' ABDUL HAMEED DOGAR, J.---By a common judgment we propose to dispose of Criminal Jail Appeal No,119 of 1993, Criminal Appeals Nos.124 and 140 of 1993 as they arise out of one and same judgment.
2. Appellants Muhammad Jamil, Muhammad Farooq, Muhammad Sadiq, Ghiasuddin Q Nadeem and Muhammad Akhtar have challenged judgment, dated 11-3-1993, passed by the Judge, Special Court No, II (Suppression of Terrorist Activities), Karachi, whereby they were convicted under sections 365-A and 34, P.P.C. And were sentenced to death. They were also convicted under section 302/34, P.P.C. And sentenced to death as Ta' zir.
3. The brief facts of the prosecution case are that on 13-74992 complainant Mushtaq Ahmad's grandson Umair Ahmed, aged about 6 years with fair complexion, wearing blue colour knickers and blue checked design shirt with sponge sleepers in the feet, went outside the house in the street, but did not return back. At about 3 p.m. Some unknown culprit made a telephone call in the house of Akhtar Hussain, his neighbour, on his telephone No, 6654135, which was attended by Raja and was asked to call Manzoor. Since Manzoor was not available at home, as such Khursheed, his brother-in-law, attended the phone call. The caller told him that boy Umair is in his possession so he should arrange for a ransom amount of Rs, 50,000 for his release and also told him that he will again call at 6 O'clock in the evening, so as to inform about the place for payment of the ransom amount. The culprit further threatened for not disclosing any information to the police otherwise irreparable loss will be caused to them. Thereafter the complainant went to Mominabad Police Station and lodged F.I.R. As Crime No, 112/1992. The facts of the prosecution case further are that the promised call at 6 p.m. Did not come. However, 2 days later a call was received in Khursheed's house which was attended to by P.W. Manzoor and the demand for ransom amount was repeated and 2 days' further time was allowed to arrange for Rs,50,000. Few days later the kidnapper again rang to P.W.
Manzoor saying that the ransom amount should be put in a polythene bag and the same be hanged on the hook of pole in the football ground of the colony at 4 a.m. P.W. Manzoor did the same and came back home and awaited for the return of child, who did not return up to 6 a.m.
Thereafter P.W. Manzoor went to the football ground and found the polythene bag to have been removed by the kidnapper.
4. In the night between 24th and 25th July, 1992, the residents of the locality informed S.-I. Azizur Rahman, the Investigating Officer, that they suspect appellant Jamil in the crime and it was at about 4 a.m. Of the same night appellant Jamil was arrested and on his interrogation he admitted the guilt and disclosed that he and his companions namely, appellants Akhtar Ghiasuddin @ Nadeem, Muhammad Farooq and Sadiq had kidnapped boy Umir and had killed him because they feared that he would identify them before police as the matter was reported. He led and pointed out the place to the police party where the dead body of deceased child was concealed, which was situated in the hills known as K.2 in the North Karachi. He led the police party to the top of the hills and removed boulder (a large stone) below which decomposed body of deceased Umair was found. Memo. Of such recovery was prepared by S.-I. Azizur Rahman. The dead body was identified by P.W. Manzoor and his brother-in-law Khursheed to be that of unfortunate child Muhammad Umair After post-mortem examination the dead body was handed over to P.W. Manzoor for burial.
5. On 3-8-1992, the Investigating Officer received information that other appellants were due to arrive at Karachi from Punjab, as such he constituted a police party including S.H.O. Malik Muhammad Nawaz, S.I.P. Haji Akhtar and other police officials. Muhammad Khalil and Sajjad Ahmed, the neighbourers of P.W. Manzoor Ahmed, who knew the other appellants, were also associated with the police party. At about 10-45 p.m. Appellants Ghiasuddin Nadeem, Sadiq, Akhtar and Farooq arrived at Cantonment Railway Station, who were identified by P.W. Khalil and were arrested by S.H.O. Malik Muhammad Nawaz. They were arrested and from their personal search some baggage containing clothes and cash were recovered.
