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Official Citation: 2025 IHC 54
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-12-16
Parties: Abdul Qadeer vs The State and another
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-12-16, officially reported as 2025 IHC 54. In this matter between Abdul Qadeer and The State and another, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025IHC54
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb, Arbab Muhammad Tahir Title: Abdul Qadeer vs The State and another Case No.: Criminal Appeal No.278/2023 Date of Judgment:2024-12-16 Reported As: 2025 IHC 54 Result: Appeal Partly Allowed
Judgment
ORDER Arbab Muhammad Tahir, J.- Through the instant criminal appeal in terms of section 410 of the Code of Criminal Procedure, 1898 (hereinafter "Cr.P.C."), the appellant (Abdul Qadeer) has impugned judgment dated 25.07.2023 passed by the learned Additional Sessions Judge/Gender Based Violence Court, Islamabad (West) whereby the appellant has been convicted in FIR No.1390/22, dated 24.11.2022, registered under sections 376(iii), 377-B of Pakistan Penal Code, 1860 (hereinafter "PPC") at Police Station Golra, Islamabad and sentenced as follow.- "The court takes note of the fact that the complainant has also indicated a desire to resolve the matter in a peaceful manner and to move forward with their lives. Since the offences under section 376(iii) and 377-B of the PPC are non-compoundable offences and there can be no compromise or settlement between the accused and the victim. However, compromise coupled juvenilty of accused are a mitigating factor in determining the punishment. Accordingly, the accused is convicted in main offence under section 376(iii) PPC, and he is thus sentenced to rigorous imprisonment (RI) for 10 years, with fine of Rs.50,000/-, and in case of default in its payment, he shall also suffer six (06) months simple imprisonment. He is extended the benefit of Sec. 382-B Cr.P.C." 2. The criminal case i.e. FIR (Ex.PA/1) was registered on the complaint (Ex.PA) of Mujhaid Iqbal wherein it was alleged that on 24-11-2022 at unknown time, his son Saim Haider aged about six years went to nearby general store for purchases of certain goods. The shopkeeper Abdul Qadeer (appellant), called complainant s son (Saim Haider) inside the shop and sexually abused him. The appellant was arrested on the same day. The Investigating Officer submitted a request (Exh.PE) for
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his medical examination and obtaining samples. The victim was also got medically examined (Exh.PD & PE). The statement under section 164 Cr.P.C. was recorded by the Magistrate on 25.11.2022 (Exh.PF). The clothes worn by the victim were taken into possession vide recovery memo (Exh.PK). The Investigating Officer also prepared unscalled site plan (Exh.PJ). The outdoor ticket was prepared (Exh.PD). The Punjab Forensic Science Agency after examining the samples obtained from the victim and the appellant prepared its report (Exh.PL), which was in the negative. 3. Charge against the appellant was framed on 27.01.2023, to which he pleaded not guilty and claimed trial. The prosecution produced six witnesses i.e. Mujahid Iqbal (PW-1), Dr Irshad Hussain (PW-2), Saim Haider-victim (PW-3), Dr Sania (PW-4), Muhammad Ayaz Khan, ASI (PW-5) and Irfan Ullah, SI (PW-6). The statement of appellant under section 342 Cr.P.C. was recorded on 20.06.2023. The appellant did not opt to record statement under section 340(2) Cr.P.C. On conclusion of trial, the learned trial court convicted and sentenced the appellant in the terms reproduced above. 4. Learned counsel for the appellant has argued that the prosecution failed to prove its case beyond reasonable doubt; that the provisions of section 164(1-A) Cr.P.C. have been violated while recording statement of victim under section 164 Cr.P.C.; that the father of victim i.e. PW-1 withdrew from prosecuting the appellant and also recorded a statement to this effect; that the appellant was a juvenile at the time of his trial; that trial ought to have been conducted under the provisions of Juvenile Justice System Act, 2018 the trial of the appellant under the Anti-Rape (Investigation and Trial) Act, 2021 was legally not warranted. 5. On the other hand, learned State Counsel has argued that; the prosecution has proved its case beyond the shadow of doubt; although the report of chemical examiner was in the negative, but the statement of victim is sufficient to prove guilt of the appellant; no-misreading or non-reading of evidence has been pointed by the appellant; the trial was conducted by the competent court; the question of jurisdiction was not raised at the stage of trial; the offence falls in Schedule II to the Anti-Rape Act and, therefore, its provisions are applicable during trial, as section 28 gives overriding effect to the its provisions. 6. Heard. Record perused. 7. The appellant was tried by the Gender Based Violence Court at Islamabad established under section 3 of the Anti-Rape (Investigation and Trial) Act, 2021 (hereinafter "Anti-Rape Act"). The appellant has questioned his trial by the Court established under the Anti-Rape Act, as it has been argued on his behalf that appellant was a juvenile at the time of commission of offence and his trial ought to have been conducted by the Juvenile Court established under section 4 of the Juvenile Justice System Act, 2018 (hereinafter "Juvenile Act"). Before adverting to the merits of the case, the referred questions of law needs to be addressed. 