The Peshawar High Court has ruled that a juvenile accused charged with terrorism-related offence should be tried by a juvenile court notified under the Juvenile Justice System Act, 2018, and not by an anti-terrorism court.
A single-member bench consisting of Justice Ishtiaq Ibrahim accepted plea of an under-trial juvenile accused and directed that his case should be forthwith transferred to Peshawar juvenile court.
The petitioner was arrested after a firing incident on the premises of Peshawar Judicial Complex that left three persons injured, including a lawyer Yousaf Riaz Khalil, in September 2018.
He was charged under section 324, 34 and 337-4 (i) of Pakistan Penal Code, section 15 of Arms Act and section 7 of Anti-Terrorism Act. At the time of occurrence, the petitioner was below 17 years of age.
Subsequently, he was convicted by an ATC on July 12, 2019, but his appeal was accepted by the high court and his case was remanded back. He had raised objection over jurisdiction of ATC to try a juvenile accused.
The high court while allowing the earlier appeal on February 22, 2022, had ordered to transfer the trial to a juvenile court. However, the ATC had resumed trial and overruled objection raised by the petitioner’s counsel about its jurisdiction.
The ATC had observed that through an SRO in 2012, the federal government had already designated anti-terrorism courts to exercise the powers of juvenile court in the area of their respective jurisdiction.
The petitioner’s counsel, Shan Asghar, contended before the high court that ATC had erred while continuing with the trial of his client.
He stated that ATCs were earlier designated as juvenile courts under the now repealed Juvenile Justice System Ordinance (JJSO), 2000, and after the enactment of Juvenile Justice System Act (JJSA), 2018, no fresh notification was issued to empower them to act as juvenile court.
The bench ruled that after promulgation of JJSA 2018, the legal framework had changed. Referring to section 4 of the JJSA, the bench observed that the provision provided that the juvenile court should have exclusive jurisdiction to try cases in which a juvenile was accused of the commission of an offence.
Furthermore, section 23 of the JJSA stated that the provisions of the Act should have overriding effect notwithstanding anything contained in any other law for the time being in-force.
The court maintained that as conflicting provisions in both laws (ATA and JJSA) displayed irreconcilable discrepancies, therefore, the latter legislation, the JJSA 2018, would take precedence in the trial of juveniles accused of committing terrorism offences.
Furthermore, the bench observed that it was crucial to consider that certain safeguards, both substantive and procedural, available to minors could only be ensured through the platform of juvenile court.
“These measures include confidentiality of proceedings, detention in observation homes, support from probation and social welfare officers to the investigating officer and the social investigation report attached to the report under section 113 of CrPC,” the bench observed.
The court further maintained: “Additionally, the spectrum of rehabilitative penalties, such as probation, community service orders, detention in juvenile rehabilitation centres, and prohibition of capital punishment, etc only envisioned within the parameters of the Juvenile Justice System Act, 2018. The absence of such safeguards can affect their right to a fair trial.”
The bench observed that before the Juvenile Justice System Act (JJSA) 2018 was promulgated, the high courts had widely held view that the Anti-Terrorism Act took precedence over the then JJSO, 2000, for trial of juveniles.
The bench observed that section 14 of JJSO provided that provision of the ordinance were to be read in addition to and not in derogation of any law for the time being in-force. It added that the term “exclusively” found in section 21-G of ATA was added in the law in 2005, which came after promulgation of JJSO.
The bench observed that it demonstrated the intent of the legislature for ATA to supersede JJSO. It observed that the government of Pakistan, through a notification on May 30, 2012, declared all the anti-terrorism courts established throughout the country under ATA to exercise the powers of juvenile courts.
The court observed that in the order under challenge before it, the ATC had based its opinion on an Ordinance of 2012 which provided that the government may designate any existing ATC to exercise powers of a juvenile court.
The bench ruled that Article-89 of the Constitution of Pakistan stated that an ordinance stood repealed at the expiration of 120 days from its promulgation. The court ruled that the ordinance of 2012, which amended section-4 of JJSO, ceased to be effective after 120 days from its promulgation.
The court also referred to different articles of the UN Convention on the Rights of the Child, which provide that the trial of a child should be conducted in a juvenile court, ensuring safeguards of their privacy, etc.
Acknowledgement: Published in Daily Dawn, April 17th, 2023