6. On 3-8-1992 the police party recovered from appellant Muhammad Jamil a sum of Rs, 7,400, being the share of ransom amount, of which Mashirnama was prepared. On 5-8-1992 appellants Muhammad Akhtar, Ghiasuddin Nadeem, Muhammad Farooq and Muhammad Sadiq led the police party to K.2 hills and each of them separately pointed out the place from where dead body of abductee was recovered. On 25-7-1992 appellant Muhammad Jamil confessed his guilt and his confessional statement was recorded by Mr. Gulfam Mohiuddin, ACM, Karachi (West). On 4-8-1992, the confessional statements of the remaining 4 appellants were recorded by the same Magistrate.
On completion of investigation appellants were sent up to face trial on 8-8-1992.
7. On 4-10-1992 the learned trial Court framed charge against the appellants under section 365-A, P.P.C. Only, whereas on 24-10-1992 an amended charge was framed whereby the appellants were charged under section 365-A read with section 34, P.P.C. And also under section 302/34, P.P.C. To which they pleaded not guilty and claimed trial.
8. At trial the prosecution examined P.W.1 Mushtaq Ahmed, who produced the F.I.R. P.W.2 Khursheed Ahmed, who produced memo. Regarding inspection of scene of offence, memo. Regarding pointation of the place from where the dead body of deceased Umair Ahmed was recovered and photographs of deceased, P.W.3 Manthor Ahmed, P.W.4 Raja, P.W.5 Dr. Sh. Najmul Haq, P.W.6 Muhammad Khalil, who produced Mashirnama of arrest of the appellants, P.W.7 Riaz Khan, who produced Mashirnama of inquest report, P.W.8 Mr.Gulfam Mohiuddin, ACM, Karachi (West), who produced confessional statements of the appellants, statements under section 164, Cr.P.C. Of Muhammad Khalil and Muhammad Zaheer, P.W.9, Muhammad Sajid, P.W.10 Muhammad Zakir P.W.11, S.-I. Azizur Rahman, Investigating Officer, who produced Mashirnama of recovery of the ransom amount, notice under section 160, Cr.P.C. To the appellants, memo. Of arrest of the appellants, letters to Chemical Examiner and medical officer, P.W.12 Shah Nazar and P.W.13 S.H.O.
Malik Muhammad Nawaz and then the prosecution closed its side.
9. The appellants in their respective statements under section 342, Cr.P.C. Denied the case of prosecution and claimed innocent. All of them denied about their confessional statements, but about the amount, which was said to have been recovered as share of the ransom amount, all of them pleaded that the said amount was obtained from their fathers as a condition for their release. Appellants Muhammad Jamil and Muhammad Farooq neither examined themselves on oath nor examined any Witness in defence, whereas appellant Ghiasuddin @ Nadeem claimed to examine himself on oath and said that his Advocate will submit list of defence witnesses within 3 days. Appellant Muhammad Sadiq wanted to examine himself on oath and said that his counsel will provide list of defence witnesses within 3 days. He produced school leaving certificate.
Appellant Muhammad Akhtar claimed to examine himself on oath and further said that his counsel will provide list of defence witnesses within 3 days. He further pleaded that he had a motor-cycle which he used to give on rent and on 3-7-1992 he had given the said motorcycle on rent to co- appellants Muhammad Sadiq and Muhammad Jamil, whose photo copies of NICs were kept by him as security. They returned the said motorcycle to him on 15-7-1992. He produced a copy of application under section 540, Cr.P.C., whereby the record regarding the age of appellant Muhammad Jamil was called from his school. He also produced photo copy of affidavit of father of appellant Muhammad Jamil. Thereafter appellant Ghiasuddin @ Nadeem examined himself on oath and also examined D.W. Nizamuddin as his defence witness. Appellant Muhammad Sadiq examined himself on oath and produced medical certificates regarding the determination of ages about himself as well as that of appellants Muhammad Farooq, Muhammad Jamil and Muhammad Sadiq. He also produced medical certificate of age of appellant Ghiasuddin @ Nadeem issued by Dr. Asghar Ali Balouch, Medical Superintendent, Services Hospital and Civil Surgeon, Karachi. Appellant Muhammad Akhtar examined himself on oath and produced true copy of challan and other documents. He examined one Sharafat Ali as his defence witness, who produced photo copy of double line train register maintained for arrival and departure of trains at Cantt. Railway Station. He also examined Nisar Ahmed and Saleem as defence witnesses.
