1. Sabihuddin Ahmad, C.J.--This Full Bench was constituted basically to examine the question whether children or juvenile offenders i,e, persons below the age of 18 years accused of offences otherwise triable by Special Court under the Control of Narcotics Substances Act (C.N.S. Act 1997) and the Anti-Terrorism Act would continue to remain triable by such Special Courts or were liable to be tried by Juvenile Courts established under the Juvenile Justice System Ordinance, 2000 (Ordinance). The facts leading to the constitution of this Bench have been stated in the opening paragraph of the judgment of my learned brother and need not be repeated.
2. During the course of hearing we also found that such questions had already cropped up before the superior Courts in the country but the conclusion recorded (as will be discussed hereinafter) were by no means consistent. For facility of reference, however, I would reproduce the four specific questions framed for consideration of the Court.
3. (1)What is the effect of Section 4 of the Juvenile Justice System Ordinance, 2000 on Section 45 of the C.N.S. Act, 1997 and Section 12 of the Anti-Terrorism Act, 1997 or any similar provisions of law conferring exclusive jurisdiction to try offences?
4. (2)Whether the provisions of Section 19(14) of the Anti-Terrorism Act are wide enough for the purposes of treating the Special Court as Courts of Session for the purpose of Section 4(2)(a) of the Juvenile Justice System Ordinance or whether they are merely confined to the procedure required to be adopted by Special Court?
5. (3)Whether the Notification of the Provincial Government dated 20-8-2005 is legally sustainable?
6. (4)Whether the provision of Section 14 of Juvenile Justice System Ordinance, 2000 and under those of Section 4 inapplicable to try offences before a Special Court exercising exclusive jurisdiction?
7. 2.I have read the very lucid draft prepared by my learned brother Rehmat Hussain Jafferi, J. With profoundest respects to his learning and analytical abilities, however, I have not been able to persuade myself to subscribe to his lordship's Conclusion with respect to Questions Nos, (1), (3) and (4), required to be considered by this Bench. I have, therefore, proceeded to record my own views.
8. 3.Before doing so, however, it might be proper to refer to the relevant statutory provisions involved and the respective contentions of the learned counsel for the parties. The C.N.S. Act was enacted in July, 1997 and Section 45 confers exclusive jurisdiction upon Special Courts appointed under the Act to try offences cognizable under the said Act. Section 76 stipulates that the provisions of the said Act will have effect notwithstanding anything contained in any other law for the time being in force.
9. 4.The Anti-Terrorism Act was enacted a month later. Section 6(2) described several acts otherwise punishable under different laws to be treated as "Acts of Terrorism" for the purpose of the Act and Section 7 laid down punishment for such acts. Moreover, the Act also created substantive offences and provided for penalties. Section 13 stipulated establishment of Anti-Terrorism Courts and Section 12 conferred exclusive jurisdiction upon such- Courts to try "scheduled offences" i,e, those referred to in the Third Schedule, namely:-- (i)Any Act of Terrorism within the meaning of this Act.
10. (ii)Any other offence punishable under the Act.
11. (iii)Any attempt to commit, aid or abet or conspire to commit any of the aforesaid offences.
12. Section 32 stipulates that the provisions of the Act shall have effect notwithstanding anything contained in any law.
13. 5.Against this backdrop the Juvenile Justice System Ordinance (Ordinance) was promulgated on 1-7-2000 with the object, as is evident from the preamble for protection of children in criminal litigation, which, inter alia, provides that a child, i,e, a person below the age of 18 years accused of any offence, would be exclusively triable by a Juvenile Court established under Section 4 of the Ordinance.
14. 6.Indeed, it was pointed out by Mr. Sarwar Khan, learned Additional Advocate-General that after the promulgation of the Ordinance, the Anti-Terrorism Act was extensively amended in 2001 and the significant aspects of the amendments were that the definition of a child was incorporated in Section 2-D and some new offences stipulating different punishments for children and adults were created by Section 21-C. We have also noticed that through the same Ordinance Section 21-G was incorporated to provide that all offences under this Act shall be tried by an Anti-Terrorism Court.
15. 7.Ms. Saleha Naeem and Mr. Abdul Rehman, learned counsel appearing for the applicants, argued that the Ordinance being a Special Law promulgated later in time would prevail over the two Acts of 1997. They were ably supported by Mr. Akhtar Hussain, the then President of the High Court Bar Association who relied upon the judgments of this Court in Ketno v. Judge, Anti-Terrorism Court 2005 MLD 353 and of the Lahore High Court in M. Alim Ashraf v. State 2005 MLD 1028. On the other hand, Mr. Sarwar Khan, learned Additional Advocate-General and Mr. Habib Ahmed, Assistant Advocate-General, placed reliance upon two Division Bench judgments of the Lahore High Court in Azra Bibi v. State 2004 PCr.LJ 1967 and Muhammad Din v. Muhammad Jahangir PLD 2004 Lah. 779, where their lordships upon taking note of the 2001 amendments, were persuaded to hold that children accused of offences were liable to be tried by Anti-Terrorism Courts and not Juvenile Courts. Learned counsel urged that the judgments taking a contrary view ought to be treated as per incurriam as the effect of 2001 amendments was not considered.
16. 8.While fully agreeing with my learned brother that a special law would prevail over a general law relating to the same subject, I would prefer not to use the expression "repeal" in the context of the latter. The reason being that Section 6 of the General Clauses Act stipulates that the repeal of a statute would not revive anything not operative a the time of such repeal. However, the ascendancy of a special law is confined only to the extent that as long as it is operative, it would prevail over a general law which lies in a state of eclipse or suspended animation. However, the moment a special law is repealed the general law becomes fully applicable. I would, therefore, restrict myself to merely saying that the special law would prevail over the general law. In the event of inconsistency and wherever the special law is silent on a subject the provisions of the general law would continue to apply as observed by the Lahore High Court in M. Javed Doulat Zai v.
17. Returning Officer 2002 CLC 198.
18. 9.Without demurring the general principles of interpretation profoundly elucidated by my learned brother, I find some difficulty in reconciling with his analysis holding the Juvenile Justice System Ordinance as a special law in the context of offenders and a general law in the context of Courts.
19. The difficulty appears to stem from the fact that the Ordinance itself requires a special kind of offenders, i,e, children to be tried exclusively by specified Courts, i,e, Juvenile Courts. At the same time the contention of the then learned Deputy Attorney-General (now Mr. Justice Nadeem Azhar Siddiqui) as to the practical difficulties which Anti-Terrorism Courts required to conduct trials on a day to day basis and decide a case within 7 days may confronting holding speedy trial for juvenile offenders under Section 5 and not take up any other case on a day fixed for evidence of a child accused under Sections 5 and 6 of the Ordinance, is not without force.
20. 10.While the remarkable analysis . undertaken by my learned brother in attempting to identify the special and the general provisions of the in C.N.S. Act in para.27 of his judgment, the Anti-Terrorism Act and the Juvenile Justice System Ordinance seems to have the merit of logical consistency I find myself unable to subscribe to the conclusion as reflecting the true intent of the legislature.
21. Indeed, his lordship has held that for the purpose of trial of the offenders the C.N.S. Act and the A.T.
22. Act are general laws, whereas for the purpose of Courts the Ordinance is a general law and the two Acts are special laws. With profound respects I am unable to share this view inasmuch there seems to be an inexorable link between the offenders and the 'Courts inasmuch as Special Courts under all the three statutes appear to have been established for no other purpose than trial of offenders.
23. Moreover, it cannot be overlooked that apart from conferring other substantive and procedural benefits upon children falling under the criminal justice system. Section 4(3) of the Ordinance, referred to by my learned brother in paras. 17 and 18 of the judgment, expressly stipulates that only Juvenile Court shall have exclusive jurisdiction to try cases in which a child is accused of commission of an offence. Indeed while High Court has been authorized to confer power of Juvenile Court upon Courts of Session and Judicial Magistrates under Section 4(2)(a) it could also set up specially designated Courts by making appointments from amongst Advocates having at least 7 years of standing at the bar, as Presiding Officers of such Courts under Section 4(2)(e).
24. 11.It also requires to be kept in view that a large number of substantive protections conferred upon children accused of penal offences also stem from their being exclusively triable by Juvenile Courts. The protection against joint trial with an adult, which was also available under the Sindh Children Act contained in Section 5(1) of the Ordinance 'is effectively re-enforced by Section 5(2) whereby a separate trial may be held by a Court other than the one trying the adult accused so that the evidence against the adult co-accused does not weigh on the mind of the Juvenile Court.
25. Again the protection against harassment and defamation of a child accused, benevolent condition for grant of bail, release on parole etc. laid down in Sections 6, 8, 9, 10 and 11 of the Ordinance, appear to have been made by way of affirmative action for the protection of special category of people in terms of Article 25(3) of the Constitution and the U.N. Convention on Rights of Child (which has been ratified by Pakistan) only stems from the fact of such people being triable by Juvenile Courts. For these reasons. I am unable to share my learned brother's view that merely on account of the fact that Juvenile Courts can try all offences, the provisions establishing them would only be treated as those general law and ought to give way even to an earlier enacted law even without any express words suggesting so.
26. 12.While agreeing that the language of Section 32 of the Anti- Terrorism Act is slightly different from that of Section 45 of the C.N.S. Act, I find it difficult to go to the extent of holding that the Statute was intended to prevail over future enactments,. With all respects I am not aware of any constitutional principle whereby a legislature could bind its successor. On the other hand, the plenary power of the legislature extends even to destroy vested rights conferred by its predecessor and is only subject to limitations imposed by the Constitution itself.
27. Moreover, in my humble view the use (or omission to use) the phrase for the time being in force makes no substantial difference inasmuch as a legislative enactment is normally presumed to extend for an indefinite period of time (till it is repealed) and such expression is referable not to the time when it is enacted but only to one when it is sought to be invoked.
