' Sajid Mahmood and respondent No,2 Muhammad Yakoob are facing trial for offence under section 12 of Offences of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinance) in the Court of IX Additional District and Sessions Judge, Karachi. Respondent No,2 Muhammad Yakoob is a boy aged about 16 years. Hence the learned trial Judge ordered that the provisions of Sind Children Act, 1955 shall apply to his case and he shall be tried separately from accused Sajid Mehmood, who was adult. This order was passed by the learned Judge on 8-2- 1984.
2. Aggrieved by this order complainant Niaz Ahmed has filed this application under section 439, Cr.P.C. For revision. The plea of the complainant/applicant is that provisions of Sind Children Act, being repugnant to the said Ordinance, shall be deemed to be inoperative to the extent of the repugnancy for the reason that the said Ordinance overrides all other laws. Section 3 of the said Ordinance reads as under:- "The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force."
From the above provisions it is clear that if there is any provision in any other law which is repugnant to the provisions of the said Ordinance, then the provisions of the latter Ordinance shall prevail and provisions of the other law shall be ineffective or shall be deemed to have been superseded to the extent of repugnancy.
3. There are several provisions of the Sind Children Act, 1955 which are repugnant to the said Ordinance. Sections 66, 68 and 69 are some of such sections which are reproduced hereunder:- "66. Submission of information to Probation Officer and Officer in charge of remand home by police after arrest.-- Immediately after the arrest of a child, it shall be the duty of the police officer, or any other person affecting the arrest to inform the Probation Officer and officer incharge of the remand home if any; of such arrest in order to enable the said Probation Officer and officer incharge of the remand home to proceed forthwith in obtaining information regarding his antecedents and family history and other material circumstances likely to assist the Court in making its final order."
"68 Sentence 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 provision of 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 as 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 the orders of the Provincial Governments."
"69 Expressions "conviction" and "sentences" not to be used in relation to children.-- Save as provided in this Act, the words "conviction" and "sentence" shall cease to be used in relation to children dealt with under this Act and any reference in any enactment to a person convicted, a conviction or a sentence shall in the case of a child be construed as a reference to a person found guilty of an offence, a finding of guilty or an order made upon such a finding as the case may be."
4. The above provisions are contrary to the provisions of the said Ordinance which make offences of Zina liable to Hadd or liable to Tazir punishable with imprisonment or whipping or stoning to death as the case may be. The respondent is facing trial for offence under section 12 of the said Ordinance which provides a sentence of 25 years and fine and also whipping. This punishment is to be awarded to an offender irrespective of his age. Thus, the said Ordinance does not make any discrimination in respect of age of an offender so far as the sentence is concerned. An offender shall be punishable with the sentence laid down in the above section, whether he is a child or an adult. Thus the provisions of Children Act, being contrary to the provisions of section 12 of the said Ordinance, shall be deemed to be inoperative or having been superseded by the provisions of the said Ordinance.
5. It is also doubtful whether the Sind Children Act, 1955 is at all applicable to the Province of Sind.
Section 2 of the Act lays down that section 1 shall apply at once, while the rest of the Act shall come into force in any area on such date as the Provincial Government may, by notification in the official Gazette, specify. No notification of the Government has been produced to prove that provisions of the Sind Children Act other than section 1 have been enforced in the Province. Reference in this connection may be made to the case of the State v. Muhammad Malook 1968 P Cr. L J 1232 in which the question of applicability of Sind Children Act, 1955 fell for consideration. Feroze Nana Ghulamany, J. Made following observations on the above question:- "The next aspect is that neither the provisions of the Probation of Offenders Ordinance, 1960, nor the Sind Children's Act of 1955 apply to this case. The Ordinance was meant to apply and to provide for the release on probation of certain offenders in certain cases and matters, but primarily in the case of those persons who had been tried and convicted, and not those under trial. Under section 5 of this Ordinance, a male person convicted of an offence, not being offences stated in subsection (a) of section 5 or of an offence punishable with death or transportation for life, could be considered for purposes of a probation order. The next aspect is that the Sind Children's Act XII of 1955 was published on 11-7-1955. The integration of the Province of West Pakistan came about in October, 1955. Section 2 of this Act stated that section 1 in referring to the Act called the Chidlren's Act of 1955, shall come into force at once, but the rest of the Act or any provisions thereof should come into force in any area only on a date as the Provincial Government may by notification in the Gazette, specify. The learned Additional Advocate-General concedes at the bar that the Provincial Government have not fixed a date nor issued a notification by which this Act could be said to come into force."
' It has not been shown that the legal position as to applicability of the Children's Act which obtained in the year 1968, has undergone any change.
6. Even if it is held that Sind Children's Act of 1924 is still applicable instead of Children's Act, 1955, then also the position shall not be different. Section 110 of Sind Children's Act, 1955 has repealed the Act, of 1924. But since section 110 of the Act of 1955 has not been enforced, hence the presumption shall be that Sind Children's Act, 1924 is still in force. Sections 26 and 27 of the Act of 1924 almost correspond to sections 66, 68 and 69 of the Act of 1955, which have been reproduced above and which are repugnant to the provisions of the said Ordinance. The result, therefore, will be that even if Children's Act, 1924, is in force, its provisions shall be inoperative to the extent .Of repugnancy with the provisions of the said Ordinance.
7. Several cases having been cited at the bar which show that persons below the age of 16 years have been sentenced under the said Ordinance. Reference may be made to section 7 of the said Ordinance which runs as under:- "A person guilty of Zina or Zina-bil-Jabr shall, if he is not an adult, be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both, and may also be awarded the punishment of whipping not exceeding thirty stripes: ' Provided that, in the case of Zina-bil-Jabr, if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment."
' According to the said Ordinance 'adult' has been defined by section 2(a) to mean a person who has attained, being a male, the age of 18 years or being a female of age of 16 years or has obtained puberty. Thus the said Ordinance itself does not exclude non-adults from the purview of penal sections ther of.
8. In the case of Muhammad Hussain v. Muhammad Ramzan and another PLD 1982 F SC 11 the facts of the case were that Muhammad Ramzan was convicted by the trial Court for having committed Zina on a minor girl. The trial Court had sentenced Muhammad Ramzan who was a boy aged between 12 and 14 gears, to imprisonment till the rising of the Court and a fine of Rs,500. On appeal to the Federal Shariat Court by the complainant, the sentence of fine was enhanced to Rs,8,000 or in default of payment of fine to undergo R.I. For two years plus 30 stripes. This sentence was awarded by the Federal Shariat -ourt notwithstanding the facts that the accused/appellant Muhammad Ramzan was a boy, whose age was established from the medical report to be between 12 and 14 years.
9. In the case of Nazeer Ahmed v. The State PLD 1982 F SC 252 it was held that under the said Ordinance there was no embargo on the administration of punishment of whipping on a boy aged 13 or 14 years. It was further observed that stripes in case of a convict being too weak, shall be applied with such manner and with such intervals that execution of punishment may not cause death of the convict.
10. It can be concluded from the above decisions that the provisions of Sind Children's Act of 1955 or 1924, whichever is in force, shall not effect the provisions of the said Ordinance. For the above reasons I hold that the learned IX Additional Sessions Judge, Karachi was not justified in bifurating the case of respondent Muhammad Yakoob from the case of Sajid Mehmood and in proceeding with separate trials of the two accused. Consequently the impugned order is set aside and the learned Judge is directed to proceed with joint trial of the two accused. The criminal revision stands disposed of accordingly.