1. ' AJMAL MIAN, C.J.--- This petition is directed against the order, dated 11-5-1989, passed by respondent No,1, ordering the detention of Muhammad Jamil alias Nakoo the petitioner's son (hereinafter referred to as the detenu) for a period of 7 years starting from 1-4-1989 under subsection (2) of section 68 of the Sind Children Act, 1955 (hereinafter referred to as the Act). The brief facts leading to the filing of the above petition are that the detenu and one Muhammad Hanif son of Syed Iqbal Hussain were accused of murdering one Khalid Beg on 12-2-1982 behind Jacob Lines, Karachi. The detenu was tried by the learned IInd Additional Sessions Judge at Karachi (East) in Criminal Case No, 1651 of 1985 as at the time of the trial he was below 16 years of age. The learned Additional Sessions Judge by her judgment dated 1-4-1989 concluded that factually the murder was committed by the detenu but no sentence was imposed by her on the aforesaid ground, namely, that the detenu was below 16 years of age at the time of commencement of the trial. She accordingly reported the matter to the Provincial Government under section 68(2) of the Act. In pursuance of the above reference the impugned order has been passed. The petitioner has filed the above petition to impugn the above order.
2. ' In support of the above petition Mr. Faridul Hach learned counsel for the petitioner and Mr. Sabihuddin, learned counsel for the Human Rights Commission of Pakistan have submitted that in view of section 71 of the Act the detenu could not have been detained by any authority beyond the age of 18 years. It has been further submitted by them that the Medical Board examined the detenu on 29-3-1984 and opined that the age of the detent at that time was about 18 years. It has, therefore, been contended that on 1-4-1989 the impugned order for detaining the detent for a period of 7 years, starting from 1-4-1989 could not have been passed. Reliance has been placed on the case of Sh. Muhammad Yousuf v. The State reported in 1971 P Cr. L J 786, in which Muhammad Haleem, J. (as his Lordship then was) after referring to the corresponding provisions of the Bombay Children Act (VIII of 1924), namely, section 27(1)(d) and section 32, held that the detent could not have been detained beyond the age of 18 years. The criminal revision petition was allowed and the order of detention beyond the age of 18 was set aside and the detenu was set at liberty. The above case has been followed by a learned Single Judge of this Court in the case of Rajal Mal v. The State reported in PLD 1977 Kar.
3. 13.
4. ' Mr. A.A. Mohammadally, learned A.A.-G. Appearing for the State has candidly conceded the above legal position and has submitted that the detention of the detenu on the basis of the impugned order is illegal.
5. ' We may refer to sections 5, 68 and 71 of the Act. It may be observed that section 5 defines a child as the person who has not attained the age of 16 years, whereas section 68 deals with the sentence which can be imposed upon a child by providing that notwithstanding anything contained in any law no youthful offender shall be sentenced to death or transportation or imprisonment. Its subsection (2) further provides that '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 of this Act it is authorized 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 the orders of the Provincial Government'.
6. ' Section 71 provides that where a child is 'found to have committed an offence, the Court, if satisfied, on enquiry that it is expedient 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 attain the age of 18 years or in exceptional cases for a shorter period, the reasons for such shorter period to be recorded. In the instant case, as observed hereinabove, at the time of the commencement of the trial the detenu was below the age of 16 years. The offence) had taken place on 12-2-1982, the trial had commenced in the same year. He was medically examined, as stated hereinabove, on 29-3-1984 by a medical board which opined that the detenu was aged about 18 years. On the basis of the above admitted fact the detenu could not have been kept in a certified school or recognised institution in terms of section 71 of the Act. The learned Additional Sessions Judge instead of applying section 71, which in the instant case might have not been applicable, for the reason that at the time of the judgment the child had already attained the age beyond 18 years, the learned Additional Sessions Judge reported the case to Provincial Government for orders under subsection
(2) of section 68 of the Act which is attracted (i) when the child is found to have committed an offence of so serious nature that no punishment, which, under the provisions of the Act, it is authorised to inflict is sufficient, or (ii) the Court is satisfied that the child is of so unruly or (iii) of so depraved a character that he cannot be committed to a certified school or detained in the place of safety. In the instant case the child was accused of a serious offence, namely, murder and, therefore, the first ingredient of subsection (2) of section 68 of the Act was present but there is no finding of the learned trial Court as to the other two ingredients which are to be read disjunctively and not conjunctively. In other words the Additional Sessions Judge could report to the Provincial Government under subsection (2) of section 68 of the Act because the child was charged with the murder, which, according to the findings of the learned trial Court, was proved but the above subsection (2) of section 68 does not spell out the nature of the order which can be passed by the Provincial Government after receiving reference from a trial Court. The contention of the learned counsel for the petitioner and Mr. Sabihuddin is that no odder of detention in jail can be passed under the above provisions and the only orders, which can be passed, are:--
(i) movements of the offender can he restricted within certain areas;
(ii) the police may he directed to submit regular report about his behavior and activities; and
(iii) direct the offender not to leave the limits of certain police stations without the permission.
7. On this aspect Mr. A.A. Mohammadally, learned A.A.-G. Has not been able to throw any light or to point out any relevant provision of the Act or any other law or the rules. However, it is not necessary to adjudicate upon this point in this case as admittedly the detenu was more than 18 years on the date of his conviction and, therefore, under subsection (1) of section 71 of the Act, no order for detention could have been passed or under subsection (2) of section 68 of the Act.
8. ' We would, therefore, allow the above petition and declare the impugned order as being without lawful authority. The detenu will be released forthwith unless is required in any other case.