Facts briefly stated are that the case was registered vide FIR No, 662 on 12.10.1995 in Police Station Yakka Toot Peshawar where Aziz-urRehman respondent was charged by Naseerullh petitioner for the commission of offence of Qatl-e-Amd.
2. On 9.9.2003 learned Additional Sessions Judge-I Peshawar seized of trial, by pressing into service the Provision of Juvenile Justice System Ordinance, 2000 (herein after referred as Ordinance) held that according to School Leaving Certificate the date of birth of respondent. Aziz-ur-Rehman is 4.4.1979 thus he would be below 18 years of age, would be a "child" and his case is to be tried as provided under the Ordinance.
3. Aggrieved from the above order this revision by the complainant.
4. Learned counsel appearing for the complainant/petitioner states that although as defined under the Ordinance "child" means a person who at the time of commission of an offence has not attained the age of 18 years but such definition would be applicable prospectively and shall not be given retrospective effect. He submits that any ambiguity in the interpretation of section or sub- section can be rectified and clarified when seen and read alongwith preamble of a Statute.
He submits that even if the date of birth of the respondent is not disputed and it is not disputed that at the time of commission of the offence i,e, on 12.10.1995 he was a minor and a "child" but when the accused-respondent was put to trial he had already attained the age of majority i,e, above 18 years of age, therefore, his trial by learned Judge under the Ordinance would be illegal.
Learned counsel has relied on two judgments as reported in 2003 P.Cr. L.J. 1212 where it was ruled that if occurrence has taken place prior to the promulgation of Ordinance, accused would be tried under the relevant law, similarly reliance is placed on 2002 SCM R 1455 where the August Supreme Court of Pakistan held that where the trial was conducted before promulgation of the Ordinance, procedure under the Ordinance for determination of age of the accused would not be relevant.
5. Learned counsel appearing for the respondent states that as the very definition of a "child" states that it is to be determined with reference to the time of commission of the offence as given under the Ordinance, therefore, it should be presumed that it was within the knowledge and under consideration of the legislature that they have defined a "child" with reference to date of commission of the crime and not the date of commencement of the trial.
6.Learned counsel has relied on two judgments reported as 2002 SCM R 440 and PLD 2003 SC 656.
7. Learned Deputy Advocate-General states that the Ordinance shall be given retrospective effect because it was in the wisdom of legislature to state that a person shall be "child" if at the time of commission of the crime he is below 18 years of age.
His submission is that under the Islamic Concept of Criminal Justice it is the state of mind of a person while committing an offence which is relevant for determining the forum of trial because a person.below the age of 18 years while committing an offence he cannot generally said to be acted under total prudence and, therefore, benefit of the Ordinance would be extendable even to a person who at the stage of commencement of the trial is not a "child" but was a "child" when the offence was committed.
8. Mr. Salahuddin Khan, Deputy Attorney General, appeared on notice and his view point is that law is always prospective in its application unless given retrospective effect, reliance was placed on 2004 P.Cr. U. 263 and 2004 SCM R 121.
9. "Child" has been defined under Section 2(b) of the Ordinance, means .a person who at the time of commission of an offence has not attained the age of 18 years. Under Section 4 of the Ordinance Juvenile Courts are to be setup by the Provincial Government in consultation with the Chief Justice of the High Court through Notification in the official gazette.
There is bar of joint trial of a Child" and "adult" person under Section 5 of the Ordinance. Section 6 of the Ordinance prescribed procedure of the Juvenile Courts. Arrest and bail of the juvenile offender i,e, "child" is regulated under Section 10 of the Ordinance. Section 12 'of the Ordinance prohibits awarding the sentence of death or ordered to undergo labour; it also debars handcuffing, putting on fetters or giving corporal punishment at any time while in custody.
In view of above provisions of law "child" is differently treated and proceeded against during the trial under the Ordinance. He has been given protection both during investigating as well as until conclusion of the trial.
10.August Supreme Court of Pakistan in a case reported as 2002 SCM R 440 upheld the order of Sindh High Court where offence was committed on 10.3.1999 i,e, before promulgation of Ordinance by holding that High Court was right in transferring the case to the Court, assigned the jurisdiction of Juvenile Officers.
11. In the light of view taken by August Supreme Court of Pakistan read with definition of "child" as defined under Section 2(b) of the Ordinance, I am of the humble view that in the instant case respondent has been rightly ordered to be tried under the Ordinance.
12. However, if one is to go by the preamble of the Ordinance read with different provisions as referred to in the above paragraph where object of the promulgation of the Ordinance is to provide protection to the "children" involved in litigation and their rehabilitation in society and when there is provision for Borstal Institution for children offenders where they are to be detained and given training for their mental, moral and psychological development and where under Section 3 of the Ordinance a "child" is entitled to legal assistance and to be tried separately, the definition as given in the Ordinance would, therefore, require to be suitably amended. The amendment should be made so to bring it into conformity with rest of the Provisions of the Ordinance. It is, therefore, humbly suggested that "child" shall be redefined in the Ordinance which should be "a person who at the time of commencement of his trial has not attained the age of 18 years".
The suggested definition would be in consonance and harmony, both with the preamble of the Ordinance as well as different Sections of the Ordinance. Such definition automatically would include the present definition i,e, "child" means who has not attained the age of 18 years at the time of commission of the crime.
Copy of my his judgment shall be sent by the Registrar of this Court to the Ministry of Law, Parliamentary Affairs, Human Rights Islamabad for the perusal of the Hon'ble Federal Secreted. Law and a copy shall also be sent to Dr. Faqir Hussain, Secretary Law and Justice Commission of Pakistan, Supreme Court Building Constitution Avenue Islamabad for information.