10. On assessm ent of evidence all the appellants were found guilty of the abovementioned charges and were convicted and sentenced as stated above.
11. We have heard M/s. Nuruddin Sarki and M.R. Syed for appellants Muhammad Jamil, Muhammad Farooq, Muhammad Sadiq and Ghiasuddin @ Nadeem, Mr. Khawaja Naveed Ahmed for appellant Muhammad Akhtar, Mr. Syed Jalil A. Hashmi, Assistant Advocate-General for the State and Mr. Syed Mahmood Alam Rizvi, the learned counsel appearing on behalf of the complainant and have gone through the record and proceedings of the case minutely.
12. M/s. Nuruddin Sarki and M.R. Syed at the very outset contended that appellants Muhammad Jamil, Muhammad Farooq, Muhammad Sadiq and Ghiasuddin @ Nadeem were children, within the meaning of sections 5 of the Sindh Children Act, 1955 (hereinafter referred to as the "Act") at the time of incident and were sentenced to death which was in clear violation of the provisions of subsection (1) of section 68 of the Act. They next argued that irrespective of the above illegality, the abovenamed appellants could not have been tried with major appellant Muhammad Akhtar and in view of the Act such trial is illegal and without jurisdiction. They submitted that appellants Muhammad Jamil. Muhammad Farooq, Muhammad Sadiq and Ghiasuddin @ Nadeem were medically examined at least on three occasions by different medical officers and from their respective certificates with regard to the determination of their ages they were found to be below 16 years of age on the date of incident. The learned counsel vehemently attacked on the findings of the trial Court that the provisions of the Act would not be applicable in the cases falling within the ambit of Suppression of Terrorist Activities Act, 1975 (hereinafter referred to as the "STA Act") and argued that the learned trial Court has erroneously interpreted section 10 of the STA Act, which, in fact, has no overriding effect. In support of their submissions they relied upon the case-law reported in 1992 M LD 582, 1985 PCr.LJ 428, 1993 SCM R 1551, 1984 PCr.LJ 2825, 1981 PCr.LJ 299 and 1990 PCr.LJ 1756.
13. On the other side, the learned A.A.-G. And the learned counsel for the complainant frankly conceded with the above contentions of the learned counsel for the appellants and agreed that the trial of juvenile offenders, namely, appellants Muhammad Jamil, Muhammad Farooq, Muhammad Sadiq and Ghiasuddin @ Nadeem with major offender, namely, appellant Muhammad Akhtar was illegal and that in view of the Act, juvenile offender cannot be tried with major offender, as such the entire trial was illegal. According to them the Act can be fully applied even in the cases of STA Act and thus it is a fit case to be remanded for trial in accordance with the Act.
14. In the first instance it would be appropriate to refer to the respective medical examinations of appellants, namely, Muhammad Jamil, Muhammad Farooq, Muhammad Sadiq and Ghiasuddin @ Nadeem in order to ascertain their ages at the time of incident.
15. (i)Appellant Muhammad Jamil: He was arrested on 25-7-1992. He was firstly examined by Police Surgeon on 28-7-1992 and his age was found to be in between 15 and 16 years. Secondly, on 25-8- 1992 he was again examined on the directions of the trial Court and was found to be 15 years of age. Thirdly, he was examined by Medical Board on 31-8-1998, constituted on the directions of this Court and was found to be aged about 22 years.
