Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2023 PLD 110
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2023
Decision Date: 2023-04-10
Parties: Saeedullah vs Lal Sher and others
This judicial decision was delivered by the Peshawar High Court on 2023-04-10. The matter involves proceedings between Saeedullah and Lal Sher and others, officially reported as 2023 PLD 110. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLD 2023 Peshawar 110
Court Name: Peshawar High Court Judge(s): Ishtiaq Ibrahim Title: Saeedullah vs Lal Sher and others Case No.: Criminal Revision No. 70-P of 2022 Date of Judgment:2023-04-10 Reported As: PLD 2023 Peshawar 110, PLJ 2023 Cr.C. 1053 Result: Revision petition allowed
JUDGMENT
JUDGMENT ISHTIAQ IBRAHIM, J.---Through this Criminal Revision, the petitioner namely Saeedullah son of Esrar-ud-Din. has challenged the order dated 30.03.2022 passed by the learned Judge Anti- Terrorism Court-II, Peshawar, whereby the application tiled by the petitioner for transfer of the trial to the Juvenile Court and deletion of section 7 ATA was dismissed. 2. The petition raises questions about the construction of the Anti-Terrorism Act 1997, Juvenile Justice System Act 2018, the inter-play of their various provisions, the legal effect of inserting Ordinance No.V of 2012 in Juvenile Justice System Ordinance (XXII of 2000), and its subsequent expiry with the efflux of time. The ultimate question is whether the Anti-Terrorism Court or the Juvenile Court shall try the accused for the offence of terrorism. 3. On 12.7.2019, Saeedullah, allegedly aged 17 years at the time of the commission of the offence, was convicted by the Anti-Terrorism Court under Sections 324/34, 337-A(i), P.P.C.. Section-15 of the KP Arms Act, and Section 7 of the Anti-Terrorism Act, 1997. He appealed his conviction to the High Court and put forth different contentions, including the objection on Anti-Terrorism Court jurisdiction on the grounds of juvenility. The High Court vide judgment dated 22.02.2022 rendered in Cr. Appeal No.929-P of 2019 allowed his appeal, remanded his case to the trial court, and directed its transfer to the juvenile court. 4. Resuming trial, the Anti-Terrorism Court framed the charge against the accused on 30.3.2022. It overruled the objection regarding its jurisdict. The court summed up its order: " Admittedly, as per S.R.O. 572(1)2012, the Federal Government has already designated the Anti- Terrorism Courts established throughout the country under the Anti-Terrorism Act, 1997, to exercise the powers of Juvenile Court in the area of their respective Jurisdiction. The learned counsel for
---
## Page 2
the accused claimed that the above referred notification was issued in the light of Juvenile Justice System Ordinance and after the promulgation of Juvenile Justice System Act 2018, no fresh notification empowering Anti-Terrorism Court to act as Juvenile Courts has been issued, therefore Anti-Terrorism Courts lack jurisdiction to try cases involving Juvenile. This contention of the learned defence counsel is not sustainable on the ground that as per section 24 of the General Clauses Act, 1897, the notification already issued by the Federal Government designating the Anti- Terrorism Court as Juvenile Court is protected." 5. This' Court has had helpful submissions from Mr. Shan Asghar, advocate representing the petitioner, Hussain Ali, advocate from complainant, Muhammad Nisar, Additional Advocate General, and Mr. Ashfaq Ahmed Daudzai, Assistant Attorney General. 6. Before the Juvenile Justice System Act 2018 was promulgated, the High Courts had a widely-held view that the Anti-Terrorism Act took precedence over the Juvenile Justice System Ordinance (XXII of 2000) for the trial of juveniles. The Court's decisions, were primarily seized upon the following considerations: I. Section 14 of the Juvenile Justice System Ordinance provides that provisions of the Ordinance are to be read in addition to and not in derogation of any law for the time being in force. II. The term "exclusively" found in section 21-G of the Anti-Terrorism Act 1997 was added through Act II of 2005, which came after the promulgation of the Ordinance. It demonstrates the legislative intent for the Anti-Terrorism Act to supersede section 4(3) of the Ordinance. III. Section 32 of the Anti-Terrorism Act 1997 provides that the provisions of the said Act have an overriding effect over all other laws. IV. The Government of Pakistan, through the notification dated 30.05.2012, declared all the Anti- Terrorism Courts established throughout the country under the Terrorism Act 1997 to exercise the powers of Juvenile Courts. 7. As an abundant clarity, few decisions need a reference. 