1992 PLP 582 (MLD)

ALLAH DINO MEMON, J: ‑‑By this Constitution Petition, petitioner Shah Muhammad has challenged the conviction and sentence of his maternal nephew Azim son of Mir Khan aged 12 years, who was charged and tried for offences under sections 302, P.P.C. and 13‑D of the Arms Ordinance, and section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and M.L.R. 27, and was convicted and sentenced to death vide judgment, dated 25‑2‑1986.

1. The brief facts giving rise to the present petition are that on 24‑10‑1984, one Muhammad Afzal son of Muhammad Aslam lodged a report at P.S. Kot‑diji, District Khairpur Mirs, inter alia alleging therein that he is Cashier at Rahber Training Station, Pasha Petrol Pump, Deh Leyani. Another person, namely Rashid Khan son of Amir Khan is also employed as Cashier at the same petrol pump while Muhammad Bachal and Muhammad Yousuf are helpers with them. At night, Rashid and Muhammad Bachal were on duty, while complainant and Muhammad Yousuf were off and were sleeping at the petrol pump, alongwith them. Driver Muhammad Mansha, Miskeen, Shah Nawaz, Alam Hotel owner and his father were also sleeping at the petrol pump. At about 2‑00 a.m. they were attracted by the cries and all of them got up and found 8/10 persons from whom one was armed with hatchet, another with rifle and the remaining persons were armed with guns, who just after coming there started firing and told them to be silent and not to move. In the meanwhile, Rashid got up from his chair and started walking towards west, when one person armed with gun fired on his back side which hit him and he fell down there. Due to fear the complainant and witnesses remained silent. They were controlled by the accused. That out of them two persons armed with guns opened the drawer of the table from which they took cash, one revolver and two below described watches. One person armed with gun took below described gun from the cashier and two other persons armed with gun searched their persons. In the meantime, a police party arrived there from the north of the road. The accused persons opened fire at them and the police party also started firing at the accused. Thereafter, taking advantage of darkness, the accused fled away towards east and the police also followed them. Thereafter, the complainant went to Rashid and saw that he had sustained gunshot injury in the waist, and was in comma. Then they sent Rashid to Civil Hospital Khaipur, through Muhammad Adam for getting first aid. Thereafter, he checked the drawer of the table and found cash, two watches, one revolver and a gun lying in the cabin were missing. Leaving the above witnesses at the scene of offence, he went to the police station and, lodged his report. It is further stated in the F.I.R. that the faces of the above accused were open and the complainant and above witnesses have seen them clearly in the electric light and will be able to identify them on seeing them.

2. After necessary investigation, accused Azim, Roshan Rind, Siddiq Rind, Khadim Hussain Rind, Azam Rind, Khuddan alias Khuda Bux Kalhoro, Latif Dino, Gul Hasan and Ghulam Ali were sent up before Special Military Court No.36, which after recording the evidence and statements of the accused convicted and sentenced all the accused to death. The conviction and sentence was communicated to the condemned prisoners on 25‑2‑1986 through Superintendent of Jail, Khairpur.

3. That on receipt of the above information, regarding conviction, the detenu/accused Aziz and the co‑accused sent Mercy Petition before President of Pakistan, and Governor of Sindh at Karachi, through respondent No.3. The President of Pakistan was pleased to convert the death sentence of the nine co- accused persons to imprisonment for life except conviction of Muhammad Azim son of Akkan alias Mir Khan whose sentence of death was maintained. The above petition has been filed against the above conviction and sentence awarded to detenu Muhammad Azim.

4. We have heard Mr. Abdul Mujeeb Pirzada, learned counsel appearing for the petitioner, Mr. Umer Oureshi, learned counsel for Deputy Attorney. General for respondent No.l, and have gone through the documents produced alongwith the petition.

5. It was contended by Mr. Abdul Mujeeb Pirzada, learned counsel appearing for the petitioner that convict Azim son of Mir Khan was 12 years of age at the time of incident and thus he was a child as envisaged by section 5 of Sindh Children Act, 1955. It was further contended that the convict/detenu being child at the time of incident, he could not be jointly tried alongwith the accused, nor he could be sentenced to death and, therefore, the proceedings before Special Military Court No.36 and the consequent conviction and sentence of the convict/detenu were illegal, coram non judice, without jurisdiction and without lawful authority. In support of his contentions, Mr. Pirzada has relied upon a Division Bench decision of this Court reported in 1980 PCr.LJ 550.

