1. ' The instant Criminal Revision Application has been filed under section 439 of the Cr.P.C. Impugning order passed by the Sessions Judge, Karachi South, dated 28-9-1994 in Sessions Case No,162 of 1994 arising from F.I.R. No,60 of 1994.
2. ' The facts giving rise to the instant Revision Application are that the respondent No, 2 alongwith the co-accused have been charged under section 302 of the Qisas and Diyat Ordinance read with section 34 of the P.P.C. For murder of a woman. During the course of events the learned D.P.P.
3. Moved an application dated 24-4-1994 before the Sessions Judge seeking medical examination of respondent No,2 by the Police Surgeon for determination of his age. The learned Sessions Judge allowed the application in pursuance whereof the respondent No,2 was examined by the Police Surgeon who through his certificate No,68 of 1994 (attached as Annexure "C to the Revision Application) has certified the respondent's age as appearing to be about sixteen years. It was while placing reliance upon this certificate of the Police Surgeon that the learned Sessions Judge in his impugned order has issued directions for separation of the trial of the respondent No,2 from the co-accused on the ground that he is a child.
4. ' The applicant in this revision application, who is also the complainant in the F.I.R. Lodged against the respondent No,2 and the co-accused, has called into question the impugned order of bifurcation of trial on the following grounds:-
(i) that the separate trial of the respondent No,2 is to be conducted by a Juvenile Court which would hold jurisdiction under the Sindh Children Act, 1955 (hereinafter referred to as the 1955 Act).
5. The 1995 Act is inapplicable to Karachi as no notification in this regard has been issued.
6. Accordingly, the bifurcation of the trial is a jurisdictional impossibility;
(ii) the offence of section 302 of the Qisas and Diyat Ordinance under which the respondent No,2 has been charged is triable exclusively by the Sessions Court as per the schedule to the Cr.P.C.
7. Accordingly, a Juvenile Court would have no jurisdiction in the matter; ' the respondent No,2 is aged 16 years or more and accordingly the impugned order is erroneous;
(iv) there is an obvious conflict between the Qisas and Diyat Ordinance, a central law and the 1955 Act, a Provincial law, in view whereof the latter has to yield to the former.
8. ' I intend to deal with the above grounds and objections in turn. Mr. Gul Zaman Khan, the learned counsel appearing for the applicant has vehemently contended that section 2 of the 1955 Act authorises the Provincial Government to prescribe the commencement date of the 1955 Act to particular geographical areas through notification(s). To appreciate the arguments of the learned counsel it is pertinent to reproduce the said section 2 which reads as under:-- "2. Commencement.--- Section 1 shall come into force at once. The rest of the Act, or any provision thereof, shall come into force in any area on such date as the Provincial Government may, by notification in the official Gazette, specify."
9. ' In this regard Mr. Gul Zaman Khan has placed reliance upon Niaz Muhammad v. The State 1985 PCr.LJ 1030 where a Single Judge of the Sindh High Court was pleased to observe that except section 1 of the 1955 Act none of its provisions had come into force as no notification by the Provincial Government in that regard had been issued or at least produced before the Court. In that case also Mr. Gul Zaman Khan had appeared for the applicant whereas nemo appeared for the State. Even Mr. Janoon Khattak, the learned counsel for the respondent No,2 has also conceded that no notification has been issued in this regard. It appears that a notification issued by the Provincial Government, dated 5-3-1976 appearing in the Sindh Government Gazette of 24-6-1976 has escaped the attention of both the learned Judges in 1985 PCr.LJ 1030 and the learned counsel to the applicant and the State. The said notification is being reproduced as under:-- "THE SINDH GOVERNMENT GAZETTE, JUNE, 24, 1976 ' Home Department (Prisons)
10. ' Karachi, the 5th March, 1976 ' No, S.O.P.R.S. (Misc.)(HD)/9-24/74.--- In exercise of the powers conferred by section 2 of the Sindh Children Act, 1955 as amended by the Sindh Borstal Schools and the Sindh Children (Amendment)
11. Act, 1975, the Government of Sindh are pleased to specify the date of this notification as the date from which the provision of the said Act except section 1 shall come into force in the Karachi Division.
12. (Sd.)
13. ' Muhammad Khan Junejo, ' Secretary to Government of Sindh Home Department.
14. Not only the 1955, Act has come into force in Karachi through the above notification, the Government of Sindh has been pleased to direct its commencement in the Hyderabad and Sukkur Division as well. In this respect the relevant notification is reproduced as follows:-- "THE SINDH GOVERNMENT GAZETTE, JUNE, 24, 1976 Home Department (Prisons)
15. ' Karachi, the 31st October, 1974 ' No, S.O.Prs.(Misc.)(HD)/9-24/74.--- In exercise of the powers conferred by section 2 of the Sindh Children Act, 1955 (Sindh Act No,XII of 1955), the Government of Sindh are pleased to specify the date from which the provision of the said ,Act except section 1 shall come into force in the Karachi Division.
16. (Sd.)
17. ' Muhammad Khan Junejo, ' Secretary to Government of Sindh Home Department.
