2019 P Cr (PLP)

SYED ARSHAD ALI, J.

Through this single judgment we intend to dispose of this criminal revision as well as connected W.P. No.443-A/2017, as both are the outcome of same order dated 15.02.2017, passed by learned Judge Anti-Terrorism Court, Hazara Division, at Abbottabad, whereby the police custody of respondent No. 2 was declined on the ground that since respondent No. 2 was juvenile at the time of commission of offence, therefore, the Anti-Terrorism Court lacks jurisdiction to hold his trial.

2. Brief but essential facts of the case are that on 05.02.2005, complainant Muhammad Younas reported the incident to Fazalur Rehman ASI that after closing his hotel called "Zahid Nehari Hotel" he boarded a Suzuki Pick-up bearing No. B-2595-ATD to proceed towards his village, while Niaz, Rizwan, Sohail, Qaiser, Bilal, Mujahid Iqbal, Naseer and some other passengers were sitting on the rear seats of the Pick-up which was being driven by Muhammad Iqbal, deceased. During the transit, when the Pick-up crossed "Pakhwal Turn" and reached a graveyard at about 08:15 PM, five culprits emerged from the graveyard, all armed with deadly weapons and stood on the road, forcing the driver to bring to halt the Pick-up. They on gun point directed the passengers to get down. Two of the armed men guarded the process of looting the passengers by the co-accused while standing on the road. The accused snatched Rs. 200/- from him and all the other passengers were also deprived of their cash/valuables but he could not give the details about the same. He further disclosed that when Muhammad Iqbal driver resisted, he was fired upon and sustained injury on his chest. Similarly, Mujahid Iqbal was also hit on his head. According to the complainant, all the accused were talking in Hindko language. After commission of the crime, the accused ran from the spot. The injured were shifted to hospital, but Muhammad Iqbal driver succumbed to injuries. The report was recorded in casualty ward of Civil Hospital Mansehra on the basis of which FIR No. 96 was registered at Police Station City Mansehra.

3. In the FIR, none was charged, however, during investigation, accused-convict Imtiaz was arrested on 13.02.2005 and on his pointation, crime Kalashnikov was recovered. His further disclosures lead to arrest of co-accused Raj Muhammad, Muhammad Riaz, Javed and Faqir Muhammad. All the accused-convict recorded their confessional statements, wherein they disclosed that the crime was committed by them along with respondent No. 2 Tasawar. Respondent No. 2 remained in hiding, so after completion of investigation against rest of the accused and issuing mandatory proclamation against respondent No. 2, charge sheet was filed in the trial court. After framing charge against the accused and recording prosecution evidence, the co-accused were convicted by the learned trial Court vide judgment dated 21.05.2005. Appeal filed by the convicted accused against the conviction and sentence passed against them was dismissed up to the august Supreme Court of Pakistan.

4. After arrest of respondent No.2, he was produced before the learned Anti-terrorism Court on 15.02.2017, however, since at the relevant time of commission of offence, the age of the accused/ respondent was below 18 years, therefore, the learned Anti-Terrorism court refused to grant his custody to the police by holding that under Juvenile Justice System Ordinance, 2000, only Juvenile Court has the jurisdiction to try the accused and accordingly directed the police that the case be forwarded to Juvenile Court for further orders. State, as well as complainant, both have challenged the said order before this Court through separate criminal revision petition and writ petition.

5. Arguments heard and record perused.

6. Juvenile Justice System Ordinance, 2000 (hereinafter referred to as Ordinance of 2000) was promulgated to provide protection to children in criminal litigation, their rehabilitation in society, reorganization of Juvenile Courts and matters connected therewith. Under section 4(3) of the Ordinance of 2000, the Juvenile Court established under the Ordinance has exclusive jurisdiction to try cases in which a juvenile is accused of commission of offence. The Anti-Terrorism Act, 1997 was promulgated on 20th August, 1997, much prior than the promulgation of Ordinance of 2000. According to section 21-G of the Anti-Terrorism Act, 1997, initially all offences under the Anti-Terrorism Act, 1997 were to be tried by the Anti-Terrorism Courts established under the Act, however, the word "exclusively" was inserted in section 21-G of the Act through Act II of 2005 which reads as under:- 21-G. Trial of Offences.-All offences under this Act shall be tried "exclusively" by the Anti-Terrorism Court established under this Act:

7. Therefore, the insertion of word "exclusively" in the Anti-Terrorism Act, being later in time, will have precedence over section 4(3) of the Ordinance of 2000, more particularly when the intention of legislature in the Ordinance of 2000 is reflected in section 14 which envisages that the provisions of the Ordinance shall be in addition to and not in derogation of any law for the time being in force. "Asad Ullah alias Shakir Ullah v. The State (2011 PCr.LJ 1022), Muhammad Rasool v. The State (PLD 2012 Balochistan 122)".

8. Even otherwise, the Government of Pakistan through notification dated 30.05.2012 has declared all the Anti-Terrorism Courts established throughout the country under the Anti-Terrorism Act, 1997, to exercise the powers of Juvenile Courts in the area of their respective jurisdiction, under the Juvenile Justice System Ordinance, 2000. The said Notification is reproduced as under:- EXTRAORDINARY PUBLISHED BY AUTHORITY Islamabad __________ May 30, 2012 PART II STATUTORY NOTIFICATION (S.R.O.) GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR <><><> Islamabad, the 30 May, 2012 NOTIFICATION S.R.O (I)/2012.

In exercise of powers conferred by subsection (1) of section 4 of the Juvenile Justice System Ordinance, 2000 (XXII of 2000), as amended by the Juvenile Justice System (Amendment) Ordinance, 2012 (No. V of 2012), the Federal Government is pleased to designate the existing Anti-Terrorism Courts, established throughout the country under the Anti-Terrorism Act, 1997 (XXVII of 1997), to exercise the powers of Juvenile Court in the area of their respective jurisdiction, under the Juvenile Justice System Ordinance, 2000 (No. XXII of 2000). [No. 1/3/2012-Law] KHUSHDIL KHAN MALIK Joint Secretary (Law)

9. Pursuant to the said notification, the Federal Government wrote letter to all the Registrars of the High Courts requesting for conferring jurisdiction on all the Anti-Terrorism Courts established under the Anti-Terrorism Act, 1997, the powers of Juvenile Courts. Therefore, not only the powers and functions of Juvenile Court have been conferred on the Anti-Terrorism Court, but under section 21-G, the Anti-Terrorism Court has exclusive jurisdiction to try all offences under the Anti-Terrorism Act, 1997.

10. In view of the above, while accepting the revision petition as well as connected Writ petition, the impugned order of the Anti-Terrorism Court is set aside and accordingly the IO shall be at liberty to produce the accused/respondent before the Anti-Terrorism Court for custody, if so required for the purpose of investigation and the Anti-Terrorism Court shall pass an appropriate order in according with law. JK/116/P Revision accepted.