28. 13.The contention that the jurisdiction of Anti-Terrorism Courts is not affected by the promulgation of the Juvenile Justice Ordinance is also not sustainable in view of the pronouncement of the Honourable Supreme Court in Ziaullah v. Najibullah and others (PLD 2003 656) announced on 17th April, 2003. In this case, the respondent, accused of offences under Section 302/34 PPC., was convicted and sentenced to death by the Anti-Terrorism Court, Sargodha Division, vide Judgment dated 17th March, 1999, which was maintained in appeal by the High Court through judgment dated 18th October, 1999, i,e, prior to the enforcement of the Ordinance. Before the sentence could be executed, however, the President granted special remission to condemned prisoners who at the time of the commission of the offence were below 18 years of age and a Medical Board was constituted by the provincial government to determine the age of the respondent at the time of commission of the offence but upon the matter having been taken to the Supreme Court, their lordships held that such age ought to be determined judicially under Section 7 of the Ordinance and referred the matter to the Sessions Judge/Juvenile Court Mianwali, for doing so. It needs to be kept in view that the conviction of the respondent had taken place before the enforcement of the Ordinance and could not be questioned thereafter. However, the fact that matter was referred to the Juvenile Court and not to the Anti-Terrorism Court clearly indicates that their lordships considered the provisions of the Ordinance to apply to matters which earlier fell within the jurisdiction of Anti-Terrorism Courts.
29. 14.I am in complete agreement with the observations of my learned brother in Para. 23 of the Judgment to the effect that the legislature is always presumed to have complete knowledge of all existing laws pertaining to a subject. Nevertheless what I conclude from the above principle is that after the enforcement of the Ordinance the legislature did realize that exclusive jurisdiction, to try children accused of any offences (including offences under Special Laws) i,e, Anti Terrorism Act came to be vested in Juvenile courts. Therefore, while effecting amendments in the Act in 2001, Section 21-G was incorporated to re-vest such jurisdiction in Anti-Terrorism Courts in respect of certain types of offences chosen by the legislature in its own wisdom. It is equally important to keep in view that Section 12 already being on the Statute book, there would have been no need to incorporate Section 21-G and indeed redundancy could not be attributed to legislative enactment.
30. This leads me to the irresistible conclusion that such Courts can only try children ,falling under item 2 of the. Third Schedule, i,e, those accused of offences under the Act but not under item 1 or item 3.
31. 15.With all respects I also find it difficult to reconcile his lordship's in paras. 32 and 34 of the proposed judgment. In the former; it has been observed that Section 32 of the Act will have an overriding effect over the provisions of the Ordinance. Indeed, if that be so, it would be difficult to comprehend the observations in the latter paragraph to the effect that the Courts created under the Anti-Terrorism Act while trying juvenile accused persons will follow the procedure prescribed under the Ordinance. It also needs to be seen that a variety of substantive protection to juvenile offenders under Sections 6, 8, 9 and 10 emerges from their amenability to be tried by Juvenile Courts. There is also force in the contention of Mr. Nadeem Azhar Siddiqui, Deputy Attorney General (as his lordship then was) that it might be practically impossible for Anti-Terrorism Court to comply with the requirement of Section 19(7) of the Act in complying with the requirements of separate trial under Section 5 and the procedure under Section 6 of the Ordinance. It may also be observed that separate trial of children from adult accused who could otherwise be tried jointly is an essential principle of Juvenile Justice System and similar provisions were available in the Sindh Children Act, 1955 and Punjab Youthful Offenders Ordinance, 1983.
32. 16.I fully subscribe to my learned brother's view in respect of Question No, 2 to the effect that though an Anti-Terrorism Court is required to follow the procedure of a Court of Session, it would not follow that such Court can be treated as a Sessions Court for all purposes including Section 4(2) of the Ordinance. In respect of Question No, 3, too I agree with my learned brother's formulation in respect of the functions of the Provincial Government. With respect to his conclusions as regards the effect of the Notification dated 20-8-2005, however, I have a different view.
33. 17.It is axiomatic that a notification can be legally sustainable if it is intra vires the powers of the authority issuing it and is not inconsistent with the provisions of the parent statute under which it is issued. As rightly observed in Para. 41 of the proposed judgment the function of the Provincial Government is confined only to establishment of Juvenile Courts and prescribing a territorial area for exercise of its jurisdiction. The power to appoint Presiding Officers of Juvenile Courts has been conferred upon the. High Court under Section 4(2), which has also been authorized to confer powers of Juvenile Courts upon certain functioning judicial officers i,e, Courts of Session and Magistrates of the First Class. Therefore, in the first instance the Provincial Government has no authority to confer the powers of a Juvenile Court upon any existing Court or to appoint any person as Presiding Officer of a Juvenile Court. Moreover, even the High Court could not confer the powers of a Juvenile Court upon an Anti-Terrorism Court, which is not a Court of Session as observed by my learned brother. As such it seems to be patently ultra vires the Statues and in my humble opinion it is idle to look into the intention of its draftsman. Even the learned Additional Advocate- General did not attempt to- defend the validity of the said notification but confined himself to merely contending that cases triable by Anti-Terrorism Courts were not affected by the Ordinance.
34. 18.I would also like to clarify that though the notification purports to say that it was issued with the concurrence of the High Court, our records do not reveal any such concurrence being accorded in any event without going into the factual controversy, even if such concurrence was given on the administrative side. I have no hesitation in holding upon judicial examination of the matter, that it was ultra vires the powers of the Court under Section 4(2)(a) of the Ordinance and, therefore, of no legal effect.
35. 19.With respect to Question No, 4 a great deal has already been discussed herein above. I may add that if one were to accept the contention of learned Additional Advocate-General that Section 14 of the Ordinance had to be so construed as not to affect any existing law the entire Ordinance itself might have to be read as a dead letter. It could be conceivably argued that the procedure contained in the Criminal Procedure Code would also continue to apply. Indeed the view that the Ordinance must be read as subject to all existing laws cannot be upheld in the face of Article 35 of the Constitution which, inter alia, speaks of the States obligation to protect the child occurring in the principle of policy in Chapter 2 of Part-11 of the Constitution though not directly enforceable have been stated to be the conscience of the Constitution by the Full Supreme Court in Benazir Bhutto v. Federation of Pakistan, PLD 1988 SC 416.
20. On the other hand. Mr. Akhtar Hussain appeared nearer the mark in contending that the expression in addition to and not in derogation of only meant that the existing protection available to children will not be affected by the Ordinance. Indeed, the view appears to have the support of the authority of the Supreme Court in Habib Wahabul Khairi v. Choudhry Saeed Ahmed, 1979 SCMR
545. Such a view appears to have been perfectly consistent with Article 41 of the U.N. Convention on the rights of child, which states that the rights so guaranteed shall not affect any provision of existing law in a State, which is more conducive to the rights of the child.
21. From- the foregoing discussions, I have arrived at the following conclusions: (i)Cases of persons below the age of 18 years at the time of commission of the offence under the C.N.S. Act shall stand transferred to the respective Juvenile Courts comprising Courts of Session and Magistrates in the respective districts where they have been allegedly committed and will be proceeded in accordance with the procedure prescribed in the Juvenile Justice System Ordinance, 2000. However, such Juvenile Courts will proceed from the stage at which they were transferred and no recalling of witnesses or de novo trials will be invoked.
36. (ii)Cases of such persons accused of having committed acts of terrorism in terms of Items 1 and 3 to the Third Schedule (and not under Item 2 or 4) shall also stand similarly transferred.
37. (iii)Cases where children are accused of having committed offences created by the Anti- Terrorism Act (as distinguished from acts of terrorism in Item 1 or those added through Item 4 of the Third Schedule i,e, abduction or kidnap for ransom, use of fire-arms or explosives in places of worships and Courts), will, however, continue to remain triable by the Anti-Terrorism Courts.
38. (iv)The Anti-Terrorism Courts will not be bound by the rules or procedures required for Juvenile Courts. Nevertheless the, substantive protection not inconsistent with the Act under the Juvenile Justice System Ordinance would be accorded by such Courts while trying children.
22. The legal questions having been decided, the transfer applications may now be heard and decided by the appropriate Benches in accordance with law.
39. (Sd.)
40. SAB1HUDDIN AHMAD, C.J.
41. I agree.
42. (Sd.)
43. GHULAM RABBANI, J I agree (Sd.)
44. MUSHIR ALAM, J. Khilji Arif Hussain, J.--I have the honour to go through the draft Judgments of the Hon'ble Chief Justice and of my learned brother Rehmat Hussain Fafferi, J. With profound respect of learned Judges, I do not agree with the view expressed by the learned Judges on question Nos, 1 and 4 framed for consideration of the Court. To answer these questions referred to Full Bench first of all it is to be examined whether the juvenile in respect of offence triable by the Special Court under Control of Narcotic Act, 1997 and Anti-Terrorism Act, 1997 remained triable by the Special Court created under the aforesaid Acts or is to be prosecuted only by the Court established under the Juvenile Justice System Ordinance, 2000. The Hon'ble Judges have dealt with the provisions in all the statutes in detail and I am not reproducing the same to avoid repetition. The Anti-Terrorism Act was brought into force for the prevention of terrorism, sectarian violence, and for speedy trial of heinous offences and the matters connected incidentally therewith. Likewise Control of Narcotic Substances Act, 1997 was enforced to consolidate and amend the law relevant to narcotic drugs etc. Section 6 of A.T.C. defines "Terrorism". Section 13 provided establishment of Anti-Terrorism Court.
