Last Updated: Saturday December 22, 2007
The
Juvenile Justice System Ordinance, 2000
|
Ordinance XXII of
2000
Ist
July, 2000
An
ordinance
to provide for
protection of the rights of children involved in criminal litigation.
No. F. 2(1)/2000-Pub.,
dated
Whereas
it is expedient to provide for protection of children involved in criminal
litigation, their rehabilitation in society, reorganization of Juvenile Courts
and matters connected therewith and incidental thereto;
And whereas
the National Assembly and the Senate stand suspended in pursuance of the
Proclamation of Emergency of the fourteenth day of October, 1999, and the
Provisional Constitution Order No. 1 of 1999;
And whereas
the President is satisfied that circumstances exist which render it necessary
to take immediate action;
Now,
therefore, in pursuance of the Proclamation of Emergency of the fourteenth
day of October, 1999 and the Provisional Constitution Order No. 1 of 1999, as
well as Order No. 9 of 1999, and in exercise of all powers enabling him in that
behalf, the President of the Islamic Republic of Pakistan is pleased to make
and promulgate the following Ordinance:---
1. Short title and
commencement.-(1) This Ordinance may be called the Juvenile Justice System
Ordinance, 2000.
(2) It extends to the whole of
(3) It shall come into force at
once.
2.
Definitions.- In this Ordinance, unless
there is anything repugnant in the subject or context,-
(a) ‘Borstal[1]
institution’ means a place where child offenders may be detained and given
education and training for their mental, moral and psychological
development;
(b) ‘Child’ means a person
who at the time of commission of an offence has not attained the age of
eighteen years;
(c) ‘Code’ means the Code of
Criminal Procedure, 1898 (Act V of 1998);
(d) ‘Guardian’ means a parent or a person who has actual care of child
and includes such relative who is willing to bear the responsibility the child;
(e) ‘Juvenile Court’ means a
Court established under section 4;
(f) ‘Offence’ means an
offence punishable under any law for the time being in force; and
(g) ‘Probation Officer’ means a person appointed under the
Probation of Offenders Ordinance, 1960 (XLV of 1960), or such person as the
Provincial Government may appoint to perform the functions of Probation Officer
under this Ordinance.
Court
Decisions
Child:-- Child
under S. 2(b) of Juvenile justice System Ordinance, 2000 had been defined as a
person who, at the time of commission of offence, had not attained age of 18
years and under S.12 of the said Ordinance-Sentence of death could not be
awarded to a child and under S. 10(7), proviso (a) of the ordinance a child
who, for commission of an offence, had been detained, would be released on
bail, if being accused of an offence punishable with death had been detained
for a continuous period exceeding one year and whose trial for such an offence
had not been concluded-Accused being child having remained in jail for more
than a year, was granted bill. 2004 P Cr. L. J. 326
Child –
Determination of age-Accused, claiming himself to be a child within the
meaning of the juvenile justice System Ordinance, 2000 moved an application
that his trial be separated and he be dealt with in the terms of the said
ordinance-Trial Court got the accused examined from a Medical Board which reported
that the accused was 23 years of age and accordingly at the time of occurrence
he was about 20 years of age and accordingly at the time of occurrence he was
about 20 years of age-Trial court, however, summoned the Radiologist and a
Dental Surgeon who gave opinion that the age determined by the Medical Board
was not exact and there could be a variation of two to three years-Accused also
relied upon the Nikahnama of his parents and after enquiry through the Station
House Officer of the concerned Police Station which was in the affirmative,
prosecution was ordered by the Trial Court to prepare the separate challan of
the accused treating him in terms of the juvenile justice System Ordinance,
2000-Validity-High Court, ordinarily, would not summon the original record in
proceedings in revisions but in view of the procedure adopted by the Trial
Court, mandate of the juvenile justice System Ordinance, 2000 and with
concurrence of the parties requisitioned the same and found discrepancies and
irregularities in entries in the relevant record concerning birth of the child
and the marriage of the parents of the accused and unusual features of binding
of the relevant Registers of the Union Council concerned-Trial court had not
occasion to summon the Radiologist and the Dental surgeon, even if they had
been summoned, their opinion could be interpreted either way and there was
nothing on record an no tenable reason existed either to interpret the opinion
of those two doctors in favour of the accused-orders by the Trial Court were
against the weight of record and material placed before the court-Trial court,
in view of such evidence, could not declare the accused to be of less than
eighteen years of age at the time of occurrence, which orders were set aside by
the High Court in revision with the direction to the Trial Court to decide the
case of the accused as an ordinary court. PLD 2003 Lah. 457
3.
