' This appeal under section 410, Cr.P.C., is directed against the judgment dated 30th of August, 2000, passed by the learned IInd Additional Sessions Judge, Karachi (Central) in Sessions Case No,403 of 1993, convicting the appellant under section 364-A, P.P.C., and awarding sentence of rigorous imprisonment for 14 years.
2. Briefly stated the relevant facts are that on 27-10-1993 at 0130 hours complainant Ghulam Abbas lodged F.I.R., stating therein that on 26-10-1993 at about 1200 hours his son Zaheer Abbas aged about 7 years went to Bahadur Yar Jang Primary School, Block-II Federal 'IV Area Karachi in second shift, where he is student of Class-I. He did not return back, and therefore, he got worried and started search of the child. He contacted School's teacher who told that at about 3-00 p.m., at the time of recess one young boy came and requested leave for child. She inquired from Zaheer Abbas if he knows that boy and Zaheer Abbas, confirmed that he knows him. On the confirmation the teacher allowed Zaheer Abbas to go with the boy. Complainant further stated that on disappearance of his child he lodged report with Police Station Gulberg, for the disappearance of his child. Thereafter, he in a Mobile of Police Station Gulberg with A.S.I., Bilal Jalali, and police party started searching the child. He suspected Bilal Hassan and Aziz-ul-Haq who are studying in Madarasatul Anwarul Uloom, as Bilal Hassan, usually used to take child to School and bring him back to home. On inquiry from Bilal Hassan, he informed that he with the help of Azizul Haq, kidnapped the complainant's child and threw him in fertilizer plant situated in Sher Shah, Haroonabad. On this information the complainant along with Police Mobile and both the accused namely Bilal Hassan and Azizul Haq proceeded tc, the fertilizer plant and reached there on the pointation of both the accused. At about 24 hours midnight, they reached at Treatment Plant No,1, of Water Board situated at Sher Shah Haroonabad. The complainant found his son standing in the dirty water tank where fertilizer is manufactured. His head was out of water. The child was taken out, by the police officials with the help of chowkidars of plant namely, Amir Khan and Abdul Hassan in unconscious condition. The child was taken to Abbasi-Shaheed Hospital where he was provided treatment. Accused Bilal Hassan and Azizul Haq were taken to Police Station with the assistance of Head Constable Mehmood Ahmed and Constable Mumtaz Hussain. They were produced at the time of lodging F.I.R. It was stated in the F.I.R. That the two accused persons kidnapped Zaheer Abbas, with the intention of killing him and threw him in dirty water tank of the fertilizer plant.
3. The Investigating Officer after recording the statement of witnesses and completing the investigation challaned both the accused persons to face trial. During the course of proceedings an application was submitted for referring accused Azizul Haq, to Police Surgeon for ascertaining his age. The accused/appellant was examined on 20-4-1994 and it was certified by the Police Surgeon, that his age was about 15 years.
4. The appellant/accused pleaded not guilty to the charge. The co-accused Bilal Hassan absconded during the pendency of case. He was declared absconder and proceedings under section 512, Cr.P.C. Were drawn.
5. The prosecution examined P.W.1, Mst. Shagufta Exh. 5, P.W.2 complainant Ghulam Abbas Exh.6, P.W.3 Abdul Hasan the mashir of recovery Exh.8, P.W.4., A.S.I., Mehmood Hussain Exh. 11, P.W.5 Inspector Muhammad Ashraf, the Investigating Officer Exh.23 and P.W.6 Dr. Abdul Jabbar, the Medical Officer Exh.26.
6. The statement of appellant/accused was recorded under section 342, Cr.P.C. Who denied all the allegations and stated that he has been falsely implicated. He did not examine himself of Oath and no defence witness was produced.
7. The learned trial Court framed the following points for determination: ' Point No,1 ' Whether on 26-10-1993 at about 1500 hours boy Zaheer Abbas son of Ghulam Abbas was kidnapped from Bahadur Yar Jang School, Block No,2, F.B. Area Karachi?
' Point No,2 ' Whether on 26-10-1993 at about 1500 hours accused Azizul Haq had kidnapped/abducted the boy Zaheer Abbas from Bahadur Yar Jang School, Block No,2, F.B. Area Karachi?
' Point No,3 ' What offence is committed by the accused person?