45. Section 14 provided composition and appointment of ' Presiding Officers of Anti-Terrorism Court.
46. Section 7 defines punishment for acts of terrorism. Section 8 provided prohibition of acts intended or likely to stir up sectarian levelled, Section 9 provided punishment for offences. Sections 8 and 11 provided power to order forfeiture. Section 12 provided jurisdiction of Anti-Terrorism) Court. Section 13 provided establishment of Anti-Terrorism Court by Ordinance (XXXIX of 2001) dated 14th August, 2001. Anti-Terrorism Act was amended by incorporation of new clauses and by deleting certain Sections of its. For the first time definition of "child" has been given in the Ordinance as a person who at the time of commission of offence has not attained the age of 18 years. Sections 6 and 7 was substituted by new Sections 6 and 7. Section 11 (a) to 11(x) were inserted which provided organization concerned in terrorism, their, prosecution, raid and review measures to be taken against the prescribed organizations, money laundering, disclosure of information, punishments, seizures, detentions, etc. Section 21 was substituted by new sub-section (21) and Section 21 (a) to Section 21(m) were inserted.
47. From the perusal of various amendments made from time to time in Anti-Terrorism Act, it appears that by incorporating and amending Sections 11 and 21 certain new offences were created under the Act.
48. Juvenile Justice System Ordinance, 2000 was promulgated on 1-72000 (i,e, before the amendment in A.T.C. Act) to provide protection of the children in criminal litigation, their rehabilitation in society, reorganization of juvenile Courts and matter connected therewith and incidentally thereto. Sub-section (3) of Section 4 of the Ordinance provided that Juvenile Court shall have exclusive jurisdiction to try the cases for which a child is accused of commission of an offence. Sub-section (4) provided that subject to subsection (3) on commencement of the Ordinance all cases pending before the Trial Court only a child accused of an offence stand transferred to Juvenile Court having jurisdiction. Section 5 of the Act provided that notwithstanding anything contained in Section 239 of the Code, or any other law for the time being force, no child shall be charged with or tried with an offence together with an adult. Sub-section (2) of Section 5 provided that 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. In exercise of powers under Section 15 of the Ordinance Government of Sindh framed Juvenile Justice Rules, 2002, which provided rules how to keep a child in custody about their diet, welfare, discipline etc. Rule 21 provided that juvenile should be produced before a competent Court through police escort arranged from the local police headquarters in-charge and rank of A.S. I. Section 14 of the Ordinance, 2000 provided that provision of the Ordinance shall be in addition to and not in derogation of, any other laws for the time being in force.
49. Anti-Terrorism Acts, Narcotics Acts provided for establishment of Special Courts to deal with the offences triable under the Acts, whereas Juvenile Justice System 2000 provided for establishment of Courts dealing with the case of juvenile offenders irrespective nature of offence committed by them.'
50. The question sometimes arises when there is conflict between two Special Acts each of which may described as Special in some particular sense as to how far later Act should prevail over the earlier Act. In such cases, it would seem that the rule is that the Court should lean against repeal of earlier Act by implication and unless it is absolutely clear that the operation of first Act has to be curtailed by the later Act, the previous Act should be held to continue and in force, even though later Act may be regarded as special in some other sense. Sometimes one find two or more enactments in the same field each containing non obstante clause, stating that provrisions will have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Conflict in such cases has to be resolved on consideration of purpose and policy of the Act.
51. The problem of interpretation is a problem as meaning of words and their effectiveness and medium of expression to communicate particular thought. In the case of Sarwan Singh and another v. Kasturi Lal AIR 1977 SC 267, it was held that: "Speaking, generally, the object and purpose of a legislation assume greater relevance if the language of law is obscure and ambiguous. But, it must be stated that we have referred to the object of the provisions newly-introduced into the Delhi. Rent Act in 1975 not for seeking light from it for resolving an ambiguity, for there is none, but for a different purpose altogether. When two more law operate in the same field and each contains a non obstante clause stating that its provision will override those of any other law, stimulating and inclusive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration. A piquant situation, like the one before us, arose in Shri Ram Narain v. Simla Banking and Industrial Co. Ltd., 1956 SCR 603 (AIR 1956 SC 614) the competing statutes being the Banking Companies Act, 1949 as amended by Act 52 of 1953 and the Displaced Persons (Debts Adjustment) Act, which was introduced by the amending Act of 1953, and Section 3 of the Displaced Persons Act, 1951 contained such a non obstante clause, providing that certain provisions would have effect "notwithstanding, anything inconsistent therewith contained in any other law for the time being.........in force " This Court resolved the conflict by considering the object and purpose of two laws and giving precedence to the Banking Companies Act by observing: "It is therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein." (p.615). As indicated by us, the special and specific purpose which motivated the enactment of Section 14A and Chapter IIIA of the Delhi Rent Act would be wholly frustrated if the provisions of Slum Clearance Act requiring permission of the competent authority were to prevail over them. Therefore. The newly introduced provisions of the Dehli Rent Act must hold the field and be given full effect despite anything to the contrary contained in the Slum Clearance Act."
52. In the case of Ravi Dutt v. Ratan Lal Bhargave, AIR 1984 SC 967, it was held: "An analysis of the aforesaid decision clearly reveals' that the new Sections 14(A), 25(A), 25(B) and 25(C) had been introduced for the purpose of meeting a particular contingency. as spelt out in the objects and reasons behind the new provisions. Once it is recognized that the newly-added Sections are in the nature of a special law intended to apply to classes of landlords, the inevitable conclusion would be that the application of the Slum Act stands withdrawn to that extent and any suit falling within the scope of the aforesaid Section 14(1)(e) and 14(A) would not be governed or controlled by S. 19(1)(a) of the Slum Act." In the case of Forbes v. Git and others, AIR 1921 PC 209, it was held that: "If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause is to be rejected as repugnant and the earlier clause prevails.. But if he later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole." In the case of the Punjab Province v. (1) L. Sita Ram and others (2) Custodian of Evacuee Property, Punjab PLD 1956 FC 157, it was held that: "subsequent statute in general terms does not repeal previous particular statute and where two statutes covered common field then in case of conflict with each other the later will have to be prevailed". But in the instant case it is very difficult to say that A.T.C., Narcotic Courts and Juvenile Courts covered the same field. In the case of Industrial Development Bank of Pakistan v. Modern Poultry Farm Ltd, 1990 CLC 1030, while dealing with the Industrial Development Bank of Pakistan Ordinance, 1961, and Companies Ordinance 1984, learned Single Judge of this Court held: No doubt, the bank, in order to recover its debt from an industrial concern etc. can have resort to any of the remedies referred to in Sections 38, 39, 40 or 41 of the IDBP Ordinance, which by no means are less effective, but nothing can be spelt out from the said provisions to suggest that they are in derogation of the provisions of the Ordinance. The Ordinance itself is a special enactment, which has provided for special remedies in the form of Section 309 thereof. Since no intention has. been expressed either in the IDBP Ordinance or in the Companies Ordinance that the provisions contained therein are in derogation of any other law." In the case of Messrs Shafiq Hanif (Put.) Ltd. Karachi v. Bank of Credit and Commerce International (Overseas) Ltd., Karachi PLD 1993 Kar. 107, it was held that: "At the same time, where a right or duty has existed before the statute has come to occupy the field, the ouster, even where explicit was conditional and dependent upon the functioning of the forum introduced by the Statute."
53. In the case of Ashoka Marketing Ltd. and others v. Punjab National Bank AIR 1991 SC 855, the Supreme Court of India held that: "In the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict to be resolved by reference to the purpose and policy underlining the two enactments and the clear intendment conveyed by the language of the relevant provisions therein." However, in the instant case, it is very difficult to say Anti-Terrorism Act, Narcotic Act, and Juvenile Courts Ordinance covered the same field. The difference between A.T.C., C.N.S. and Juvenile Acts is that in the earlier statutes Courts acquired jurisdiction if the offence is triable by them whereas as in later Courts acquired jurisdiction if the offenders is juvenile irrespective of nature of offence committed by him. By an amendment on 15-8-2001 Section 21(g) was incorporated in Anti- Terrorism Act, 1997 which provided that all offences under this Act shall be tried by the Anti- Terrorism Court established under this Act. It is one of the settled principles of interpretation that legislator had before him all the law at the time of legislation and amendment made in any statute and should be given due weight as the same speak not only about the intention of law-maker, but also that legislator feels it necessary to make necessary amendment in law either to fill lacuna in the statute or to provide additional remedy. On reading Section 21(g) alongwith Section 12 of the Act one arrives at a conclusion that after the enforcement of Juvenile Justice Ordinance, 2000 it has been felt by the legislator that juvenile offenders had to be tried by the Juvenile Court under the Ordinance, 2000 and Anti- Terrorism Court cannot try them and to meet the object of the Anti-Terrorism Act, 1997 for prevention of terrorism, sectarian violence, and for speedy trial for heinous offences, Section 21(g) has been incorporated and Anti-Terrorism Court has been authorized and given jurisdiction to try all offences under the Act meaning thereby the ouster of the jurisdiction of all other Courts including Juvenile Courts to try offenders in respect of offence under the Act. The Hon'ble Chief Justice in his judgment at page 9 observed that: "Neither the less but I conclude on the above that after enforcement of the Ordinance legislator did realize that the exclusive jurisdiction to try children accused of a offence (including offence under special law i,e, Anti-Terrorism Court) came to be vested in Juvenile Court. Therefore, while affecting amendment in the Act, 2001 Section 21(g) to be re-vest such jurisdiction in Anti-Terrorism Court in respect of such type of offence chosen by the legislator in its own wisdom." From the above passage of his Lordship in the draft Judgment, it appears that the learned Chief Justice came to the conclusion that after enforcement of Juvenile Ordinance, 2000 prior to incorporating Section 21-G apparently Anti-Terrorism Court had no jurisdiction to try juvenile involved in any offence under the Act, 1997 and therefore legislator in his wisdom decided to amend the Act by Ordinance VI of 2001. Indeed Section 12 of the Act and Section 21(g) incorporated subsequently to some extent are overlapping but as observed by the Hon'ble Chief Justice that "indeed redundancy could not be attributed to the legislative enactment" effort has to be made to harmonize both the Sections and to give due effects which legislator intends to achieve by amendment. Section 21(g) provided "all offences under this Act" shall be tried by the Anti-Terrorism Court established under this Act. The phrase "all offences" has to be given proper meaning.
