1. ' This is a criminal appeal under section 410 of Code of Criminal Procedure against the judgment, dated 16-1-1992 passed by Sessions Judge, Naushahro Feroz in Sessions Case Nci.574/89 whereby appellant has been convicted under section 302 of Pakistan Penal Code and sentenced to imprisonment for life and fine of Rs,50,000 in default of payment of fine to suffer one year's R.I.
2. ' I have heard Mr. Azizullah Shaikh, Barrister, for appellant/accused and Mr. Azizur Rehman Sheikh for State and perused the record and proceedings of the case.
3. ' Learned counsel for appellant has not challenged the conviction of the appellant under section 302 of P.P.C. In view of the evidence on record but has only challenged the sentence for life imprisonment on the legal ground that in view of section 68 of Sindh Children Act, 1955, appellant/accused being youthful offender within the meaning of said Act could not be sentenced to death or transportation or imprisonment and further that there being no finding of the trial Court in respect of appellant that he was unruly or of so depraved a character that he could not be even committed to a certified school or detained in a place of safety. In respect of age, that the appellant was less than sixteen years, he has invited my attention to page 116 of paper book of appeal birth certificate, dated 26-4-1988 issued by Headmaster Provincial High School Darbelo, Pass Certificate of Secondary School of the year 1989 issued by Headmaster, Darbelo High School, dated 1-8-1989 primary school leaving certificate dated 9-9-1988 and age certificate, dated 18-3- 1992 issued by Civil Surgeon, Civil Hospital, Sukkur. He further contended that the appellant even could not be detained either under subsection (2) of section 68 or under section 71 of Sindh Children Act as the appellant has crossed age of eighteen years. Learned counsel for the appellant has placed reliance upon Din Muhammad v. Province of Sindh through Home Secretary and 2 others 1990 PCr.LJ 605, Province of Sindh and 2 others v. Din Muhammad 1993 SCM R 1551, Anwar v.
4. State 1983 PCr.LJ 1024, Muhammad Zameen v. State 1970 PCr.LJ 397 (D.B.), Abdul Ghani Khan v.
5. Secretary, Home Department, Government of Sindh 1994 PCr.LJ 965, Amir Bux v. The State 1994 PCr.LJ 420, in support of his contentions.
6. ' Learned counsel for State has contended that the case may be remanded to the trial Court to give its finding as to whether the appellant/accused was unruly or of so depraved a character and has placed reliance upon Yousuf v. State 1975 PCr.LJ 936 (D.B.) and Bachu Ilyas Abdul Jabbar v.
7. State 1981 PCr.LJ 299 and has also referred to section 6 of Sindh Borstal School Act No,10 of 1955 in support of his contention that the appellant could be detained up to the age of 21 years.
8. ' Learned Sessions Judge in his judgment in para.3 at page 116 of the paper book has observed:-- "Since accused Papoo is young as according to his Matric Certificate his date of birth is 4-1-1974, hence he would be below 16 years at the time of occurrence, therefore, there are mitigating circumstances to award the lesser punishments to accused."
9. ' The appellant/accused was referred to Civil Surgeon, Sukkur for determination of his age as per orders of this Court, dated 23-2-1992. The Civil Surgeon in his certificate, dated 19-3-1992 has opined that from his radiological and physical findings, the age of Abdul Karim son of Munawar Ali appeared to be about 18 years. Birth Certificate, dated 26-4-1988 issued by Headmaster, Government High School Darbelo showed the date of birth of the appellant was 4-1-1974 as entered in the school general register. The Pass Certificate of S.S.C. Part II Annual 1989 issued by Headmaster Darbelo, dated 1-8-1989 showed the date of birth of the appellant was 4-1-1974, primary school certificate issued by Headmaster, Government High School, Kandiaro showed 4-1- 1974 as date of birth of the appellant Abdul Karim. Learned counsel for State has not disputed the date of birth of the appellant. The appellant having been born on 4-1-19741A would be less than sixteen years of age on the date of incident which is said to have taken place on 3-9-1989. The judgment of conviction was announced on 16-1-1992 by the learned Sessions Judge, Naushero Feroze when appellant was of 18 years and 12 days and thereby was over 18 years of age on the date of conviction.