8. The, learned trial Court decided the Point Nos.1 and 2 in affirmative and convicted the accused for offence punishable under section 364-A, P.P.C., and sentenced him to suffer rigorous imprisonment for 14 years. He was allowed the benefit of section 382, Cr.P.C., and was remanded in custody to serve out the sentence.
9. Being aggrieved with the above conviction and sentence the appellant has preferred this appeal.
10. I have heard Mr. Ali Ahmed Jan Bangash, learned Counsel for the appellant and Mr. Sharafat Ali Khan, learned counsel for the State.
11. The learned counsel for the appellant has assailed the conviction and sentence on merits but in a very lukewarm manner. He attempted to point out some minor discrepancies in the depositions of the prosecution witnesses and non-examination of the minor/abductee at trial. However, he was not able to advance any reason for false implication of the accused by the complainant Ghulam Abbas and the class teacher of minor, Mst. Shagufta. He contended that P.W.3, Abdul Hassan the Chowkidar of Water Board posted at the Fertilizer Plant in whose presence the kidnapee is alleged to have been recovered at the pointation of accused persons has stated that there was no light at the time of search and the police was searching the boy in the plant on the headlights of the mobile. This witness has stated that a slogan was raised that the boy was recovered but he had not seen if the clothes of the boy were clean or were full of dirty. He has further stated that he had not seen the accused persons as police immediately after its arrival started search of child. In the facts and circumstances of the case, the statement of the witness appears to be natural and the fact that at the time of recovery he had not seen the kidnapee and accused persons does not create any doubt in the prosecution case for the reasons that the kidnapee was recovered at 00.15 hours when there was darkness. P.W., Mehmood Hussain, A.S.I. Has stated that when the kidnapee was recovered from the pond with the help of sweeper, the condition of kidnapee was very precarious and he was gasping. He was immediately taken to hospital where it was ascertained that he was still alive and had survived. The Medical Officer, P.W., Abdul Jabbar, who examined the kidnapee after the recovery, has deposed that the eyes of kidnapee were read, he was feeling difficulty in breathing and his clothes were giving smell of gutter water. In these state of affairs there was no question of showing the face of the kidnapee and the accused persons to the Chowkidar. P.W. Abdul Hassan, the chowkidar has testified the search by police and recovery of the boy from the pond situated in the plant. Since the accused was already know to the complainant, therefore, the identity of the accused is not in dispute. The prosecution has successfully established the kidnapping of boy Zaheer Abbas, by the accused through the evidence of school teacher, Mst.
Shagufta, P.W.1, who is absolutely independent witness and has no reason to falsely implicate the accused. The prosecution has also proved upto hilt the apprehension of appellant/accused and the absconding accused and recovery of the kidnapee Zaheer Abbas, on the pointation of the accused persons. The prosecution has further established that after kidnapping, the kidnapee, was put in such circumstances, that if there would have been delay in recovery, he would have lost his life and thus, was put in danger of being murdered. Thus, so far, the establishing of kidnapping of Zaheer Abbas by the accused persons is concerned the prosecution has brought home the guilt to accused, notwithstanding the non-examination of the minor boy at the trial. The learned counsel for the appellant has placed reliance on a judgment of this Court in the case of Abdul Jabbar v.
The State (1982 PCr.LJ 101 (Karachi). In this case accused persons facing trial for the offence punishable under section 365-A, were acquitted for the reason that the prosecution evidence regarding recovery of child from custody of accused was inconsistent and did not inspire confidence. Abducted child who was 7/8 years old was not examined at trial and there was delay of about one week in lodging F.I.R. Evidence of child's mother was tinged with hatred against accused and she had spared no efforts to paint him as black as possible. In these circumstances it was held that the prosecution failed to prove its case against accused beyond reasonable doubt.
The facts of the present case are totally different, and therefore, the ratio of the cited case is not attracted. In the present case, father of abductee child lodged report of missing his child without any loss of time and there is no allegation of any enmity between the accused A and P.W., Mst..
Shagufta, the school teacher for falsely implicating the accused. The recovery of kidnapped child on the pointation of accused person stands established, and therefore, it is held that the prosecution has established the guilt of accused beyond any doubt.