18. ' In view of the above the first contention of Mr. Gul Zaman Khan fails. Also the case-law cited by him in this context i,e, 1985 PCr.LJ 1030 cannot be followed, being essentially per incuriam in nature, having been decided without considering the operative notification as stated above.
19. ' Alternatively, Mr. Gul Zaman Khan has vehemently stressed that the offence under which the respondent No,2 has been charged is triable exclusively by the Sessions Judge as per the schedule to the Cr.P.C. And the Juvenile Court can have no jurisdiction to entertain the same. The contention raised is equally devoid of force. Section 8 of the 1955 Act dilates upon the jurisdiction of juvenile Courts, which for the sake of convenience, is reproduced as follows:-- "8. Courts empowered to exercise powers of juvenile Court.-- The powers conferred on a juvenile Court under this Act shall be exercisable by--
(a) High Court;
(b) a Court of Sessions;
(c) a District Magistrate;
(d) a Sub-divisional Magistrate, and
(e) a Magistrate of the First Class; ' Whether trying any case original or on appeal or in revision."
20. There appears little doubt that all the Courts mentioned in section 8 of the 1955 Act have powers to exercise jurisdiction as a Juvenile Court. The intention of the Legislature has been to frame the 1955 Act in consonance with the Cr.P.C., in particular, the Schedule thereto. A composite interpretation has to be given to section 8 of the 1955 Act and the Schedule to the Cr.P.C., which would essentially mean that the Courts which would assume cognizance of the matter, according to the nature of the offence and the sentence it entails as per the schedule of the Cr.P.C., would also be the juvenile Court under section 8. Accordingly in the present case, where the respondent No,2 has been charged with an offence under section 302 of the Qisas and Diyat Ordinance, the matter shall be exclusively triable in the Sessions according to the Schedule of the Cr.P.C., while at the same time the Sessions Court shall also be the Juvenile Court to try the respondent No,2 under section 8, subsection (b) of the 1955 Act. Such is also a construction favoured by the provisions of section 9, subsection (3) of the 1955 Act which is also reproduced as follows:-- ' When it appears to a Juvenile Court or a Court empowered under the provisions of section 8, such Court being subordinate to the Court of Session, that the offence with which a child is charged, is triable exclusively by the Court of Session, the Court shall immediately transfer the case to the Court of Session for trial in accordance with the procedure outlined in this Act."
21. The upshot of the above discussion being, that firstly the 1955 Act is to be read in conjunction with the Cr.P.C. Secondly, once a child is charged with an offence it has to be determined as to which Court would be competent and empowered to assume cognizance. Thirdly, that Court which shall have the competence to assume cognizance shall exercise jurisdiction as a Juvenile Court under the 1955 Act. And lastly, in case a Juvenile Court assume cognizance which according to the nature of the offence is bereft of jurisdiction, the matter shall be transferred to that Juvenile Court which shall be empowered to hear the case according to the hierarchy as spelt out in section 8 of the 1955 Act. Such is the interpretation which is proposed which would also be in line with the canons of construction which mandate avoidance of redundancy in provisions of law and statute.
22. ' The third contention raised by Mr. Gul Zaman Khan, the learned counsel for the applicant, is that since the respondent No,2 is aged more than 16 years he cannot be deemed or treated as a child under the 1955 Act and as such the bifurcation of his trial is bereft of legal sanctity. In this context the learned counsel has placed reliance upon the facts that the Police Surgeon has certified the respondent No,2 as 16 years of age, the school leaving certificate has exhibited the date of birth of the respondent No,2 as 18-8-1978 and that the respondent No,2 has been married for the last three years. According to the learned counsel for the applicant the 1955 Act is applicable to a child which section 5 thereto defines a child to be a person who has not attained the age of 16 years. The learned counsel states that the respondent No,2 is more than 16 years and he cannot be treated as a child and his trial cannot be bifurcated.
23. ' I have considered the contention of the learned counsel for the applicant on this count and also perused the certificate of the Police Surgeon. According to the latter the examination by the Police Surgeon has been conducted through X-ray tests. Also the opinion of the Police Surgeon in the certificate is that the respondent No,2 "appears to be about 16 years". The two underlined words i,e, "appears" and "about" are of significance. The import of the two words leave a doubt as to the conclusiveness of age of the respondent No,2. A necessary interpretation of the certificate of the Police Surgeon would be that the age of the respondent No,2 may or may not be 16 years. As there is a doubt it has to be resolved in favour of the respondent No,2 as it is settled principle of interpretation of statutes that while construing provisions of criminal law an interpretation in favour of the accused/citizen has to be given, especially in cases of ambiguities and doubts. Such also appears to be the recent trend of our Honourable Supreme Court in relation to interpretation of statutes, generally. In this regard I am mindful of the view of the Honourable Supreme Court in Musammat Zainab v. Kamal Khan reported in PLD 1990 Supreme Court 1051, where it was held that while construing statutes a beneficial interpretation to the widest possible extent ought to be given.
