SYED ALLY MADAD SHAH, J.-Both the petitioners Ashiq Ali son of Ali Muhammad Soomro and Eijaz Ali son of Lakhmir Wasir were tried, alongwith one Abdul Rashid son of Gul Muhammad Soomro, for an offence punishable under section 302 read with section 34, P. P. C., in the Court of IInd Additional Sessions Judge, Sukkur, in Sessions Case No, 225/1977. The accusation against them was that they had made armed attack on a boy by name Lal Bux and caused him injuries by means of knives, in Sukkur Town, on 10th July, 1977 on account of altercation between them on the previous day, and the victim succumbed to the injuries in the hospital on the next day viz. 11th July, 1977. During the course of trial of the case, it was represented to the Court that the accused before it were juveniles and they were to be dealt with under the Sind Children Act, 1955. The learned trial Judge made an order that "the trial of the case should continue in ordinary course and the decision would be given in accordance with the provisions of the Sind Children Act, 1955 hereinafter referred to as the Act".
By this judgment dated 12th October, 1982 the learned trial Judge held the petitioners, and the co- accused Abdul Rashid guilty of the offence punishable under section 302, read with section 34, P. P.
C. And referred the matter to the Government for orders, under the provisions of section 68(2) of the Sind Children Act, 1955, and passed the order for detention of the accused till the decision by the Government. This decision was appealed against in this Court in Criminal Appeal No, 112/82 on behalf of the petitioner Ashiq Ali. The appeal was dismissed by an order dated 19th April, 1983 on the ground that the Government had passed in the mean time, an order dated 6th March, 1983 for the detention of the accused at the Borstal Institute and Juvenile Jail Landhi for a period of five years. The order of the Government was called in question in this Court by way of criminal appeal under section 94 of the Act, being Criminal Appeals No, 31/83, 32/83. All the three appeals were dismissed as non-maintainable by judgment dated 31st May, 1983. The petitioners have thereafter, filed these separate petitions for setting aside judgment of IInd Additional Sessions Judge, Sukkur, dated 12th December, 1982 and the order of the Government dated 6th March, 1983.
2. The learned counsel for the petitioners have strenuously urged that the petitioners, who were juveniles, could not be tried by the Ilnd Additional Sessions Judge, Sukkur, and the procedure adopted at the trial offended the provisions of Sind Children Act, 1955 and the order of detention passed by the Government of Sind also is against the provisions of the Act. According to them, the Court of the IInd Additional Sessions Judge was neither a juvenile Court constituted under the provisions of section 7 of the Act nor was it one of the Courts specified in section 8 of the Act to exercise the powers of a juvenile Court. The learned counsel have contended that the procedure laid down under the Act was not adopted in the trial of the case against the petitioners, and reference in this respect has been made to several provisions of the Act. It has also been contended by them that no order for the detention of the petitioner could be passed for a period extending beyond the day of their attaining the age of 18 years and reference has been made to the provisions of section 71 of the Act. It has lastly been argued that the learned IInd Additional Sessions Judge did not record his reasons for not dealing with the petitioners, under the provisions of sections 71 and 72 of the Act and making reference to the Government under the provisions of section 68(2) of the Act.
3. The learned Advocate appearing for the State has opposed the petitions, contending that the learned had Additional Sessions Judge was competent to have tried the petitioners and finally referred the matter to the Government for orders under section 68(2) of the Act and passed an order thereunder for the detention of the petitioners ; and that the Government has passed appropriate order for the detention of the petitioners in a reformatory institution. According to him, no illegality was committed at the trial of the petitioners, for the offences they were found guilty of.
4. The petitioners were, undisputedly, below the age of 16 years at the time the offence of murder was allegedly committed by them. They were, therefore deemed to be children for the purpose of the Act as laid down under section 5 thereof. It is provided under section 9 of the Act that where a juvenile Court has not been established for any local area, no Court other than a Court empowered under section 8 to exercise the powers of Juvenile Court, shall try a case in which a child is charged with the commission of an offences. The Courts specified in section 8 of the Act are the Chief Court (now the High Court) of Sind, a Court of Sessions ; District Magistrate ; Sub-Divisional Magistrate ; and Magistrate of First Class. There is nothing on the record to indicate that a Juvenile Court has been established at Sukkur. In the absence of a Juvenile Court, the Courts mentioned in section 8 of the Act could exercise the powers of the Juvenil Court. Even if there were a Juvenile Court, the offence of murder alleged to have been committed by the petitioners, being exclusively triable by the Court of Sessions, could be tried only in the Sessions Court as provided under subsection (3) of section 9 of the Act. Obviously, the forum for trial of the offences attributed to the petitioners was the Sessions Court and no other Court. The Court of Sessions includes the Court of Additional Sessions, Judge as provided under subsection (3) of section 9 of the Code of Criminal Procedure.
