MUHAMMAD DIN vs MUHAMMAD JEHANGIR and 4 others

ASIF SAEED KHAN KHOSA, J.---The necessary facts giving rise to the present writ petition are that the petitioner is the complainant of case F.I.R No,395 registered at Police Station Factory Area, Sheikhupura on 25-5-2000 for offences under sections 302/324/394/ 148/149. P.P.0 read with section 7 of the Anti-Terrorism Act, 1997. Respondents Nos.1 and 2 are, amongst others, the accused persons in the said criminal case. After completion of investigation a challan was submitted in connection with the criminal case before the Anti-Terrorism Court-I, Lahore and thereafter the trial of the said criminal case commenced. A charge was framed against respondents Nos.1 and 2 and their co-accused and so far statements of seven prosecution witnesses have already been recorded by the learned trial Court. Respondent No,1 submitted an application before the learned trial Court claiming him self to be a 'child' within the purview of the Juvenile Justice System Ordinance, 2000 and maintaining that he could only be tried by a Juvenile Court constituted under the said Ordinance. That application of respondent No,1 was allowed by the learned Judge, Anti- Terrorism Court-I, Lahore vide order dated 26-6-2002 and respondent No,1 was declared to be a 'child' for the purposes of the above mentioned Ordinance on the basis of a report submitted by a Medical Board. However, on 12-7-2002 the learned Judge, Anti-Terrorism Court-I, Lahore assumed jurisdiction over respondent No,1 and decided to proceed against him separately from the other accused persons as a Juvenile Court. Later on respondent No,2 also filed an application for his treatment as a 'child' for the purposes of above mentioned Ordinance and his application too was allowed by the learned Judge, Anti-Terrorism Court-I, Lahore on 17-12-2002. Thereafter the then Presiding Officer of the Anti-Terrorism Court-I, Lahore was transferred and on 31-3-2003 his substitute Presiding Officer passed an order transferring the case against respondents Nos.1 and 2 to the learned Sessions Judge, Sheikhupura for their trial by a Juvenile Court. That order passed by the learned Judge, Anti-Terrorism Court-I, Lahore has been assailed before this Court through the present petition.

2. We have heard the learned counsel for the parties at some length and have carefully attended to their submissions. The learned counsel for the petitioner has taken us through various provisions of the Anti-Terrorism Act, 1997 and the Juvenile Justice System Ordinance, 2000 and has maintained that a 'child' involved in an offence of terrorism, etc. Can be tried only by an AntiTerrorism Court constituted under the Anti-Terrorism Act, 1997 and, therefore, the learned Judge, Anti-Terrorism Court-I, Lahore was not justified in transferring the case against respondents Nos.1 and 2 to the learned Sessions Judge, Sheikhupura for their trial by a Juvenile Court. As against that the learned counsel for respondents Nos. 1 and 2 has maintained that the provisions of the Anti-Terrorism Act, 1997 clearly indicate that before the introduction of the Juvenile Justice System Ordinance, 2000 an Anti-Terrorism Court constituted under the Anti-Terrorism Act, 1997 was competent to try a `child' but after introduction of the Juvenile Justice System Ordinance, 2000 only a Juvenile Court has the exclusive jurisdiction to try a 'child' below the age of eighteen years. He has argued that in case of a conflict between two pieces of legislation the legislation introduced later in time is to take precedence over the legislation holding the field earlier on. He has gone on to submit that the spirit of the Juvenile Justice System Ordinance, 2000 manifests, that a 'child' below the age of eighteen years shod be treated separately from his grown up co-accused in the matter of his trial on a criminal charge and, thus, the learned Judge, Anti-Terrorism Court-I, Lahore was quite justified in transferring the case of respondents Nos.1 and 2 to the learnes1 Sessions Judge, Sheikhupura for their ilial by a Juvenile Court. The leaned Assistant Advocate-General appearing for the State has supported the impugned order passed by the learned Judge, Anti- Terrorism Court-I, Lahore.

