P L D 2014 Peshawar 127 (PLP)

NISAR HUSSAIN KHAN, J.

Instant appeal is directed against the judgment of learned Additional Sessions Judge/Judge Special Court (Juvenile Court-III), Peshawar, dated 24-10-2012 whereby appellant was not released on probation in terms of section 11 of the Juvenile Justice System Ordinance, 2000.

2. Compendium of facts leading to the filing of instant appeal is that appellant was tried by the Juvenile Court for offence under section 9(C) CNSA in case F.I.R. No.37, dated 11-6-2010 of Police Station ANF, Peshawar. Having found guilty for trafficking 13.200 Kg chars in motor car No.LRB 9339 Suzuki Mehran, he was convicted and sentenced to life imprisonment with fine of Rs.50000/- or in default whereof, he was to further undergo three months' S.I. The appellant challenged his conviction through Cr.A. No.632/2011. This court partially allowed the appeal on 30-7-2012 and while maintaining the conviction and sentence, the case was remanded to the trial court for recording reasons to exercise or otherwise of discretion provided under Section 11 of the Juvenile Justice System Ordinance, 2000 to release the convict on probation and the terms thereof. After remand, the learned trial Court/Juvenile Court did not release the appellant on probation while exercising discretion under section 11 of the ibid Ordinance, hence this appeal.

3. We have heard the learned counsel for the appellant, the learned Special Prosecutor for ANF and have also scanned the record as well as the law on the subject. 4 To resolve the controversy and to understand the import of Section 11 of the ibid Ordinance, the same is reproduced in extenso as under:-- "Release on Probation:- Where on conclusion of an inquiry or trial, the Juvenile Court finds that a child has committed an offence, then notwithstanding anything to the contrary contained in any law for the time being in force, the Juvenile Court may, if it think fit:-- (a) Direct the child offender to be released on probation for good conduct and place such child under the care of guardian or any suitable person executing a bond with or without surety as the Court may require, for the good behaviour and well-being of the child for a period not exceeding the period of imprisonment awarded to such child: Provided that the child released on probation be produced before the Juvenile Court periodically on such dates and time as it may direct; (b) Make an order directing the child offender to be sent to a Borstal institution until he attains the age of eighteen or for the period of imprisonment whichever is earlier; (c) Reduce the period of imprisonment of probation in the case where the Court is satisfied that further imprisonment or probation shall be unnecessary."

5. Bare perusal of Section 11 of the ibid Ordinance transpires that by use of word "may" and phrase "if it thinks fit", a discretion has been vested in the Juvenile Court to release a juvenile on probation or to send him to borstal institution. It may reduce the period of probation or imprisonment in case the court is satisfied that further imprisonment or probation is unnecessary. There is no absolute duty cast on the juvenile court to release the convict in all circumstances on probation. A discretion, vested in the court, is to be exercised justly, fairly, honestly and with all reasonableness and sound application of judicial mind. It follows that the court is required to consider all attending circumstances of the case including the behaviour, conduct, aptitude and antecedents of the juvenile convict. The vesting of discretion never ever meant to release a juvenile convict in all circumstances regardless of pre-conditions enumerated hereinabove. Had it been the intention of the Legislature to exercise a discretion in such arbitrary manner, it could have easily inserted the word "shall" in the section itself, leaving no room of assessment with the court. In the instant case, according to the findings of the learned trial court/Juvenile Court in its judgment dated 24-1-2012, he was found of the age of 20 years at the time of his arrest. He was also found in possession of his CNIC which can only be issued on attaining the age of 18 years. However, on the basis of report of Standing Medical Board, he was around 18 years, hence he was referred to the Juvenile Court for trial. Case was registered in 2010 when he was found at the border line of juvenility whereas at the moment he is no more juvenile. Section 11(b) of the Juvenile Justice System Ordinance, 2000, squarely copes with such situation, stipulating that a child offender may be sent to borstal institution, until he attains the age of 18 years or for the period of his imprisonment whichever is earlier. This statutory provision is clear manifestation of the intention of the Legislature that on attaining the age of 18 years, the convict/juvenile is no more entitled to any such leniency as he loses his status of juvenile accused in that eventuality. In view of above scanning of the law, it can safely be concluded that; firstly, release of juvenile convict on probation is a discretionary matter only to be decided by the trial court/Juvenile Court and; secondly, the Juvenile Court too cannot exercise such discretion on extinguishment of the status of the convict as juvenile. The learned trial court has turned down the plea of the appellant on the same ground which is in accordance with law and within the parameters of Section 11 of the Ibid Ordinance.

6. The court while exercising its discretion, shall take into account that: Whether crime so committed by the juvenile was accidental, or culmination of compulsion of circumstances faced by him or was a planned and intentional act? It is also to be seen whether his crime is against a particular person, his enemy or the whole society? When Juvenile Justice System Ordinance, 2000, is visualized in its entirety, it reflects that it has classified the juveniles into two categories: the one below 15 years of age and other above than that. These two groups have been differently treated by the Ordinance itself. In the same strain, clause (b) of Section 11 of the ibid Ordinance takes away the vested discretion of court when Juvenile reaches the age of 18 years. Likewise, proviso to subsection (7) of Section 10 of Ordinance puts fetters on grant of bail to child of the age of 15 years or above, even on statutory ground, if there are reasonable grounds to believe that such child is involved in an offence which is serious, heinous, gruesome, brutal, sensational in character or shocking to public.

7. True that while interpreting Criminal Statutes, every endeavour is to be made to resolve discretionary powers in favour of accused. But it is equally important that such interpretation should not be blown out of proportion, culminating into startling consequences of anarchy and chaos confronting the country due to lawlessness. Such exercise cannot be undertaken, in disregard of very object of putting in place the Penal Laws, lest it may defeat their purpose. It is undisputed; that ibid Act has been enacted to curb the menace of trafficking of narcotics. Involvement of ladies and juveniles in this filthy business has become order of the day, as they can easily earn benefit of their gender and tender age. The mandatory remedies and concessions accorded by the law cannot be withheld. However, while exercising discretionary power, regard must be had to the consequences, ensuing therefrom. The courts are required to strike the balance, as future of the whole generation cannot be sacrificed at the altar of unwarranted concession to a drug trafficker.

8. For the reasons discussed above, we could not find any reason to interfere with the impugned judgment, thus, this appeal being devoid of merits is dismissed. HBT/644/P Appeal dismissed.