2009 PLP 1876 (YLR)

SYED YAHYA ZAHID GILANI, J.

Respondents-acquitted accused Waheed son of Umar Khan and Whaeed Khan son of Sona Khan were charged in case F.I.R. No.74 dated 17-8-2000 of Police Station, Tank, under sections 377/511, P.P.C. They were tried by learned Sessions Judge, Tank in Hadd Case No.20/2002 and acquitted vide his judgment dated 25-7-2006.

2. Learned counsel for the complainant Qismat Khan, arguing on preliminary objection, contended that the impugned judgment of acquittal is coram -non-judice, for having been delivered without lawful authority and jurisdiction.

3. Elaborating the point raised by him, he argued that the age of Waheed Son of Sona, as recorded in the card of arrest which was prepared on the date of occurrence (i.e.17-8-2000) was 14 years and the age of accused Waheed son of Umar was 15 years. The trial Court has recorded their age in the charge framed on 7-3-2003 as 16/17 and 17/18 years. Their statements under section 342, Cr.P.C. were recorded on 19-5-2006, wherein their ages are recorded as 18/20 and 21/22 years. Meaning thereby that according to prosecution case, the respondents-acquitted accused were aged less than 18 years at the time of occurrence. According to section 2(b) of Juvenile Justice System Ordinance, a person is "child" who has not attained the age of 18 years, at the time of commission of offence. Although the ages of both the accused have been recorded in the cards of arrest on the basis of approximation but since their ages were not ascertained by any mean, the benefit of doubt shall go to the accused and they shall be deemed to be less than 18 years of age and "child" at the time of commission of offence. Hence, their case was exclusively triable by Juvenile Court under section 4(3) and (4) of the Juvenile Justice System Ordinance, 2000 which further ordains that on commencement of the said Ordinance, all cases of juveniles pending in other Courts would stand transferred to the Juvenile Court having jurisdiction. Therefore, learned Sessions Judge, Tank could not try the present accused in the normal Sessions Court, Tank Consequently, his impugned judgment is illegal and nullity in the eyes of law. 3-A Mr. Yousaf Haroon Advocate for the acquitted accused-respondents and Mr. Fazlur Rehman Baloch learned State counsel could not controvert the above correct legal position.

4. At this Circuit Bench of Peshawar High Court, we have two unreported precedent cases decided by Division Benches. The first is the case titled Muhammad Salim v. The State (Criminal Appeal No.88/2000) decided on 9-5-2001. In this case the convict-appellants were tried and convicted by Special Judge, Tank camp at D.I. Khan empowered under suppression of Terrorist Activities (Special Courts) Act, 1975, but Honourable Division Bench of this Court held that the case was liable by the normal Sessions Court. Consequently, the above referred appeal along with the connected appeals were allowed, the conviction and sentences were set-aside and the case was remanded to learned Sessions Judge for trial with the following remarks recorded in the said judgment handed down by his lordship Mr. Justice Tariq Parvez Khan which are very valuable for guidance of Judicial Officer working in District Judiciary:-- "Before parting with this order/judgment of ours, we cannot ignore the fact that at times the agony of the litigants is enhanced but due to the non-application of mind by the trial Court and also at times when no proper assistance is rendered to the trial Court by the counsel representing the parties It should be rather advisable for the trial Court that in future when there is any doubt on the assumption of jurisdiction in any offence, they should first determine the same by hearing both the sides i.e. the defendant and the prosecution and then proceed with the trial."

5. Similar situation again emerged before the same Division Bench of this Circuit Bench during hearing of Criminal Appeal No.67/1999 (Muhammad Aamer Rehman v. The State) wherein judgment was again handed down by his lordship Mr. Justice Tariq Pervez Khan on 18-4-2001. In this case, the appellants were convicted on the basis of a charge framed and part of evidence recorded by a Court which had no jurisdiction in the matter. Subsequently, the above referred appeal along with connected appeals were allowed, the convictions and sentences were set aside and the case was remanded to trial Court for trial de now. This judgment was challenged before the Honourable apex Court in Criminal Appeals Nos.349 to 351 of 2001 which were dismissed and the judgment was upheld with the slight modification that the acquittal of two accused maintained by this Court, was also held without jurisdiction which was set aside and their cases were also remanded for trial de novo.

6. At this juncture, reference to Full Court judgment from Lahore jurisdiction in the case of Ghulam Shabbir and 36 others v. Punjab Special Court 1992 PCr.LJ 1932 would also be beneficial wherein line has been drawn between jurisdiction of Special Court and normal Courts, with adherence to the principle that each Court has to try the cases falling in its own jurisdiction and when a case is tried by a Court, not falling in its jurisdiction, it would be treated as coram non judice.

7. Honourable apex Court has also held in the case of Neelum Nawaz v. The State (PLD 1991 SC 640) that the conviction by Special Court was coram- non-judice because offence was not falling in the jurisdiction of the Special Court constituted under Suppression of Terrorist Activities (Special Courts) Act; 1975.

8. Consequently, the present case exclusively triable by the Special Court established under Juvenile Justice System Ordinance, 2000 was since tried by the normal Sessions Court, the impugned judgment is without jurisdiction and nullity in the eyes of law. Hence, on acceptance of this Criminal Appeal, the impugned judgment of the trial Court is set aside and the case is remanded to learned Sessions Judge, Tank for entrustment of the case to Juvenile Court and trial of the accused under the Juvenile Justice System Ordinance, 2000. The parties are directed to appear before learned Sessions Judge, Tank on 1-6-2009. H.B.T./107/P Case remanded.