' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---These petitions have been filed against judgments dated 25-8-2011 and 21-10-2010 passed/ by High Court of Baluchistan, Quetta, in Constitution Petitions Nos.193 of 2011 and 615 and 642 of 2011.
2. Precisely stating facts of the case are that the petitioner along with two others were charged for committing crime falling under the preview of Anti-Terrorism Act, 1997 [ATA]. Both the co-accused as well as the petitioner were arrested and the challah was submitted before Special Judge, Anti- Terrorism Court-1, Quetta. On the application, the petitioner along with co-accused, Para's Habit by order dated 1-10-2009, were declared as juvenile prisoners and ordered to be treated as such.
Similarly, the petitioner and the co-accused challenged the jurisdiction of Anti-Terrorism Court
[ATC] before the learned Special Judge, ATC, therefore, by order dated 19-10-2009 the case was transferred to the ordinary court having jurisdiction in the matter, However, the High Court reversed this order on 22-10-2010 and directed for transfer of case to the Anti-Terrorism Court.. The Special Judge, ATC vide order dated 20-12-2010 held that no jurisdiction was vested in it to adjudicate upon the matter qua the petitioner and Para's Habib, as their case had already been separated by the Additional Sessions Judge, treating them as juvenile offenders. This order was challenged before the learned Baluchistan High Court through C.P. No.193 of 2011 and by order dated 25-8-2011, the High Court held that as the offences fall within the provisions of ATA, therefore, ATC alone has jurisdiction to try the case of a juvenile as well, however, at the same time directed that the Special Court under ATA be notified as Juvenile Court. Hence this petition for leave to appeal.
3. It is the case of the petitioner that he being a juvenile offender was not liable to be tried by the Special Court under ATA, therefore, in view of the Juvenile Justice System Ordinance, 2000 the Juvenile Court established under section 4 of the Ordinance, 2000 is competent to try him, thus, observations made in the above order for issuance of notification conferring powers of Juvenile Court on the Special Court for the purpose of trial of the petitioner in respect of offences charged against him under the ATA is unwarranted.
4. Learned Attorney-General has stated that Special Courts under ATA without being declared as Juvenile Court under the Ordinance, 2000 is not competent to hold the trial of the accused following the underlined principle of the Ordinance, 2000, explained in the case of Aleem Ashraf v.
The State [2005 M LD 1028].
5. Learned Advocate-General, Punjab who was present in the Court stated that a Provincial Government is empowered to issue notification declaring a Special Court as a Juvenile Court and somehow in identical situation Government of Punjab in respect of Special Courts established by the Federal Government for the purpose of the Control of Narcotic Substances Act, 1997 [CNSA], issued notification No.SO (JUDL),II(14)2000, therefore, in the instant case as well the Chief Justice is not empowered to declare a Special Court under ATA as a Juvenile Court.
6. Learned Attorney-General succeeded in finding out the notification referred in Aleem Ashraf's case (supra), a perusal whereof indicates that as back as on 17th October, 2001 Government of Punjab in consultation with the Chief Justice Lahore High Court, established Juvenile Courts fo be presided over by the Additional Sessions Judges and Civil Judges-cum-Judicial Magistrates for the trial of offences falling within their respective jurisdiction. As the Juvenile Courts have already been established, therefore, the information passed on by the learned Advocate-General, Punjab being not relevant, needs no further consideration.
7. We heave heard the parties' counsel and have gone through the impugned judgment passed by the learned High Court carefully.
8. This very proposition came up for consideration before the Peshawar High Court in the case of Ghulam Mustafa Shah. v. The State (PLD 2003 SC 138) wherein objection from the complainant side was that the petitioner who claimed the bail being minor is not entitled for the same because the offences charged against him fall within the schedule of ATA, therefore, notwithstanding the fact whether upon the Special Court powers of Juvenile Court have been conferred or not, he was not entitled for grant of bail. The contention so raised by him was repelled and it was stated that under section 32 of the ATA it would have no overriding effect on any other law because the Ordinance XXII of 2000 was promulgated subsequently, therefore, within the definition of child under section 2(b) of the Ordinance, 2000 could only be tried by the Juvenile Court, if not discharged during investigation. Subsequent thereto, in the case of Muhammad Din v.
