KH. IMTIAZ AHMAD, J.--- Through the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the order dated 1-11-2011 passed by the learned Judge Special Court No, II Anti-Terrorism, Rawalpindi has been challenged whereby the application of the petitioner/accused for sending the case back to the juvenile Court was dismissed and it was observed that the Anti- Terrorism Court has the jurisdiction for the trial of minor accused persons.
2. The relevant facts for the disposal of the present writ petition are that initially on the statement of Jamil Ahrnad complainant, the F.I.R. No,912 dated 9-10-2010 under sections 365, 324, P.P.C. At Police Station Sadiq Abad District Rawalpindi was registered against unknown persons but thereafter since the victim had died so the offence under section 302, P.P.C. Was also added. The accused in the F.I.R. Were Umar Afzal and Mohsin Ayoub who were arrested. The challan was submitted in the Court of learned Sessions Judge, Rawalpindi, who entrusted the same to the Court of learned A.S.J Rawalpindi. The charge was framed by the said Court on 14-12-2010 and almost six P. Ws. Had been recorded in the said case. During the trial, on the basis of the application of Umar Afzal, he was declared juvenile i,e, less than 18 years of age by the said Court vide order dated 12-4-2011 and similarly the accused Mohsin Ayoub was also declared juvenile under the age of 18 years vide order dated 18-7-2011. However, during the pendency of the said trial, the complainant Jamil Ahmad directly filed a private complaint before the Anti Terrorism Court under sections 365-A, 302, 377 and 109, P.P.C. In the said complaint the variation from F.I.R. Was made to the effect that from the complainant, the unknown persons through telephone demanded ransom. After recording the summary evidence, the learned Special Judge of the Anti-Terrorism Court, summoned both the accused to face the trial before the said Court and consequently the State case was also transferred to the said Court. During the trial before the said Court, the accused moved the written application for the dismissal of the complaint and besides merits, it was further mentioned that both the accused were juvenile and ATA Court had no jurisdiction to try the juvenile and it was only the domain of juvenile court to try the said accused. The learned Judge of the Anti-Terrorism Court, after hearing the arguments of both the sides dismissed the petition vide order dated 1-11-2011 wherein, it was observed that the schedule offences were exclusively triable by the Anti Terrorism Court. Since the offence under section 365-A, P.P.C. Was made out which was included in the schedule of Anti-Terrorism Act, 1997, so the said Court had the jurisdiction. It was further observed that the Anti Terrorism Court had the jurisdiction for the trial of the minor accused persons.
3. The learned counsel for the petitioner has placed reliance, upon the case-law captioned as Aleem Ashraf v. The State (2005 MLD 1028), whereby the learned Division Bench of this Court had laid down the principle that ATA Court had no jurisdiction to try the juvenile. The learned counsel further contended that the offence under section 365-A, P.P.C. Is not made out. The other accused namely Mohsin Ayoub who also made the appearance before the Court also supported the contentions raised by the learned counsel for the petitioner.
4. On the other hand, the learned counsel for the complainant and learned A.A.-G. Have taken the plea that the Anti-Terrorism Court has also the powers of juvenile courts and even if it has got no such power, even then, the said Court had the jurisdiction to try the minors. In this behalf, they placed reliance on the cases of Muhammad Din v. Muhammad Jehangir and 4 others (PLD 2004 Lahore 779) decided by a learned Division Bench of this Court. They also placed reliance upon the decision of the Northern Areas Chief Court captioned as Meraj and 3 others v. Judge Anti-Terrorism, Northern Areas, Gilgit and another (2007 PCr.LJ 1011). Another reliance was also placed upon the judgment of Full Bench of the Sindh High Court captioned as Qamar Hussain Shah v. The State (PLD 2006 Karachi 331). It was also argued that so far the ATA Court had not determined the age of the petitioner and it was only the Court of learned A.S..1 with the powers of juvenile Court who in State case had declared the accused to be juvenile.
5. Arguments heard. Record perused.
6. As far as the fact that as to what offence is made out is concerned, it is not the proper stage to give any findings. Both the parties has the opportunity to appear before the competent Court and after recording the evidence, the said Court would be competent to determine that as to, what offence is made out. The controversy before us is that whether in case of juvenile only the juvenile Courts had exclusive jurisdiction to try the offender or whether the ATA Court is also vested with the powers of juvenile Court, if not, even then the Anti Terrorism Court had the jurisdiction to try the minor. _7. As has been mentioned above that with regard to the determination of age, the said case was pending before the Court of learned A.S.], Rawalpindi. The said Court on the basis of medical report declared the accused Umar Afzal to be juvenile vide order dated 12-4-2011 and the other accused Mohsin Ayoub vide order dated 18-7-2011.
8. Under Section 7 of the Juvenile Justice System Ordinance, 2000, the procedure for determination of age is provided. For convenience, this Section is re-produced as under:-- "7. Determination of age.---If a question arises as to whether a person before it is child for the purposes of this Ordinance, the Juvenile Court shall record a finding after such inquiry which shall include a medical report for determination of the age of child."
Now this section clearly provides that it is for the Juvenile Court to determine the age of a child if the controversy so arises.