24. The 1955 Act is a beneficial enactment aimed at protecting children offenders from possible interaction with adult criminals and providing for rehabilitation. In this respect it would be pertinent to reproduce the preamble of the 1955 Act which reads as follows:-- "Preamble.--- Whereas it is expedient to consolidate and amend the law for the custody, protection, treatment and rehabilitation of children and youthful offenders and for the trial of youthful offenders in the Province of Sindh and for certain other purposes specified therein."
25. ' The basis of the 1955 Act is thus a rehabilitative approach aimed at curbing prospective juvenile delinquency. Such was also the intention of the predecessor to the 1955 Act viz., the Bombay Children Act, 1924 and the Bombay Children Act, 1948 as found in Muhammad Ahmad alias Anjum v. State reported in PLD 1974 Kar.
459. There is thus little doubt that the 1955 Act is a curative and beneficial enactment and since there is a doubt as to its application to the respondent No,2 i,e, the doubt as to whether he is 16 years of age and above, I propose to resolve this doubt in favour of the respondent No,2 and extend the application of 1955 Act to him by holding that he is of age less than 16 years. As to the contention of Mr. Gul Zaman Khan that the school leaving certificate shows the respondent No,2's date of birth as 18-8-1978, I feel that the report of the Police Surgeon based upon X-ray tests has to be preferred to the school certificate. In this regard I feel that it would be relevant to cite Abdur Rahim v. The State 1975 PCr.LJ 1227 where Tufail Ali A. Rehman, C.J., had held that the age of a person could be accurately estimated through X-ray tests; Iftikhar v. The State PLD 1972 Pesh. 27 where evidence of a radiologist was preferred to a school certificate; Muhammad Nawaz Khan v.
26. The Collector, District Gujranwala PLD 1960 Lah. 1123 where it was observed that birth and school certificates were not conclusive proof of the age and Siraj Din v. Saghiruddin alias Goga and another 1970 SCM R 30 where the Supreme Court approved determination of accused's age through X-ray examination. Furthermore, the claimed school leaving certificate has neither been produced nor its copy attached with the memo. Of the application. Also the claim is in regard to a school leaving certificate and not a birth certificate. Moreover, Mr. Gul Zaman Khan's contention that the respondent No,2 has been married for the last three years is also of no consequence to establish that at material times he was less than 16 years of age. The contention of Mr. Gul Zaman Khan that the respondent No,2 is 16 years of age and above in view whereof the 1955 Act is inapplicable, thus fails.
27. The last contention advanced by Mr. Gul Zaman Khan is that the Qisas and Diyat Ordinance is a Federal Statute whereas the 1955 Act is a Provincial Statute and since there is a conflict between the two the latter has to yield to the former in view of Article 143 of the 1973 Constitution. In this regard he has further placed reliance upon WAPDA v. Mian Muhammad Riaz reported in PLD 1995 Lah.
56. There is no cavil with the proposition that in case of a conflict Provincial Statutes have to yield to federal enactments. Mr. Gul Zaman Khan has stated in his memo. Of application as ground No,2 that the Qisas and Diyat Ordinance defines an adult to mean a person who has attained either the age of 18 years or attained puberty whichever is earlier. The contention of Mr. Gul Zaman Khan appears to be, although he has not stated so explicitly, that since the respondent No,2 has been married for the last three years he is to be taken as having attained puberty and should be construed as an adult as per the Qisas and Diyat Ordinance. In this manner section 5 read with section 4(a) of the 1955 Act fixing the age of a "child" as less than 16 years shall be of no avail and it is the puberty of respondent No,2 in this case that shall determine his status as an adult or a child.
28. The contention is without merit. As per the Qisas and Diyat Ordinance appearing as Ordinance No,XV of 1995 in the Gazette of Pakistan, dated 21-2-1995, section 7 thereof defines an "adult" as follows:-- "7. Substitution of sections 299 to 338; Act XLV of 1860.---(1) In the Penal Code, sections 299 to 338 the following shall be substituted, namely:- `299 Definitions.--- In this chapter unless there is anything repugnant in the subject or context,-
(a) 'adult' means a person who has attained the age of eighteen years'."
29. ' Thus, the Qisas and Diyat Ordinance does not define an "adult" in terms of puberty as stated by Mr. Gul Zaman Khan.
30. ' Assuming that the age limit of eighteen years as spelt out in the Qisas and Diyat Ordinance is substituted in place of age of sixteen years in the 1955 Act, the case of the respondent No,2 would be on a better footing. There shall then be more a case of holding the respondent No,2 to be a child because a further extension of two years shall be available. In my view the application would be dismissed on a better ground. However, I feel that in view of this discussion there is no need to examine any conflict vis-a-vis age limits of a "child" as defined in the Qisas and Diyat Ordinance and the 1955 Act since the outcome of this application shall be the same. The contention of Mr. Gulf 1 Zaman Khan is without merit and the application is hence dismissed.
31. ' Before parting with the judgment I deem it essential to underscore the provisions of section 10, subsection (1) of the 1955 Act which require bifurcation of trial in case a child is charged alongwith an adult.