8. In Pakistan, the foundation of the juvenile justice system is firmly rooted in the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter the "Constitution"). Article 25(3) of the Constitution authorizes the State to implement special measures for the protection of children, even if they result in differential treatment compared to adults. Additionally, Article 35 obligates the State to ensure the protection and well-being of children, while Article 37(e) ensures just and humane working conditions, explicitly prohibiting the employment of children in vocations unsuitable to their age or sex. In line with these constitutional directives, the juvenile Court is called upon to fulfill its role as parens patriae[1], viewing the child not as a delinquent, but as a victim in need of care, reformation, and rehabilitation. The Juvenile Court, in its capacity, must adopt the role of a parent rather than a judge. The delinquent child appearing before the Court is to be protected, guided, and re-educated, with the emphasis placed on rehabilitation rather than punishment. It is for this reason that the Court must make use of the rehabilitative provisions enacted by the Legislature. 9. Over time, the legal stance towards juvenile offenders transitioned from a punitive approach to a reformative philosophy. This shift was influenced by the recognition that children possess
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underdeveloped moral and cognitive faculties, which necessitate different legal treatment compared to adults[2]. Additionally, juvenile delinquency was increasingly understood to be linked to adverse environmental factors, including social and familial influences[3]. The legal principle of parens patriae, asserting the state's role as the guardian and protector of minors, rather than as an adversary, emerged during this period (Peterkin, 1897). This philosophical and legal shift culminated in the creation of the world's first juvenile court in Cook County, Illinois, in 1899. 10. In order to determine the applicability of proper law in the instant case, let us conduct comparative analysis of the Juvenile Act and the Anti-Rape Act.- Inconsistency Anti-Rape (Investigation and Trial) Act 2021Juvenile Justice System Act 2018 Object To ensure expeditious redressal of rape and sexual abuse crimes in respect of women and children through special investigation teams and special Courts providing for efficacious procedures, speedy trial, evidence.Whereas it is expedient to provide for criminal justice system and social integration of juveniles. Subject S.2(k): "Victim" a woman or child who has been subjected to scheduled offences.S.2(h): "Juvenile" a child who may be dealt with for an offence in a manner which is different from an adult. Investigation S.9: Special sexual offences investigation units (SSOIUs) shall be established in every district by the provincial governments and for the purposes of the Islamabad Capital Territory by the Federal Government.S.7: A juvenile shall be interrogated by a police officer not below the rank of Sub Inspector under supervision of Superintendent of Police or SDPO. The investigation officer designated under sub-section (1) shall be assisted by a probation officer or by a social welfare officer notified by the Government to prepare social investigation report to be annexed with the report prepared under section 173 of the Code. Bail To the extent of bail, The provisions of the Code of Criminal Procedure 1898, to the extent not inconsistent with anything contained in this Act, shall apply mutatis mutandis. A juvenile accused of bailable offence shall, if already not released under section 496 of the Code, be released by the Juvenile Court on bail with or without surety unless it appears that there are reasonable grounds for believing that the release of such juvenile may bring him in association with criminals or expose him to any other danger. In this situation the juvenile shall be placed under the custody of a suitable person or Juvenile Rehabilitation Centre under the supervision of probation officer. The juvenile shall not under any
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circumstances be kept in a police station under police custody or jail in such cases. Disposal of case through diversionThere is no provision in the Act regarding disposal of case through diversion.S.9: The Juvenile Justice Committee shall dispose of a case, with consent of the person against whom the offence was committed, by resorting to different modes of diversion including,- (a) restitution of movable property; (b) reparation of the damage caused; (c) written or oral apology; (d) participation in community service; (e) payments of fine and costs of the proceedings; (f) placement in Juvenile Rehabilitation Centre; and (g) written and oral reprimand: Overriding S.28: In respect of offences mentioned in Schedule-II, the provisions of this Act shall have effect Notwithstanding anything inconsistent contained in any other law for the time being in force. (section 377-B PPC is included in Schedule II to Anti-Rape Act).S.23: The provisions of this Act shall have overriding effect notwithstanding anything contained in any other law for the time being in force.