54. Offences created by the Act under Section 21(c) pertaining to the training given to the person or taken by the person including child in respect of fire-arms, explosive chemical biological or other weapon. Section 21(c) provided different sentences to a "child offenders" that to "adult offenders". If the intention of the legislator was that Anti-Terrorism Court has exclusive jurisdiction to try "child offenders" in respect of offences created only under the Act than instead of using the phrase "all offences" it was very easy for the legislator to say that the "offences under the Act" shall be tried by the Anti-Terrorism Court established under this Act instead of using word "all". The word "all" has been defined in Chambers 20th Century Dictionary as compromising every individual (e.g. all men, all roads, as instances, (as many as there are, or as much as there is). The word "all" connotes that the legislator intended, keeping in view the Juvenile Ordinance in the field, that. Anti-Terrorism Court should have exclusive jurisdiction to try all offences under this Act including child offenders and I cannot subscribe, with all respect, to the views expressed by his lordship that under Section 21(g) of Anti-Terrorism Act, Anti-Terrorism Court can exercise jurisdiction in respect of child offenders only to the extent of offences created by the Act itself and not in respect of offences on which otherwise Anti-Terrorism Court have exclusive jurisdiction.
55. Section 7 of the Anti-Terrorism Act was amended by the Act II of 2005 (i,e, after enforcement of Juvenile Ordinance, 2000) enhancing the sentence up to life imprisonment without making any difference whether the offender is juvenile or not. Whereas Section 21 A to 21 M were inserted in August, 2001. Section 21 provides different sentences to "child offender" than to "adult offenders". As regards the question of jurisdiction to ATC Court under the Act Section 12 provided that only Anti- Terrorism Court has jurisdiction in respect of schedule of offences committed in an area in a province notwithstanding anything contained in the Code or in any law. Subsection (2) of Section 2 ID provided that "all offences" under this Act punishable with death or exceeding three years shall be non-bailable means all the offences under the Act, which created by Act or other are non- bailable. Can we say that any offence created by the Act are non-bailable other offences triable by the A.T. Court are bailable. Section 21G provided all offences under this Act shall be tried by the Anti-Terrorism Court established under this Act was further amended by Act II of 2005 on 10th January, 2005. Now it will be read as, All offences under this Act shall be tried exclusively by the A.T.C. established under this Act. Section 21M provided that while trying any offence under this Act", a Court may also try any other offence with which an accused may, under the Code of Criminal Procedure, be charged, at the same trial if, the offence is connected with such other offences.
56. Section 32 of the Act gave overriding effect to Act and provided that the provision of this Act shall have, notwithstanding anything contained in the Code or any other law, shall apply to the proceedings before the A.T.C. Third Schedule of the Act was further amended and following new items are added by Act II of 2005: "Without prejudice to the generality of the above paragraphs the Anti-Terrorism Court to the exclusion of any other Court shall try the offences relating to the following namely:- (i)Abduction or kidnapping for ransom; (ii)Use of the arms or explosives by any device including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby; or (iii)Firing or use of explosive by any device, including bomb blast in the Court premises."
57. Reading of the above quoted Sections and particularly amendments made after enforcement of Juvenile Ordinance, 2000, keeping in view object of law my humble view if a juvenile committed any offence provided under the Schedule of Anti-Terrorism Act, then A.T.C. (Special Courts) have exclusive jurisdiction to try such juvenile and to follow the procedure prescribed under the Act. Section 45 of C.N.S. Act, 1997 provides that Special Court appointed under the Act shall have exclusive jurisdiction to try and offence cognizable, under the Act where Section 4(3) of the Juvenile Justice Ordinance, 2000, provides that the Juvenile Court shall have the exclusive jurisdiction to try' cases in which a child is accused of commission of an offence. The legislature have authority to put restriction under what circumstances a Court has to exercise the jurisdiction the legislature intentionally have not given overriding effect to Ordinance, 2000 on other laws, as against C.N.S. and A.T.C. Act. Section 32 of A.T.C. and Section 76 of C.N.S. contain a non abstante clause i,e, "notwithstanding anything contained in any other law" loudly speak of legislative intention that if an offence is triable under A.T.C. and CNS Act then only Special Court constituted under these Acts can deal with the matter irrespective whether the offender is juvenile or not. For the foregoing reasons in my humble opinion Special Court established under A.T.C. and C.N.S. Act have excessive jurisdiction to try an offence irrespective whether offender is minor or. not. It is advisable to prove protection to juvenile offenders in criminal litigation, their rehabilitation in Society, necessary amendments be made in the Juvenile Justice System Ordinance, 2000 to give it overriding effect on all other laws and to matters relating to their bail during trial and further that child should not be arrested without taking permission from the Juvenile Court. The Court Officer and police dealing with the juveniles should be given specialized training, how to deal with juveniles during trial so as to rehabilitate them in Society to meet the guarantee given to child under Act 35 of the Constitution.
58. (Sd.)
59. KHILJI ARIF HUSSAIN, J Rahmat Hussain Jafferi, J.--This Judgment will dispose of above two references/transfer applications as common questions of facts and law are involved.
60. 2.On 28-7-2005 the learned Judge Special Court, II (C.N.S. )
61. Karachi sent a reference/letter for transfer of Special case State v. Ghani Mullah Bearing No, 72 of 2005, F.I.R. No, 250 of 2004 involving offences punishable under Sections 6, 9 (b), Control of Narcotic Substances Act, 1997 (hereinafter referred to as " the C.N.S. Act"). The ground for the transfer of the case is that the accused is a juvenile offender and the Court has not been declared as Juvenile Court within the meaning of Juvenile Justice System Ordinance, 2000 (hereinafter referred to as the Ordinance, 2000) therefore lacks jurisdiction to proceed with the matter. The transfer application was placed before Division Bench. On 30-8-2005, the learned judges of the Bench passed the following order.
62. "Heard Miss Saleha Naeem for applicant and Mr. Habib Ahmed A.A.-G. for State. It is gathered from the arguments of both the learned counsel and also after going through the relevant provisions of Section 4 of the Juvenile Justice System Ordinance, 2000 and provision of Section 46(5) of the Control of Narcotic Substances Act, 1997 that no powers have been conferred upon the Special Judge Narcotic to act as Juvenile Court. We will therefore like to observe that necessary steps may be taken in this behalf to see that power of Juvenile Court are conferred on the Special Judge Narcotics within the terms of sub-section (5) of Section 46 of the Control of Narcotic Substances Act, 1997. A copy of this order he sent to the Registrar for appropriate action.
63. Hearing of the cases is adjourned sine die."
3. The Registrar placed the matter before the Hon'ble Chief Justice , who ordered for examining the question on the judicial side of the Court therefore formed a Full Bench to examine the following questions.
64. (1)What is the effect of Section 4 of the Juvenile Justice System Ordinance, 2000 on Section 45 of the C.N.S. Act, 1997 and Section 12 of the Anti-Terrorism Act, 1997 or any similar provisions of law conferring exclusive jurisdiction to try offences?
65. (2)Whether the provisions of Section 19(14) of the Anti-Terrorism Act, are wide enough for the purposes of treating the Special Court as Courts of Session for the purpose of Section 4(2)(a) of the Juvenile Justice System Ordinance or whether they are merely confined to the procedure required to be adopted by Special Court?
66. (3)Whether the Notification of the Provincial Government dated 20-8-2005 is legally sustainable?
67. (4)Whether the provision of Section 14, of Juvenile Justice System Ordinance, 2000 and under those of Section 4 in applicable to try offences before a Special Courts exercising exclusive jurisdiction?
4. The same Court sent another transfer application to transfer the case No, 171/2005, F.I.R. No, 158 of Police Station Taimoria on the same ground.
5. On the above questions, we have heard Miss Saleha Naeem, Abdul Rehman Advocates for the accused, Mr. Sarwar Khan, A.A.-G. assisted by Mr. Habib Ahmed Asst., A.-G., Mr. Nadeem Azhar D.A.- G., Mr. Mehmood A. Rizvi, Special Prosecutor Narcotics and Mr. Akhtar Hussain, President High Court Bar Association as Amicus Curiae.
6. The learned Advocates for the accused, D.A.G, Special Prosecutor Narcotics and President High Court Bar Association took the view that the Juvenile Court created under Section 4 of Ordinance, 2000 has exclusive jurisdiction to try the cases of juvenile offenders, as the Ordinance, 2000 is a special enactment, which will override the provisions of other laws; that the Provincial Government has established Juvenile Courts under Section 4(1) of the Ordinance, 2000 and that the High Court has conferred powers of such Courts on the Courts of Session and Judicial Magistrates First Class therefore the said Courts are competent to try the cases of all offences punishable under any law.
68. They have further argued that the powers of Juvenile Courts cannot be conferred upon the Courts created under C.N.S. Act and Anti-Terrorism Act, 1997 (hereinafter referred to as "the A.T. Act") therefore they have no jurisdiction to try the cases of juvenile offenders.
69. 7.The learned A.A.-G. took a contrary view by arguing that the offences of C.N.S. Act and A.T. Act are exclusively triable by the Courts created under the said enactments therefore they have exclusive jurisdiction to try the said offences. He has further contended that under Section 32 of A.T. Act the provisions of said Act have overriding effect on all other laws therefore the provisions of Ordinance, 2000 cannot override the provisions of A.T. Act as such the Juvenile Courts created under the Ordinance, 2000 cannot try the offences of such Acts. He has further stated that the Courts created under C.N.S. Act and A.T. Act can adopt the procedure of Ordinance, 2000 while trying juvenile offenders.