8. The Lahore High Court held in Muhammad Din v Muhammad Jehangir PLD 2004 Lahore 779: "The express provisions of sections 2(d), 21 C(5), 21-C(7) (e), 21-C(7) (fl) and 21-F of the Anti-Terrorism Act, 1997 clearly postulate that a child below the age of eighteen years can legitimately be tried by an Anti-Terrorism Court constituted under the Anti- Terrorism Act ,1997. We are fortified in this impression by the provisions of section 32 of the Anti- Terrorism Act, 1997 which unambiguously provide that the provisions of the said Act are to have overriding effect over all other laws. As against that the provisions of section 14 of the Juvenile Justice System Ordinance, 2000 expressly provide that the provisions of the said Ordinance shall be in addition to and not in derogation of any other law for the time being in force. The Juvenile Justice System Ordinance, 2000 was introduced at a time when the Anti-Terrorism Act, 1997 was already holding the field containing the above mentioned provisions relating to a trial of child by an Anti-Terrorism Court and we have every reason to believe that the Legislature was quite conscious of the said fact but despite that the Juvenile Justice System Ordinance, 2000 was not given by the Legislature an overriding effect over the other laws and thus the provisions contained in the Anti-Terrorism Act, 1997 relatable to a child's trial by an Anti-Terrorism Court were not tinkered with or disturbed.", 9. The Baluchistan High Court expressed in no different terms in Muhammad Rasool and another v. The State PLD 2012 Baluchistan 122: "Learned counsel for the appellants contended that the trial court had no jurisdiction to try appellant Rohullah, being minor. The contention of the counsel has no legs to stand on, as the provisions of section 21-G of the Act of 1997 furnish a complete answer to the said contention, which postulate that an offence of terrorism can be tried only by an Anti-Terrorism Court, constituted under the Act of 1997 and the age of offender has no relevance to the question of such
---
## Page 3
jurisdiction. Difference between the Act of 1997 and the Juvenile Justice System Ordinance 2000 was that in the former statute Court acquired jurisdiction; if the offence was triable by them whereas in the later statute Courts acquired jurisdiction if the offenders were juvenile, irrespective of the nature of offence committed by them. Under section 32, the provisions of Anti-Terrorism Act, 1997 have the overriding effect over all other laws including the Juvenile Justice System Ordinance, 2000 whereas under section 14 of the Ordinance 2000, the provisions of the Ordinance, 2000 shall be in addition to and not in derogation of any other law for the time being in force". 10. Adding a little more to the already held opinion, the Sindh High Court in Qamar Hussain Shah v. The State PLD 2006 Karachi 331, held: "In the Ordinance 2000 there is no specific provision for overriding the provisions of other laws. Thus the principle of maxim "Generalibus specialia derogant" does not apply to the present case because different intention of the Legislature appears in the Ordinance 2000 in the shape of section 14.... Now it is to be seen as to why a necessity had arisen in enacting section 21-G in A. T Act As already observed that before Ordinance 2000 the A. T Act had jurisdiction to try offences committed by any accused either major or minor. After promulgation of Ordinance 2000, situation was changed. The Parliament realized that offences of act of terrorism might be tried under the Ordinance 2000, therefore a necessity arose before the Parliament to describe which offence shall be tried by which court. Therefore section 21-G was enacted in the year 2001 describing the jurisdiction and powers of A. T Court. Not only that in the year 2005 the word exclusive has further been added in the section 21-G to make it more clear that all the offences under the A. T Act are exclusively triable by the Anti- Terrorism Court only... I have already observed that the Juvenile Court created under Ordinance 2000 is the Court of general jurisdiction for taking cognizance and trial of all offences under any law, whereas the courts created under the CNS Act and A. T Act are the Courts of .special jurisdiction to take cognizance and try offences mentioned under the said Acts therefore the provisions of both the Act are special provisions in comparison to such provisions of the Ordinance, 2000." 11. This Court in Mujahid lqbal v. The State and another 2019 PCr.LJ 1432, described it so: "Therefore the insertion of word " exclusively" in the Anti-Terrorism Act, being later in time will have precedence over section 4(3) of the Ordinance 2000, more particularly when the intention of legislature in the Ordinance of 2000 is reflected in section 14 which envisages that the provisions of the Ordinance shall be in addition to and not in derogation of any law for the time being in force. "Asad Ullah alias Shakir Ullah v. State (2011 PCr.LJ 1022), Muhammad Rasool v. State (PLD 2012 Balochistan 122). Even otherwise, the Government of Pakistan through notification dated 30.05.2012 has declared all the Anti-Terrorism Courts established throughout the country under the Anti-Terrorism Act, 1997 to exercise the powers of Juvenile Courts in the area of their respective jurisdiction, under the Juvenile Justice System Ordinance, 2000." 