11. The Juvenile Court takes on the role of an institution that provides psychological services, addressing the child's needs with empathy and understanding. To do so effectively, the Court must shift away from its traditional judicial role and adopt a more supportive, rehabilitative approach, similar to that of a correctional facility where a delinquent child receives the care and guidance needed. By focusing on the child's reformation, rehabilitation, and successful reintegration into society, the Court can help foster the child's development in a way that promotes a positive future, rather than simply punishing past behavior. Juvenile delinquency is often the result of poor living conditions rather than deliberate misconduct. Therefore, efforts should focus on rehabilitating young offenders instead of subjecting them to the same punitive measures as adults. Juveniles possess the capacity to change and are particularly responsive to rehabilitation. Addressing juvenile delinquency effectively requires recognizing that a child offender is not inherently criminal but has been shaped by lack of moral and educational guidance. By providing proper care and guidance, these children can be "treated" and, in essence, freed from the criminal tendencies imposed upon them by adverse circumstances. 12. The juvenile court differs significantly from a standard criminal court in several essential respects. Primarily, its objective is rehabilitation rather than punishment. The court recognizes that children and adolescents are in the midst of crucial developmental stages, possessing the potential for change and growth. Consequently, the juvenile court emphasizes interventions that address the root causes of delinquent behavior, including familial issues, educational struggles, mental health conditions, and substance abuse. The importance of the juvenile court lies in its dual
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function: it serves as both a forum for addressing unlawful conduct and a mechanism for ensuring that minors receive the necessary care, guidance, and support for their personal development. This dual purpose elevates the juvenile court beyond a mere legal proceeding, positioning it as a tool for social reform and the safeguarding of vulnerable minors. 13. Juvenile courts are distinguished from ordinary criminal courts for several compelling reasons, primarily due to the unique nature of juvenile offenders. Children, unlike adults, are still undergoing emotional, mental, and cognitive development, which limits their ability to form criminal intent with the same clarity and deliberation as an adult. This fundamental distinction is recognized in the law, which assigns juvenile courts the responsibility not only for addressing criminal behavior but also for considering the broader needs of the child, including their safety, well-being, and access to rehabilitation. The guiding principle of juvenile courts is the focus on rehabilitation rather than punishment. This sets juvenile courts apart from criminal courts, where retribution and deterrence are often the primary goals. In the juvenile system, the judge's role transcends the mere determination of guilt or innocence; the judge is seen as a guardian of the child's future, upholding the parens patriae doctrine,which prioritizes the welfare of the child over the punitive objectives of the justice system. Additionally, juvenile courts are empowered with a broader range of dispositional options, which allows for greater flexibility in determining appropriate sentences. These options include rehabilitation programs, community service, counseling, foster care, or commitment to juvenile detention facilities. The emphasis is placed on rehabilitation and reintegration, recognizing that young individuals have a greater capacity for change and that early intervention is essential in preventing future delinquent behavior. 14. As a signatory to the United Nations Convention on the Rights of the Child (CRC), ratified by Pakistan in 1990, the country is obligated to uphold children s rights, particularly those in conflict with the law. The CRC mandates that the best interests of the child be the primary consideration in all legal matters (Article 3), ensures privacy protection (Article 16), prohibits inhumane treatment (Article 37a), and restricts deprivation of liberty to a last resort (Article 37b). It also requires separation from adults in detention (Article 37c), access to legal assistance (Article 37d), and emphasizes rehabilitation and reintegration of juveniles (Article 40). The Juvenile Act aligns with these principles, focusing on alternatives to detention, diversion programs, and rehabilitative measures for minors, ensuring a fair, child-centered legal framework that prioritizes the welfare and rehabilitation of children in conflict with the law. 15. