The appellant challenges the judgment dated 02.3.2019 rendered by the Judge Anti-T errorism Court No.1, Rawalpindi Division, Rawalpindi in case FIR No.25 dated 17.9.2018 under section 4/5 of the Explosive Substances Act, 1908 read with section 13(2)(A) of the Punjab Arms Ordinance, 2015 and section 7 of the Anti-T errorism Act, 1997 registered at police station CTD Rawalpindi.
2. The learned trial Court vide impugned judgment held the appellant guilty , convicted and sentenced him as under: i. Under section 4 of the Explosive Substances Act, 1908 and sentenced to imprisonment for life; ii. Under section 7(f f) of the Anti-T errorism Act 1997 and sentenced to imprisonment for life; iii. Under section 5 of the Explosive Substances Act, 1908 and sentenced to rigorous imprisonment for fourteen years; iv. Under section 5-A of the Explosive Substances Act, 1908 whole of the property was ordered to forfeit in favour of the State; All the sentences were ordered to run concurrently . Benefit of section 382-B, Cr.P.C was also extended to him.
3. Learned counsel for the appellant argued at some length. The crux of his arguments was that the impugned judgment rendered by the learned trial Court was violative of the law and against the facts, thus, conviction awarded to the appellant cannot be sustained.
4. Learned Deputy Prosecutor General opposed this appeal with vehemence and prayed for its dismissal.
5. Heard. Available record perused.
6. It evinces from the record that the appellant was a nominated accused of the above FIR. He was charge sheeted along-with co-accused including Sher Hassan, Lal Badeen, Adnan and Malik Jaan, on 19.1 1.2018.
7. The learned trial Court appointed Mr. Naseer Ahmad Tanoli, Advocate on the request of the appellant and his co- accused including Lal Badeen and Sher Hassan. On 22.1.2019, the appellant moved an application for his ossification test. Meanwhile, the prosecution evidence was being produced and recorded. On 19.2.2019, the learned trial Court received a report of Additional Medical Superintendent DHQ Rawalpindi regarding ossification test of the appellant and in view of the said report, declared him juvenile and directed the SHO to submit separate challan against appellant under the law without any further delay . On 25.2.2019, a separate report under section 173, Cr.P.C was submitted. The order sheet of the joint trial does not reflect if the trial of other co-accused was separated from the appellant and no formal/interim order was passed by the trial Court.
8. The learned trial Court has not suppli ed the copies to the appellant in terms of section 265-C, Cr.P.C for the reasons that he was delivered copies of all the relevant documents on 14.11.2018 i.e. in joint trial. However , in separate trial a formal charge under section 4/5 of the Explosive Substances Act, 1908 and section 7(ff) of the Anti- Terrorism Act, 1997 was framed against the appellant on 25.2.2019. The prosecution got examined as many as fifteen witnesses as suggested by the available record on the following day i.e. 26.2.2019. Though it is not impossible to record fifteen witnesses in a day and it is also true that to cross-examine fifteen witnesses at such length was also not impracticable, howev er, it is not a matter of routine. We are at total loss to understand why the learned trial Court recorded fifteen witnesses with undue haste?. We have scanned the record and observed that in this case statements of all the prosecution witnesses recorded at the joint trial of the appellant have been recorded verbatim. Though, sanctity to judicial proceedings cannot be questioned but amazingly recording of fifteen witnesses in one day suggested mechan ism adopted by the learned trial Court to conclude the trial at the earliest without considering the adverse ef fect to the stake holders including the prosecution/defence.
9. At this stage, we may mention that in joint trial, the charge was framed on 19.11.2018 and the statements of the prosecution witnesses were completely recorded till 19.2.2019. If it was so, then how fifteen witnesses have been examined by the trial Court in a row i.e. on 26.2.2019 which appears to be mockery of law/procedure and this practice adopted by the learned trial Court must be deprecated, in particular , when the appellant was provided services of a counsel at state expense. It is also interesting to note that the interim order sheet dated 26.2.2019 does not suggest presence of the learned defence counsel.