12. In the order under challenge before this Court, the Anti-Terrorism Court based its opinion on Ordinance No. V, 2012, and the effect of section 24 General Clauses Act, 1897. Article-89 of the Constitution of Pakistan, 1973 says that the Ordinance stands repealed at the expiration of one hundred twenty days from its promulgation. It follows that the Ordinance No. V of 2012, which amended Section-4 of the Juvenile Justice System Ordinance, 2000, ceased to be effective after one hundred and twenty days from its promulgation. 13. Does the Ordinance have a shadow effect? It is a long-settled opinion that the Ordinance is temporary legislation that carries with it the potential for its own cessation. In his book
---
## Page 4
Understanding Statutes, First Edition 1997, S.M. Zafar has discussed the effects of expiry of a temporary statute. In his opinion: "The general law, with regard to the effect of expiry of a temporary statute, has been laid down in the famous case Crown v. Haveli, in this case it was held that, when a temporary statute expires it ceases altogether to have effect as if it has never been ,except as to transactions past and closed. This result follows unless there be provision made in the statute itself for continuing the effect thereof in any respect." 14. When assessing the posthumous effects of the Ordinance, the Courts have consistently maintained that the General Clauses Act, 1897 cannot be used to interpret constitutional provisions. The Courts, on several occasions, considered the implications of Article 264 of the Constitution of Pakistan 1973 and the applicability of Section 6 and Section 6-A of the General Clauses Act, 1897. Nonetheless, the temporary nature of the Ordinance has meant that it is unlikely to have any influence after it expires. 15. In a relatively earlier authority from this Court, Arbab Muhammad Hasham Khan v. The Crown PLD 1953 Peshawar 72, it was held: "Reference has been made to section 6 of the N. W. F. P General Clause Act II of 1932, under which where an Act repeals any enactment or where an Act enforced for a period ceases to operate on the expiry of that period then unless a different intention appears, the repeal or expiry does not revive anything, not in force or existing at the time at which the repeal or expiry takes effect. This section obviously does not deal with Ordinances which are distinct from Acts. The Acts are permanent legislations placed on the statute Book for all time to conic while the Ordinances are temporary enactments which have got force only for a limited period, and it is on account of this fact that section 6 of the N.W.F P General Clauses Act-11 of 1932 is silent with regard to the Ordinances. In our view, therefore, when the, N. W. F. P Public Safety (Amendment) Ordinance 11 of 1952, ceased to operate, section 3 of the N.W.F.P Public Safety Act of 1948 revived." 16. The latest verdict of the Honorable Supreme Court, Pakistan Medical and Dental Council, through its President v. Muhammad Fahad Malik and others, Civil Appeals Nos.3 and 4 of 2018, Civil Petition No.3412 of 2017, and Civil Petitions Nos.45 and 64 to 70 of 2018, after surveying several judgments, puts it beyond pale of doubt. The relevant paragraph reads as under: "It is well-recognized that in case of any doubt or conflict between any two provisions of the Constitution, the Court has to construct the same harmoniously. First, it is to be determined whether or not there is any conflict between the provisions of Articles 89 and 264 of the Constitution. The clear mandate of Article 89 ibid is that while the President is authorized to make amendments in a permanent stature by promulgating an Ordinance, subject to the conditions mentioned therein, that Ordinance has been accorded only a limited period of effectiveness and operation, and cannot operate beyond that period unless given permanency by Parliament by making it an Art of Parliament. On the other hand, Article 264 of the Constitution provides, inter alia, that where a law is repealed, by. under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution, revive anything not in force or existing at the time at which the repeal takes effect, or affect the previous operation of the law or anything duly done or suffered under the law. Does the Constitution provide for anything to the contrary or otherwise in this regard? The answer to this is yes - Article 89 of the Constitution, which clearly provides otherwise, i.e. every Ordinance shall stand repealed on the expiration of 120 days from its promulgation or upon the passing of a resolution disapproving it if passed by the National Assembly or either House (as the case may be) before the expiration of that period, however, the National Assembly or either House (as the case may be) may by a resolution extend, only once, the Ordinance for a further period of 120 days. What is the effect of an Ordinance on a permanent statute? To our mind, the effect is of a temporary nature, namely, any