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, or the "Beijing Rules," were adopted by UN General Assembly resolution 40/33 on November 29, 1985, urging member states to integrate these rules into their juvenile justice systems. The rules mandate equal treatment of all juvenile offenders, regardless of race, gender, religion, or caste, and prioritize promoting proper child-rearing, fair treatment, and understanding the context of the crime. A central principle is that deprivation of liberty should be used only as a last resort, for the shortest time possible, advocating alternatives to institutionalization. The Beijing Rules also emphasize the importance of social programs to reduce juvenile delinquency and stress the need for continuous improvement in juvenile justice systems, aligned with broader social justice policies and supported by adequate resources. 16. It is imperative to highlight that both the Juvenile Act as well as the Anti-Rape Act, are special laws. In such an eventuality, the legislative intent in enacting both the statutes must be appreciated. As reproduced above, the Juvenile Act is aimed at providing for criminal justice system and social integration of juveniles, whereas, the Anti-Rape Act ensures expeditious redressal of rape and sexual abuse crimes in respect of women and children through special investigation teams and special courts providing for efficacious procedures, speedy trial and evidence. The first proviso to sub-section (3) of section 3 recognizes the juvenile courts and
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provides that where the Gender Based Violence (GBV) courts or juvenile courts or child protection courts have already been designated, they shall be deemed to be the Special Courts under the Anti-Rape Act. On the contrary, no such deeming clause is provided in the Juvenile Act. The Hon ble Supreme Court in the case titled "Syed Mushahid Shah and others v. Federal Investment Agency and others" [2017 SCMR 1218] has held that "Thus when there are two special laws both of which contain overriding clauses, in the case of conflict between the two laws generally the statute later in time will prevail over the statute prior in time. However we are of the opinion that this presumption is not automatic: instead, a host of other factors, including the object, purpose, and policy of both the statutes and legislature's intention as expressed by the language employed therein, need to be considered to determine which of the two special laws is to prevail". (emphasis added) 17. By virtue of "deeming clause", the juvenile courts are deemed to be special courts for all intentions and purposes of this Anti-Rape Act. If a trial in respect of a juvenile offender is held at the juvenile court for any offence mentioned in the Schedule to the Anti Rape Act, it shall be deemed to be a valid trial under section 3(3) of the Anti-Rape Act. The interpretation of "deeming clause" came into consideration before the Hon'ble Supreme Court of Pakistan in the case titled "Dr. Abdul Nabi v. Executive Officer, Cantonment Board, Quetta" (2023 SCMR 1267), wherein it was observed that.- "According to the Black's Law Dictionary, Ninth Edition, Pg. 477-478, the meaning of the word "Deem" is to treat (something) as if it were really something else, or it has qualities that it does not have. "Deem has been traditionally considered to be a useful word when it is necessary to establish a legal fiction either positively by "deeming" something to be what it is not or negatively by "deeming something not to be what it is ..." In order to interpret the statute, the court is obligated to give effect to the deeming provisions while taking into consideration the object of such legal fiction and also dredge up the rationales of statutory fiction to its cogent finale vis-- vis the intention of legislature so it should not cause any injustice. 18. The Hon'ble Supreme Court in the case titled "Mehran v. Ubaid Ullah, etc" (PLD 2024 SC 843) has ruled as under:- "We may observe at the outset that the juvenile justice system specifically addresses the situation of children alleged to have infringed criminal law and operates under the premise that juveniles are different from adults and require special attention and treatment. Since juveniles are more amenable to rehabilitation than adults, the juvenile justice system is designed not just to punish but to rehabilitate, emphasizing correction and guidance to help children develop into responsible adults. A range of factors underscore the need for a special justice system for juveniles. These include juveniles' lack of maturity, propensity to take risks, susceptibility to peer influence, as well as intellectual disabilities, mental illness, and victimization. This system is distinct from the ordinary criminal justice system and is based on a rehabilitative and restorative model rather than a retributive one." 19. In another case titled "Khawar Kayani v. the State" (PLD 2022 SC 551), the august Supreme Court has ruled as under.