KARACHI: SHC reserves order on special courts’ powers
By Shujaat Ali Khan
KARACHI, Oct 17: A five-member bench of the Sindh High Court reserved its verdict on the empowerment of anti-terrorism and anti-narcotics courts to try juvenile offenders charged with offences triable by them under the Juvenile Justice System Ordinance, 2000.
The issue was raised by a special court set up under the Control of Narcotic Substances Act, 1997, which made a reference to the high court whether it could try a juvenile offender in a narco case.
Meanwhile, the provincial government issued a notification in August declaring that the special courts created under the CNS Act or the Anti-Terrorist Act, 1997, would be empowered to try minors arraigned before them under the provisions of the Juvenile Justice System Ordinance.
The matter came up before a division bench which referred it to the chief justice for consideration by a larger bench.
A bench, comprising Chief Justice Sabihuddin Ahmed and Justices Ghulam Rabbani, Mushir Alam, Rehmat Hussain Jaferi and Khilji Arif Hussain, heard arguments advanced by the federal and provincial attorneys, Advocate Abdur Rehman for an accused minor and the Sindh High Court Bar Association President, Akhtar Hussain, as amicus curiae.
Assisting the court, Additional Advocate-General Sarwar Khan and Assistant AG Habib Ahmed submitted that Section 12 of the ATA and Section 45 of the CNS Act confer exclusive jurisdiction on the special courts set up under the two laws to try offences falling within their purview irrespective of the age of the offenders. If a case involved adult and juvenile offenders, they would be tried jointly by the special court, though the provisions of Juvenile Justice System Ordinance would apply to minor offenders.
The provincial government, they said, rightly issued the August notification, for separate trials by separate courts might lead to conflict of judgments. For instance, a CNS court or an anti-terrorism court might convict an adult co-accused in a case and a special juvenile court might acquit a minor offender in the same case and vice versa. The sessions courts were already empowered to try cases under the juvenile law and both the anti-terrorism and anti-narcotics courts enjoyed the powers of sessions courts under their respective special laws.
Federal government counsel Syed Mahmood Alam Rizvi said the August notification was at worst unnecessary. Minor offenders were already being tried by the ATCs and anti-narcotic courts jointly with their adult co-accused. The provisions of juvenile law were, however, being applied to the minor accused. Special courts stipulated by the juvenile law had not yet been set up and the sessions and magisterial courts were exercising powers as special courts under the ordinance of 2000.
Deputy Attorney-General Nadeem Azhar Siddiqui said the notification was not legally tenable as the juvenile justice ordinance conferred exclusive jurisdiction on special courts. The juvenile ordinance having been promulgated subsequently, it ousted the jurisdiction of all other special and ordinary courts to try minor offenders irrespective of the offence they were charged with.
SHCBA President Akhtar Hussain said the juvenile law had to be read and construed in the overall context of its promulgation. It provided for special courts and special procedure. It was promulgated in pursuance of an international convention ratified by Pakistan in 1990. Even the appellate forum was different. The August notification was unlawful and unconstitutional.
Advocate Abdur Rehman cited Pakistani and Indian judgments in favour of the exclusive jurisdiction conferred on juvenile courts.
The questions formulated by the bench for judicial determination are:
1. What is the effect of Section 4 of the Juvenile Justice System Ordinance on Section 45 of the CNS Act and Section 12 of the Anti-Terrorist Act or any similar provisions of law conferring exclusive jurisdiction to try offences?
2. Whether the provisions of Section 19 (14) of the ATA are vide enough for the purposes of treating the special courts as courts of sessions 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 the special courts?
3. Whether the notification of the provincial government dated August 20, 2005, is legally sustainable?
4. Whether the provision of Section 14 of the Juvenile Justice System Ordinance render its Section 4 inapplicable for purposes of exclusive jurisdiction conferred on juvenile courts.
