Landmark Judgement on juvenile system .
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| Landmark Judgement on juvenile system . |
نابالغوں کی حفاظت اور انصاف کے لیے موجود قوانین کے تناظر میں پیش آیا۔ عدالت نے پولیس کی جانب سے ایک نابالغ بچے کو بازیاب کرانے کا حکم دیا
### کیس کی تفصیلات: پولیس سے بچے کی بازیابی
**پیش منظر:**
یہ کیس نابالغوں کی حفاظت اور انصاف کے لیے موجود قوانین کے تناظر میں پیش آیا۔ عدالت نے پولیس کی جانب سے ایک نابالغ بچے کو بازیاب کرانے کا حکم دیا، جو ایک اہم اور حساس معاملہ تھا۔
**کیس کی کہانی:**
1. **بچے کی گرفتاری:**
- پولیس نے نابالغ بچے کو حراست میں لے لیا تھا۔ تاہم، قانون کے مطابق نابالغوں کو مخصوص طریقہ کار کے تحت ہی حراست میں لیا جا سکتا ہے، اور انہیں بالغوں سے علیحدہ رکھا جانا ضروری ہے۔
2. **عدالتی مداخلت:**
- عدالت نے بچے کی پولیس حراست کے معاملے کا نوٹس لیا اور اس بات کو یقینی بنایا کہ بچے کی قانونی حقوق کی خلاف ورزی نہ ہو۔ عدالت نے بچوں کے حقوق کے تحفظ کے لیے قانون کی تعمیل کو اہمیت دی اور اس بات کی تصدیق کی کہ بچے کو مناسب سہولتیں فراہم کی جائیں۔
3. **بچے کی بازیابی:**
- عدالت نے پولیس کو حکم دیا کہ بچے کو فوراً بازیاب کیا جائے اور اسے قانون کے مطابق قانونی اور سماجی تحفظ فراہم کیا جائے۔ عدالت نے پولیس کو اس بات کی یقین دہانی کرائی کہ بچے کی حفاظت اور اس کے حقوق کی مکمل رعایت کی جائے۔
4. **بچوں کے حقوق کی حفاظت:**
- عدالت نے پولیس اور دیگر متعلقہ اداروں کو ہدایت دی کہ نابالغوں کے حقوق کی خلاف ورزی سے بچنے کے لیے مناسب اقدامات کیے جائیں۔ عدالت نے اس بات کو یقینی بنایا کہ نابالغوں کی گرفتاری اور حراست میں قانونی ضوابط کی مکمل پیروی کی جائے۔
**نتیجہ:**
عدالت نے بچے کی بازیابی کو ایک کامیابی قرار دیا اور اس بات کو یقینی بنایا کہ نابالغوں کی قانونی اور انسانی حقوق کی مکمل پاسداری کی جائے۔ اس معاملے نے یہ واضح کیا کہ عدالت بچوں کے حقوق کے تحفظ میں سنجیدہ ہے اور قانون کی صحیح طور پر عمل درآمد کی نگرانی کرتی ہے۔
---
یہ تفصیل عدالت کی کارروائی اور نابالغ بچے کی بازیابی کے عمل کو بیان کرتی ہے، جس میں بچوں کے حقوق اور انصاف کے تحفظ کی اہمیت کو اجاگر کیا گیا ہے۔
Must read judgement.
Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.40169/2024
(Rehana Nazir vs. District Police Officer, etc.)
JUDGMENT
Dates of
hearing:
27.06.2024, 01.07.2024,
03.07.2024,
09.07.2024,
15.07.2024 and 19.07.2024
Petitioner by:
Nemo.
State by:
Mr. Shahid Nawab Cheema AAG with Noor-ul-Amin
Mengal, Secretary Home, Muhammad Iqbal Khan, Secretary
Social Welfare and Bait-ul-Maal Deptt., Mirza Nasar Ahmad,
Additional Attorney General, Asad Ali Bajwa, Deputy
Attorney General, Mohsin Raza Bhatti and Ijaz Ahmad
Basra, Assistant Attorneys General, Syed Farhad Ali Shah,
Prosecutor General Punjab, Hafiz Asghar Ali, Deputy
Prosecutor General, Mr. Muhammad Usman Anwar,
Secretary Public Prosecution Deptt., Owais Nauman Kundi,
Additional Secretary (Admin), Wajid Aziz, S.O. (Lit), Mr.
J.R. Sultan Section Officer, Abdul Rauf Addl. Secretary,
Asmat Ullah Hunjra & Nawazish Ali Directors, PPD, Asim
Raza Addl. Secretary, Prisons, Dr. Qadeer Alam AIG,
(Judicial), Inspectorate of Prisons, Aamir Shafique Addl.
Secretary, Tariq Ismail Litigation Officer, Husnain Khalid,
Director Program, Muhammad Mumtaz Child Protection
Officer, Shama Ilyas CPO, Mrs. Shazia Child Psychologist,
Dr. Qais-ul-Malook, Medical Officer and Muhammad Riaz
S.P/Investigation, Gujrat.
Amici Curiae:
M/s. Kamran Bashir Mughal, Aftab Maqsood and Dr. Zahid
Farooq, Advocates.