- It is important to keep in mind the conceptual framework of juvenile justice system which has been carved out of the general criminal justice system. Juvenile justice system is not retributive in character, it is primarily rehabilitative and restorative. Article 35 of the Constitution provides that the State shall protect the child. Furthermore, the State of Pakistan is a signatory to the United Nations Convention on the Rights of the Child ("UNCRC") and is thus under an international obligation to take special measures for the protection and rehabilitation of the juveniles who come in conflict with law. It was for the compliance of this constitutional mandate and for the fulfilment of this international obligation that the Act was enacted by the legislature of Pakistan. The main
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object of the enactment of the Act is to modify and amend the law relating to criminal justice system for juveniles by providing special focus on disposal of their cases through diversion and social integration for their rehabilitation." 20. Recently, The Indian Supreme Court in "Om Prakash @ Israel @ Raju @ Raju Das v. Union Of India", (2025 INSC 43) in Criminal Appeal No. 4229 Of 2024 while acquitting the juvenile convicted by an ordinary court observed as under.- "A child is a product of the present, in need of being moulded, to thrive in the future. Therefore, deviant behaviour of a child in conflict with law should be a concern of the society as a whole. One must not lose sight of the fact that the child is not responsible for an act of crime, but is rather victimized by it. Such a child is nothing but an inheritor of crime, a legacy which it does not wish to imbibe. The behaviour of a child can be attributed, possibly to two counts, namely, the environment that the child grows in, and genetics. On the first count, various factors such as socio-economic, political and cultural background, and life experience, amongst others, become relevant. Thus, remedial measures may be employed for the benefit of the child. Since the child does not choose the environment in which it grows, deviant behaviour which is a result of exposure to a given environment is evidence of rampant inequality. 21. The Juvenile Act contains comprehensive provisions to address child victims' distinctive requirements and susceptibilities. The courts are obligated to adhere to these provisions. In particular, they should ensure that proceedings are conducted with confidentiality. Section 11 of the Juvenile Act outlines the procedural framework for Juvenile Courts, ensuring a child-sensitive environment during legal proceedings. The court follows the Code of Criminal Procedure, with specific adaptations to address the needs of juveniles. The Juvenile Act prioritizes the protection, privacy, and dignity of juveniles during trial proceedings. Section 11 restricts public access to Juvenile Court hearings, allowing only relevant parties, such as the juvenile, their guardian, and authorized personnel, to be present. This safeguard ensures that the juvenile is protected from public scrutiny and unnecessary exposure that could have lasting psychological and social effects. The trial court has the authority to exclude individuals whose presence may harm the juvenile's decency or morality, emphasizing a rehabilitative approach over punitive measures. Additionally, the court can dispense with the juvenile's attendance, if such attendance is deemed unnecessary, further minimizing emotional distress during the legal process. This child-centric approach is rooted in the idea of rehabilitation, providing a legal framework that minimizes trauma and stigma while promoting the juvenile's reintegration into society. By upholding confidentiality, safeguarding the minor's welfare, and fostering a supportive trial environment, the Juvenile Act ensures that juveniles are treated with compassion and given the opportunity to rebuild their lives. 22. The Indian Supreme Court in the case titled "Jitendra Singh and Ors. V. State of U.P." (2013 (128) AIC 106) has observed that "The Rules, particularly Rule 3, provide, inter alia, that in all decisions taken within the context of administration of justice, the principle of best interests of a juvenile shall be the primary consideration. What this means is that "the traditional objectives of criminal justice, that is retribution and repression, must give way to rehabilitative and restorative objectives of juvenile justice". The right to privacy and confidentiality of a juvenile is required to be protected by all means and through all the stages of the proceedings, and this is one of the reasons why the identity of a juvenile in…
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