1. ' MUHAMMAD ROSHAN ESSANI, J.----By this Constitution petition, the petitioner Ketno son of Ghulam Rasool Rind has sought the bifurcation/separation of his case from co-accused, as he is a minor and his case is covered by the provisions of Sindh Children Act, 1955 as well as by the Juvenile Justice System Ordinance, 2000.
2. ' The brief facts of the prosecution case as disclosed by the complainant Muhammad Akbar in his F.I.R. Bearing No.149 of 1999 which was lodged at Police Station, Sakrand, District, Nawabshah on 29- 10-1999 are reproduced herein below:-- "Complaint is that, I have my own land, which, I cultivate myself and I have house in Mehran Colony Ward No.10, Sakrand City, where I, my brother Ahmed Nawaz, both sons of Amir Bux, live together along with families. Abdullah son of Abdul Hakeem Rind is my brother-in-law, who resides in the same muhalla to the eastern side of my house. I have two sons Abdul Waheed aged about 5 years and Abdul Naveed aged 3 years and my brother-in-law has one daughter namely Nasreen aged about 5 years and other relatives, Yousif and others reside in their own houses adjacent to my house. Yesterday, I went to city for work and came back to house at 4 p.m. My brother Ahmed Nawaz informed me that Nasreen and Abdul Waheed have gone out at 3 p.m. For playing game and have not returned as yet. After that we searched for Abdul Waheed and Nasreen, but could not ascertain their whereabouts. We searched for them at Nawabshah Railway Station, but could not know anything about them. On 29-10-1999 at 3 a.m. I went to Sakrand at my house, when I reached near the house of Yousif Rind in the street, I saw that my son and niece Nasreen were lying beside the wall. I flashed the torch and saw that they had died. Thereafter, I called my brother Ahmed Nawaz, counsins Ali Nawaz son of Haji Allandad, Ali Ahmed son of Haji Allandad and narrated entire facts to them. We saw the children, they were throttled to death and there were signs of scratches on their body, 4 Golden earnings were removed from the ear of Nasreen. Thereafter, I left the witnesses over the dead bodies, and have come to P.S. For lodging the report, that I suspect that my children have been murdered by Zawar alias Paro son of Hajan Rind,
2. Badi son of Sahib Khan Rind,
3. Jhunoo son of Yousif Rind,
4. Papu son of Yousif Rind, all residents of Mehran Colony, Sakrand city and they have also removed golden earnings, as they are criminals of the locality. I am complainant, justice be done."
3. ' After usual investigation, the petitioner/accused along with co-accused was sent up before the learned Judge, Anti-Terrorism Court, Sukkur on 19-3-2000.
4. The petitioner/accused moved an application before the trial Court contending therein that he is a minor and that he cannot be tried jointly with co-accused who were adults. In support of his application, the petitioner/accused submitted School Leaving Certificate. The trial Court referred him to the Civil Surgeon, Civil Hospital, Sukkur, who after necessary examination, opined that the age of the petitioner/accused would be 15 to 17 years.
5. ' We have heard Mr. Imdad Ali Awan, learned counsel for the petitioner/accused, Mr. A.R. Farooq Pirzada, learned counsel for the complainant, Mr. Shaikh Abdul Ghani, learned Deputy Attorney General for Pakistan and Mr. Ghulam Dastagir A. Shahani, learned Additional Advocate-General Sindh on behalf of the State.
6. ' It is contended by the learned counsel for the petitioner/accused that the joint trial of the petitioner/accused is illegal. He has placed reliance on the case of Jamshed v. Agha Suhail and another (PLD 1998 Kar. 142), Suhail Iqbal v. The State (1993 SCM R 2377), Yousuf v. The State (1975 PCr.LJ 936), Bachoo alias Abdul Jabbar v. The State (1981 PCr.LJ 299), Ghualm Rasool v. Ali Akbar and others (PLD 1965 SC 363), Muhammad Jamil and others v. The State (2000 P.Cr.R. 399) and Pir Jalal Shah v. The State (PLD 1982 Kar. 567).