70. 8.I have given due consideration to the arguments , gone through the material available on the record, relevant provisions of enactments and found that the questions can be resolved by interpreting various provisions of the enactments in the light of well-established principles of interpretation of statute. The problem revolves around the interpretation of general and special enactments. First of all the status of the enactments has to be established as to which one of the enactments is general or which one of them is special enactment.
9. When Ordinance, 2000 was enacted at that time, the A.T. Act and the C.N.S. Act were already operating. The said Acts were also Special Acts in comparison to other laws on the subject mentioned thereunder, However, they are general Acts in relation to the rights and liabilities of accused persons involved in the acts and omissions, which have been made offences under the said Acts. Under the said Acts, there is a uniform procedure for the trial of all the accused persons involved in the offences punishable under the said Acts. It is immaterial whether accused persons are major, minor, male, female, young or old. All the accused persons are required to be tried by the Courts created under the said Acts. A rule of general law is that it applies to all persons and localities within its jurisdiction and scope as distinguished from a special one, which in its operation is confined to a particular person or class or persons or locality. Nevertheless, under the Ordinance, 2000, the case of minor or juvenile accused is to be dealt with separately from the major accused.
71. As such the Ordinance, 2000 is a Special Act concerning the trial of juvenile offender in comparison to the C.N.S. Act and the A.T. Act.
72. 10.It is well-settled that special Act or subsequent Act would derogate override the general Act on the same subject-matter irrespective of the fact whether or not derogatory, repealing or overriding provision is available in the special or subsequent Act, because it is the latest will and wish of the Parliament. The said principle is based upon maxim "Generalibus Specialia derogant" which means that special thing derogate from general thing and maxim "Generalia specialibus non derogant" that means: general thing do not derogate from a special thing. Nevertheless, there is exception to the above rule that it is applicable only, in the absence of provision to the contrary and of a clear inconsistency that a Special law will remain wholly unaffected by later general law. Reference is invited to Maxwell on "Interpretation of Statutes" 12th Edition pages 196-198, and Seward v. Vera Cruse (1885) AC 59, wherein it has been observed as under: "that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects especially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of, such general words, without any indication of a particular intention to do so."
11. In the Ordinance, 2000 there is no specific provision for overriding the provisions of other laws.
73. Thus the principle of maxim "Generalibus specialia derogant" does not apply to the present case " because different intention of the Legislature appears in the Ordinance, 2000 in the shape of Section 14, that reads as under: "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."
74. 1 2 . In the above provision, words "addition" and "derogation" have been used. Black's Law Dictionary 6th Edition defines these words as under: "Addition.--This term embraces the idea of joining or uniting one thing to another, so as thereby to form one aggregate. Implies physical contact, something added to another."
75. Derogation.--The partial repeal not abrogating of a law, as by a subsequent act which limits its scope or impairs its utility and force. Distinguished from abrogation, which means the entire repeal and annulment of a law."
76. 13.Thus, the provisions of Ordinance, 2000 do not repeal, abrogate partially repeal, or partially abrogate the other laws for the time being in force i,e, on the date of its enforcement viz. 1-7-2000.
77. But they are to be read in addition, or attached to, or prefixed or part and parcel of the laws which were in force on the date when the Ordinance, 2000 was enacted, so as to make them one aggregate law because, the Legislature have used the words "for the time being in force". The Honourable Supreme Court of Pakistan in the case of Amro Jan v. Amir Muhammad, 1972 SCMR 639 has interpreted these words as" "any other law subsisting at that time." Therefore, the provisions of Ordinance, 2000 are deemed to be attached, connected or prefixed to the C.N.S. Act and A.T Act to make them one aggregate law as they were in force on the date when the Ordinance, 2000 was promulgated.
78. 14.The Ordinance, 2000 has in all 15 Sections. Section 1 deals with the short title and commencement. Section 2 deals with definitions, under Section 2(e) Juvenile Court, means the Court established under Section 4. Under Section 2(f) Offence, means an offence punishable under any law for the time being in force. Under this provision all the offences punishable under any law in force on the date of promulgation of the Ordinance, 2000 have been made triable by the Juvenile Court, k , Section 3 deals with legal assistance to be provided to juvenile offenders. Under its sub-section (1), every child accused or the victim is required to be provided legal assistance at the expense of the State. Under sub-section (2) a legal practitioner having at least five years standing at the Bar is to be appointed to provide legal assistance. Section 4 deals with creation and jurisdiction of Juvenile Courts. The said Section is an important one for the purpose of present proceedings therefore, the same is reproduced: "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 Session; or (ii)Judicial Magistrate of the First Class; and
(b) appoint, from amongst practising Advocates having at least seven years standing at the Bar, presiding officers of Juvenile Courts with powers of the Judicial Magistrate of 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 sub-section (3), on commencement of this Ordinance, all cases pending before trial Court in which a child is accused of an offence shall stand transferred to the Juvenile Court having jurisdiction.
(5) Juvenile Court shall not, merely by reasons of a change in its composition, or transfer of the case under sub-section (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."
15. A perusal of above provisions reveal that under sub-section (1) Provincial Government has been empowered to establish a Juvenile Court or more Courts in any local area within its jurisdiction subject to condition that before establishing such Courts the Provincial Government shall consult with the Chief Justice of the High Court. The words any local area within its jurisdiction" demonstrate the intention of the Legislature that Provincial Government may assign any territorial jurisdiction to any Juvenile Court but it should be within the Province. Thus under the above provision the Provincial Government has been empowered firstly to establish one or more Juvenile Courts (number of Courts) in consultation with the Chief Justice of the High Court and secondly assigned territorial jurisdiction to the said Courts where they exercise their powers. No other power has been given to the Provincial Government under the sub-section (1) except specifically mentioned above. Under sub-section (2), the High Court has been authorized firstly, to confer powers of Juvenile Court on Court of Session and secondly on the Judicial Magistrate of First Class.
79. Under this provision, the High Court has not been given powers to confer powers of Juvenile Court on any other Court whatever its nomenclature may be or any other officer except Judicial Magistrate of First Class. The High Court has further been given power to appoint a practising Advocate having at least seven years standing at the Bar to be the Presiding Officer of Juvenile Court with powers of Judicial Magistrate First Class. The terms and conditions, of the appointment of such Advocate are also to be determined by the High Court alone. In these matters, the Provincial Government has not been given any authority to interfere in the exercise of such powers of the High Court. Under sub-section (3) exclusive jurisdiction to try the cases of juvenile offenders of commission of any offence under any law in force on the day of promulgation of the Ordinance, 2000 has been conferred upon the Juvenile Court only. Under sub-section (4) all the cases pending on the date of commencement of this Ordinance i,e, 1-7-2000 before any Court in which a child is an accused of any offence have been transferred to the Juvenile Court having jurisdiction but it has been made subject to the provisions of sub-section (3). Under sub-section (5) Juvenile Court has been given power to act on the evidence already recorded, without recalling or rehearing any witness who had already given evidence before the transferee Court because of change in its composition or transfer of the case under sub-section (4). Under sub-section (6)
80. Juvenile Court is required to decide the case within four months after taking cognizance of the offence.
16. Under Section 5, a child accused is not required to be tried alongwith adult accused even if the child accused could be tried alongwith other accused under the provisions of Section 239 of Cr.P.C. or any other law for the time being in force. Under Section 6 Juvenile Court is required to follow the procedure of Cr.P.C. unlesR provided otherwise by the Ordinance. Juvenile Court should not ordinarily take up any other case on the date when the case of a child accused is fixed for evidence on such date. At the time of trial no other person shall be present at the sitting of the Juvenile Court except members and officers of the Court, parties of the case, such other persons who are directly concerned with the proceedings including the police officers, person permitted by the Court and guardian of the child. The Court can order any person to leave the Court on the grounds mentioned in sub-section (4). Juvenile Court can also dispense with the attendance of the child and proceed with the trial T in his absence if the Court is satisfied that the presence of the child is not essential for the purpose of the trial. If the child becomes seriously ill then the Court can send the child to a hospital or a medical institution for treatment at the expense of the State. Under Section 7 Juvenile Court is required to determine the age of the child if a question arises about his age. For that purpose, Juvenile Court can hold any inquiry, which shall include the medical report for determining the age of the child. Under section 8 without the permission of the Court proceedings cannot be published in any newspaper, magazine or journal in any form which may disclose the name, address, school or any identification or particulars to lead directly and indirectly to the identification of such child nor the picture of the child can be published. Section 9 deals with the R probation officer to assist the Court. Section 10 deals with the arrest and bail of the juvenile offender. Section 11 deals with the release of child on probation on his conviction. Under Section 12, a child cannot be awarded punishment of death or order to Labour during the time spent in any Borstal or such other institution. He is not required to be handcuffed, put in fetters or given any corporal punishment at any time while in custody except in the case where there is reasonable apprehension of his escape from the custody then he can be handcuffed only. Under Section 13 a child on conviction has. been given right to file appeal. The Provincial Government and any person aggrieved of the order of acquittal passed by the Juvenile Court can file appeal as provided under Section 417 of Cr.P.C. Under Section 14, the provisions of the Ordinance have been made in addition to and not in derogation of any other law for the time being in force i,e, 1-7-2000. Under Section 15, the Provincial Government has been given powers to make rules for carrying out the purposes of the Ordinance by notification in the official Gazette.
81. 17.It will be noticed that under C.N.S. Act and A.T. Act, trial of all accused persons, including major, minor, young and old is to be conducted in a uniform manner. However, a departure has been made in the Ordinance, 2000 by providing provisions by which a juvenile offender is to be tried and punished differently from the trial and punishment provided under both the above Acts. Such provisions of both Acts have not been repealed or abrogated, therefore, they are intact for all intents and purposes. Such provisions of both the Acts are to be read with the Ordinance, 2000. If both these sets of provisions are read together, then there is conflict between them. In such a situation, one set of provisions has to give way to the other set of provisions by overriding the other sat of provisions.