Muhammad Jehangir (PLD 2004 Lahore 779), a learned Division Bench of Lahore High Court has observed that an offence of terrorism can be tried only by an Anti-Terrorism Court constituted under the ATA and age of offender has no relevance to the extent of such question, therefore, consequently, it was held that "Special Court under ATA is empowered to try a juvenile by following the relevant provision of Juvenile Justice System Ordinance, 2000 as nearly as possible."
9. It is to be noted that admittedly the powers of the Juvenile Courts have not been conferred upon the Special Courts under ATA or under the CNSA, in the Province of Balochistan and the notification, reference of which has been made during hearing, by the Advocate General, Punjab has been found irrelevant because it relates to conferring of powers of Juvenile Court upon the Additional District and Civil Judges/Judicial Magistrates for the trial of offences within their respective jurisdiction. In addition to it the Juvenile Courts have been established in the Province of Punjab as back as on 4th November, 2000 and 28th April, 2001. Again in the case of Qamar Shah v. State (PLD 2006 Karachi 331), on the reference of a learned Judge, Special Court, (CNS) for transfer of special case under sections 6 and 9(b) of CNSA on the ground that accused was a juvenile offender and court had not been declared as Juvenile Court under the Ordinance, 2000, therefore, lacks jurisdiction to proceed with the matter. Reference/transfer application was placed before learned Chief Justice who constituted a Full Bench to examine the following questions:--
(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? {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?
(3) Whether the Notification of the Provincial Government dated 20-8-2005 is legally sustainable?
(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?
' One of the learned Judges, Mr. Justice Rahmat Hussain Jaffery, as then he was, held that ATC has jurisdiction to exercise all powers of the Court of Session including the powers of Juvenile Court, if conferred upon under section 4(2)(a) of the Ordinance, 2000 in its individual capacity of ATC.
Similarly, other questions were also answered accordingly.
10. Learned Chief Justice of High Court and Mr. Justice Ghulam Rabbani, now a Judge of this Court, as well as Mr. Justice Mushir Alam, differed with the opinion of Mr. Justice Rahmat Hussain Jaffery and they concluded as follows:--
(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.
(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.
(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 K 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 tribal by the Anti-Terrorism Courts.
(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.
11. Mr. Justice Khilji Arif Hussain, now a learned Judge of this court, with the profound respect to learned brother Judges did not agree with them to the extent of questions Nos.1 and 4. Referred to hereinabove and finally expressed that Special Court established under CNSA and ATA have excessive jurisdiction to try an offence and under those Acts can deal with the matter irrespective of the fact whether offender is a minor or not?
12. It seems that the questions Nos.1 and 2, which have been raised before the High Court, inter alia seemed to be of first impression as far as this Court is concerned, therefore, need to be examined for pronouncement of an authoritative judgment in respect of conferring powers of Juvenile Court upon the Special Courts established either under the ATA or CNSA in terms of section 4 of the Ordinance, 2000. Therefore, leave to appeal is granted.
13. It is to be noted that under Article 25(3) of the Constitution of Pakistan, the State has been authorized to make special provision for the protection of the women and the children; therefore, to fulfill the command of the Constitution, legislation has been promulgated. As such, question of interpretation of this Article is likely to come up before the Court during hearing of the appeal, therefore, notice be issued to learned Attorney-General for Pakistan as well as the Advocates- General of all the provinces in terms of Article XXVIIA of C.P.C.
14. Civil Petitions Nos. 246-Q and 270-Q of 2011 are ordered to be clubbed with the appeal arising out of Civil Petition No.1517 of 2011. Office is directed to fix these cases before a larger bench within two months in view of the importance of the case.