Legal assistance.-(l) Every child who is
accused of the commission of an offence or is a victim of an offence shall have
the right of legal assistance at the expense of the State.
(2) A legal practitioner appointed
by the State for providing legal assistance to a child accused of the
commission of an offence, or victim of an offence, shall have at least five
years standing at the Bar.
4.
Juvenile Courts.-(l) The Provincial
Government shall in consultation with the Chief Justice of High Court, by
notification in the official Gazette, establish one or more Juvenile Courts for
any local area within its jurisdiction.
(2) The High Court may-
(a) Confer powers of Juvenile Court
on,---
(i) Court of Sessions; or
(ii) Judicial Magistrate of the
First Class; and
(b) Appoint, from amongst practising
Advocates having at least’ seven years standing at the Bar, Presiding Officers
of Juvenile Courts with powers of a Judicial Magistrate of the First Class for
the purposes of this Ordinance on such terms and conditions as the High Court
may determine.
(3) The Juvenile Court shall have
the exclusive jurisdiction to try cases in which a child is accused of
commission of an offence.
(4) Subject to subsection (3), on
commencement of this Ordinance, all cases pending before trial Court in which a
child is accused of an offence shall stand transferred to the Juvenile Court
having jurisdiction.
(5) The Juvenile Court shall not, merely
by reason of a change in its composition, or transfer of a case under
subsection (4), be bound to recall or rehear any witness who has given evidence
and may act on the evidence already recorded.
(6) On taking cognizance of an
offence, the Juvenile Court shall decide the case within four months.
5.
No joint trial of a child and adult person.-(1)
Notwithstanding anything contained in section 239 of the Code, or any other law
for the time being in force, no child shall be charged with or tried for an
offence together with an adult.
(2) If a
child is charged with commission of an offence for which under section 239 of
the Code, or any other law for the time being in force such child could be
tried together with an adult, the Court taking cognizance of the offence shall
direct separate trial of the child by the Juvenile Court.
Court
Decisions
Separation
of trial--Accused claimed separation of trail on the ground that at the
time of offence his age was less than 18 years-Medical Board, after examination
of the accused found him of 20 years of age at the time of examination-Trail
court declined to separate the trial of the accused-Plead raised by the accused
was that Trial court had placed reliance on ossification test and had ignored
Birth Certificate and School Leaving certificate-Validity-High court had
rightly dismissed the revision petition filed by the accused against the order
the Trial court-Leave to appeal was refused. 2004 S C M R 121
6.
Procedure of Juvenile Courts.-(l)
Juvenile Court shall, unless provided otherwise in this Ordinance, follow the
procedure provided for in the Code.
(3) No person shall be present at
any sitting of a Juvenile Court except,---
(a) Members and officers of the
Juvenile Court;
(b) Parties
to the case before the Juvenile Court and such other persons who are directly
concerned with the proceedings including the police officers;
(c) Such
other persons as the Juvenile Court directs to be present; and
(d) Guardian of the child.
(4) At
any stage during the course of the trial of a case under this Ordinance, the
juvenile Court may, in the interest of such child, decency or morality, direct
any person to withdraw from Court for such period as the Court may direct.
(5) Where at any stage
during the course of the trial of a case, the juvenile Court is satisfied that
the attendance of the child is not essential for the purposes of the trial, the
juvenile Court may dispense with the attendance and proceed with the trial of the
case in absence of the child.
(6) When child who has been brought
before a juvenile Court and is found to be suffering from serious illness,
whether physical or mental, and requires treatment, the Court shall send such
child to a hospital or a medical institution where treatment shall be given to
the child at the expense of the State.
7.
Determination of age.-If a question
arises as to whether a person before it is a child for the purposes of this
Ordinance, the juvenile Court shall record a finding after such inquiry which
shall include a medical report for determination of the age of the child.