7. Learned Deputy Attorney General of Pakistan and learned Additional Advocate-General Sindh have supported the prayer of the petitioner/accused, whereas Mr. A.R. Farooq Pirzada, learned counsel for the complainant has opposed it. The later states that since the petitioner/accused is facing trial before the Anti-Terrorism Court, therefore, the provisions of Sindh Children Act, 1955 as well as those of the Juvenile Justice System Ordinance, 2000 (Ordinance No.XXII of 2000) are not applicable to the case of petitioner/accused. We have considered the arguments of learned counsel for the parties. We have also perused the material placed on record.
8. ' Initially the present petition was filed as criminal miscellaneous application. On 14-11-2000 when the matter came up before this Court for hearing, following order was passed:- "The learned counsel for the applicant submits that a Division Bench consisting of myself and my learned brother Muhammad Ashraf Leghari, J has already delivered many decisions while sitting at Principal Seat, that the revisions is not maintainable in cases triable by the A.T.A. Courts and this point is subjudice before the Honourable Supreme Court and so far no final decision has come.
9. ' It is further contended by the learned counsel for the applicant that intricate questions of law and facts relating to the trial of the Juvenile offender are involved in the matter, therefore, the present application may be converted into constitution petition.
10. ' Mr. A.R. Farooq Pirzada, learned counsel on behalf of respondent No.3/complainant states that the revision application cannot be converted into constitution petition because no intricate point of law and fact is involved and he has invited our attention towards section 14 of Ordinance XXII of 2000 promulgated by the President of Pakistan in pursuance to the proclamation of emergency on 14th day of October, 1999 by Provincial Constitution Order No.I of 1999 and Order No.IX of 1999.
11. ' Mr. Shaikh Abdul Ghani, learned Deputy Attorney General of Pakistan as well as Mr. Sher Muhammad Shar, learned Assistant Advocate-General Sindh concedes to the arguments of learned counsel for the applicants.
12. ' We have perused the material placed on record as well as the provisions of section 14 of Ordinance XXII of 2000. It will be pertinent to reproduce herein below section 14 in extenso:-- "14. Ordinance not to derogate from other laws. The provisions of this Ordinance shall be in addition to and not in derogation of, any other law for the time being in force."
13. ' The learned counsel for the respondent No.3/complainant could not satisfy us that how far the provisions of the Ordinance XXII are 'in derogation' of 'any other law' for the time being in force.
14. ' We find that legal/factual intricate questions of law and facts are involved in the present matter which require consideration. Resultantly, we convert the present application into constitution petition in order to resolve the same.
15. ' The office is directed to fix this matter according to roster.
16. ' The interim order already passed to continue till next date of hearing."
17. ' The perusal of material placed on record shows that alleged incident occurred on 28-10-1999 and petitioner/accused was arrested on 12-12-1999. After usual investigation, he was sent up on 22-12- 1999. The trial Court declined to accept the challan for want of jurisdiction. Consequently, on 24-12- 1999 the petitioner/accused was sent up before the learned Judge, Anti-Terrorism Court, Sukkur.
18. The petitioner/accused moved application for bifurcation/separation of his case from the case of co-accused and trial by a Juvenile Court. In support of application, the petitioner/accused produced School Leaving Certificate. The contents whereof are reproduced herein below in extenso:-- ' TRUE TRANSALTION OF SCHOOL LEAVING CERTIFICATE, GOVERNMENT PRIMARY SCHOOL MEHRAN COLONY, SAKRAND 1 General Register number of student. 225 2 Name of student with father's name. Ketno son of Ghulam Rasool.
19. 3 Race and caste. Muslim Rind.
20. 4 Place of birth. Mehran Colony, Sakrand.
21. 5 Date of birth 8-5-1986.
