' QAISAR AHMAD HAMIDI, J.--- The question that has been raised in this Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 relates to the interpretation of section 68(2) of the Sindh Children Act, 1955.
2. The facts of the case are fairly simple. On 29-3-1984 complainant Mehrab went to his lands alongwith Mst. Sukhan, wife of his brother and niece Mst. Suhagan. At about noon time the petitioner armed with a gun went there alongwith his father co-accused Ghouso. The petitioner is alleged to have fired a gunshot at the instigation of his father causing injuries to Mst. Suhagan who fell down. The sister of petitioner was declared as KARI by complainant and his relatives and this incident is the outcome of that allegation. The case of the applicant who was admittedly a juvenile was bifurcated from that of co-accused Ghouso. The petitioner was tried by Mr. Ahmed Nawaz Shaikh, Assistant Sessions Judge, Kandhkot, under the provisions of Sindh Children Act, 1955, who made a reference to the Provincial Government under section 68(2) of the Sindh Children Act, 1955 for necessary orders. The petitioner was detained in Judicial Lock-up, Kandhkot till the reference was disposed of. This order dated 18-4-1989 passed by Assistant Sessions Judge, Kandhkot, was challenged in Cr.Revision No,27 of 1989, which was, however, converted as a criminal appeal. By this time the orders passed by the Provincial Government directing the detention of petitioner in Juvenile Jail Landhi for a period of five years commencing from 18-4-1989, were received. On 29-1- 1990 the appeal was withdrawn by the petitioner and both the above orders were challenged in this constitutional petition.
3. Section 94 of the Sindhh Children Act, 1955, deals with appeals. The appeal lies only against a final order and not otherwise. The 'final ordre' as defined by section 4(2) of the Sindh Children Act, 1955, means an order passed by a Juvenile Court or any Court empowered under section 8 to exercise the powers of a Juvenile Court, under the following sections, namely, 45 to 47, 71 to 76, 79, 81, to 84, 90 to 92 and 103. A reference made under section 68(2) to the Provincial Government or the order passed by the Provincial Government under this section, therefore, do not fall within the definition of "final order" and consequently an appeal against such an order is not competent. The petitioner had a remedy by way of criminal revision. He actually filed a criminal revision, but abandoned it subsequently. Under the Constitution of Islamic Republic of Pakistan, 1973, the existence of another adequate remedy is a bar to the exercise of this extraordinary constitutional remedy, though the Court will have to consider a variety of circumstances including the efficacy of such remedy. The present petition is liable to be dismissed on this score alone.
4. On merits also the petitioner has got no case. Section 71 of the Sindh Children Act, 1955, provides for commitment of child to certified school or recognized institution in the following words:--
71. Commitment of child to certified school or recognized 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 attain the age of eighteen years or in exceptional cases for a shorter period, the reasons for such shorter period to be recorded in writing."
5. It is again not incumbent upon the Court to send a child to a certified school or recognized institution and in a suitable case recourse can be had to the provisions of section 72 of the Sindh Children Act, 1955, which lays down that:--
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 recognized 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 well-being of the youthful offender for any period not exceeding three years and for the observance of such other conditions as 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 youthful offender himself is over the age of fourteen years, order the offender to pay a fine."
6. Section 89 of the Sindh Children Act, 1955, provides for period of detention in the following words:-- "Period of detenion.--Notwithstanding anything contained in this Act, the period of detention in the case of a person under the age of fifteen years shall be such as will result in the person being detained until he reaches the age of eighteen years: ' Provided that the period of detention in the case of a child over fifteen years of age shall be not less than two years: Provided further that where special circumstances exist and the interest of the child so demands, it shall be open to the Court for reasons to be recorded in writing, to pass an order for a shorter period of detention."
7. It was obviously on the strength of this provision of law that MrAwan Rehmatullah Nadeem, learned counsel for petitioner has contended that no child after the attainment of the age of 18 years (like the petitioner) can be kept in detention. This argument is effectively answered by the language of section 5 of the Sindh Children Act, 1955, which reads as follows:- "Continuation of proceedings against child on his attaining specified age. --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. In the case of Sh. Muhammad Yousif v. The Sate, reported in 1971 P Cr. L 786, it was held that a Juvenile Court cannot order detention of youthful accused for a period exceeding beyond the age of 18 years. It may, however, be added that this restriction relates to the power of Court and not to the power of the Provincial Government. I cannot do better than quoting section 68 of the Sindh Children Act, 1955, in extenso:-- "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 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 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."
9. This question was again examined in the case of Ashiq Ali alias Ghullam Murtaza Soomro v. The State and 2 others, reported in 1984 P.Cr.L.J. 2000, by a Division Bench of this Court and was answered in the following words:-- "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 appears from the bare reading of the section 71 that it confers powers on the Court tryig a youthful offender of making an order of commitment of a youthful offender to a certified school or a recognized institution for a 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 provisions 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. Lastly it was half-heartedly suggested that the depositions of the witnesses recorded in this case are the verbatim copies of the depositions recorded in the case against co-accused Ghouso(since acquitted), which practice amounts to an illegality vitiating the trial of the present petitioner. Reliance is placed upon the case of Hassan Gul v. The State reported in 1975 P.Cr.L.J.
437. There is, however, nothing on record to substantiate this contention. Even otherwise a disputed question of fact cannot be gone into in this petition.
11. On all the above scores the petition has got no merits and is dismissed.