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‑‑ S. 302/34‑Sind Children Act (XIV of 1955), S. 5‑Application under S. 5, Children Act, 955‑Accused at time of incident under sixteen years ‑ Court if satisfied that accused was under sixteen years at the time of incident the case should be tried under S. 5 of the Act.

Muhammad Sharif v. The State 1985 P Cr. L J 709 and Pir Jalal Shah v.

The State P L D 1982 Kar. 567 ref.

Jawaid Haider Kazmi for Applicants.

Sanaullah Khan for the State.

This revision application under section 435/439, Cr. P. C. has been filed against the orders dated 13‑7‑1986 and 10‑8‑1986 of Ex Officio, Additional Sessions Judge, Karachi.

Facts are that case under‑ section 302/34, P. P. C. is pending against applicants Sarfraz and Majid Khan for trial in the Court of Ex Officio, Additional Sessions Judge, Karachi. An application under section 5 of Sind Children Act (hereinafter to be referred as Act) was moved. It was prayed that case be tried under the provisions of the above aid Act. The prayer was rejected and it was observed that case of applicants will be considered at the time of pronouncing judgment.

I have heard Mr. Jawaid Haider Kazmi. It is contended that at the time of incident both the accused were under sixten years of age and they were granted bail, on this ground, after accused were medically examined. He has referred to the cases reported in P L D 1982 Kar. 567 and 1985 PCr.LJ 709.

Mr. Sanaullah Khan, appearing for the State supports the revision applications.

It is an admitted position that both the applicants at the time of incident were minors. This has been mentioned by the learned Ex Officio, Additional Sessions Judge, Karachi in his both impugned orders, but dismissed the application that applications were moved at late stage when charge was framed. He in same orders observed that this age factor will be considered at the time of announcement of judgment. In case of Pir Jalal Shah v. The State (P L D 1982 Kar. 567), one accused Shah Zawar Shah who was minor at the time of incident was tried alongwith adult. It has been held that Zawar Shah should have been tried separately under the provisions of Sind Children Act. The procedure of trial of juvenile under the Act is different. Whenever it comes to the notice of trial Court that accused was minor at the time of incident, the proper procedure should be adopted. It is immaterial if application is made at later stage. It is also argued that incident took place on 15‑4‑1981 but in the charge date is given as 15‑4‑1982, therefore, charge is defective. In case of Muhammad Sharif v. The State (1985 P Cr. L J 709), it has been held that when accused was under 16 years at the time of incident the case should have been tried under Sind Children Act, 1955.