Constitution of Pakistan, Criminal Procedure Code and Child Rights

Published as PLD 2002 Jou.269.

This article was read “at two days workshop on Juvenile Justice System” at Rahim Yar Khan on 23rd and 24th of August, 2002 organized by the Social Welfare Punjab in collaboration with UNICEF.
Considering children, physically and mentally immature, U.N.O. has repeatedly held conventions on the international level and the last convention is known as, “Convention on the Rights of the Child 1990” [1] Where the nation states considered the principles to make the children useful, important and productive not only for their families but also for the society. [2] Pakistan has also adopted the convention and in spite of the presence of laws on statute Books concerning the child Rights, a new law, “Juvenile Justice System Ordinance, 2000” has been introduced. The first law on the subject, “Reformatory Schools Act” dealing with the juvenile convict was introduced in 1897 and then Punjab Borstal Act, 1926 require for the establishment of Borstal School for segregating adolescent prisoners and the first comprehensive law on the juvenile justice system came in the shape of Punjab Youthful Offenders Act, 1952, Punjab Youthful Offenders Ordinance, 1983 is also the recent law on the subject but these laws lack enforceability. [3] Moreover, under section 399, Criminal Procedure Code juvenile under 15 years of age are required to be kept in reformatories and under section 497(1), Cr.P.C. under 16 years, children can get the concession of bail although age limit provided under Youthful Offenders Act, 1952 and Employees of Children Act, 1991 is 14 years and Youthful Offenders Act, 1983 provides 15 years.
The trial of Juveniles under section 5 of Juvenile Justice System Ordinance, 2000 is causing difficulty for the trial Courts. The separation of their trial under section 239, Cr.P.C. is in conflict with section 526(1)(d) and the convenience of the witnesses has been ignored. Moreover, a double set of witnesses would culminate into conflicting judgments. [4] Section 22 of Youthful Offenders Act, 1952 provides that sections 75, P.P.C. and 565, Cr.P.C. providing disqualification under the law would have no effect in cases of children.
The standard of welfare of children required by the law is looking impracticable due to the lack of Jail-cum-Borstal Institution in the country.
There are only two institutions in Punjab, one at Faisalabad and other at Bahawalpur and the only institution in Sindh is at Landi. A separate juvenile circle has been established in the central prison at Peshawar. Similarly the prison at Haripur also has a juvenile camp, situated at Nathiagali. In Balochistan, they are housed separately in Mach Jail. [5] Therefore, Borstal Institution must be established at District level for the best Physical, Mental and spiritual training of the children.
The procedural advantages and benefits given to the children under the Juvenile Justice System Ordinance, 2000 are debatable on the touchstone of Constitution of Pakistan as follows:–
(1) Under section 2(b) age of child has been considered under 18 years but Employment of Children Act, 1991 provides 14 years and it has been presumed by the law that a child above the age of 14 years can start his social life and he can work in the factory. Then, if there is a presumption that a child above the age of 14 years has sufficient maturity to work in a factory, then it must also be presumed that he can also commit crime with a sensible approach. [6]
(2) Under section 3, every child must not be given the right to have legal assistance at State expense but only those children whose guardian is State. Moreover, under rule 3(3) it is provided that the fee of the counsel shall be between Rs.5,000 to Rs. 10,000 but this principle must be for all the offenders on whose behalf State Counsel are being appointed. [7]
(3) Section 4(6) provides that trial of the juvenile shall be completed within 4 months but State has provided no special machinery i.e. staff and Court rooms but in the existing set-up, it is only possible at the cost of others and if the people of other age would remain suffer due to the procedure adopted for the juvenile, then they would be frustrated by facing inequality which will invite conflicts. [8]
(4) Under section 6(2) it is provided that a juvenile Court shall not ordinarily take up any other case on a day when the case of a child accused is fixed for evidence on such day. Perhaps this provision of law has been enacted by considering the judge as servant and it would become difficult for a judge to run administration in his Court and after the disposal of his cause list, he would become idle as the cases not fixed on the cause list cannot be fixed on today’s notice.
(5) Under section 6(3) persons have been specified who can remain present at trial of a juvenile and even among these persons, the Court can direct a person to go outside. But in family cases, Courts remain open for all although there exist dispute of domestic and private nature but when there is an offender who has committed public wrong, then every member of the public must have opportunity to watch the proceedings in order to get confidence on Courts. [9]
(6) Sections 10(7) and 4(6) are conflicting provisions, when it has been made mandatory to conclude trial within a period of 4 months, then there must not be flexibility in the shape of statutory delay under section 10(7) for the purpose of grant of bail. Perhaps, the legislation intends to give benefit of provision 10(7) in connection with section 426, Cr.P.C.
(7) Section 12(a) provides that a juvenile cannot be awarded a death sentence but there is no indication in Qur’an and Sunnah in support of this provision and the other concessions. Under Article 1 Pakistan is not only Republic but Islamic Republic of Pakistan [10] and since 1985, Article 2A has become substantive part of the Constitution and know repugnancy of any sub-Constitutional provision of law can be judged on the touchstone of Article 2A of the Constitution of Pakistan as has also become controlling and supervening provision and every man made law must now confirm to the Injunction of Islam as contained in Qur’an and Sunnah of the Holy Prophet (peace be upon him). Therefore, even the fundamental rights as given in the Constitution must not violate the norms of Islam. [11] Moreover, Article 227 also directs that existing laws shall be brought in conformity with the Injunction of Islam as laid. down in Qur’an and Sunnah. Under Article 31(1) Islamic way of life is to be adopted. Therefore, it is provided in the Holy Qur’an Sura Baqra ayat 178:–