Accordingly, the Court of IInd Additional Sessions Judge, Sukkur, was competent to have tried the petitioners for the offence punishable under section 302, P. P. C. And the objection to its jurisdiction is not sustainable.
5. As regards the procedure to be adopted in the trial of the cases under the Act, it is provided under section 24 of the Act that, except as expressly provided under the Act or the rules made thereunder, the procedure to be followed in the trial of the cases and the conduct of proceedings under the Act shall be in accordance with the provisions of the Code of Criminal Procedure. The exceptions to the procedure laid down for trial of the cases and conduct of the proceedings under Code of Criminal Procedure are contained in sections 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 68, 69, 70, 71, 72, 74, 75, 77 and 94 of the Act. Section 10 of the Act bars joint trial of a child with an adult, which question was not involved in the trial of the petitioners. Section 11 of the Act provides that procedure in appealable summons cases may be followed by the Juvenile Court or the Courts empowered under section 8 exercise the powers of juvenile Courts. The trial of petitioner was held on the Sessions side and the provisions of this section did not extend to the trial of the cases side. Section 12 relates to the place of the sitting of the Juveniles Court and it did not apply to the trial of the petitioners in the Sessions Court. Section 14 of the Act bars appearance of legal practitioners, before the Juvenil Court and it was not attracted in the trial of the petitioners in the Sessions Court.
Section 15 of the Act relates to the presence of the persons, in Juvenile Court and it did not apply to the trial of the petitioners in the Sessions Court. Sections 16, 17, 18 and 19 provide that the Court trying a child may order any person to withdraw from the Court, or dispense with the attendance of the child from the Court, or order withdrawal of any person from Court when a child is examined as a witness, and attendance in Court of the parents of the child charged with the offences. No such situation seems to have arisen during the course of trial of the petitioners. The main provisions for the procedure to be adopted in the trial of the children, are contained in sections 68 to 77 of the Act. Section 68 of the Act have laid down that, notwithstanding anything to the contrary contained in any law, no youthful offender shall be sentenced to death or transportation or imprisonment, It further lays down that when a child is found to have committed an offence of so serious in nature that the Court is opinion that no punishment, which under the provisions of the Act it is authorised to inflict, is sufficient, or When the Court inatisfied that the child is of so unruly or of so depraved character that he cannot be committed to a certified school or detained in a place of safety and none of the other methods in which the case may be legally dealt with is suitable, the Court shall order the offender to be kept in safe custody in such place or manner as it thinks fit and shall report the case for the orders of the Provincial Government. The learned IInd Additional Sessions Judge adopted in letter and spirit, the provisions of section 68 of the Act. Section 69 enjoins that expressions 'conviction' and 'sentenced' shall not be used in relation to a child held guilty of an offence. No such expressions were used by the learned Ilnd Additional Sessions Judge in the case of the petitioner. Section 70 provides that no proceedings under Chapter VIII of the Code of Criminal Procedure shall be instituted against a child. No such proceedings was instituted against the petitioners. Section 71 of the Act provides that where a child is found to have committed an offence, the Court, if satisfied on enquiry that it is expedient so to deal with the child, may order him to be committed to a certified school or a recognised institution for such period of detention as would not, subject to the provisions of section 5, extend beyond the time when child would attain the age of 18 years, or, in exceptional cases, for shorter period for the reasons, to be recorded in writing. Section 72 of the Act provides that a Court, may if it thinks fit, instead of directing any youthful offender to be detained in a certified school or recognized institution under section 71, order him to be discharged after due admonition ; or without passing any final order, direct that he be released on probation of good conduct and committed to the care of the parent or guardian, a relative or any other person, executing bond with or without sureties, as the Court may require, to be responsible for the good behaviour and wellbeing of the youthful offender for any period not exceeding 3 years and for the observance of such other conditions as the Court may impose that the youthful offender may lead an honest, virtuous and industrious life ; and if the offence committed by the youthful offender is punishable with fine and youthful offender himself is over the age of 14 years ; order the offender to pay the fine. Section 74 of the Act provides that where the offence committed by a youthful offender, who is under the age of 14 years, is punishable with fine, the Court shall order that the fine should be paid by the parent or guardian of the child. Section 75 of the Act empowers the Court to make an order that a youthful offender released under section 72 should be placed under supervision. Section 76 of the Act provides for postponement sine die of the case against final order passed by a Juvenile Court or a Court empowered under section 8 of the Act to exercise the powers, of the Juvenile Court. Section 95 of the Act provides that the provisions of the Code of Criminal Procedure relating to the hearing of appeals thereunder shall mutatis mutandis apply to the appeals filed under the Act. None of the exceptional provisions contained in the Act, referred to above, was violated in the trial of the petitioners.
