1. ' MUHAMMAD ROSHAN ESSANI, J.---Through this appeal the appellant Sajjad Hyder has challenged the impugned judgment dated 31-10-1989, passed by the learned 2nd Additional Sessions Judge, Hyderabad, in Session Case No,258-A/579 whereby the learned trial Court has referred his case to the Provincial Government under section 68(1) of Sindh Children Act, 1955 (hereinafter referred as the "Act"), for passing of appropriate orders. The learned trial Court has found appellant guilty under sections 302, 324, 504 and 34, P.P.C.
2. ' The facts leading to the filing of this appeal are that complainant Haji Fazal son of Sultan Khoso lodged F.I.R. On 3-12-1979 at Police Station Mitiari, registered as Crime No, 71 of 1979 stating therein that on 3-12-1979 at about 3-30 p.m. He was present at his house when Rasool Bakhsh came and told him that while I was coming back to land after getting cotton pods weighed, I, heard commotion. I, went there running where Haji Wazir also came and both of them had seen Iqbal, Sajjad and Abbas sons of Ghulam Muhammad and eldest son of Lal Punjabi, whose name was not known, who were abusing to their nephew Miral and Aslam and were saying that why they had got watercourse excavated adjoining to their lands. Out of the accused persons, Iqbal and Sajjad had hatchet while other had sotas. Aslam told that they had got watercourse excavated from the Government land and they have not abused them. On hearing so, the accused were annoyed and in presence of Miral and Haji Wazir the accused left Miral and Aslam after abusing them and went away. Thereafter, both the injured informed about the incident. The injured were referred to Hospital, where Miral succumbed to his injuries, as such, section 302, P.P.C. Was added in addition to sections 307, 323, 324 and 504, P.P.C.
3. ' The appellant Sajjad Hyder was referred to Civil Surgeon, Services Hospital, Hyderabad, for determination of his age and he was certified to be minor on 12-12-1984 by the Civil Surgeon, Hyderabad, as such, he was tried separately under section 10 of the Act. After recording the evidence, the appellant was found guilty of the charges but the appellant, being a minor, could not be sentenced to imprisonment, as such, his case was referred to Provincial Government under section 68(2) of the Act for appropriate orders. The appellants, however, was ordered to be detained in the Central Prison, Hyderabad, till the orders of the Provincial Government ' The appellant by this appeal has challenged the impugned judgment, as stated above. The appeal was admitted to regular hearing by this Court on 10-12-1989 and appellant was granted bait by the order dated 27-2-1990 as he was child and youthful offender.
4. ' I have heard Mr. Noor Nabi Memon, learned counsel for the appellant and Mr. Bahadur Ali Baloch learned counsel, for the State.
5. ' Mr. Noor Nabi Memon, learned counsel for the appellant has argued that admittedly the appellant was child at the time of the alleged incident and that he has been separately tried as child by the learned trial Court. The appellant was 20 years of age at the time of passing of the impugned judgment, as such, no sentence could be passed against him in view of sections 71 and (sic) of the Act. The learned counsel emphasised that detention order of the learned trial Court was illegal and beyond the provisions of the Act. The learned counsel argued that the appellant has already crossed the age of 18 years, as such, he is to be set free. In support of his contentions, learned counsel has placed reliance upon the decisions reported in Province of Sindh and 2 others v. Din Muhammad (1993 SCM R 1551), Abdul Ghani Khan v. Secretary, Home Department, Government of Sindh and 2 others (1994 PCr.LJ 965) Amir Bux v. The State (1994 PCr.LJ 420) and Din Muhammad v.
6. The Province of Sindh and 2 others (PLJ 1990 Karachi 11).
7. ' Mr. Bahadur Ali Baloch, learned counsel for the State has conceded to the legal position as argued by Mr. Noor Nabi Memon and has raised no objection if the appellant is set free in view of case-law cited by Mr. Noor Nabi Memon learned counsel for the appellant.
8. ' During arguments when it was pointed out to Mr. Noor Nabi Memon, learned counsel for the appellant, that there being no final order; under section 94 of the Act, as such, how the present appeal, challenging the orders of the trial Court under section 68(2) of the Act, will be maintainable in view of law laid down in the case of Mashooq Ali v. The State (1990 PCr.LJ 1997) which is a Division Bench decision of this Court. The learned counsel very frankly conceded to this legal position, discussed in the case of Mashooq Ali (supra) and requested for conversion of the appeal into revision under section 439, Cr.P.C. Mr. Bahadur Ali Baloch, learned counsel for the State, has raised no objection, to such request being allowed.