---
## Page 5
amendment/insertion/substitution made by it (the Ordinance) would only be for a limited period of 120 or at the most 240 days. unless provided permanency by Parliament by making it fin Act of Parliament. Of course, in that eventuality, it would become a permanent statute. A combined reading of both the Articles makes it manifest that the intention of the legislature appears to be to limit the Ordinance making power of the President and not to give the President unlimited power to amend/alter/modem, change/rescind a permanent statute, which, of course, falls within the domain of Parliament." 17. Summing it up the Ordinance No. V of 2012, having outlived its life as a temporary law, can have no legal force of its own to withstand the repealing effects of the Juvenile Justice System Ordinance. Resultantly, the decision on the revision petition would essentially turn upon the nature or equity of two statutes, the Anti-Terrorism Act, 1997 and the Juvenile Justice System Act, 2018. That, in turn, would help assess the impact of competing sections and their resultant legal impact. 18. The Sindh High Court in Qamar Hussain Shah's case (PLD 2006 Karachi 331, made following analysis of the general and special law: "I have already observed that the Juvenile Court created under Ordinance 2000 is the Court of general jurisdiction for taking cognizance and trial of all offences under any law, whereas the courts created under the CNS Act and A. T Act are the Courts of special jurisdiction to take cognizance and try offences mentioned under the said Acts, therefore, the provisions of both the Act are special provisions in comparison to such provisions of the Ordinance 2000." 19. The above observations seemingly fall short of describing the true essence of "general" and "special law". Thus, in People v. Wilcox 237 111. 421, 86 N.E. 672, one of the earliest expositions on the subject, the Court held: "The words 'local' and 'special' are frequently used interchangeably, although it is clear that they do not have the same meaning. The word 'local' signifies belonging to or confined to a particular place. When applied to legislation, it signifies such legislation as relates to only a portion of the territory of a state. Bouvier's Law Dict.; Burrill's Law Dict.; People v. O'Brien, 38 N Y. 193; People v. Newburgh, etc., Railroad Co., 86 N. Y. 1; Ellis v. Frazier, 38 Or. 462, 63 Pac. 642,53 L. R. A. 454. The word 'local' is used as a counter term to 'general'. The word 'special' appears to be more appropriately applied to laws that grant some special right, privilege, or immunity or impose some particular burden upon some portion of the people of the state less than all. State v. Corson; 67 NJ law. 178 ,50 Atl 780 " 20. Similarly, in State v. Johnson 170 N.C. 685, 86 S.E. 788 (N.C. 1915), it was held as under: "A law Is local when it pertains to a particular place or to a definite region or portion of space or is restricted to one place, as, for instance, a local custom; and it is special when It is different from others of the same general kind or designed for a particular purpose or is limited in range or confined to a prescribed field of action or operation; and so say the lexicographers" 21. For further clarity see Gunepally Thammayya and others v. Sri Rajah Tyadapusapati (1930) 59 MU 755: "In In re Smith's Estate. Clements v. Ward (1887) 35 Ch. 589 an earlier Act 43 Geo. 3, giving power to all persons to settle or devise lands or goods for any church, provided it was three months before death, was held not to be affected by the Married Women's Property Act, 1882, which gave absolute power to married women to dispose of property by will. Here the later Act is a special Act in the sense that it applied to married women and not to all persons, but the first Act is special in the sense that it dealt with property given to church, whereas the Married Women's Property Act dealt with all kinds of settlements and devises." 22. Therefore, the special law encompasses various eventualities: individuals objectives, and domains of activity. While the Juvenile Justice System Act, 2018 caters to specific persons, the Anti-
---
