2005 PLP 353 (MLD)

This is for your kind information. IDENTIFICATION MARKS (1) Black mole (R) side of neck. (2) Scar on lateral angle of (R) eye. Member Member (Sd.) (Sd.) (DR. WAQAR HUSSAIN (DR. MUHAMMAD YOUNIS SHAIKH) SENIOR MEDICAL SHAIKH) SENIOR DENTAL OFFICER CIVIL HOSPITAL, SURGEON CIVIL HOSPITAL, SUKKUR SUKKUR Member Member (Sd.) (Sd. ) (DR. ABDUL WAHID ABBASI) (DR. ALI JAN CHOUDHRY) RADIOLOGIST CIVIL SURGEAON CIVIL HOSIPTAL, SUKKUR CIVIL HOSPITAL, SUKKUR. " The School Leaving Certificate as well as the Medical Certificate reproduced herein above shows that the age of the petitioner/accused on the date of the alleged incident was below 16 years. The learned trial Judge on the basis of the material place before him ordered the Superintendent, Central Prison, Sukkur, for keeping the minor separately in custody. The contents of the letter are also reproduced herein below:‑‑ "IN THE COURT OF JUDGE, ANTI‑TERRORISM SUKKUR DIVISION. No.A.T.C./3372 of 1999 Sukkur Dated 24‑12‑1999. To, The Superintendent, Central Prison‑I, Sukkur. Sub: CASE F.I.R. No.149 OF 1999 STATE VERSUS KINDI ALIAS NIAZ HUSSAIN AND OTHERS OFFENCE UNDER SECTIONS 302, 404, 392 AND 34, P.P.C. 10/12 ZHO, 7/ATA OF POLICE STATION, SAKRAND DISTRICT NAWABSHAH. Whereas in the above mentioned, case the S.H.O. Niazamuddin Agro of Police Station, Sakrand has submitted challan against the accused namely,

1. Kandi alias Niaz Hussain,

2. Haji Sharafuddin both sons of Lal Bux and

3. Ketno son of Ghulam Rasool, all by caste Rind. You are, therefore, required to receive the above named accused into your safe custody and accused Ketno who appears to be minor be confined separately in minor ward and arrange to produce them before this Court on the date of hearing mentioned viz. 3‑1‑2000 at 8 a.m. without fail. Given under my hand and seal of this Court, This 24th day of December, 1999. (Sd.) (PARKASH LAL M. AMBWANI) JUDGE ANTI‑TARRORISM COURT, SUKKUR. " The learned counsel for the parties have not disputed the age of the petitioner/accused. Thus undoubtedly the petitioner/accused is minor. The preamble of "The Juvenile Justice System Ordinance, 2000" (Ordinance XXII of 2000) promulgated by the President of Pakistan shows that it is meant for protection of children involved in criminal litigation, their rehabilitation in society, re‑organization of Juvenile Courts and matters connected therewith and incidental thereto. The child has been defined under section 2(b) of the Ordinance (ibid), as under:‑‑ "Child" means a person who at the time of commission of an offence has not attained the age of eighteen years." (Underlining is ours) It will be pertinent to reproduce herein below sections 4, 5 and 6 of the Ordinance (ibid) for convenience sake:‑‑ "

4. Juvenile Courts.‑‑‑‑The Provincial Government shall, in consultation with the Chief Justice of High Court, by notification in the official Gazette, establish one or more Juvenile Courts for any local area within its jurisdiction. (2) The High Court may:‑‑ (a) confer powers of Juvenile Court on:‑‑ (i) Court of Sessions; (ii) Judicial Magistrate of the First Class; (b) appoint, from amongst practicing advocates having at least seven years standing at the Bar, Presiding Officers of Juvenile Courts with powers of a Judicial Magistrate of the First Class for the purpose of this Ordinance on such terms and conditions as the High Court may determine. (3) The Juvenile Court shall have the exclusive jurisdiction to try cases in which a child is accused of commission of an offence. (4) Subject to subsection (3) on commencement of this Ordinance, all cases pending before a trial Court in which a child is accused of an offence shall stand transferred to the Juvenile Court having jurisdiction. (5) The Juvenile Court shall not, merely by reason of a change in its composition, of transfer of a case under subsection (4), be bound to recall or rehear any witness who has given evidence and may act on the evidence already recorded. (6) On taking cognizance of an offence, the Juvenile Court shall decide the case within four months:

5. No joint trial of a child and adult person.‑‑‑‑(1) Notwithstanding anything contained in section 239 of the Code, or any other law for the time being in force, no child shall be charged with or tried for an offence together with an adult. (2) If a child is charged with commission of an offence for which under section 239 of the Code, or any other law for the time being in force such child could be tried together with an adult the Court flaking cognizance of the offence shall direct separate trial of the child by the Juvenile Court.

6. Procedure of Juvenile Courts.‑‑‑(1) A Juvenile Court shall, unless provided otherwise in this Ordinance, follow the procedure provided for m the Code. (2) A Juvenile Court shall not ordinarily take up any other case on a day when the case of a child accused is fixed for evidence on such day. (3) No person shall be present at any sitting of a Juvenile Court except;‑‑ (a) members, and officers of the Juvenile Cum ; (b) parties to the case before the Juvenile Court and such other persons who are directly concerned with the proceedings including the police officers; (c) such other persons as the Juvenile Court directs to be present; (d) guardian of the child. (4) At any stage during the course of the trial of a case under this Ordinance, the Juvenile Court may, in the interest of such child, decency or morality, direct any person to withdraw from Court for such period as the Court may direct. (5) Where at any stage during the course of the trial of a case, the Juvenile Court is satisfied that the attendance of the child is not essential for the purposes of the trial, the Juvenile Court may dispose with the attendance and proceed with the trial of the case in absence of the child. (6) When a child who has been brought before a Juvenile Court and is found to be suffering from serious, illness, whether physical or mental, and requires treatment, the Court shall send such child to a hospital or a medical institution where treatment shall be given to the child at the expense of the State." The plain reading of above provisions of law shows that the trial of a "minor" (any person who has not attained the age of 18 years) cannot be conducted by any Court until and unless the Provincial Government in consultation with the Chief Justice of High Court established one or more Courts for the trial of Juvenile offenders. The Courts specified in the section 4 and the Juvenile Court have exclusive jurisdiction for the trial of the cases where a child is accused of the commission of an offence. Subsection (4) to section 4 reproduced herein above shows that all cases pending before a trial Court stood transferred to the Juvenile Court having jurisdiction. (Underlining is ours) Nowhere in the Anti‑Terrorism. Act, 1997, it is specifically provided that Juvenile Courts constituted under the Juvenile Justice System Ordinance, 2000 having jurisdiction for the trial of the case of a child who is sent up under Anti‑Terrorism Act, 1997 are devoid of jurisdiction. The section 4 of the Ordinance XXII of 2000 shows that the Anti‑Terrorism Court is not specified as a Juvenile Court. Moreover the Anti‑Terrorism Act, 1997 has no overriding effect over the provisions of Juvenile Justice System Ordinance, 2000, (Ordinance XXII of 2000). The Juvenile Courts have been established in the Province and Powers have been conferred upon the Presiding Officers of the Courts. The contention of the learned counsel for the complainant that since the accused has been sent up before the Court dealing with Anti Terrorism cases, therefore, he cannot be tried by a Juvenile Court is misconceived. Consequently, the petition stands allowed. It is ordered that the case of the petitioner/accused be separated/bifurcated from the case of co‑accused and be sent to the Juvenile Court having jurisdiction in the matter for trial according to law. Since the main petition has been allowed, the listed application stands disposed of. H.B.T./K‑36/K Petition allowed.