6. It has, however, been contended by the learned counsel for the petitioners that the learned lInd Additional Sessions Judge should have dealt with the case of the petitioners in accordance with the provisions of section 71 or section 72 of the Act and he should not have passed the order under section 68(2) of the Act for referring the case to the Provincial Government and detaining the petitioners till the receipt of the orders of the Government. They have further urged that no order for the detention of a youthful offender can be passed whereby the period of his detention extends beyond his attaining the age of 18 years as envisaged under section 71 of the Act. They have also urged that the learned Additional Sessions Judge did not record his reasons for taking proceedings under section 68 of the Act instead of exercising powers under sections 71 and 72 of the Act. The learned counsel appearing for the State has argued that the nature of the offences committed by the petitioners was such that it did not require recording of reasons for referring the case to the Government under the provisions of section 68(2) of the Act and not passing orders under section 71 or section 72 of the Act.
7. For better appreciation of the contentions of the learned counsel, it would be worthwhile to reproduce the sections 68, 71 and 72 of the Act "68. Sentences that may not be passed on child (1)-Notwithstanding anything to the contrary contained in any law ; no youthful offender shall be sentenced to death or transportation or imprisonment.
(2) When a child is found to have committed an offence of so serious a nature that the Court is of opinion that no punishment, which under the provisions or this Act, it is authorised to inflict, is sufficient or when the Court is satisfied that the child is of so unruly or of so depraved a character that he cannot be committed to a certified school or detained in a place of safety and that none of the other methods in which the case may be legally dealt with is suitable, the Court shall order the offender to be kept in safe custody in such place or manner as it thinks fit and shall report the case for orders of the Provincial Government."
"71 Commitment of child to certified school or recognised institution.-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 attains the age of eighteen years or in exceptional cases for a shorter period, the reasons for such shorter period to be recorded in writing."
"72 Other orders of the Court.-A Court may if it shall think fit, instead of directing any youthful offender to be detained in a certified school or recognised institution under section 71 :-
(i) Order him to be discharged after due admonition ;
(ii) Without passing any final order, direct that he be released on probation of good conduct and committed to the care of his parent or guardian or other adult relative or other fit person on such parent, guardian, relative or person executing a bond, with or without sureties, as the Court may require, to be responsible for the good behaviour and wellbeing of the youthful offender for any period not exceeding three years and for the observance of such other conditions of the Court may impose for securing that the youthful Offender may lead an honest, virtuous and industrious life ;
(iii) if the offence committed by the youthful offender is punishable with fine and the youthful offender himself is over the age fourteen years, order the offender to pay fine.