9. It is not out of place to mention here the pronouncement of the Hon'ble Supreme Court in the case of Zia Ullah v. Najeeb Ullah and others (PLD 2003 SC 656) announced on 17th April, 2003. In this case, the respondent accused of offence under sections 302, 34, P.P.C. 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 remissions to condemned prisoners who at the time of commission of the offences were below 18 years of age and a Medical Board was constituted by the Provincial Government to determine the age of the respondents at the time of commission of offence but upon the matter having been taken up by the Supreme Court, their lordships held that such age can only be determined judicially under section 7 of the. Ordinance and referred the matter to the Sessions Judge/Juvenile Courit, Mianwali for doing so. It needs to be kept in mind that the conviction of the respondents had taken place before the enforcement of 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 Ordinance to apply to the matters which earlier fell within the jurisdiction of the Anti Terrorism Court. This clearly shows that the age could be determined by the Juvenile Court as has been done in this case and the Anti-Terrorism Court had no jurisdiction, once again, to get their age determined. This also implies that when the matter is of a minor/juvenile, it is only the Juvenile Court, which had the jurisdiction to try the same.
10. The Juvenile Justice System Ordinance came into force in the year 2000 i,e, after the Anti- Terrorism Act, 1997. In section 2(b) of the said Ordinance, the word 'child' has been defined to be a person who at the time of commission of offence had not attained the age of 18 years. Similarly, section 2(e) defines the Juvenile Court to be a Court established under. Section 4 of the said Ordinance. Section 2(f) defines the offence which means an offence punishable under any law for the time being in force. Meaning thereby that whatever is offence under any law including the Anti Terrorist Act is an offence under the Juvenile Justice System Ordinance, 2000. Section 4 provides the establishment of Juvenile Courts. Its subsection (2) also provides that the High Court may confer powers of Juvenile Court on Courts of Sessions, Judicial Magistrate of the First Class etc. Its subsection (3) is very important, which provides that the Juvenile Court shall have the exclusive jurisdiction to try the cases in which a child is accused for the commission of an offence. This subsection in fact does not provide to try the offender but to try cases in which a child is accused of commission of an offence and it has already been mentioned above that the offence had been defined in the Ordinance to be offences punishable under any law for the time being in force, meaning thereby that it may be an offence under Anti-Terrorist Act, 1997. It is not denied that in the Anti Terrorism Act, 1997, the minor could be tried but in view of section 4 subsection (3) of the Juvenile Justice System Ordinance, in fact this jurisdiction has been taken away and now in every case in which a child is accused of an offence is exclusively tribal by the Juvenile Court. Section 14 of the said Ordinance though provides that the provisions of said Ordinance are in addition to and not in derogation of any other law for the time being in force but this Section cannot be read in isolation. It has to be read along with sections 2 and 4 of the Juvenile Justice System Ordinance, 2000.
11. The next question is that as to whether the Anti-Terrorism Court is also a Juvenile Court, the answer is certainly not. An analogical r, deduction can be found in cases registered under the Control of Narcotic Substances Act (XXV of 1997), in which the Government of Punjab has especially notified through its Notification No, SO/(JUDL.), II (14) 2000 dated 7-10-2002, the conferment of the powers of Juvenile Court upon the Special Court established by the Federal Government for the purposes of Control of Narcotic Substances Act, 1997. In other words, Special Court established under the Control of Narcotic Substance Act, 1997 was declared as Juvenile Court under section 4(1) of the Ordinance, 2000 through that notification. Otherwise, the aforesaid Court or its Presiding Officer could not display himself the Presiding Officer of Juvenile Court. This notification supports our view that initially there must be established a Juvenile Court through notification and thereafter the powers under subsection (2) of section 4 of Ordinance, 2000 be conferred upon it by the High Court. It is, therefore, that vide letter No,15400.JOBM/VI.F.6, dated 18-9-2001 the Lahore High Court had awarded powers under section 4(2) of the Juvenile Justice System Ordinance, 2000 upon all the Additional Sessions Judges and Civil Judges-cum-Judicial Magistrates in the Punjab for the trial of offences within their respective jurisdiction under the Ordinance. As the Special Court constituted under the Anti-Terrorist Act has not been declared as Juvenile Court, therefore, even if the powers be vested with the Presiding Officer of such Court, he cannot try, entertain and adjudicate the cases of juveniles. Thus we are of the considered opinion that it is only the Juvenile Court which had the exclusive jurisdiction to try the cases in which a child is accused of commission of an offence. In this way, the observation of the learned trial Court that the said Court has the jurisdiction to try the minor is erroneous, since the said Court has got no jurisdiction to try the minor.
12. As far as the case-law reported in the case captioned as Muhammad Din v. Muhammad Jehangir and 4 others (PLD 2004 Lahore 779) decided by the Division Bench of this Court is concerned, it appears that in fact it was taken into consideration by the said Court that the Presiding Officer was vested with the powers of a Juvenile Court but the question was that when initially the Court was not declared to be established as such, mere conferment of the powers on the Presiding Officer was of no help. As far as the other case-law captioned as Qamar Hussain Shah v. The State (PLD 2006 Karachi 331), is concerned, in fact in the said case, it wa held that children accused of having committed offences created by the Anti-Terrorism Act, 1997, the. Anti Terrorism Court had the jurisdiction and for some offences, the said Court had no jurisdiction to try the children.
13. We are fortified in our view by the judgment passed by a Division Bench of this Court, which is later in time captioned as Aleem Ashraf v. The State reported in 2005 MLD 1028.
14. In view of what has been, said above, the impugned order of the learned Special Judge, Anti Terrorism Court dated 1-11-2011 whereby it was observed that the said Court had the jurisdiction to try the minor is set-aside. Resultantly, the private complaint along with the State case pending against the petitioner and his co-accused Mohsin Ayoub is directed to be referred to the learned Sessions Judge, Rawalpindi who shall entrust it to the competent Juvenile Court for its trial in accordance with law. The writ petition is allowed in the above mentioned terms.