PESHAWAR: A single-member Peshawar High Court bench has ruled that a suspected juvenile offender does not fall in the definition of a child at risk, so he or she should be tried by a juvenile court and not by a child protection court.

Justice Roohul Amin Khan Chamkani ruled that a juvenile offender could only be tried by a child protection court set up under the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, if the victim in the offence was a child.

“In essence, any offence committed by a juvenile or adult against a ‘child at risk’ shall be triable by the court established under the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, while an offence committed by a child against an adult shall be tried by the court created under the Juvenile Justice System Act, 2018,” the court ruled.

The bench has set aside an order of Peshawar’s child protection court turning down the plea of a complainant that the court has no jurisdiction to conduct the trial of a juvenile person charged with killing a person and that the trial should be transferred to a juvenile court notified under the JJSA.

Declares such an accused not child at risk

The criminal appeal of the appellant or complainant, Irshad Khan, was accepted by the bench last month.

The bench, in its detailed judgment, directed the additional registrar (judicial) of the high court to circulate the copy of the judgment among the sessions judges, juvenile courts and child protection courts for compliance with the findings in future.

It ruled that the impugned order of the trial court/child protection court on June 24, 2019, was set aside and the trial of the accused (juvenile offender) should be entrusted to the special court established under the JJSA, for onward proceedings.

Shabbir Hussain Gigyani, lawyer for the appellant, said the trial court, which was established under the CPWA 2010, had no jurisdiction to try the juvenile accused and that the trial should have been transferred to a court set up under the JJSA.

He said a juvenile accused could not be termed as a ‘child at risk’ as declared by the CPWA 2010.

The bench observed that the CPWA, 2010, and JJSA 2018, had the status of special laws and that the former was provincial legislation and the latter was enacted by the federal legislator.

“Preambles of both Acts reveal that these are dealing with child/children but in two different situations,” it added.

The bench observed: “The Act of 2018, provides for criminal justice system and social reintegration of juveniles, whereas the Act of 2010, has been enacted to provide care, protection, maintenance, welfare, training, education, rehabilitation and reintegration of “children at risk’ in Khyber Pakhtunkhwa.”

The bench ruled that the purpose of the CPWA 2010 was the protection of the children who are at risk and not accused, therefore, the same could not be stretched in such a way so as to give shelter to a juvenile who is accused of an offence.

The bench has also quoted the definition of “Child at risk” as given in the CPWA 2010, which included orphans, children with disability, children of migrant workers, street children, child beggars, child living in a brothel or with a prostitute, is likely to be abused or exploited for immoral or illegal purpose, is victim of an offence punishable under this law, etc.

The bench ruled that after going through the preamble of both the Acts couple with the meaning of “child at risk” under section 2 (e) of the Act of 2010 and “Juvenile” under Section 2(h) of the Act of 2018, it could be safely held that in the instant case the accused being a juvenile did not fall within the ambit of “child at risk” rather, came within the meaning of juvenile under the JJSA 2018.

“Had the complainant/appellant of the instant case was a victim child within the meaning of Section 2(e) of the Act of 2010, and the accused/ respondent a juvenile accused, then the case of the accused was to be tried by the court established under the KP CPWA, 2010, but in the case in hand, the situation is contrary.”

Published in Dawn, April 10th, 2020