82. 18.It is one of the basic principles of interpretation of the statute that inconsistency and repugnancy is to be avoided while interpreting the statutes, but harmonious construction is to be given. For that purpose, the statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act, if the inconsistency is in the same Act, so as to make consistent enactment of the whole statute. Same principle is to be applied to the case in hand, as the provisions of Ordinance, 2000 are in addition to the provisions of the other laws. As such, it is the duty of the Court to avoid a head on clash between the inconsistent provisions of the Act and interpret them in such a manner so that they harmonize. This rule is known as. Rule of harmonize construction. Reference is invited to "Principles of Statutory Interpretation" By Justice G.P. Singh Fourth Edition page 85 and a case of Vekataramana Devarus v.
83. State of Mysore, AIR 1958 SC 255. The construction that reduces one of the provisions to a useless lumber or a dead letter is not harmonious construction. Calcutta Gas Co. v. State of W.B. AIR 1962 SC 1044. A familiar approach in all such cases is to be found out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific: South India Corporation v. Secretary, Board of. Revenue AIR 1964 SC 207. Such principle is expressed in the above referred two maxims. Thus if a special provision is made on a certain matter, then that matter is excluded from the general provision. In other words, the special provision would exclude from the general provision, unless a different intention appears in the special or general provision, because that is the ultimate wish and will of the Legislature, which has to be implemented.
19. Apparently, the above principle is applicable in the case of conflict between provisions of one Act or a special Act covering a single and particular statute. There will be no difficulty in applying the said principle in such a situation. However, the question will be if a special Act is made applicable and coverable to various acts, whether or not the same principle will be applicable. In such a situation if different intention appears in any of the statutes covered by the special Act then the principle will be subject to clear, unambiguous, specific provision appearing in that statute so as to convey a different intention of the legislature. While dealing with the special and general laws the Supreme Court of India in a case of Ajay Kumar v. Union of India AIR 1984 SC 1145, after examining various authorities in para. 39 at page 1144 concluded as under: "From the text and the decisions, four tests are deducible and these are: (i) the Legislature has undoubted right to alter a law already promulgated through subsequent legislation, (ii) A special law may be altered, abrogated or repealed by later general law by an express provision, (iii) a later general law will override a prior special law if the two or so repugnant to each other that they cannot co-exist even though no express provision in that behalf is found in the general law, and
(iv) it is only, in the absence of a provision to the contrary and of a clear inconsistency that a Special law will remain wholly unaffected by later General Law."
84. 20, It is pertinent to point out that the Legislature enact laws with a complete knowledge of all existing laws pertaining to the same subject, the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. Legislature while enacting a law covering various and large number of laws have also complete knowledge that in any of such laws there is a provision, by which the special law could not affect or repeal, override or abrogate the provisions of such law in spite of the fact of conflict in provisions of both the laws and with that knowledge the special law was enacted. Therefore, such intention of the Legislature has to be implemented in that particular law. Thus when the special law is enacted covering numerous laws, unless contrary intention appears in any of the other laws, the rule will be applicable.
85. 21.It will be noticed that the provisions of Ordinance, 2000 have been added to numerous Acts, which were in force on 1-7-2000. Therefore while interpreting any of such laws the provisions of Ordinance, 2000 and provisions of that particular laws are to be examined together to gather the intention of the legislature. Because every law has been enacted keeping in view certain conditions, circumstances, trend, behaviour of people, locality, persons and gravity of situations. To overcome such gravity and other related matters special provisions are made and sometimes provisions are also made to make them applicable to future situations also and protect them from past, present and subsequent enactments by providing special provisions in that behalf in the shape of provisions to give overriding effect to all past, present, future laws so as to protect the provisions from repeal, abrogation or addition through other laws except making amendment or repeal in the law itself. Therefore, the Legislature's intention to enact such . law has also to be preserved and keeping in view such intention, the provisions of Ordinance, 2000 are to be interpreted. Thus, the basic and foremost consideration while interpreting a law is to preserve the intention of the Legislature in making such law and it should be kept paramount consideration from any other consideration. Therefore, whenever the provisions of Ordinance, 2000 are made applicable to any of the laws, then both the laws should be kept together and legislation intention should be find out, gathered and implemented.
86. 22.A Full Bench of the Honourable Supreme Court of Pakistan in the Reference of President PLD 1957 SC 219 has summarized the rules for interpretation of a statute applicable to interpret Constitution and Statutes in the following manner: "One general rule that emerges, and it is 'ancient rule, from discussion on the subject is that in the interpretation of written instruments, whether they are constitutional or ordinary statute or other documents, the first object of the Court is to discover the intention of the author and that such intention is to be gathered from the words used in the statute or document.---- The second rule is that the intention of the Legislature in enacting a statute ought to be derived from a consideration of the whole enactment in order to arrive at a consistent plan.--- The third rule is that statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made. And the fourth rule is that whenever there is a particular enactment and the general enactment in the same statute, and the latter, taken in its more comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply Another elementary rule of construction of the constitutional instrument is that effect should be given to every part and every word of the Constitution. Hence, as a general rule the Court should avoid the construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which makes some words idle and nugatory.... The next rule in construing a constitutional provision is that it is the duty of the Courts to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision.... And the last rule which needs statement for the purposes of this case is that if there be any apparent redundancy between different provisions, the Court should harmonize them if possible.
87. The rules of construction of constitutional law requires that two Sections be so construed, if possible, as not to create to repugnancy, but that both be allowed to stand, and that effect be given to each. Cases may, however, arise where it is impossible to harmonize and reconcile portions of the Constitution. In such a case, if there is a conflict between a general and special provision, the special provision must prevail in respect of its subject matter, as it will be regarded as a limitation, on the general grant."
88. 23.Keeping in view the above rules and principles of interpretation of statute, I have examined the questions involved in the matter.
89. 24.A perusal of Ordinance, 2000 shows that it covers mainly five fields (1) Substantive Law (2)
90. Adjective or Procedural Law (3) Offender (4) Offence and (5) Court. I have already observed that the provisions of Ordinance, 2000 are to be read with other laws including the provisions of C.N.S. Act and A.T. Act so as to make each of them one aggregate law. It will also be noticed that after making each of them one aggregate law I found provisions, on the above subjects and fields conflicting with each other. Therefore, it is to be found out which of the two apparently conflicting provisions appearing in the laws are more general and which are more specific one to construe more general one as to exclude the more special one. Now I will deal with the above five subjects or fields separately.
91. (1)Substantive Law.--Some of the offences under C.N.S. Act and A.T. Act are carrying punishment of death to all accused persons whether male, female, major or minor. Under Ordinance, 2000 minor or juvenile offenders cannot be sentenced to death for such offences. As such, the provisions of both the Acts are general provisions whereas such provisions of Ordinance, 2000, are special provisions.
92. (2)Adjective or Procedural law.--Under C.N.S. Act and A.T. Act uniform procedure has been provided for trial of major and minor offenders. Whereas under Ordinance, 2000 special procedure has been provided for the trial of juvenile offenders. As such, adjective or procedural provisions of C.N.S. Act and A.T. Act are general provisions. The procedural provisions of Ordinance, 2000 are special provisions to the extent of trial of juvenile offender.
93. (3)Offender.--Under C.N.S. Act and A.T. Act all offenders including major and minor are to be tried together. Whereas under Ordinance, 2000 only minor or juvenile offender is to be tried. As such C.N.S. Act and A.T. Act are general laws in respect of trial of offenders. The Ordinance, 2000 deals with only special kind of offender viz. juvenile therefore the Ordinance, 2000 is a special law on the said subject.
94. (4)Offence.--Under C.N.S. Act specified offences mentioned under Chapter II of the Act and under Act specified offences mentioned in the third schedule attached to the Act are to be tried. Whereas under Ordinance, 2000 offence as defined under Section 2(f), i,e, "offence. Means an offence punishable under any law for the time being in force" is to be tried; A comparison of the laws shows that offences triable under C.N.S. Act and A.T. Act are specified and limited to the scope of the Acts.
95. However, the Ordinance, 2000 covers all offences punishable under any law in force on the date of promulgation of the Ordinance 2000 including offences of the C.N.S. Act and the A.T. Act. Thus, the provisions relating to offence in the C.N.S. Act and A.T. Act comes within the definition of special provisions whereas such provisions in Ordinance, 2000 are general provisions covering all offences punishable under any law.
(5) Court. Under C.N.S. Act and A.T. Act Special Courts have been created to take cognizance and try specified offences of the Acts. Their jurisdiction has been restricted to take cognizance and trial only such offences committed under the said Acts. Whereas under the Ordinance, 2000 Special Court has been created to take cognizance and try all offences of any law in force on the date of promulgation of the Ordinance, 2000. As such, the Special Court created, under Ordinance, 2000 can take cognizance of all offences of all laws including the offences committed under C.N.S. Act and A.T. Act. Thus the Court created under Ordinance, 2000 is the Court having general jurisdiction to take cognizance and try all offences committed under any law. However, the Courts created under C.N.S. Act and A.T. Act are the Courts having special jurisdiction to take cognizance and try offence punishable under the said Acts.
96. 25.It is well-settled law that a special provision should be given effect to the extent of its scope, leaving the general provision to control cases where the special provision does not apply. It has been held in the case of Venkateshawar Rao v. Govt. of Andhra Pradesh, AIR 1966 SC 828 that if a special provision is made on a certain matter, that matter is excluded from the general provision. In the case of State v. Zia-ur-Rehman PLD 1973 SC 59 it has been observed that it is a well-established rule of interpretation that where in a statute there are two general provisions as well as special provisions for making a particular situation, then it is the special provisions which must be applied to that particular case or situation instead of the general provisions. As already observed that a five member bench of the Hon'ble Supreme Court of Pakistan in the Reference filed by the President, PLD 1957 SC 219 has observed that if there is a conflict between a general and special provision, the special provision must prevail in respect of its subject matter, as it will be regarded as a limitation on the general grant. It has further been observed in the same authority that whenever there is a particular enactment and the general enactment in the same statute, and that the latter, taken its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.