8. It would appear that in case a Court holds a child guilty of having committed an offence, it may order that he may be committed to a certified school or recognised institution for such period of detention which shall not subject to the provisions of section 5 extend beyond the time when the child will attain the age of 18 years, as provided under section 71; or order that he may be discharged after due admonition ; or direct that he be released on probation of good conduct and commit him to the care of his parent or guardian or other adult relative or other fit person, on obtaining a bond from such person that he shall be responsible for good behaviour and well-being of the youthful offender, for any period not exceeding three years. Section 68 of the Act provides that in case the Court is of the opinion that the punishment it is empowered to inflict on a youthful offender shall not be sufficient or that the child is of so unruly or so depraved character that he cannot be committed to a certified school or detained in a place of safety and that none of the other methods he may be legally dealt with is suitable, it may order the offender to be kept in safe custody and report the case for the orders of the Provincial Government. The learned Ilnd Additional Sessions Judge adopted the procedure laid down in section 68 of the Act of course, he did not record reasons for choosing to porceed under the provisions of subsection (2) of section 68 of the Act, but this omission did not vitiate the proceedings as it is obvious that the petitioners were held guilty of a heinous offence of murder and the punishment which could be awarded under sections 71 and 72 of the Act would not have been sufficient in the circumstances of the case, and the learned trial Judge adopted the right course of referring the case to the Provincial Government under section 68(2) of the Act for appropriate orders. It may be mentioned that neither of the counsel launched attack on the factual findings of the learned trial Judge. Evidently, the order passed by the learned Additional Sessions Judge was within the four corners of the Law.
9. The last submission of the learned counsel is that the detention of the petitioner could not be made for a period extending beyond the period of their attaining the age of 18 years and reliance was placed on the provisions of section 71 of the Act, reproduced above. It appear from the bare reading of the section 71 that it confers powers on the Court trying a youthful offender of making an order of commitment of a youthful offender to a certified school or a recognised institution for period not extending beyond the limit specified therein ; but it does not impose any restriction on the powers of the Government. If the intention of the Legislature were to impose same restrictions on the powers of the Government, there could be no wisdom in making the provision under section 68 of the Act that if the Court finds that the punishment it can award under the provisions of the Act would not be sufficient, it may refer the case for orders of the Government. It would be pertinent to make reference to section 89 of the Act which lays down that notwithstanding anything contained in the Act the period of detention in the case of a person under the age of 15 years shall be such as will result in the person being detained until he reaches the age of 18 years ; but the period of detention in the case of a child over 15 years of age shall be not less than two years ; provided that the Court may, in special circumstances for reasons to be recorded in writing, pass an order for a shorter period of detention. But this section also relates to the orders of the Court and not to those passed by the Government.
10. The learned counsel for the petitioners have placed reliance on the following authorities :-
(1) 1970 P Cr. L J 397 ;
(ii) PLD 1982 Kar. 567, and
(iii) 1983 P Cr. L J 1024.
11. In the case Muhammad Zamin v. The State , a juvenile accused was tried and convicted and awarded sentence of imprisonment by a Single Judge in the High Court under general criminal Law. In appeal, a Division of the High Court held that the sentence of imprisonment could not be awarded to a juvenile offender in the light of specific bar contained under the Bombay Children Act, then in force, and the sentence of imprisonment was converted into an order for release of the1 offender on furnishing sureties for maintaining good behaviour for a period of three years. In the case of the petitioners, no sentence of imprisonment was awarded on them. In the other case viz. Pir jalal Shah v. The State , it was held that trial of a youthful offender child alongwith an adult offended the provisions of section 10 of the Sind Children Act, 1955 and the trial and the proceedings stood vitiated and the conviction was set aside. In the case against the petitioners and the co-accused, all the three were juveniles and no adult person was tried alongwith the petitioners. In the third case viz. Anwar v. The State , a youthful offender was tried on the charge of an offence punishable under section 307, P. P. C. And was tried and conflicted under the general criminal Law. In appeal in the High Court, the conviction was maintained but the sentence of imprisonment awarded on him was set aside and he was released on probation under the provisions of the Sind Children Act, 1955. This case also lends supports to the view that a youthful offender can be tried under general law but no sentence of imprisonment can be awarded. The petitioners herein were tried under the provisions of general law but they were not awarded any sentence of imprisonment and there was no violation of .The provisions of the Act.
12. It follows from the foregoing analysis of relevant provisions of the Act that neither any illegality was committed in the trial of the petitioners nor did the Trial Judge traverse beyond the provisions of the Act in making the order for detention of the petitioners and referring the case to the Provincial Government for- its order under section 68(2) of the Act nor did the order dated 6th March, 1983 passed by the Government transgress the provisions of the Act. Consequently, there is no merit in the petitions and they are dismissed. No order is made for costs. 1970 P Cr. L J 379 PLD 1982 Kar. 567 1983 P Cr. L J 1024