12. It appears that the learned counsel for the accused fully realised that the prosecution has successfully established the guilt of accused, and therefore, his main contention is that the conviction and sentence awarded to the accused is not sustainable under the provisions of Sindh Children Act, 1955. In support of his contention he has placed reliance on the case of Gopal v. The State 1979 PCr.LJ 590 (Karachi), wherein it has been held that subsection (1) of section 68 of the Sindh Children Act, 1955, provides that no juvenile offender shall be sentenced to death or transportation or imprisonment. Subsection (2) of that section provides that 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 it is authorized to inflict under the said Act is sufficient, the Court is to report the case for action to the Provincial Government. It was further held that the accused was below 16 years of age at the-time of his arrest and initiation of proceedings, therefore, he could not be sentenced to imprisonment for life. In the said case, however, the accused was acquitted on merits for the reason that the prosecution had failed to establish the guilt of the appellant. This ruling on the point of acquittal is of no help to the present appellant. It is relevant to the extent of proposition of law that if the prosecution establishes guilt of the juvenile offender, the Court can report the case for action to the Provincial Government. The second judgment is in the case of Bacho v. The State 1981 PCr.LJ 299 (Karachi). In this case the conviction of accused was upheld but it was directed that in terms of section 68(2) of the Sindh Children Act, 1955, the case was referred to the Provincial Government and it was directed that the appellant in the cited case shall be kept forthwith in safe custody in the Juvenile Offenders Jail, at Landhi till the decision of the Provincial Government, on the reference made to it. The third judgment on which Mr. Ali Ahmed Jan, learned counsel for the appellant has placed reliance is in the case of Ashiq Ali v. The State 1984 PCr.LJ 2000 (Karachi), A plea was taken in this case that the trial Court, should have dealt with the case of the Juvenile Offenders in accordance with the provisions of section 71 or section 72 of the Sindh Children Act, 1955, and he should not have passed the order under section 68(2) of the Act, for referring the case to the Provincial Government and detaining the petitioners till the receipt of the orders of the Government. It was further urged that no order for the detention of a youth offender can be passed whereby the period of his detention extends beyond his attaining the age of 18 years as envisaged under section.71 of the Sindh Children Act, 1955. It was also pleaded that the learned trial Court did not record, his reasons for taking proceedings under section 68 of the Sindh Children Act. It was contended on behalf of State, the nature of offence committed by accused was such that it did not require recording of reasons for referring the case to the Government under provisions of section 68(2) of the Act, and not passing orders under section 71 or section, 72 of the said Act. After reproducing sections 68, 71 and 72 of the Sindh Children Act, 1955, it was held that in case a Court holds a child guilty of having committed an offence, it may order that he may be committed to a certified school or recognized institution for such period of detention which shall not, subject to the provisions of section 5 extend beyond the time when the child will attain the age of 18 years, as provided under section 71; or order that he may be discharged after due admonition; or direct that he be released on probation of good conduct and commit him to the care of his parent or guardian or other adult relative or other fit person, on obtaining a bond from such person that he shall be responsible for good behaviour and well-being of the youthful offender, for any period not exceeding three years. Section 68 of the Act provides that in case the Court is of the opinion that the punishment it is empowered to inflict on a youthful; offender shall not be sufficient or that the child is of so unruly or so depraved character that he cannot be committed to a certified school or detained in a place of safety and that none of the other methods he may be legally dealt with is suitable, it may order the offender to be kept in safe custody and report the case for the orders of the Provincial Government. It was ultimately held that the learned trial Court adopted the procedure laid down in section 68 of the Act recording reasons for choosing to proceed under the provisions of subsection (2) of section 68 of Act, but this omission did not vitiate the proceedings as it is obvious that the petitioners were, held guilty of a heinous offence of murder and the punishment which could be awarded under sections 71 and 72 of the Act would not have been sufficient in the circumstances of the case, and therefore, the learned trial Judge adopted the right course of referring the case to the Provincial Government under section 68(2) of the Act for appropriate orders. The course adopted by the trial Court whereby the juvenile offender was referred to the Provincial Government under section 68(2) of the Sindh Children Act, 1955 was upheld and the contention for realizing juvenile offender was repelled. Learned counsel for the appellant has further placed reliance on another judgment of this Court in the case of Amjad Ali v.
