1990 P Cr (PLP)

Mr. Shaukat H. Zubedi, learned A.A: G. appearing for the State has conceded that in view of the fact that the accused/appellant was below 16 years of age at the time of incident, he ought to have been tried under Sindh Children Act, 1955, and therefore, he has no objection if the matter was remanded back to the trial Judge for trying the case afresh in accordance with the provisions of Sindh Children Act, 1955. I have considered the contentions of the learned counsel. The application dated 21-1-1989 at page 29 of the Sessions Court record, reads as under: -- Application for medical examination of accused for determination of age. It is prayed on behalf of the accused that this Honourable Court may be pleased to order Superintendent Landhi Jail to produce accused before the Police Surgeon/Civil Surgeon for medical check up for the determination of age and medical certificate as accused is minor, aged about 15 years, Karachi. Dated 21-1-1985 (Sd.) Advocate for accused. The learned Additional Sessions Judge was pleased to refer the accused to the Police Surgeon Karachi and he sent his opinion as under: -- Combined both physical and X-ray findings, in my opinion, his age is about 16 years. (Sd.) Dr. Asghar Ali Baloch Police Surgeon Karachi In the above case, the incident took place on 24-11-1984, and the accused/appellant was examined by the Medical Officer on 6-2-1985, and according to the medical opinion the accused was about 16 years of age and thus he was below 16 years of age at the time when the offence was committed. (1) In the case of Kalimullah alias Abdul Kadir v. The State 1984 P Cr. L J 2825; wherein the applicant was tried/convicted under section 302, P.P.C. and sentenced to suffer R.I. for ten years, the conviction was challenged before the High Court on the ground that the applicant ought to have been tried under Sindh Children Act and the under Bombay Children Act as the Bombay Children Act was repealed by Notification, dated 21st November, 1974. My learned brother Abdul Razzak A. Thahim, J. (as he then was) allowed the revision and conviction and sentences were set aside and the matter was remanded back to the learned trial Judge to proceed with the case in accordance with the provisions of Sindh Children Act, 1955. (2) In the case of Muhammad Issa v. Summary Military Court, Thatta any another 1980 P Cr. L J 550 a Division Bench of this Court was pleased to held that provisions of section 68 of Sindh Children Act were applicable to offence, under Martial Law Regulation as well as trials before the Military Court. It was further held that youthful offenders for the purpose of Sindh Children Act cannot be sentenced to imprisonment or imprisonment for life and consequently the sentence imposed upon two young convicts was held to be contrary to the provision of Sindh Children Act. (3) In the case of Bacho alias Abdul Jabbar v. The State 1981 P Cr. L J 299; a Division Bench of this Court, was pleased to observe that: -- Since the appellant was under 16 years of age when proceedings on charge of murder were initiated against him, he was a child in terms of section 5 of Sindh Children Act, and therefore, sentence of imprisonment for life to the accused/appellant was held to be illegal and the case was referred to the Provincial Government for taking appropriate action under section 68(2) of the Act. In view of the above factual as well as legal position I am of the considered view that since the appellant was a child being below 16 years of age when the present incident took place, therefore, he had to be tried under Sindh Children Act, 1955 and the sentence awarded to him was illegal, I, therefore, allow this appeal, set aside the conviction and sentence of the appellant and remand the matter back to the learned Sessions Judge (South), Karachi, to try the above case afresh either himself or he may transfer the same to any other Additional Sessions Judge for trial of the appellant under Sindh Children Act, 1955. I had allowed the above appeal on 31-1-1990 by a short order and these are the reasons for the same. N.H.Q./Z-/129/K Case remanded.