10. As mentioned above, the appellant was declared by the learned trial Court being juvenile as his bony age was determined on the basis of ossification test and SHO was directed to submit sepa rate challan under section 173, Cr.P.C. The occurrence in this case took place on 17.9.2018 and, thus, Juvenile Justice System Act, 2018 comes to the rescue of the appellant.
11. In the above backdrop, we have to resolve following issues:
(i) Whether the appellant has been denied his fundamental rights guaranteed under the Constitution of Islamic Republic of Pakistan, 1973 including the right to fair trial and to be treated under the law;
(ii) Whether the Islamic principles to try a child have been violated;
(iii) Whether the procedure adopted by the learned trial Court was against the Magna Carta(Child Rights) i.e, United Nations Convention on the Rights of Child, 1989; and
(iv) Whether the learned trial Court failed to follow the law to try a juvenile i.e. Juvenile Justice System Act, 2018.
12. The chapter of fundamental rights provided in the Constitution of Islamic Republic of Pakistan, 1973, has an important provision in this regard i.e. Article 10-A , which reads as under: "10-A. Right to fair trial---- For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process"
13. Article 8 of the constitution stipulates that any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this chapter , shall, to the extent of such inconsistency , be void.
14. The Constitution has also a mandate for the State to bring all laws in conformity with the Islamic injunctions.
Article 227 (1) of the Constitution reads: "227. Provisions relating to the Holy Qur'an and Sunnah. (1) All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah, in this Part referred to as the injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions."
15. How a person/citizen is to be treated in the Islamic Republic of Pakistan is enshrined in Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:
4. Right of individuals to be dealt with in accordance with law etc.(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In Particular
(a) no action detriment to the life, libert y, body , reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do.
16. The above reading of the Constitutional text clearly established that the laws in Pakistan have to be in- conformity with the Islamic injunctions and any law that is ultra vires to the Islamic injunctions cannot remain on the statute book.
17. In Islamic jurisprudence, the minor is considered to be a person who has not attained the age of maturity and this is also enshrined in the Article 1 of the Covenant of Organization of Islamic Countries on the Rights of the Children in Islam.
18. The juveniles are naturally different from adults in respect of physical, psychological and mental strength. They need to be treated specially . Islam pronounces direction to show mercy and kind treatment to child.
19. Islam does not allow to state or the Court to take life and property of any one either by arbitrary and by unfair trial before the Court. Another important rule under Islam concerning trial of juvenile is "the right to a fair trial before an impartial judge. Fair and impartial trial is the key point to ensure justice which is highest moral value. The Qur'an sets great highlighting on the justice and the obligation of judge to do justice.
The Qur 'an says: "Oh ye who believes! stand out firmly for justice, as witness to Allah, even against yourselves , or your parents, or your Kin and whether it be against rich or poor" (Qur 'an 4,135)".
Al-Qur 'an further declares: "And I am commanded to judge justly between you (42,15). Allah categorically says "And if you judge, judge between them with justice. Indeed Allah loves who act justly (5,42)."
These all verses firmly established that, assurance justice is divine responsibility and obligation upon the judge. All these principles are similarly applicable to a child accused of an of fence.
20. Founded on the ancient legal doctrine of parens patriae (the State as parent) which declared the king to be the guardian of all his subjects, the children Court assumed the right to intervene on behalf of youth deemed to be in need of help based on their life circumstances or their delinquent acts. The first juvenile Court was established in 1899 in Chicago and the movement spread rapidly throughout the world. The primary motive of the juvenile Court was to provide rehabilitation and protective supervision for youth. The Court was intended to be a place where the child would receive individualized attention from the concerned judge. The Courts hearings were informal and judges exercised broad discretion on how each case was to be handled. The juven ile Court was originally founded as a coercive social work agency , rather than as a criminal Court.