10. ' In Din Muhammad's case 1990 PCr.LJ 605 Division Bench of this Court has observed at page 607:-- "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 child is found to have committed an offence of so serious a nature that e Court is of opinion that no punishment, which under the provisions of to 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."
11. ' At the same page it has been observed:-- "In the instant case, as observed hereinabove at the time of the commencement of the trial the detent 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 detent could not have been kept in a certified school or recognized 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 aged 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 authorized 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 the reference from a trial Court."
12. ' The decision of the above-cited Division Bench was challenged before the Supreme Court in Appeal No,21/K of 1991 which was disposed of by the Supreme Court of Pakistan and the same has been reported in 1993 SCM R 1551 wherein the Supreme Court of Pakistan observed at page 1555:-- "A perusal of sections 5, 68, 71 and 89 of the Act will show that they lay down limitations and restrictions on imposing sentence on a youthful offender, section 68(1) specifically prohibits the general terms without reference to the Court or the Government that no youthful offender shall be sentenced to death or transportation or imprisonment. This provision overrides any provision of law which is contrary to it. It therefore, governs all the provisions of the Act or any other law which provides for imposing sentence on a youthful offender. Section 68(2) which empowers the Provincial government to pass order is subject to subsection (1) of section 68. Therefore, the limitation placed by subsection (1) of section 68 will apply to the Government as well. The Provincial Government therefore, does not have unlimited power to sentence a youthful offender in contravention of the provisions of the Act. Any Court, tribunal or functionary of the Government, in exercise of jurisdiction vested under law, can impose only such sentence/ punishment which it is empowered under law. If the law does not provide specifically a power to pass sentence, then the Provincial Government would be acting beyond its authority to pass any sentence. The Government while passing any order on a report from the Court cannot have power wider than the Court itself. As provided by sections 71 and 89 no sentence can be imposed on a youthful offender which exceeds the period when he will reach the age of eighteen years. The limitation on power to impose punishment on a youthful offender as provided by section 89 is applicable to the Provincial Government. In cases where the Court reports the case to the Provincial Government, under section 68(2), it may order for detention as provided by section 97(2) of the Act or at such place which may have been established by it under law for such purpose. Thus, the order of detention passed by the Provincial Government was without jurisdiction.
13. ' In the impugned judgment it has been observed that as the offence of a serious nature was committed, one ingredient of section 68(2) of the Act was complied, but the finding of the learned trial Court as to the other two ingredients which are to be read disjunctively and not conjunctively was missing. We may clarify that section 68(2) provides for the following different situations in which the Court is empowered to report the matter to the Provincial Government for orders:--
(i) The nature of the offence committed by the child is a serious one and in view of this the Court is of the opinion that the punishment provided under the Act is not sufficient; or
(ii) The Court is satisfied that the child is--(a) Of so unruly, or .(b) of so depraved a character; ' That he cannot be committed to a certified school or detained in a safe place and the methods provided for dealing the case are not suitable.
14. ' If any one of the aforesaid grounds is available to the Court, it can report to the Provincial Government for orders. It is not necessary for the Court to give finding on all the grounds mentioned above. A positive opinion, finding or satisfaction of the Court on any one of the grounds envisaged in section,68(2) is sufficient for reporting the matter to the Provincial Government."
15. ' In Abdul Ghani Khan v. Government of Sindh 1994 PCr.LJ 965 learned Judge in Chamber while following Din Muhammad's case 1993 SCM R 1551 held that the order of detention passed by the Provincial Government against the youthful offender after he has crossed the age of 18 years to be without lawful authority. Reference is also made to Amir Bux v. State 1994 PCr.LJ 420 wherein learned Judge in Chamber held that the reference of the trial Court to the Provincial Government under section 68(2) of the Sindh Children Act, 1955, by virtue of the, decision of the Din Muhammad's case 1993 SCM R 1551, the Provincial Government cannot pass any order of detention against the youthful offender who cannot be detained beyond the age of 18 years thereby the order directing the detent to be detained in Central Jail for safe custody and the order which was likely to be passed by the Government on the reference of the trial Court were held to be without jurisdiction.
