KARACHI, Feb 15: A full bench of the High Court of Sindh on Wednesday disposed of two references and transfer applications pertaining to trial of juveniles by the Control of Narcotics Substances Court by a majority judgment (3:2) with two judges recording dissenting judgment.
The bench comprised Chief Justice Sabihuddin Ahmed, Pusine Judge Ghulam Rabbani, Justice Musheer Alam, Justice Rahmat Hussain Jafferi and Justice Khilji Arif Hussain.
Justice Rahmat Hussain Jafferi and Justice Khilji Arif Hussain recorded separate dissenting judgments.
The bench was assisted by AAG Habib Ahmed, Federal Standing Counsel Mehmood Alam Rizvi besides the counsel for applicants.
The chief justice in a majority judgment ordered that cases of persons below 18 years of age at the time of commission of offence under the CNS act shall stand transferred to juvenile courts, comprising court of session and judicial magistrates of respective districts and will be proceeded under procedure of Juvenile Justice System Ordinance-2000.
Such juvenile courts will proceed from the stage the case was transferred and no recalling of prosecution witnesses will be invoked.
It was also ordered that cases of persons (youthful/juvenile offenders) booked under Anti-Terrorism Act on charge of committing acts of terrorism, including abduction or kidnapping for ransom, use of firearms or explosions in place of worships or courts will continue to remain triable by ATCs.
In such cases, ATC will not be bound by rules of procedures required for juvenile courts. However, the substantive protection not in consistence with Act under Juvenile Justice System Ordinance would be accorded by such courts to juvenile offenders.
Justice Jafferi said that although a claim of consultation with Chief Justice was made by the government, but no such consultation was made.
“As Chief Justice was not consulted before issuing such a notification, the notification is illegal”.
“It is further pointed out that on the basis of above illegal notification, the high court has conferred powers of juvenile courts upon the courts of sessions and judicial magistrates. It is well settled that if the foundation, order, and basis is illegal, then all orders, actions or super-structures on such basis, order or foundation will also be illegal” said the judgement by Justice Rahmat Hussain Jafferi.
The notification no GAZ/Misc2000 (133)JCO, Karachi (Nov 20, 2004), issued by the SHC conferring the powers of Section 4(2) (a) of Ordinance, 2000 upon Courts of session and judicial magistrates in the province is also illegal. Therefore, presently there is no juvenile court, nor any powers of juvenile court can be conferred upon the courts of session or judicial magistrate unless the provincial government establishes the juvenile courts in consultation with the Chief Justice of SHC, Justice Rahmat Hussain Jaffery held.
He also held that “the combined effect of Section 14 and Section 4 of Ordinance 2000 and other relevant provisions of CNS Act and AT Act is that the juvenile court created under the Ordinance 2000 has no jurisdiction to take cognizance and try the offences of CNS Act and AT Act”.
Justice Khilji Arif Hussain, dissenting with the majority and the dissenting judgement by Justice Rahmat Hussain Jaffery, in his judgment held that “Special Court established under AT Act and CNS Act have excessive jurisdiction to try an offence irrespective whether offender is minor or not.
It is advisable to provide protection to juvenile offenders in criminal litigation, held Justice Khilji Arif Hussain, adding that for their rehabilitation in the society necessary amendments be made in the Juvenile Justice System Ordinance, 2000 to give it over-ridding effect on all other laws and to matters relating to their bail during trial.
Justice Khilji further held that children shall not be arrested without taking permission from the juvenile court and that the court officers and police dealing with juveniles should be given special training how to deal with juveniles during the trial so as to rehabilitate them to meet the guarantee given to child under Article 35 of the Constitution of Pakistan.—APP
