P (PLP)

SHABIR AHMAD J.

‑Muhammad Yunis was convicted by Mr. A.'D. Cheema under section 381 Pakistan Penal Code and ordered to be detained in the Reformatory School at Lahore for a period of six years. He has presented an appeal to this Court through jail. The appellant was employed in the private service of Afzal Ali on 2nd January.1950 but slipped away after a couple of days when the appellant felt Afzal Ali noticed the loss of a blanket valued at Rs. 16 but did not report to the police about the matter He, however, kept looking for the appellant and on 9th January 1950 came across him at a shop on the Ferozepur Road Lahore. Afzal Ali questioned the appellant about the blanket and the appellant confessed that he had stolen it. Afzal Ali took the appellant to police Station Ichhra where he made a report. The investigation of the case was conducted by Abdur Rahim A.S.I. police, Ichhra, and on being interrogated by this witness the appellant gave information which led to the recovery of the stolen blanket from Ali mad Hussain p.w.3 who has a shop on the Kacherry Road Lahore. Appearing as a witness Ahmad Hussain has stated that the appellant had sold the blanket to him for Rs. 6 and had represented that it had been given to l1im by D. C. Lahore's office as he was a refugee. When questioned at the conclusion of the prosecution evidence under section 342 of the Code of Criminal Procedure, the appellant admitted his guilt but pleaded that he may be pardoned. Acting on the prosecution evidence and his plea of guilty the trial Magistrate held the appellant guilty under section .381 of the Pakistan Penal Code but without sentencing him to imprisonment ordered that he be detained in a Reformatory School for a period of six years. The judgment appealed against makes it clear that the trial Magistrate, purported to act under section 8 of the Reformatory Schools Act (Act 8 of 1897) when ordering the detention. As I was doubtful if an order of detention in a Reformatory School can be passed without in the first instance passing a sentence of imprisonment I issued a notice to the Advocate‑General, Punjab, to satisfy me on that point. In response to that notice Mr. M.H. Munir, Advocate, appeared for the Advocate-General and after hearing him I have arrived at the conclusion that the order of detention could not be passed unless an order of imprisonment had been passed subsection (1) of section 8.of th2 Reformatory School's Act, reads as follows 8. (1) whenever any youthful offender is sentenced to transpor tation or imprisonment, and, is in the judgment of the Court by which he is sentenced a proper person to be an inmate of a Reformatory School, the Court may, subject to any rules made by the provincial Government, direct that, instead of undergoing his sentence, he .shall be sent to such, a school, and be there detained for a period which shall not be less than three or more than seen years. It is clear from a reading of the above provision of law that a order of detention in a Reformatory School can be passed only as a substitute for an order of transportation or imprisonment which has already been passed and cannot be passed if no order of transportation or imprisonment has been passed. The view I take of subsection (1) of section 8 of the Reformatory. Schools Act has been taken in some cases which I will presently mention, after I have dealt with another aspect of the matter. If no order of imprisonment is passed in a case in which a person has been convicted of an offence no appeal can be presented because no where in the Code of criminal procedure in any other lave has an appeal been provided for against an order of detention in a Reformatory School. In. the present case, as a sentence for imprisonment for more than four years has not been passed, no appeal lies to this Court nor does an appeal lie to any other Court because there is no sentence of imprisonment, transportation or a fine. The powers of revision possessed by the High Court are, however, wide enough to deal with a case of the present type because section 16 of the Reformatory Schools Act does not interfere with these powers if the order of detention is not in conformity with the provisions of the Act. Reverting to the question whether or not an order of detention in a Reformatory School can be passed without in the first instance passing a sentence of imprisonment or transportation, I will first of all mention the case Crown v. Bakhtawar (34 Punjab Record 1.910 (Criminal). In that case Bakhtawar a boy 14 years of age had been convicted under section 379 Indian Penal Code, for stealing cattle by a Magistrate of the 2nd Class. The second class Magistrate being of the view that an order of detention in a Reformatory School should be passed but himself being incompetent to pass that order .referred the case to the District Magistrate. The District Magistrate with out passing a sentence of imprisonment ordered the detention of Bakhtawar .in a Reformatory School till he attained the age of eighteen years. The case came to the notice of the Sessions judge who forwarded it to the Chief Court with a recommendation that the order of the District Magistrate being illegal should be quashed. In the Chief Court Mr. Justice Kensington who heard the case made the following. observations:‑‑ The District Magistrate's proceedings are irregular. He was hound to pass a definite sentence of imprisonment on Bakhtawar before making any order under Act, 8 of 1897. His omission to do so not only invalidates the order sending the boy to the Reformatory but also constitutes a great injustice on the boy. The passing of a sentence of imprisonment or transportation before an order for detention tinder the Reformatory Schools Act could be passed was held to be imperative in, inter alia, Queen Empress v. Billar (I. L. R. 20 Allahabad 211), Raoha Kristo v. Gokula Nut (5 Cal. W. N. 211) and Nawab Dheru Gut versus Emperor (A. I. R. 1934 Peshawar 29). I am in respectful agreement with the views expressed in the cases referred to above and hold. that the order of detention in a Reformatory School passed in the present case was illegal. There, now remains to decide what order should be passed. One of, the courses open to me is to remit the case to trial Magistrate and direct him to comply with the provisions of section 8 of the Reformat pry Schools Act, but after anxious consideration I have decided riot to follow that course. The offence committed by Muhammad Yunis, who is a refugee, was not so serious as to make it necessary to impose a sentence of imprisonment, because he is a boy and appears to have committed the offence under a momentary impulse: I uphold the conviction and in order to legalise the detention suffered by him I direct that the period for which Muhammad Yunis has been detained in the Reformatory School shall be treated as imprisonment suffered by him and that the detention already suffered by him shall be the only sentence he shall suffer for the offence committed by him. I have held already that an appeal does not lie and this order is, therefore, passed in the exercise of re visional jurisdiction. The result is that Muhammad Yunis will be set at liberty forth with A. H Order accordingly.