1. ' KHILJI ARIF HUSSAIN, J.--- I have the honour to go through the draft judgments of the Honourable Chief Justice and of my learned brother Rehmat Hussain Jafri, J. With profound respect of learned Judges, I do not agree with the view expressed by the learned Judges on questions 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 Substances 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 Honourable 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 of law relevant to narcotic drugs etc. ' Section 6 of A.T.A. Defines "Terrorism". Section 13 provided establishment of Anti-Terrorism Court.
2. Section 14 provided composition and appointment of Presiding Officers of Anti-Terrorism Court.
3. Section 7 defines punishment for acts of terrorism. Section 8 provided prohibition of acts intended or likely stir up sectarian levelled, section 9 provided punishment for offences. Sections 8 and 11 provided power to order forfeitures. 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 were 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 subsection (21) and sections 21(a) to section 21(m) were inserted.
4. ' From the perusal 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.
5. ' Juvenile Justice System Ordinance, 2000 was promulgated on 1-7-2000 (i,e, before the amendment in A.T.C. Act) to provide protection of the children in criminal litigation, their rehabilitation in society, recognization of Juvenile Courts and matter connected therewith and incidentally thereto. Subsection (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. Subsection(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 Ordinance provided that notwithstanding anything contained in section 239 of the Code, or any other law for the time being in force, no child shall be charged with or tried with an offence together with an adult. Subsection
(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 incharge 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.
6. ' Anti-Terrorism Acts, Narcotics Acts provided for establishment of special Courts to deal with the offences triable under the Acts, whereas Juvenile Justice System Ordinance, 2000 provided for establishment of Courts dealing with the case of juvenile offenders irrespective nature of offence committed by them.
7. ' The question sometimes arises when there is conflict between two Special Acts each of which may describe 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 finds two or more enactments in the same field each containing non-obstanate clause, stating that provisions 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. The problem of interpretation is a problem as meaning of words and their effectiveness and medium of expression to communicate particular thought.
8. ' 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 in ambiguity, for there is none, but for a different purpose altogether. When two more laws operate in the same field and each contains a non-obstante clause stating that its provisions will override those of any other law, stimulating and incisive 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, arise 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.
9. ' In the case of Ravi Dutt v. Ratan Lal Bharagave 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 sections 14(1)(e) and 14(A) would not be governed or controlled by section 19(1)(a) of the Slum Act."
10. ' 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 the 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."
11. ' 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."
12. ' 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 resort to any of the remedies referred to in sections 38, 39, 40 or 41 of the I.D.B.P. 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 I.D.B.P. Ordinance or in the Companies Ordinance that the provisions contained therein are in derogation of any other law."
13. ' In the case of Messrs Shafiq Hanif (Pvt.) 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."
14. ' 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."
15. ' 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 in later Courts acquired jurisdiction if the offender 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.
16. ' 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 C about the intention of law-maker, but also that legislator feel 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) along with 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.
17. ' The Honourable Chief Justice in his judgment at page 9 observed that:-- "Neithertheless but I conclude on the above that after enforcement of the Ordinance legislator did realize that the exclusive jurisdiction to try children accused of an 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."
18. ' 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 Honourable 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.
19. 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" than 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 respects, to the view expressed by his Lordship that under section 21(g) of the 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.
20. ' Section 7 of the Anti-Terrorism Act was amended by the Acr 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 21A to 21M were inserted in August, 2001. Section 21 provides different sentences to "child offender" than to "adult offenders". As regards the question of jurisdiction to A.T.C. 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 21D 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 is 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.
21. Section 32 of the Act gave overriding effect to Act and provided that the provisions 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 explosive 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."
22. ' 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.
23. ' 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 whereas section 4(3) of the Juvenile Justice System 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. Act and section 76 of C.N.S. Contain a nonobstante 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 C.N.S. Acts, then only Special Court constituted under these Acts can deal with the matter irrespective whether the offender is juvenile or not.
24. ' For the foregoing reasons in my humble opinion Special Court established under A.T.A. And C.N.S. Act have excessive jurisdiction to try an offence irrespective whether offender is minor or not.
25. 'It is advisable to provide 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 Article 35 of the Constitution.