Find a Lawyer

‑‑‑Ss: 497 & 265‑K‑‑Sind Children Act (XIV of 1955), Ss. 69 & 89‑‑ Reference‑‑ Bail‑‑Bail granted to accused by Sessions Judge on ground of young age confirmed by High Court‑‑Subsequently successor Sessions Judge dismissing application moved under S. 265‑K, Cr.P.C. read with S. 89 of Sind Children Act, 1955, relying upon opinion of Civil Surgeon‑‑Order passed by High Court granting bail for all intents and purposes, held, was a final order wherein age of offender was considered‑‑Trial Court ordered to follow observation made by former Sessions Judge and confirmed by High Court, and dispose of application of accused fled under S. 265‑K, Cr.P.C. within specified time.

A.A. Muhammadally, A.A.‑G. for the State.

This is a criminal reference made by the learned IInd Additional Sessions Judge, Karachi South.

The facts of the case briefly stated are that the accused was admitted to bail by the Additional Sessions Judge, Mr. Qadeer Ahmad Hamidi, as at the time of commission of offence he was below 16 years of age. This order was challenged before the High Court. It was confirmed by the High Court and the bail of the accused was not cancelled. The operative part of the order of the High Court recorded by Mr. Justice Mushtak Ali Kazi reads as under:‑

"It was claimed on behalf of the respondent that he was child offender. He was first examined by the Police Surgeon and thereafter by the Medical Board, the respondent at the time of the commission of the said offence would be below 16 years of age:"

This order of the High Court was binding on the trial Court. Subsequently the successor Additional Sessions Judge, Mr. Tahsin Ahmad Bhatti, dismissed the application moved under section 265‑K, Cr.P.C. read with section 89 of the Sind Children Act, 1955 for release of the accused as per section 69 of the Sind Children Act relying upon the opinion of the then Civil Surgeon. This order was challenged by the accused but the revision was dismissed for non‑prosecution. The learned Additional Sessions Judge, in view of the conflicting orders of the two Judges, has made this reference.

I have heard the learned A.A.‑G. who has submitted that the orders of the High Court and the Additional Sessions Judge are binding as the same have become final.

I agree with the contention of the learned A.A.‑G. The order passed by Mr. Justice Mushtak Ali Kazi for all the intents and purposes was the final order. The age of the offender was considered by the learned Judge. I, therefore, direct the trial Court that observation made by Mr. Qaiser Ahmad Hamidi and confirmed by the High Court must be followed. The learned trial Judge should decide the application and dispose of the matter without delay, if possible within two months, and the report of the progress of the case must be submitted to this Court.

M.Y.H./M‑33/K Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.