3. After hearing the learned counsel for the parties and going through the record we have straightaway observed that by virtue of the provisions of sections 12, 19 (3) and 21-G of the Anti- Terrorism Act, 1997 an Anti-Terrorism Court constituted under the said Act has the exclusive jurisdiction to try an offence of terrorism, etc. As against that by virtue of the provisions of section 4(3) of the Juvenile Justice System Ordinance, 2000 a Juvenile Court has the exclusive jurisdiction to try a `child' accused of commission of an offence. Thus, the former Court has an exclusive jurisdiction to try an offence of terrorism, etc., whereas the latter Court has an exclusive jurisdiction to try an offender who is below the age of eighteen years. The case in hand, therefore, poses a dilemma of a unique kind where respondents Nos.1 and 2 are juveniles/children but they are being accused of committing terrorism, etc. And, thus, the issue before us is whether such juveniles/children are to be tried by an Anti-Terrorism Court constituted under the Anti-Terrorism Act, 1997 or by a Juvenile Court constituted under the Juvenile Justice System Ordinance, 2000. We have already observed above that in the case in hand the former Court appears to have an exclusive jurisdiction over the relevant offence whereas the latter Court appears to have an exclusive jurisdiction over the offenders, i,e, respondents Nos. 1 and 2. This apparent quandary, however, has not been found by us to be insoluble or insurmountable because we are clear in our minds that an offender cannot be tried by a Court having no jurisdiction over the offence committed by such offender. An offence of terrorism can be tried only by an Anti-Terrorism Court constituted under the Anti-Terrorism Act, 1997 and the age of the offender has no relevance to the question of such jurisdiction. The express provisions of sections 2(d), 21-C (5), 21-C (7)(e), 21-C(7)(f) and 21-F of the Anti-Terrorism Act, 1997 .Clearly postulate that a 'child' below the age of eighteen years can legitimately be tried by an Anti-Terrorism Court constituted under the Anti-Terrorism Act, 1997. We are fortified in this impression by the provisions of section 32 of the Anti-Terrorism Act, 1997 which unambiguously provide that the provisions of the said Act are to have overriding effect over all other laws. As against that the provisions of section 14 of the Juvenile Justice System Ordinance, 2000 expressly provide that the provisions of the said Ordinance shall be in addition to and not in derogation of any other law for the time being in force. The Juvenile Justice System Ordinance, 2000 was introduced at a time.Whenthe Anti-Terrorism Act, 1997 was already holding the field coining the above intentioned provisions relating to a trial of a 'child' by an Anti-Terrorism Court and we have every reason to believe that the Legislature was quite conscious of the said fact but despite that the Juvenile Justice System Ordinance, 2000 was not given by the Legislature an overriding effect over the other laws and, thus, the provisions contained in the Anti-Terrorism Act, 1997 relatable to a child's trial by an Anti-Terrorism Court were not tinkered with or disturbed. The submission of the learned counsel for respondents Nos.1 and 2 that the Juvenile Justice System Ordinance, 2000 was introduced later in time and, thus, it was to have precedence over the Anti- Terrorism Act, 1997 has, thus, failed to impress us because if the Legislature had so intended then it could have expressly provided so in the Juvenile Justice System Ordinance, 2000 or it could have deleted the relevant provisions pertaining to a child's trial by an Anti-Terrorism Court from the Anti- Terrorism Act, 1997 but no such thing was done by the- Legislature at that time. We may add here that even after .Introduction of the Juvenile Justice System Ordinance, 2000 the Anti-Terrorism Act, 1997 was drastically amended and virtually rewritten by the Legislature through the Anti-Terrorism (Amendment) Ordinance (XXXIX of 2001) promulgated on 15-8-2001 but even on that occasion the relevant provisions contained in the original Anti-Terrorism Act, 1997 pertaining to a trial of a 'child' by an Anti-Terrorism Court constituted under the said Act were not disturbed by the Legislature.

This later act or omission of the Legislature had practically reinforced the fact that a 'child' accused of committing an act of terrorism, etc. Was B still to be tried by an Anti-Terrorism Court constituted under the Anti-, Terrorism Act, 1997 and not by a Juvenile Court constituted under the Juvenile Justice System Ordinance, 2000.

4. It has been admitted before us at all hands that as far as the Province of the Punjab is concerned all the Sessions Judges in the Province have been notified as Juvenile Courts under the Juvenile Justice System Ordinance, 2000. The provisions of sections 19(14) and 32 of the Anti-Terrorism Act, 1997 clearly show that an Anti-Terrorism Court not only has all the powers of a Court of Session but it is to try an offence as if it were a Court of Session and it shall be deemed to be a-Court of Session for the purpose. If that be so then we do not see any difficulty in the way of an Anti-Terrorism Court trying a 'child' as a Court of Session when all Courts of Session in the Province of the Punjab have already been notified as Juvenile Courts. In this view of the matter the submissions made before us by the learned counsel for respondents Nos.1 and 2 have appeared to us to be merely academic in nature and nothing more.

5. We may also add that by virtue of the provisions of section 14(1)(i) of the Anti-Terrorism Act, 1997 the Presiding Officer of an Anti-Terrorism Court has higher qualifications and experience than those of a Presiding Officer of a Juvenile Court provided in section 4 of the Juvenile Justice System Ordinance, 2000. A 'child' being tried by a Presiding Officer with higher qualifications.And experience should have little to complain and insistence by him that he should be tried by a Presiding Officer with lesser qualifications and experience may not comment itself for approval.

6. We have noticed that the view expressed by a learned Judge-in Chamber of the Hon'ble Peshawar High Court in the case of Ghulam Mustafa Shah alias Papa v. The State and another (PLD 2003 Pesh. 138) is different from the one taken by us above but we may observe with profound respect that the learned Judge-in-Chamber of the Hon'ble Peshawar High Court might not have been properly assisted in the matter as most of considerations mentioned by us above were never presented before the Hon'ble Judge in that case for his consideration.

7. For what has been discussed above this writ petition is allowed, the impugned order dated 31-3- 2003 passed by the learned Judge Anti-Terrorism Court-I, Lahore is declared to be without lawful authority and of no legal effect and it is clarified that respondents Nos.1 and 2 can competently be tried by the said learned Court while following the relevant provisions of the Juvenile Justice System Ordinance, 2000 as nearly as possible. There shall be no order as to costs.