Court
Decisions
Determination
of age-Accused, claiming himself to be a child within the meaning of the
juvenile justice System Ordinance, 2000 moved an application that his trial be
separated and he be dealt with in the terms of the said ordinance-Trial Court
got the accused examined from a Medical Board which reported that the accused
was 23 years of age and accordingly at the time of occurrence he was about 20
years of age and accordingly at the time of occurrence he was about 20 years of
age-Trial court, however, summoned the Radiologist and a Dental Surgeon who
gave opinion that the age determined by the Medical Board was not exact and
there could be a variation of two to three years-Accused also relied upon the
Nikahnama of his parents and after enquiry through the Station House Officer of
the concerned police Station which was in the affirmative, prosecution was
ordered by the Trial Court to prepare the separate challan of the accused
treating him in terms of the juvenile justice System Ordinance,
2000-Validity-High Court, ordinarily, would not summon the original record in
proceedings in revisions but in view of the procedure adopted by the Trial
Court, mandate of the juvenile justice System Ordinance, 2000 and with
concurrence of the parties requisitioned the same and found discrepancies and
irregularities in entries in the relevant record concerning birth of the child
and the marriage of the parents of the accused and unusual features of binding
of the relevant Registers of the Union Council concerned-Trial court had not
occasion to summon the Radiologist and the Dental surgeon, even if they had
been summoned, their opinion could be interpreted either way and there was
nothing on record an no tenable reason existed either to interpret the opinion
of those two doctors in favour of the accused-orders by the Trial Court were
against the weight of record and material placed before the court-Trial court,
in view of such evidence, could not declare the accused to be of less than
eighteen years of age at the time of occurrence, which orders were set aside by
the High Court in revision with the direction to the Trial Court to decide the
case of the accused as an ordinary court. PLD 2003 Lah. 457 Intent and
import-Determination of age of a child under S. 7 of the Juvenile Justice
System ordinance, 2000, has been unambiguously left to the judgment of Trial
court, but in the event of inquiry medical report has to be compulsorily
obtained which would be of extreme importance. 2004 P. Cr. L. J 105
Separation of trial-Accused
claimed separation of trail on the ground that at the time of offence his age
was less than 18 years-Medical Board, after examination of the accused found
him of 20 years of age at the time of examination-Trail court declined to
separate the trial of the accused-Plead raised by the accused was that Trial
court had placed reliance on ossification test and had ignored Birth
Certificate and School Leaving certificate-Validity-High court had rightly
dismissed the revision petition filed by the accused against the order the
Trial court-Leave to appeal was refused. 2004 S C M R 121
Question
relating to the age of a claimant in term of S. 7, juvenile justice System
Ordinance, 2000 can only be determined by a judicial forum for it is a question
of fact which can be settled judiciously for the purpose of treating the
accused to be a juvenile offender-Executive Authorities or any Committee
constituted by them enjoy no powers to discharge the judicial functions and if
they are allowed to do so, that would negate the independence of judiciary as
any court or Tribunal which is not found on any of the Articles of the
Constitution cannot lawfully share judicial powers with the Courts referred to
in Arts. 175 & 203 of the constitution-Sessions judge/juvenile Court, if
required to determine the age of an offender, who claims himself to be below 18
years, at the time of commission of the offence, may dispose of his request
expeditiously because by advancing such plea by a convict, element of causing
delay in execution of the death sentence cannot be ruled out. PLD 2003 SC
656
8.
Prohibition to publish proceedings of cases.-(l)
Unless the juvenile Court specifically authorizes, the Court proceedings shall
not be published in any newspaper, magazine or journal in any form which may
disclose the name, address, school or any identification or particulars
calculated to lead directly or indirectly to the identification of such child
nor shall any picture of the child be published.
9.
Probation Officer.-(l) The Probation
Officer shall assist the juvenile Court by making a report on the child’s
character, educational, social and moral background.
(2) Subject to subsection (3) the
report of the Probation Officer submitted to the juvenile Court shall be
treated as confidential.
(3) The juvenile Court may, if it
so thinks fit, communicate the substance of the report to (like child or his
guardian and, where any one of them disputes the contents or views contained
therein, the juvenile Court may give such child or, as the case may be,
guardian an opportunity of producing such evidence as may be relevant to the
matter stated in the report.
10. Arrest and bail.-(1) Where
a child is arrested for commission of an offence, the officer incharge of the
police station in which the child is detained shall, as soon as may be, inform-
(a) The
guardian of the child, if he can be found, of such arrest and inform him of the
time, date and name of the juvenile Court before which the child shall be
produced; and
(b) The
concerned Probation Officer to enable him to obtain such information about the
child and other material circumstances which may be of assistance to the
juvenile Court for making inquiry.
