mode of trial, the question whether prejudice was caused or not need be considered as illegality results from adopting a mode of trial prohibited by law which is incurable under section 537, Cr. P. C. We may, however, point out that since the judgments cited above there has been an amendment in section 537, Cr. P. C. By West Pakistan Act XVII of 1964 whereby any error, omission or irregularity in the mode of trial, including any misjoinder of charges has also been made curable unless the same has occasioned a failure of justice. After the amendment, therefore, ordinarily a misjoinder of charges or accused persons will not ipso facto result in illegality vitiating the trial. But in the present case section 10 of the Sind Act of 1955 is a provision of a special Act and, therefore, by the well-recognized rule of construction will prevail against the provisions of the General Law. A trial held in disregard of the provisions of section 10 is, therefore, an illegality not curable under the general provisions of section 537, Cr. P. C. Since the Sind Act of 1955 had come into force in Karachi area before the commencement of the trial, the learned Additional Sessions Judge ought to have ordered separate trials of the minor accused and adult accused. We, therefore, set aside the conviction of appellant Pir Jalal Shah and the orders passed by the trial Court in respect of respondent Zewar Shah. The question that remains to be considered is whether the order of acquittal passed in favour of third accused Nawab Shah should be set aside and as to what consequential orders be passed in respect of the former accused persons. It was contended by Mr. Murtaza, learned counsel for the State that as the whole trial was vitiated, the order of acquittal passed by the trial Court in respect of Nawab . Shah be also set aside. The difficulty, however, in his case is that, as. Already observed, the revision application filed by the 33 State has been withdrawn as against him and no appeal has been filed against his acquittal. He is, therefore, not a party to these proceedings and as such no adverse orders can be passed against him without affording him an opportunity of hearing. Even otherwise, there is no evidence available with prosecution which can reasonably be expected to form the basis of his conviction in the present case, if his retrial is ordered. It is well settled, as observed in the case of Qadar Dad referred to above, that it is not usual to order a retrial on the ground of misjoinder when the original trial bad ended in acquittal. As regards the other two accused persons both counsel agree that they are liable to be re-tried again.
13. For the foregoing reasons, we allow the appeal filed by appellant Pir Jalal Shah and set aside the convictions and sentences awarded to him. The finding and orders passed in respect of respondent Zewar Shah are also set aside. These two accused persons shall be tried again for the said offences in accordance with the law as explained in this judgment. The sentence of death passed against appellant Pir Jalal Shah is accordingly not confirmed and the reference under section 374, Cr. P. C. Also stands disposed of.