6. Mr. Umer Qureshi, learned counsel appearing for the respondent No.l has conceded to the above legal position that since the convict was child at the time of incident, he could neither be tried alongwith the other accused nor he could be sentenced to death. We have considered the contentions and have gone through the documents produced alongwith the petition. In order to appreciate the contentions, raised by Mr. Abdul Mujeeb Pirzada, it will be appropriate to refer to the various provisions of Sindh Children Act, 1955, relating to the trials concerning children/Juvenile offenders: ‑‑‑ SECTION 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 16 years: Provided that if during the course of the proceedings under this Act such person attains the age of 16 years the 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." SECTION 7: Juvenile Courts.‑‑‑The Provincial Government may, by notification in this official Gazette, 'establish one or more Juvenile Courts for any local area. SECTION 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 Session; (c) A District Magistrate; (d) A Sub‑Divisional Magistrate and (e) A Magistrate of the First Class; whether trying any case originally or on appeal or in revision. SECTION 10: No joint trial of child and adult in area where Juvenile Court exists.‑‑(1) Notwithstanding anything contained in section 239 of the Code or any other law for this time being in force no child shall be charged with or tried for any offence together with an adult. (2) If a child is accused of an offence for which under section 239 of the Code or any other law for the time being in force, such child, but for the provisions of subsection (1) could have been tried together with an adult, the Court taking cognizance of the offence shall direct separate trials of the child and the adults. SECTION 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 order of the Provincial Government. SECTION 69: Exnressions `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. The perusal of the above provisions will show that under section 5 of the Sindh Children Act, 1955, a person shall be deemed to be a child if at the time of incident or at the time of his arrest in connection of any proceedings taken against him is below the age of 16 years, under section 7 of the above Act, Provincial Government has to establish one or more Juvenile Courts for any local area; section 8 pertains to the Courts which are empowered to exercise powers of Juvenile Court, and the powers can be conferred on:‑‑ (a)High Court, (b) Court of Session, (c) A District Magistrate, (d) A Sub‑Divisional Magistrate and (e) A Magistrate of First Class. whether trying any case originally or in appeal or in revision. Under section 10, a child cannot be jointly tried with an adult accused in spite of provisions of section 239, Cr.P.C. Under section 68 of the Act, notwithstanding anything contrary contained in any law, youthful offender shall not be sentenced to death or transportation or imprisonment for life, subsection (2) of section 68 envisages that if the child is found to have committed an offence of so serious a nature, and that the Court is of the opinion that no punishment, which under the provisions of this Act, it is authorised to inflict or 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, a 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 order of the Provincial Government. In view of section 69 of the above Act, expressions "conviction" and "sentences" shall not be used in relation to a child. From the above provisions of law, it is clear that the joint trial of convict Azim son of Mir Khan with the co‑accused was illegal and he could not be sentenced to death. Similarly, expression `conviction' and `sentences' could not be used in relation to a youthful offender by virtue of section 69 of the said Act. We have given our anxious consideration to the next important question, i.e. whether the provisions of Sindh Children Act, 1955, apply to the proceedings before Martial Law Authorities. The Sindh Children Act is of general application and it was held by a Division Bench of this Court in the case of Muhammad Essa v. Summary Military Court, Thatta and another (1980 PCr.LJ 550) that: ‑‑‑ "The Sindh Children Act was applicable to offences/proceedings under Martial Law Regulations or trials before the Military Court." As far as the age of the convict was concerned, the certificate issued by Head Master, Government Naz Pilot Secondary School, Khairpur Mir's shows the date of birth of convict as 7‑1‑1972 and, therefore, he was little above 12‑1/2 years and as such was a child under the provisions of Sindh Children Act. In view of the above factual as well as legal position, we are of the considered view that the convict was a child at the time of incident and, A therefore, he could not be tried jointly with the co‑accused .nor he could be sentenced to death. Therefore, C.P. No.D: 1390 of 1986 is allowed, the conviction and sentence of convict Muhammad Azim son of Akkan alias Mir Khan is declared to be without jurisdiction, illegal and without lawful authority and the same is set aside. We further direct that the case of Muhammad Azim be separated from the case of the co‑accused, and be tried afresh before the Court having jurisdiction. However, there will be no order as to costs. H.B.T./S‑781/K Petition allowed.