(ii) Appellant Muhammad Farooq: For the first time on 5-8-1992 he was examined by Police Surgeon and his age was opined to be in-betwetn 16/17 years. Again on 25-8-1992 on the direction of the trial Court he was examined by Police Surgeon and he found his age in-between 16 and 17 years. Thirdly, on 25-4-1999 a Board under the orders of this Court was constituted, which examined the appellant and found his age between 21/22 years.
(iii) Appellant Muhammad Sadiq: Police Surgeon opined him to be of 15 years of age on 25-8-1992 and later on 25-4-1998 Special Medical Board, constituted under the orders of this Court, examined him on 25-4-1998 and opined his age in-between 20 to 21 years.
(iv) Appellant Ghiasuddin Nadeem: He was firstly examined on 5-8-1992 by Police Surgeon and in his opinion the appellant was said to be in-between 16 and 17 years of age. Second time on 25-8- 1992 he was again examined by same Police Surgeon and his age was said to be in between 17/18 years. Lastly, Special Medical Board, constituted under the order of this Court, opined his age as 21/22 years on 25-4-1998.
16. Mr. Khawaja Naveed Ahmed, the learned counsel for appellant Muhammad Akhtar outrightly conceded that appellant Muhammad Akhtar was major at the time of incident, as such the request for his examination by Medical Board, constituted under the orders of this Court, was not preferred.
17. The incident in this case took place on 13-7-1992 and according to the above estimation appellants Muhammad Jamil, Muhammad Farooq, Muhammad Sadiq and Ghiasuddin t Nadeem were below 16 years of age and thus were "children" within the meaning of section 5 of the Act. The contentions on their behalf had sufficient force that they were illegally convicted and sentenced to death. It would be pertinent to refer to the relevant section of the said Act. Section 5 of the Act reads as under:--- "5. 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 of 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."
18. For brevity sake it is also pertinent to reproduce here sections 68 and 69 of the Act: "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.
69. Expressions "conviction" and "sentences" not to be used in relation to children.---Save as provided in this Act, the words conviction and sentence shall cease to be used in relation to children dealt with under this Act and any reference in any enactment to a person convicted, a conviction or a sentence shall in the case of a child be construed as a reference to a person found guilty of an offence, a finding of guilty or an order made upon such a finding as the case may be."
19. From the perusal of above-referred provisions of the Act, it clearly transpires that the children can only be tried in accordance with the provisions of the Act, which was not done in this case.
Irrespective of the above, they were tried with adult appellant/accused Muhammad Akhtar and hence the joint trial too was illegal as envisaged by section 10 of the Act, which provides that no joint trial of child and adult is allowed. In such situation the cases are to be separated and separate trial of child and adult is to be conducted in accordance with the respective laws. The case-law referred above nas full relevancy with the facts of the case -in hand. In the case of Amjad Ali @ Kaloo v. The State, reported in 1985 PCr.LJ 428, a Division Bench of this Court set aside the sentence of death finding the same in violation of subsection (1) of section 68 of the Act, referred the case to Provincial Government for appropriate orders in terms of subsection (2) of section 6 of the Act. In the case of Shah Muhammad v. Federation of Pakistan and others, reported in 1992 M LD 582, a Division Bench of this Court allowed the petition and declared the trial of juvenile offender with an adult co-accused to be without jurisdiction, illegal and without lawful authority and further directed the case to be tried separately by the Court having jurisdiction. Another Division Bench of this Court in the case of Bacho @ Abdul Jabbar v. The State, reported in 1981 PCr.LJ 299, termed the trial of the juvenile offender as illegal and referred his case to the Provincial Government for appropriate orders in terms of subsection (2) of section 68 of the Act. This Court in the case of Zar Muhamamd v The State, reported in 1990 PCr.LJ 1765, found the accused as child, below 16 years of 'age at the time of incident and set aside his conviction and sentence arid remanded back the case to Sessions Court for fresh trial in accordance with the Act.