21. At present, cases of juvenile offenders, in Pakistan are being dealt with under the Juvenile Justice System Act, 2018 which is also inconsonance with the Convention of United Nations on the Rights of Child. Article 40 of The United Nations Convention on the Rights of the Child (UNCRC), 1990 postulates that right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child' s sense of dignity and worth, which reinforce the child' s respect for human rights and fundamental frame and all others and which takes into account the child' s age and desirability of promoting child' s/integrity and child' s assuming constructive role in the society . The present law dealing with the juvenile' s offender has taken care of children/youth offender in better terms. According to section 2(h), a child who may be dealt with for an offence in a manner different from an adult is a juvenile and section 2(b) postulates that whosoever has not attained the age of eighteen years is a child.
The Juvenile Justice System Act, 2018 provides mechanism to protect the rights of a child and way to attend/deal with his case keeping in view the best interest of the child.
Sub-section 7 of section 4 enshrines that a case of juvenile shall be transferred to the juvenile Court if a Court which earlier has taken cognizance of a case comes to this conclusion, whereas interrogation of a juvenile by sub inspector under the supervision of Superintendent of Police or SDPO is suggested by section 7 of the Act.
22. If a juvenile Court is satisfied that attendance of juvenile is not essential for the purpose of trial his attendance can be dispensed with under section 11(4). The procedure of a juvenile Court is detailed in section 11. However , section 12 provides that a juvenile can be tried with an adult person but subject to a rider i.e. satisfaction of the Court in joint trial. Sub-section 1 of section 12 says that no juvenile may be charged or with an adult and his physical presence may be dispensed with by the Court and the juvenile may be allowed to join the Court proceedings through audio and video technical link. We have described the background of the subject i.e. protection of the child' s right universally , nationally and locally in the preceding paras and, once again, we are at pain to reiterate that the learned trial Court dealt with the matter in a casual manner .
23. As mentioned above number of prosecution witnesses recorded in both trials is the same. The statement of the PWs and the questions of cross examination have no change at all as if the entire prosecution evidence recorded in the trial of the co-accused have been copied/re-printed without observing the legal formalities provided by the code of criminal procedure.
24. We may also add that even the number of paragraphs of the impugned judgment as well as the judgment rendered in the connected trial are same and it appears that only the names, particulars and roles have been changed/filled in, thus, section 367 Cr.P.C has also been violated because the points of determination and their resolution on the basis of evidence adduced during trial do not find mention in the stereotyped judgment, which is result of over speeding which attracts the saying that justice rushed is justice crushed.
In the circumstances, we are of the considered view that the learned trial Court proceeded in haste and not only violated the principles of Islamic law regarding trial of juvenile and international covenant but also denied a fair trial to the appellant thus, it would be expedient and in the interest of justice that this case is remanded for re-trial.
25. The criteria for remanding any case on account of any irregularity committed during trial are two folds: firstly , appellate Court has to examine as to whether the irregularity committed by the learned trial Court prejudiced the accused in any manner and secondly , whether objection qua the said irregularity or illegality was raised at the earliest stage.
26. In this case, we conclude that as the charge was framed on 25.2.2021 and as the prosecution evidence was recorded on the following day of the charge, the question of raising any objection does not arise because the appellant was not provided copies as envisaged under section 265-C, Cr.P.C after submission of separate report under section 173, Cr.P.C. No time was given for preparing case/defence as stipulated under the law and immediately after framing the charge i.e. on the following day, all the prosecution witnesses were examined. We are of the considered view that the above exercise of the learned trial Court is nothing but overdoing which is neither approved nor appreciated and must be deprecated in strongest terms
27. For the foregoing reasons, this appeal is allowed. The impugned judgment is set aside. The case is remanded to the learned trial Court for re-trial under the law/observations made above. The accused-appellant shall be kept as under trial prisoner till the conclusion of trial.
28. However , it is expected that as it is an old matter , thus, the learned trial Court shall conclude the case at the earliest, preferably within four months after the receipt of this judgment under intimation to the Deputy Registrar (Criminal) of this Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.