16. ' Learned counsel for State has cited Yousaf v. State 1975 PCr.LJ 936 but the said case relates to Bombay Children Act therefore, would not be applicable in the instant case. Another case cited is Bacho alias Abdul Jabbar v. State 1981 PCr.LJ 299 the Division Bench of this Court at page 306 observed:-- "We have considered the contentions of the learned counsel for the appellant and State. We are satisfied that the accused/appellant was child in terms of section 5 of Sindh Children Act of 1955 being under 16 years of age when the proceedings were initiated against him and, therefore, sentence of imprisonment for life awarded to him is not legal. We however, do not agree with the learned counsel for the defence that the appellant be dealt with under the provisions of sections 71 and 72 of Sindh Children Act of 1995 as we are convinced that he has been rightly found guilty of offence under section 302, P.P.C. We, therefore, feel that it would be proper to refer him to the Provincial Government as provided by section 68(2) of Sindh Children Act of 1955 and it is hereby ordered that the appellant shall be kept forthwith in safe custody in the Juvenile Offenders Jail at Landhi and his case is accordingly referred to the Provincial Government in terms of section 68(2) of Sindh Children Act."
17. ' In the above-cited case no contention was raised that because the applicant/ youthful offender had crossed the age of 18 years, therefore, he could not be kept in detention under section 71 of the Sindh Children Act, 1955, therefore, the said cited case would not be applicable to the instant case.
18. ' In the instant case admittedly the accused/appellant had already crossed the age of eighteen years on the date of his conviction, therefore, in view of subsection (1) of section 71 of the Act, no order of detention could be passed and no sentence of death or transportation or imprisonment in view of subsection (2) of section 68 of the Act could have been awarded.
19. ' So far the contention that in view of section 6 of Sindh Borstal Act, 1955, the applicant/youthful offender could be detained in a Bookstall School up to the age of 21 years has no merit, as the said provision would not apply, where Sindh Children Act, 1955, would be in operation in view of sub- clause (a) of section 6 of Sindh Bookstall School Act, 1955.
20. In the instant case, as per judgment, the appellant has been convicted under section 302, P.P.C.
21. And sentenced to suffer R.I. For life and was also directed to pay fine of Rs,50,000 and in default to undergo further R.I. For one year and fine if realized 2/3rd (two third share) of the same was to be paid to the heirs of deceased. It is true that the appellant/youthful offender has already crossed the age of eighteen years, hence, in view of section 71 of the Sindh Children Act, 1955, he cannot be detained to a certified school or recognized institution and therefore, no reference could be made to the Provincial Government for action as provided under clause (2) of section 68 of the Sindh Children Act, 1955. It is also correct that the appellant being youthful offender cannot be sentenced to death or transportation or imprisonment as provided under section 68 of Sindh Children Act, 1955. So far the sentence as to life imprisonment is concerned, the same cannot be maintained in view of the provisions of law and the case-law cited above but there is no bar to the imposition of fine under the above provisions of law upon the appellant/youthful offender as held by the Honorable Supreme Court of Pakistan in Din Muhammad's case 1993 SCM R 1551 wherein it was observed:-- "Fine can also be imposed on the youthful offender and if he is under the age of fourteen years his parents/guardian may be ordered to pay the fine."
22. In the instant case, the applicant/youthful offender is not under the age of fourteen years therefore, he could be awarded/sentence of fine of Rs,50,000 (Rupees fifty thousand) as passed by the trial Court but in case of default in the payment of fine he cannot be sent to imprisonment for one year as ordered by the trial Court. Accordingly the appeal is partially allowed whereby conviction under section 302, P.P.C. Is maintained while the sentence of life imprisonment and imprisonment in default to payment of fine are set aside however, sentence of fine of Rs,50,000 (Rupees fifty thousand) is maintained which would be recovered under sections 544-A, 545 and read with section 386, Cr.P.C., by the trial Court and the share stated in the trial Court judgment will be paid to the L.Rs, of deceased. The appellant/accused is on bail his bail bonds are discharged.