Therefore, there is no age specification for claiming Qisas in this Ayat. However, the victim or his Wali can grant pardon, so the concession for juveniles is permissible under Shariah only with the consent of Wali. However, if there is no. Wali, then State is the Wali of the victim and can decide which is
in rare cases and in a recent case reported as PLD 2002 Lah. 406, the State was ordered to pay compensation as a special case. Moreover, Islamic legal system is grounded on the principles of equity and morality. Islam strictly prohibits any distinction or discrimination among the people as the Holy Prophet (p.b.u.h.) said in the Last Sermon that, “all mankind is the progeny of Adam and Adam was made of clay”. The Holy Prophet went on to elaborate, “there is no superiority for an Arab over a non-Arab and for non-Arab over an Arab nor for the white over the black and black over the white or the high over the low or low over the high except in God consciousness.” [13].
In the U.S.A., Canada, Japan and the U.K. the issue of criminal liability of a child is decided not on the basis of any prescribed age limit but a study of the mental and psychological quantity of the child and his role in the commission of an offence. There is no uniform international practice on the question of fixing the maximum age limit for availing the benefit of being tried and treated as juvenile. [14] Therefore, it is required to review the juvenile justice system especially the issue fixing maximum age limit in view of Islamic concept of child right, the already exiting laws and cultural requirements as family system and caste system prevailing in our country is unique in all over the world and if the law may’t be amended, then there would be a continuous threat to peace in our society as the trend to get private revenge would be increased and some can consider that enactment has been planned only to keep the society disturbed. Muhammad Bin Qasim, Sikandar-e-Azam and Muhammad Ali (Boxer) are the names who got world fame when they were below 18, then fixing the maximum age limit is also against logic.
I am personally witness of a case which came into my knowledge during my last visit to Adult Literacy School in District Jail, Rahim Yar Khan on 20-8-2002 as representative of the N.G.O. where I met a juvenile whose elder brother committed murder but he confessed the guilt in order to get the benefit of the juvenile law and he was challaned. By this way, the law is also being misused. Perhaps a proper and bold presentation with the aim to prove that the world can get enlightenment from Islamic concepts on child rights on behalf of Pakistan wasn’t made in the Child Right Convention 1990. However, we can amend the law according to our social requirements without making the international community dissatisfied.

References:
PLD

1. 2002 J. 159
2. 1995 J. 27
3. 1995 J. 54
4. 2002 J. 159
5. 1995 J. 54
6. Section 11(3), Employment of Children Act, 1991
7. Section 13, Youthful Offenders Act, 1952.
8. Article 25, Constitution of Pakistan
9. Public Law and Private Law frons Salmond’s Jurisprudence.
10. Amendment, 1963.
11. 1993 SCMR 171812.Para. 2 Sura Baqra, Ayat 178.
12. 1998 J. Administration of Justice as Organized by the Prophet of Islam.
13. 1995 J. 54.