## Page 6
Terrorism Act, 1997 addresses a particular subject. It would' be wrong to characterize either of the laws as general. 23. It leads further to an examination of the clash between the two special laws. As a preliminary, the previous comparison between the Juvenile Justice System Ordinance, 2000 and the Anti- Terrorism Act, 1997 is no longer relevant. The legal framework has changed. The Juvenile Justice System Act, 2018 has no parallel provision to section 14 of the Ordinance. It includes a non-obstante please and provides an exclusive jurisdiction of the Juvenile Court to try juveniles' cases. The relevant sections read as follows; Section 4. Juvenile Court.--(4) The Juvenile Court shall have exclusive jurisdiction to try cases in which a juvenile is accused of the commission of an offence. Section 23. Act to override other laws. --The provisions of this Act shall have overriding effect notwithstanding anything contained in any other law for the time being in force. 24. Consequently, it is a conflict of two non-obstante clauses that require focus. In Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 SCMR 1218 Honorable the Supreme Court, held as follows: "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." 25. In the same vein, however, the Honorable Court added: "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". 26. For the foregoing, salient features of the two laws, the Anti-Terrorism Act, 1997 and the Juvenile Justice System Act, 2018 may be considered: InconsistencyJuvenile Justice System Act, 2018 Anti-Terrorism Act. 1997 ObjectWhereas it is expedient to provide for criminal justice system and social integration of juvenilesWhereas it is expedient to provide for the prevention of terrorism, secretarian violence and for speedy trial of heinous Offences and for matters connected therewith and incidental thereto PunishmentI. The Juvenile Court may, keeping in view the best interest of the child,- (a) pass an order for release of the juvenile offender after the victim or complainant, as the case may be, pardons him: Provided that the Juvenile Court may refuse to release the juvenile offender even if the victim or complainant pardons if the Juvenile Court for reasons to be recorded in writing considers that such release is either against the public policy or the interests of the State; (b) pass an order for the community service, fine,Whoever commits an act of terrorism under section 6 whereby death of any person is caused shall be punishable on conviction with death or with imprisonment for life and with fine
---
## Page 7
compensation to the victim or complainant restitution of property, counseling; (c) direct the juvenile offender to be released on probation for good conduct and place such juvenile offender under care of a guardian or any suitable person or such Juvenile Rehabilitation Centre established or certified for the purposes of this Act for any period not exceeding the period of confinement awarded to such juvenile; (d) direct the probation officer to submit probation report in prescribed manner: Provided that if a juvenile offender fails to comply with the orders or violates the conditions of orders of release on probation, the Juvenile Court may pass any order as it may think fit, including cancellation of probation order; or (e) make an order directing the juvenile offender to be sent to a Juvenile Rehabilitation Centre until he attains the age of eighteen years or till the completion of period of imprisonment, whichever comes earlier. 2. No person who was a juvenile offender at the time of commission of an offence shall be awarded punishment of death.
The arrested juvenile shall be kept in an observation home and the officer-in-charge of the police station shall, as soon as possible,- (a) inform guardian of the juvenile, if he can be found, of such arrest and inform him of the time, date and name of the Juvenile Court before which the juvenile shall be produced; and (b) inform the concerned probation officer to enable him to obtain such information about the juvenile andWhere a person is detained for investigation, the Investigating Officer, within twenty-four hours of the arrest, excluding the time necessary for the journey from the place of arrest to the Court, shall produce the accused before the Court, and may apply for remand of the accused to police custody, 2 or custody of any other investigating agency joined in the investigation for which the maximum period allowed may be not less than fifteen days and not morel than thirty days at one time:
---
## Page 8
other material circumstances which may be of assistance to the Juvenile Court for making inquiry. Arrest and Custody
Investigation The investigation officer designated under subsection (I) shall he 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. An investigating officer under this Act shall be an officer or Police Officer not below the rank of Inspector or equivalent or, if the Government deems necessary Joint Investigation Team to be constituted by the Government shall be headed by an Investigating Officer of Police not below the rank of Superintendent of Police, (BS- 18) and other officers of ill' may include equivalent rank from Intelligence Agencies, Armed Forces and Civil Armed Forces. The JIT shall comprise five members and for the meeting purposes the quorum shall consist of three members
Preventive Detention No…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.