97. 26.Keeping in view, the above-mentioned rule laid down by the honorable Supreme Court of Pakistan it is held that the special provisions enacted in the C.N.S. Act and A.T. Act by the legislature on the above-mentioned matters, are excluded from the general provisions of Ordinance, 2000 on the same subject matters and vice versa. Special provisions appearing in any of the above two Acts or Ordinance, 2000 will be qualifying provisions or exceptions to the general provisions appearing in any of the provisions of both the Acts and Ordinance, 2000. Thus, all the provisions of the Acts and Ordinance, 2000 are harmonized and they can co-exist together.
98. 27.The basic principle and object of the interpretation of a statute is to determine what intention is conveyed, either expressly or impliedly by the legislature. A perusal of Ordinance, 2000 shows that the basic intention of the Legislature in enacting the Ordinance, 2000, is that the different treatment be given to the juvenile offender, in respect of procedure of trial, bail, confinement in judicial custody, sentence and execution. Its preamble reads "An Ordinance to provide for protection of the rights of children involved in criminal litigation". The above interpretation on the rule of harmonize construction has nexus and fulfils the basic and latest intention of the Legislature in enacting the Ordinance, 2000. The forum of trial under the Ordinance, 2000 is not of that much importance in view of the peculiar circumstances and various provisions appearing in the enactments, which also convey the clear and unambiguous intention of the Legislature while enacting such laws. Even otherwise, an accused person cannot claim any right of trial by particular Court, except that his rights and liabilities should be decided in accordance with law. According to the preamble of the Ordinance, 2000 rights of the children are required to be protected, which have been protected by interpreting the various provisions of the Acts and `Ordinance, 2000 on the rule of hamonize construction and by making all the provisions of Acts and Ordinance 2000 to co-exist together. As such the intention of legislature has been implemented.
99. 28.It has been emphasized that the provisions of A.T. Act have overriding effect on all laws as provided under Section 32(1), A.T. Act. The said provision reads as under:- "32. Overriding effect of Act.--(1) The provisions of this Ac shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, insofar as they are not inconsistent with the provisions of this Act, apply to the proceedings before the Anti-Terrorism Court, and for the purpose of the said provision of the Code, the Anti-Terrorism Court shall be deemed to be a Court of Session."
100. 29.It is not out of place to mention here that all laws are enacted to cover the situations prevailing at the time of enactment and to future situations mentioned in the law subject to repeal or amendment if any by the Parliament itself.
101. 30.No doubt under the above Section, the provisions of the A.T. Act have overriding effect on all laws. In the said section, a phrase "any other law" has been used. It is pertinent to point out that the Legislature have used another phrase "any other law for the time being in force" in Ordinance, 2000.
102. Both the phrases carry different meanings in respect of period of time.
103. It is well-settled that if parliament use two different words or phrases then both words and phrases carry-different meanings. The latter phrase pertains to a definite point of time and it finishes on the date of promulgation of the enactment. In other words, it covers past and present enactments, which are in force on the date of the promulgation of the law. Whereas the former phrase deals with an indefinite point of time, as no cut off date has been fixed in it. In other words it encompasses past, present and future enactments. However it is subject to repeal or amendment, if any, by the Parliament itself. Reference is invited to Abdur Rauf Khan v. Collector, Central Excise and Land Customs (1980 SCMR 114). If we read Section 32 in this perspective then it will be clear that all provisions of the A.T. Act have been given overriding effect to all past, present and future laws subject to repeal or amendment if any. As such, the provisions of A.T. Act would be having overriding effect on the provisions of Ordinance, 2000. In such a situation, a juvenile offender can be sentenced to death, tried with major accused and so on so forth that is against the latest wish of the Parliament. We cannot apply Section 32 in piecemeal by giving some of its provisions overriding effect over the Ordinance, 2000 for the simple reason that Section 32 is to be applied in its entire effect under which all the provisions have been given overriding effect on all laws. Hence such piecemeal interpretation is neither permissible nor can be given. The Legislature while enacting Ordinance, 2000 knew that A.T. Act contained such provision because Legislature knows all the laws previously enacted. To meet with this situation the Legislature have provided Section 14 in the Ordinance, 2Q00 by which the provisions of the Ordinance 2000 have been added to all laws in force on the date of promulgation of Ordinance, 2000. If the provisions of Ordinance, 2000 are added to the A.T. Act then they become provisions of one aggregate law. The provisions of Ordinance, 2000 have been made part and parcel, attached, or merged in A.T. Act by virtue of Section 14. In such a situation the Ordinance, 2000 will loses its different entity in comparison to A.T.
104. Act. However, it will retain its different entity in respect of all other laws. If the provisions of Ordinance, 2000 are merged in the provisions of A.T. Act and the Ordinance loses its different entity in respect of the A.T. Act then it will come out from the ambit of phrase "any other law" of Section 32 of A.T. Act. We have to harmonize the various provisions of enactments on the rule of harmonize construction so as to give effect to the intention of the Legislature in enacting Ordinance, 2000 because that is the first, foremost and paramount consideration in interpreting any law than any other consideration. In such a situation the provisions to A.T. Act would not override the provisions of Ordinance, 2000 but on the contrary they will co-exist together.
31. In the light of what has been discussed above, I am of the considered view that the Courts created under the C.N.S. Act A.T. Act have jurisdiction to take cognizance and try the offences of said Acts in respect of all the accused persons including major and minor but subject to above.
105. Nevertheless, that trial and other related matters of the minor or juvenile accused persons and their rights guaranteed by the Ordinance, 2000 shall be decided in accordance with the procedure prescribed under the Ordinance, 2000.
106. 32.Now I will deal with the questions formulated for the decision of this Bench.
107. 33.Question No,
1. This question deals with the jurisdiction of Courts created under Ordinance, 2000, C.N.S. Act, and A.T. Act. The relevant provisions of the Acts and Ordinance are as under: "Section 4(3) and (6) of Ordinance, 2000. 4(3). The Juvenile Court shall have the exclusive jurisdiction to try cases in which a child is accused of commission of an offence." 4(6). On taking cognizance of an offence, the Juvenile Court shall decide the case within four months. Sections 12(1), 13(3). 19(3) and 21-G of A.T. Act.
108. 12(1). "Notwithstanding anything contained in the Code or in any other law, a schedule offence committed in an area in the Province shall be triable only by the Anti-Terrorism Court exercising territorial jurisdiction in relation to such area."
109. 13(3). "Where more Anti-Terrorism Courts than one have been established in any area, the Government in consultation with the Chief Justice of the High Court shall designate a Judge of any such Court to be an administrative Judge and all cases triable under this Act pertaining to the said area shall be filed before the said Court and such judge may either try the case himself or, assign any case, or cases, for trial to any other Anti-Terrorism Court at any time prior to the framing of the charge. The cases shall be assigned to a Court one case at a time: Provided that in order to ensure that the time of the Court is not wasted if for some reason a given case cannot proceed more than one case can be assigned to it at any time or from time to time.
110. In respect of a case assigned to a Court under subsection (2), all orders made or proceedings taken before the assignment shall be deemed to have been made or taken by the Court to which the case has been assigned."
111. 21-G. Trial of offences.--All offences under this Act shall be tried exclusively by the Anti-Terrorism Court established under this Act.
112. 19(3) The Anti-Terrorism Court may directly take cognizance of a case triable by such Court without the case being sent to it under Section 190 of the Code. Section 45 of C.N.S. Act.
45. The Special Court appointed under this Act shall have the exclusive jurisdiction to try an offence cognizable under this Act".
113. 34.Section 4(3) of Ordinance, 2000 talks about the trial of cases in which child is accused of an offence. The cases are prepared after commission of offences and the question of trial of offenders starts afterward. As such there will be first offence and then offender it cannot be vice versa. Thus, the basic question will revolve around the offence. It is well-settled that only such Court can try an accused person if the Court has jurisdiction to take cognizance of an offence and that the Court can take cognizance in respect of offence and not in respect of accused person. Khushbakhtur Rehman v. State (1985 SCMR 1314). Under sub-section 6 Juvenile Court has been given powers to take cognizance of offence. The offence under Ordinance, 2000 means all offences punishable under any law. Whereas under Sections 12(1), 19(3) read with Section 21-G of AT. Act and Section 45 of C.N.S. Act, exclusive jurisdiction has been conferred upon the Anti-Terrorism Court and C.N.S. Court to take cognizance and try schedule offences which are of a limited number and covering particular law. I have already observed that the provisions of offence of C.N.S. Act and A.T. Act are special provisions in comparison to the similar provisions of Ordinance 2000, therefore, the provisions of C.N.S. Act and Act will be exceptions to the general provisions of Ordinance 2000.
114. Further the Section 21-G of A.T. Act has been inserted in the year, 2001 after the enactment of Ordinance, 2000 under which exclusive jurisdiction has been assigned to Anti-Terrorism Court to try all offences (without any exception) under the A.T. Act.
115. 35.Before the insertion of Section 21-G, Section 12(1) was already in existence. The difference between both the Sections is that Section 12(1) deals with territorial jurisdiction of Court, that is to say, the place of trial whereas Section 21-G deals with the powers of Court, that is to say, description of offences triable by various Courts. There is absolutely no conflict between both the Sections nor they are overlapping with each other for the simple reason that each Section deals with different subject. These two separate jurisdictions are not alien to the criminal jurisdiction but on the contrary they are in accord with the scheme of criminal law because similar provisions are available in the Criminal Procedure Code in the shape of Sections 28 and 177. Section 28 deals with the description of offences cognizable by various Courts under the heading "Powers of Court" of Chapter-III. Whereas Section 177 deals with place of inquiry and trial under he heading of "The.