20. The learned trial Court opined in the judgment that the ages of the appellants though ranged from 15 to 19 years, yet came to the conclusion that provisions of Bombay Children Act and Juvenile Offenders Act would not be applicable in the cases falling within the ambit of STA Act and convicted the appellants. Reference in this context was made to section 10 of the STA Act, whereby it was said that the STA Act has overriding effect over the other laws.
21. It would be pertinent to note that the provisions of Sindh Children Act, 1955 have not been expressly excluded in the STA Act. Section 11 of the STA Act concerns its repeal clause, where under the Suppression of Terrorist Activities (Special Courts) Ordinance, 1974 (XXIV of 1974) have been repealed. Had the intention of Legislature been to repeal Sindh Children Act, it would have been expressly included in the repealing clause of STA Act as the STA Act is the subsequent enactment to Sindh Children Act, 1955.
22. Provision with overriding effects is also available in various other enactments, such as, Anti- Terrorism Act, 1997. The Ehtesab Act, 1997, The Control of Narcotics Act, 1997, The Offences in Respect of Banks (Special Courts) Ordinance, 1984, etc. But the application of Sindh Children Act or Juvenile Offenders Act has neither been repealed nor excluded therein. The expression of overriding effect is in general terms and not in express words. In the similar circumstances the Hon'ble Federal Court in the cases of Punjab Province v. L. Sita Ram and others, reported in PLD 1956 Federal Court 157 at page 162 (F) has observed that, "It is fundamental rule in the construction of statutes that a subsequent statute in general terms is not to be construed to repeal a previous particular statute unless there are express words to indicate that such was the intention or unless such an intention appears by necessary implication.
23. The Hon' ble Supreme Court in the case of Ahmed Saeed Kirmani v. Ch. Fazal Illahi and others, reported in PLD 1956 (W.P.) Lahore 807 has observed at page 815 (J) as follows: "This would be in accordance with another well known cannon of interpretation of statutes, embodied in the maxim generalia specialibus on derogant---a general law does not abrogate an earlier special one by mere implication."
24. The Lahore High Court in the case of Abdur Rashid v. The State, reported in PLD 1957 (W.P., Lahore 400 at page 407 (F) has held that, "there is no express provision of repeal and unless there is a compelling reason to the contrary, the Courts must always lean against an interpretation which involves an implied repeal of an existing statute".
25. Obviously a beneficiary provision is available to a child under Sindh Children Act and in such situation it has been held by the Hon'ble Supreme Court in the case of Bashir alias Bashir Ahmad and another v. The State, reported in 1998 SCMR 1974 that the same should be given liberal interpretation. It has been held in this case that, since section 382-B, Cr.P.C. Is a beneficiary provision, it should be given liberal interpretation.
It has been further held that, where provision of a statute on criminal law is susceptible to two interpretations, the interpretation favourable to accused should be preferred.
26. The Hon'ble Supreme Court in the case of The State v. Syed Qaim Ali Shah, reported in 1992 SCM R 2192 at page 2231 (Y) on the interpretation of statutes has held as under:--- "In order to know what a statute does mean, it is one important step to know that it does not mean; and if it be quite clear that there is something which it does not mean, then that which is suggested or supposed to be what it does mean must be in harmony and consistent with what it is clear that it does not mean. What it forbids must be consistent with what it permits."
27. Since no provisions particularly the beneficiary provisions of the Sindh Children Act, 1955 have not been expressly excluded in the STA Act which purports to have taken D away the said provisions in the guise of overriding provisions of section 10 of the STA Act, we hold that the Sindh Children Act- would be applicable to cases triable by of under the STA Act.
28. For the reasons discussed above, we allow the appeals and set aside conviction and sentences of the appellants and remand the case to the learned trial Court for fresh trials in accordance with law.
' Above are the reasons of our short order, dated 11-10-1999.