9. ' In the case of Mashooq Ali (ibid) a Division Bench of this Court held that there being no final order under section 94 of the Act and only reference was made under section 68(2) to Provincial Government or even the order passed by the Provincial Government under section 68(2) do not fall within the definition of "final order" as such no appeal against such an order has competent.
10. Since the appellant has challenged the decision of the trial Court referring his case under section 68(2) of the Act to Provincial Government for passing appropriate orders, as such, the appeal preferred by him will not be competent as there being no final order under section 94 of the Act.
11. The said appeal was filed within time, as such, I, therefore, order that the appeal may be converted into revision under section 439, Cr.P.C. And is being disposed of as revisions.
12. ' Considering merits of the case, I see force in the arguments of the learned counsel for the appellants/accused that in view of provisions contained in section 71 of the Act after the appellant/accused, who had already attained the age of 20 years at the time of impugned judgment should not be sentenced or detained into prison. A child, if found to have committed an offence of so serious nature that the Court is of opinion that no punishment, which under the provisions of the Code, is authoritsed to inflict will not be it sufficient or when the Court is satisfied that the child is so unruly or of so desperate character that he cannot be committed to a certified school or retained in a place of safety then the Court under section 68(2) of the Act can order that the offender/minor or the offender to be kept in safe custody in such place or as it thinks fit and shall report the case for orders to the Provincial Government.
13. ' In the present case, there is no such finding of the learned trial Court that the applicant/accused was unruly while committing the offence alleged against him. The finding of the trial Court is as follows:- ' "The offence committed by the accused is so serious that no punishment provided by the Sindh Children Act, would be adequate to meet the ends of justice. I, therefore, report this case to Government of Sindh, under section 68(2) of the Act for orders."
14. Since the applicant/accused had already crossed the age of 18 years when the impugned judgment was announced as such no orders could have been passed by the trial Court detaining him in the Cental Prison, even Provincial Government had no powers to pass order of detention beyond the age of 18 years.
15. In the case of Din Muhammad (ibid) it was held by the Hon'ble Supreme Court that no sentence could be imposed on a youthful offender which exceeds the period when he would reach the age of 18 years. The Hon'ble Supreme Court interpreting section 68(2) further held: ' "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."
16. ' In the reported case the appeal of State was dismissed by Hon'ble Supreme Court and orders of this Court releasing the accused/detenue were maintained.
17. ' In yet another case of Abdul Ghani Khan (supra) a Division Bench of this Court declared orders of the Provincial Government detaining the accused for a period of seven (7) years to be without lawful authority and the accused/detenue was ordered to be released on the ground that the accused having already crossed the age of 18 years, as such, the orders passed by the Provincial Government were without lawful authority.
18. ' In Amir Bux (above) this Court relying on the decision of Hon'ble Supreme Court in the case of Province" of Sindh and 2 others (ibid) held that: ' ..."from the above discussion, the position which emerges is that the applicant had already crossed the age of 18 years when the impugned judgment was announced. Though the trial Court has made a reference to the Provincial Government under section 68(2) of the Act but by virtue of the decision of the Hon'ble Supreme Court in Province of Sindh and 2 others (narrated above) the Provincial Government cannot pass any order of detention as the applicant cannot be detained beyond the age of 18 years. This being the position no order, which may have been passed or it is likely to be passed by the Government, will be without jurisdiction. In the circumstances, the detention of the applicant in Central Prison, Hyderabad, for safe custody, as ordered by the trial Court, virtually amounts to wrongful confinement of the applicant."
19. ' The applicant/accused in the present case had already crossed the age of 18 years when the impugned judgment was passed by the trial Court and there being no definite and clear finding against the applicant of his being unruly and c desperate character that he cannot be committed to a certified school or detained in a safe place, the applicant/accused could not have been detained in the Central Prison, Hyderabad nor any sentence could have been passed against him.
20. The upshot of the above discussion is that criminal revision is allowed and the impugned judgment dated 31-10-1989 is set aside. The applicant/accused is accordingly set free. He is on bail and his bail bonds stand discharged.