116. Jurisdiction of the Criminal Courts in Inquiries and Trials" of Chapter XV. It will be noticed that the language of Sections 28 and 177 of Cr.P.C. is more or less similar to the language of Sections 21-G and 12(1) of A.T. Act. Not only in Criminal Law but similar previsions are also vailable in Civil Law in the shape of Territorial Jurisdiction of Civil Court and its Pecuniary Jurisdiction whereby the powers have been given to various Courts created at different places to try Civil Cases at particular place and of particular amount. Thus both the provisions can co-exist together and are in accordance with the scheme of Criminal Law.
117. 36.A confusion may arise in the words "Schedule Offences" appearing in Section 12(1) and "all offences under this Act" appearing in Section 21-G. There is no difference between both the phrases as all offences under the Act are scheduled offences. The Parliament have given power to the Federal Government to amend the schedule without referring the matter to it as provided under Section 34 of A.T. Act. The Government can make amendment or add any offence in the schedule to be tried by A.T. Court. Once the offence is added or amended in accordance with the provisions of Section 34, then it is triable by the A.T.C. Under Section 19(3) the Court has been given powers to take direct cognizance of cases triable by the Court without being sent up to it under Section 190, Cr. P.C. As already pointed out that cases are made from commission of offences. Thus all offences defined under the A.T. Act and other offences included through Section 34 are triable by the Anti- Terrorism Court. It is further pointed out that in schedule to the A.T. Act two kinds of offences are mentioned: (i) Act of Terrorism (ii) Offences under the Act. In this connection it is pointed out that by virtue of Section 6(6) A.T. Act, offences under the Act have also been made as act of terrorism.
118. The sub-section (6) reads as under: "A person who commits an offence under this Section or any other provision of this Act, shall be guilty of an act of terrorism".
119. 37.Thus if a person commits any offence under any provision of this Act, then he will be guilty of act of terrorism. Hence it seems that all the offences under the provisions of S. A.T. Act comes within the ambit of act of terrorism.
120. 38.Now it is to be seen as to why a necessity had arisen in enacting Section 21-G in A.T. Act. As already observed, that before Ordinance 2000, the A.T. Act had jurisdiction to try offences committed by any accused either major or minor. After promulgation of Ordinance 2000, situation was changed. The Parliament realized that offences of act of terrorism might be tried under the Ordinance, 2000, therefore, a necessity arose before the Parliament to describe which offence shall be tried by which Court. Therefore, Section 21-G was enacted in the year 2001 describing the jurisdiction and powers of A.T. Court. Not only that, in the year 2005 the word "exclusive" has further been added in the Section 21-G to make it more clear that all the offences under the A.T. Act are exclusively triable by the Anti-Terrorism Court only'. It will be noticed that no exception has been made while using the words "all offences under the Act." In Section 21-G all offences mean whatever the acts and omissions have been made offences under A.T. Act, including the offence of act of terrorism will encompass within the meaning of "all offences under the Act" covered by the Section 21G, therefore, the -Anti-.Terrorism Court has exclusive jurisdiction to try the offences under the Act whether they are covered by the definition of act of terrorism as defined under Section 6 including its sub-section (6) or any other offence under the Act or added under Section 34 by virtue of Item-1 of the Schedule read with Sections 6(6) and 7(i) of A.T. Act.
121. 39.I have already observed that Juvenile Court created under Ordinance, 2000 is the Court of general jurisdiction for taking cognizance and trial of all offences under any law. Whereas the Courts created under the C.N.S. Act and A.T. Act are the Courts of special jurisdiction to take cognizance and try offences mentioned under the said Acts therefore the provisions of both the Act are special provisions in comparison to such provisions of the Ordinance 2000. Hence, the provisions of Sections 12(1), 21-G of A.T. Act and Section 45 of C.N.S. Act will be qualifying provisions and exceptions to Section 4 of Ordinance, 2000 as discussed above. On the rule of harmonize . construction, if the provisions of both the Acts and Ordinance are read together, then the Juvenile Court will be having jurisdiction to try cases of offences of all laws, but subject to above except the cases concerning the offences of C.N.S. Act and A.T. Act. The Courts created under C.N.S. Act and A.T. Act will be having jurisdiction to try offences under the Acts concerning major or minor accused. The question is answered accordingly.
122. 40.Question No,
2. The Section 19(14) of A.T. Act reads: "Subject to other provisions of this Act, the Anti-Terrorism Court shall, for the purpose of trial of any offence, have all the powers of the Court of Session and shall try such offence as it were a Court of Session as far as may be in accordance with the procedure prescribed in the Code for trial before a Court of Session."
123. 41.A bare reading of the above provision would reveal that Anti-Terrorism Court has been invested with all the powers of Sessions Court for trial of offences in accordance with the procedure prescribed in the Code for the trial before a Court of Session. As such, the Anti-Terrorism Court while trying the offence under the Act is required to follow the procedure prescribed in the Code for the trial of the Court of Session. For that purpose, all the powers of Court of Session whether provided under Code or conferred upon it under any other law have been invested upon the Anti- Terrorism Court. This provision by itself will not make the Anti-Terrorism Court as the Court of Session but its entity as Anti-Terrorism Court created under the Act will be retained because the cognizance of fence can only be taken by the Court created under Section 13 of A.T. Act. Thus the Anti-Terrorism Court cannot be termed as Court of Session. However Anti-Terrorism Court can exercise all the powers of Court of Session either given to it under the Code or conferred upon it under any law including the powers of Juvenile Court, if conferred upon the Court of Session. Thus A.T. Court has jurisdiction to exercise all the powers of Court of Session including the powers of Juvenile Court if conferred upon it under Section 4(2) (a) of the Ordinance 2000 it its individual capacity as Anti-Terrorism Court. The question is answered accordingly.
124. 42.Question No,
3. Notification dated 20-8-2005 issued by the Provincial Government is as under: "In exercise of powers conferred by Section 4 of the Juvenile Justice System Ordinance, 2000 and in consultation with the Chief Justice, High Court of Sindh the Government of Sindh is pleased to establish Juvenile Courts consisting of all the Sessions Judges, Judicial Magistrates and Special Judges of Anti-Terrorism Courts of the Province."
43. I have already observed that the Provincial Government under Section 4(1) of Ordinance, 2000 have two functions to perform. Firstly to establish a Juvenile Court or more , Courts and confer territorial jurisdiction upon them, However, subject to condition that before issuing such notification, the Chief Justice of High Court shall be consulted. Beyond that the Provincial Government has no other functions to perform. In the above Notification, only Juvenile Courts have been established without showing their numbers or territorial jurisdictions. It will be noticed that Notification has not been happy worded. Nevertheless, intention of the drafter is to be drawn from the wording of the Notification. In the light of Section 4(1) of Ordinance, 2000, such inference can be drawn from the words:" establish Juvenile Courts consisting of all the Sessions Judges, Judicial Magistrates and Special Judges of Anti-Terrorism Courts of the Province." Through these words message is being conveyed that the number of the Courts will be equal to the number of Sessions Judges, Judicial Magistrates and Special Judges of Anti-Terrorism Courts of the Province. There are 24 Sessions Judges, 214 Judicial Magistrates and 9 Special Judges Anti-Terrorism Courts. The total number of the said officers comes to 247. Furthermore, territorial jurisdictions of above mentioned Judges and Magistrates have already been given to them. Therefore, 247 Juvenile Courts having territorial jurisdictions assigned to such officers have been established in the Province. Thus, the reference to Sessions Judges, Judicial Magistrates and Special Judges of Anti-Terrorism Courts of the Province would be treated as the total number of all these officers and the Juvenile Courts to equal number of such officers have been created. The jurisdiction assigned to the said officers shall be treated as territorial jurisdiction of each Court. Hence the above Notification shall be read as creating and establishing 247 Juvenile Courts, being equal number of the above mentioned Officers having territorial jurisdiction assigned to each such Court.
125. 44.The important question is whether the Chief Justice of High Court was consulted before issuing such notification? The Hon'ble Chief Justice has informed that the Government of Sindh had not consulted him before issuing the notification, though it-has been mentioned in the notification that such consultation was made with the Chief Justice. As the Chief Justice was not consulted before issuing such notification, therefore, the notification is illegal. Reference is invited to an unreported decision of a Division Bench of this Court delivered in Criminal Transfer Application No, D-8/2004 Muhammad Rafiq u. State and Abdul Karim Brohi v. State PLD 2005 Kar. 498. It is further pointed out that on the basis of above illegal notification, the High Court has conferred the powers of Juvenile Courts upon the Courts of Session and Judicial Magistrates. It is well settled that if the foundation, order and basis is illegal then all orders, actions or superstructure on such basis, order or foundation will also be illegal as held in the case of Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC
104. Thus the Notification No, GAZ/Misc/2000(133)/JCO, Karachi, dated 20-11-2004 issued by the High Court conferring the powers of Section 4(2)(a) of Ordinance, 2000 upon Courts of Session and Judicial Magistrates in the Province of Sindh is also illegal. Therefore, presently there is no Juvenile Court nor any powers of Juvenile Court can be conferred upon the Courts of Session and Judicial Magistrate unless the Provincial Government establishes the Juvenile Courts in consultation with the Hon'ble Chief Justice of High Court of Sindh. Thus the notification is not legally sustainable.
126. 45.Question No,
4. A detailed discussion has already been made on the above subject and question. I have formed the opinion that the combined effect of Section 14 and Section 4 of Ordinance, 2000 and other relevant provisions of C.N.S. Act and A.T. Act is that the Juvenile Court created under the Ordinance, 2000 has no jurisdiction to lake cognizance and try the offences of C.N.S. Act and A.T. Act The question is replied accordingly.
127. 46.In the light of what has been discussed above, the transfer applications may be decided by the appropriate Benches in accordance with law.
128. (Sd.)
129. REHMAT HUSSAIN JAFFERI, J.