22. 6 In words. Eight May, nineteen hundred eighty six.
23. 7 Date of admission in School. 1-8-1991.
24. 8 From which School came. New.
25. 9 In which class admitted. First.
26. 10Date of school leaving. 31-3-1997 11In which class studied. Fifth passed.
27. 12Reason of leaving school. For studying English.
28. 13Character in school Good.
29. 14Looking in school work. Good.
30. 15Certificate fee and challan number. Nil.
31. 16Remarks. Nil.
32. The trial Court referred the petitioner/accused to Civil Surgeon, Civil Hospital, Sukkur for ascertaining/determining the age of the petitioner/accused. The petitioner/accused was examined by a Board of the Medical Officers and after physical, Clinical as well as radiological examination, who issued a certificate. The contents of the same are reproduced herein below in toto:-- "OFFICE OF THE CIVIL SUREGEON, CIVIL HOSPITAL, SUKKUR ' No. C.H.S/2000/(MB)/3097 Dated: 21st, March, 2000.
33. ' To, ' Mr. Liaqat Hussain Shaikh, Judge, Anti-Terrorism Court, Sukkur Division at Sukkur. Sub: PRODUCT THE ACCUSED BEFORE MEDICAL BOARD, IN CASE STATE VERSUS KANDI ALIAS NIAZ HUSSAIN AND OTHER OFF; UNDER SECTION 302, 392 AND 404, P.P.C., 10/12 ZHO CRIME NO.149 OF 1999 POLICE STATION, SAKRAND DISTRICT: NAWABSHAH ' Ref: Hon'ble Court letter No.A.T.C./567 dated 15th March, 2000, addressed to the Superintendent, Central Prison-I, Sukkur and copy endorsed to the undersigned, on the subject noted above.
34. ' I have the honour to submit that the accused Ketno son of Ghulam Rasool Rind has attended this Hospital on 20-3-2000 for his necessary medical examination regarding the age. The below mentioned members of the Medical Board have examined the said accused and according to the Clinical, Dental and Radiological examination and opinion, the age of the said accused appears to be 15 to 17 (Fifteen to seventeen) years.
35. ' This is for your kind information.
36. IDENTIFICATION MARKS (1) Black mole (R) side of neck.
(2) Scar on lateral angle of (R) eye. Member Member (Sd.) (Sd.)
37. (DR. WAQAR HUSSAIN (DR. MUHAMMAD YOUNIS SHAIKH) SENIOR MEDICAL SHAIKH) SENIOR DENTAL OFFICER CIVIL HOSPITAL, SURGEON CIVIL HOSPITAL, SUKKUR SUKKUR Member Member (Sd.) (Sd.)
38. (DR. ABDUL WAHID ABBASI) (DR. ALI JAN CHOUDHRY)
39. RADIOLOGIST CIVIL SURGEAON CIVIL HOSIPTAL, SUKKUR CIVIL HOSPITAL, SUKKUR."
40. 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.
41. ' 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.
42. ' No.A.T.C./3372 of 1999 Sukkur Dated 24-12-1999.
43. ' To, ' The Superintendent, Central Prison-I, Sukkur.
44. ' 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.
45. ' 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.
46. ' 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.
47. ' Given under my hand and seal of this Court, This 24th day of December, 1999.
48. (Sd.)
49. (PARKASH LAL M. AMBWANI)
50. JUDGE ANTI-TARRORISM COURT, SUKKUR."
51. The learned counsel for the parties have not disputed the age of the petitioner/accused. Thus undoubtedly the petitioner/accused is minor.
52. ' The preamble of The Juvenile Justice System Ordinance, 2000"
53. ' (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.
54. ' 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."
55. (Underlining is ours)
56. ' 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 taking 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 in 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 Court;
(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."
57. 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.
58. (Underlining is ours)
59. 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.
60. 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.
61. ' 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.
62. ' 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.
63. ' Since the main petition has been allowed, the listed application stands disposed of.