The State 1985 P.Cr.LJ 428 (Karachi). The Division Bench comprising Hon'ble Mr. Justice Ajmal Mian (as his lordship then was) and Haider Ali Pirzada held that penalty of death awarded to a juvenile offender was in violation of subsection (1) of section 68 of 'the Sindh Children Act. The sentence was, therefore, set aside and the case was forwarded to the Provincial Government through the Home Secretary in terms of subsection (2) of section 68 of the Sindh Children Act, 1955 for appropriate orders of the Provincial Government. It was further ordered that the juvenile offender be kept in safe custody, till such order was passed, in Juvenile Offenders Jail at Landhi as was done by a Division Bench of this Court in the case of Bacho v. The State 1981 PCr.LJ 299 (Karachi). The learned counsel for the appellant has referred to the case of Zar Muhammad v. The State 1990 PCr.LJ 1756 (Karachi) by a single Bench of this Court. The facts of this case are distinguishable and the Division Bench judgment in the case of Amjad Ali v. The State, was neither referred before the learned single Bench nor considered, therefore, it is of no help to the appellant. The learned counsel for the appellant has further placed reliance on a Division Bench judgment of this Court in the case of Din Muhammad v. Province of Sindh (1990 PCr.LJ 605). In this case a juvenile offender after his conviction was referred to Provincial Government under subsection (2) of section 68 of the Sindh Children Act, 1955 and the Provincial Government ordered the detention of petitioner for a period of seven years. In this case it was observed that', subsection (2) of section 68 of the Sindh Children Act, 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 murder, which, according to the findings of the learned trial Court was proved but the above subsection (2) of section does not spell out the nature of the order which can be passed by the Provincial Government after receiving the reference from the trial Court. The contention of the learned counsel for the petitioner and Mr. Sahibuddin. Is that no order of detention can be passed under the above provisions and the only order, which can be passed, are:--
(i) movements of the offender can be restricted within certain areas;
(ii) the police may be directed to submit regular report about his behaviour and activities; and
(iii) direct the offender not to leave the limits of certain police stations without the prior permission."
' It was held that: "On this aspect Mr. A.A. Mohammadally learned A.A.-G. Has not been able to throw any light or to point out any relevant provision of the Act or any other law or the rules. However, it is not necessary to adjudicate upon this point in this case as admittedly the detenue was more than 18 years on the date of his conviction and, therefore, under subsection (1) of section 71 of the Act, no order for detention could have been passed or under subsection (2) of section 68 of the Act."
13. The impugned order of the Provincial Government ordering the detention of petitioner for a period of seven years after attaining the age of 18 years was declared to be without lawful authority and the detenue was directed to be released forthwith.
14. This judgment was assailed before the Supreme Court of Pakistan in the judgment reported as, Province of Sindh v. Din Muhammad (1993 SCM R 1551). It has been held by the Hon'ble Supreme Court that in cases where the Court report 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. The Hon'ble Supreme Court further clarified that section 68(2) provides for 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.
' The Hon'ble Supreme Court further held that "If any one of the aforestated ground 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. By placing reliance on the above judgments Mr. Ali Ahmed Jan, learned counsel for the appellant submitted that the appellant was below 16 years of age at the time of his arrest and initiation of proceedings but at the time of announcement of judgment by the learned IInd Additional Sessions Judge Karachi (Central) he was about 22 years of age and as such the learned trial Court ought to have acquitted the appellant.
16. I am not persuaded to agree with the submission that the appellant was entitled for acquittal for the reason that he had attained age of 18 years during the pendency of trial. However, the sentence awarded by the learned trial Court is patently against the provisions of law and is violative of the provisions contained in section 68(1) which clearly provides that notwithstanding anything to the contrary contained in any law, no youthful offender shall be sentenced to death or transportation or imprisonment. The sentence awarded is, therefore, set aside and the matter is referred to the Provincial Government for orders under section 68(2) of the Sindh Children Act, 1955.
17. It is hereby directed that the appellant shall be kept forthwith in safe custody in the Juvenile Offenders Jail at Landhi till decision on the reference made to the Provincial Government. The Provincial Government is further directed to keep in view the judgment of Hon'ble Supreme Court of Pakistan in the case of Province of Sindh v. Din Muhammad (1993 SCM R 1551) while taking decision under section 68(2) of the Sindh Children Act, 1955.
' Copy of this judgment should be forwarded immediately to the Home Secretary, Government of Sindh, for appropriate action.
' The appeal stands disposed of as above.