(2) Where a child
accused of a non-bailable offence is arrested, he shall, without any delay and
in no case later than twenty-four hours from such arrest, be produced before
the juvenile Court.
(3) Without
prejudice to the provisions of the Code, a child accused of a bailable offence
shall, if already not released under section 496 of 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 the child shall bring
him into association with any criminal or expose the child to any danger, in
which case, the child shall be placed under the custody of a Probation Officer
or a suitable person or institution dealing with the welfare of the children if
parent or guardian of the child is not present, but shall not under any
circumstances be kept in a police station or jail in such cases.
(4) The juvenile Court shall, in a
case where a child is not granted bail under subsection (3), direct for tracing
the guardian of such child and where the guardian of the’ child is traced out,
the juvenile Court may immediately release the child on bail.
(5) Where a child under the age of
fifteen years is arrested or detained for an offence, which is punishable with
imprisonment of less than ten years, shall be treated as if he was accused of
commission of a bailable offence.
(6) No child under the age of
fifteen years shall be arrested under any of the laws dealing with preventive
detention or under the provisions of Chapter VIII of the Code.
(7) Notwithstanding anything
contained in the Code and except where a juvenile Court is of the opinion that
the delay in the trial of the accused has been occasioned by an act or omission
of the accused or any other person acting on his behalf or in exercise of any
right or privilege under any law for the time being in force, a child who, for
commission of an offence, has been detained, shall be released on bail,-
(a) If, being
accused of an offence punishable with death has been detained for such an
offence for a continuous period exceeding one year and whose trial for such an
offence has not concluded;
(b) If, being
accused of any" offence punishable for imprisonment for life has been
detained for such an offence for a continuous period exceeding six months and
whose trial for such offence has not concluded; or
(c) Who,
being accused of any offence not punishable with death, or imprisonment for life,
has been detained for such an offence for a continuous period exceeding four
months and whose trial for such an offence has not concluded:
Provided that
where a child of the age of fifteen years or above is arrested, the Court may
refuse to grant bail if there are reasonable grounds to believe that such child
is involved in an offence which in its opinion is serious, heinous, gruesome,
brutal, sensational in character or shocking to public morality or he is a
previous convict of an offence punishable with death or imprisonment for life.
11.
Release on probation. -- Where on
conclusion of an inquiry or trial, the juvenile Court finds that a child has
committed an offence, then notwithstanding anything to the contrary contained
in any law for the time being in force, the juvenile Court may, if it thinks
fit-
(a) Direct the child offender to be
released on probation for good conduct and place such child under the care of
guardian or any suitable person executing a bond with or without surety as the
Court may require, for the good behaviour and well-being of the child for any
period not exceeding the period of imprisonment awarded to such child:
Provided that
the child released on probation be produced before the juvenile Court
periodically on such dates and time as it may direct.
(b) Make an
order directing the child offender to be sent to a Borstal institution until he
attains the age of eighteen years or for the period of imprisonment whichever
is earlier.
(c) Reduce
the period of imprisonment or probation in the case where the Court is
satisfied that further imprisonment or probation shall be unnecessary.
12. Orders that shall not be passed with
respect to a child.---Notwithstanding anything to the contrary contained in
any law for the time being in force no child shall be,---
(a) Awarded
punishment of death, or ordered to labour during the time spent in any Borstal
or such other institution; and
(b) Handcuffed,
put in fetters or given any corporal-punishment at any time while in
custody:---
Provided that
where there is reasonable apprehension of the escape of the child from custody,
he may be handcuffed.
13. Appeal etc.-(1) A child
convicted on a trial by a juvenile Court, or any other person on his behalf,
may, within thirty days from the date of such order, prefer an appeal in
accordance with the provisions of the Code.
(2) The
Provincial Government or any person aggrieved by an order if acquittal passed
by a juvenile Court, may, within thirty days, prefer an appeal against such
order in accordance with the provisions of section 417 of the Code.
14. Ordinance not to derogate from other
laws.-The provisions of this Ordinance shall be in addition to and not in
derogation of, any other law for the time being in force.
15.
Power to make
rules.- The Provincial Government may, by notification in the official
Gazette, make rules for carrying out the purposes of this Ordinance.
[1] Reformatory, reform school.
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