ASADULLAH alias SHAKIRULLAH vs THE STATE

SAHIB KHAN, J.---Through the petition in hand, petitioner assailed the impugned judgment/order dated 29-4-2010 passed by the Judge Anti-Terrorism Court Gilgit, whereby the,learned Judge of Anti-Terrorism Court refused the application under section 23, A.T.A. filed by the petitioner/accused for transfer of the case pending trial to the court constituted under Juvenile Justice System Ordinance 2000 on the plea of juvenility.

2. We have heard the learned counsel for the petitioner and learned Deputy Advocate-General assisted by the counsel for complainant at length. Record of the case perused.

3. The learned, Counsel for petitioner, with the support of a judgment of Division Bench of this Court and with reference to some other judgments of the High Courts cited below, submitted that the petitioner/accused is admittedly a minor therefore petitioner/accused can only be tried by the Court specially constituted under the law known as Juvenile Justice System Ordinance (hereinafter called as the Ordinance 2000), irrespective of the charge of Anti-Terrorism Act. He in support of his view referred the judgment of D.B of this Court in Criminal Appeal No,23 of 2007 and 2002 PCr.LJ 1235, 2008 PCr.LJ 710 (SB), 2005 MLD 353 (Kar) (D.B), and 2008 MLD 431.

4. On the other hand the learned Deputy Advocate-General assisted by the counsel for complainant forcefully opposed the petition with the submission that mere juvenility of petitioner/accused, who is charged under section 6/7 of ATA coupled with other charges of P.P.C. cannot take away the jurisdiction of a Court constituted under ATA 1997 having exclusive jurisdiction over the charges of Anti-Terrorism Act (hereinafter called as the Act 1997). They referred (1). 2007 PCr.LJ 1011, (2) PLD 2004 (Lah) 779 (3) 2006 PCr.LJ 921, (4) PLD 2006 Kar 331.

5. By their nature both the laws e.g. the Act 1997 and Ordinance 2000 are special laws enacted former for the trial of the scheduled offences provided in the Act 1997, the latter for trial of special class of offenders defined under the Ordinance 2000. The relevant provisions providing jurisdiction of juvenile court and its effect and relevancy with other laws is reproduced below:- ' Section 4(3) of the Ordinance 2000:---The Juvenile Court shall have the exclusive jurisdiction to try cases in which a child is accused of commission of an offence.

' Section 14:---The provisions of the Ordinance shall be in addition to, and not in derogation of, any other law for the time being in force.

6. If both the provisions of the Ordinance 2000 reproduced supra considered, it appears that the Ordinance 2000 provides exclusive jurisdiction to the Court constituted under the Ordinance 2000 in a case where an accused below age of 18 years. In the meantime this Act being a later law, further provides and clears the position that its provisions shall not be in derogation of any law, but shall be in addition of laws prevailing at the moment when the Ordinance was promulgated.

' As stated supra the Act 1997 was enforced in 1997 much prior to the Ordinance 2000 and was fully operative in the related purpose when the Ordinance 2000 was enforced. It is very important to note and mention here that the following two provisions were also contained in the Act 1997 like rest of provisions but the latter law instead of providing an overriding effect over the former law, provided section 14 in the Ordinance. Thus the unambiguous position is that the later law never affects the following two provisions including any other provisions of Act 1997.

(A)21-C(7)(f) A child commits an offence if he receives, generally or specifically instructions or training in acts of terrorism and on conviction shallliable to imprisonment for a term not less than six months and more than five years.

(B)21-F Notwithstanding any thing contained in any law or prison rules for the time being in force, no remission in any sentence shall be allowed to a person other than a child, who is convicted and sentenced for any offence under this Act unless granted exclusively by the Government.

7. In the circumstances, it will be unfair to presume that the legislature was ignorant about the existence of above provisions in the Act 1997 and committed any mistake by not providing any overriding effect in the latter law. As against to this section 14 in the Ordinance 2000 strengthened the view that the court constituted under Act 1997 is having jurisdiction over the scheduled offence of ATA irrespective of any limit of age or any other class of offenders.

8. Similarly the legislature further to clarify the legal position inserted a new provision as 21 G in the Anti-Terrorism Act 1997 through Act-II of 2005 as reported in PLJ 2005 and Federal Statute 2005 which reads as under:-- 21-G All offences under this Act shall be tried (exclusively) by Anti-Terrorism Court established under this Act.

' This provision 21-G is latest insertion in the Act 1997 even later law than Ordinance 2000 and undoubtedly overrides all the related provisions and provides exclusive jurisdiction to the Court constituted under Act 1997 over the offences defined in the Act 1997 by an offender including a child/minor.

9. We therefore, found this petition meritless uphold the impugned order dated 29-4-2010 File.