ALI ZIA BAJWA, J.:- Through this constitutional
petition, filed under Article 199 of the Constitution of the Islamic Republic
of Pakistan, 1973 (hereinafter referred to as ‘the Constitution’), read with
Section 491 of the Criminal Procedure Code, 1898 (hereinafter referred to
as ‘the Code’), the petitioner sought the indulgence of this Court for the
recovery of her grandson, namely Ghulam Murtaza (hereinafter ‘the
detenu’) aged eleven years from the alleged illegal custody of respondent
No. 3, Hassan Abbas.
Writ Petition No.40169/2024
2.
The detenu was presented before this Court by the Station
House Officer, Police Station Dinga, District Gujrat, who apprised the
Court that he (the detenu) was implicated in a theft case. It was further
conveyed that, following the provisions of the Juvenile Justice System Act,
2018 (hereinafter referred to as ‘The Juvenile Act’), the detenu has been
released on a surety bond. The detenu appeared in a pitiable condition,
seemingly falling squarely within the definition of a ‘destitute and
neglected child’ as delineated under Section 1(k) of The Punjab Destitute
and Neglected Children Act, 2004 (hereinafter referred to as ‘The Child
Act’). His custody was handed over to the Child Protection and Welfare
Bureau, Punjab. A report filed by the Superintendent of Police
(Investigation) of District Gujrat revealed that the detenu has five other
siblings. Both the detenu and his brother, Ahmed, are involved in criminal
activities with the active knowledge of the petitioner and their mother,
Nabeeha. The younger sister of detenu, Shaheen Fatima, was also presented
before the Court, suffering severely from skin diseases on her head. The
custody of the neglected and destitute minors, Ahmed and Shaheen Fatima,
was also entrusted to the Child Protection and Welfare Bureau, Punjab.
3.
Reports of the concerned quarters indicate a disturbing lack of
effort to properly implement The Juvenile Act. The learned Law Officers,
representing both the Federal and Provincial Governments, unequivocally
submit that their respective departments are ready to fulfill their obligations
under The Juvenile Act to ensure its effective implementation.
4.
At the heart of our criminal justice system, the treatment of
child offenders should be guided by a reformative approach. These young
individuals, often led astray by difficult circumstances, deserve a chance to
find their way back to normal life and become valuable members of society.
By focusing on reformation rather than punishment, we address the root
causes of their behaviour. We give them the tools they need to succeed and
prevent them from returning to a life of crime. Each child reformed is a
success for our community, showing that with the right support, everyone
can change for the better. To quote Nelson Mandela, ‘There can be no
keener revelation of a society’s soul than the way in which it treats its
children.
Writ Petition No.40169/2024
5.
International law strongly advocates for a reformative
approach while dealing with child offenders. The United Nations
Convention on the Rights of the Child (UNCRC), the UN Standard
Minimum Rules for the Administration of Juvenile Justice (Beijing Rules,
1985), and the Guidelines for the Prevention of Juvenile Delinquency
(Riyadh Guidelines, 1990) are key international legal instruments that bind
Pakistan to ensure the proper treatment and protection of juvenile
offenders. These instruments require Pakistan to uphold the rights of
children, prioritize their rehabilitation over punishment, and implement
measures to prevent juvenile delinquency. The UNCRC is a comprehensive
human rights treaty that outlines the civil, political, economic, social,
health, and cultural rights of children. Adopted by the United Nations
General Assembly on November 20, 1989, the UNCRC is the most widely
ratified human rights treaty in history, highlighting the global commitment
to the well-being and protection of children. Pakistan is a signatory to the
UNCRC, having ratified the treaty on December 12, 1990. Pakistan, as a
signatory to several international treaties and conventions, has specific
responsibilities regarding the treatment of child offenders. The primary
international instruments that shape Pakistan’s obligations include the
UNCRC and its associated protocols.
6.
It took over a decade for Pakistan to promulgate its first
exclusive law dealing with juvenile offenders. This landmark legislation,
the Juvenile Justice System Ordinance of 2000 (JJSO), was enacted in July
2000. The JJSO served as the cornerstone of juvenile justice in Pakistan,
providing a framework for the treatment and rehabilitation of young
offenders. However, as global perspectives on juvenile justice evolved, the
need for more comprehensive legislation became obvious. On May 24,
2018, Pakistan ushered in a new era with the enactment of The Juvenile
Act. This Act replaced the JJSO, marking a renewed commitment to the
protection and rehabilitation of juvenile offenders. The Juvenile Act builds
upon the foundations laid by the JJSO, incorporating modern principles of
juvenile justice and ensuring alignment with international standards. It
emphasizes the importance of rehabilitation over punishment, education
over incarceration, and the inherent worth and potential of every child. With
Writ Petition No.40169/2024
The Juvenile Act, Pakistan has reaffirmed its dedication to nurturing its
younger citizens, offering them hope and a pathway to a brighter future.
The Juvenile Act harmonizes the legal framework of Pakistan with the
principles outlined in key international instruments, emphasizing
protection, dignity, and the opportunity for reform. It would be pertinent to
take a comprehensive overview of the dynamic provisions within The
Juvenile Act to fully grasp the legal framework it establishes.
Legal Assistance at State Expense
7.
Every juvenile offender or a victim child of an offence is
entitled to legal assistance at the expense of the State. Within twenty-four
hours of being taken into custody, a juvenile must be informed of his legal
rights by a legal practitioner. The legal practitioner, appointed by the
relevant Provincial Government department or the Juvenile court to assist
the child victim or juvenile offender, must have a minimum of seven years
of experience at the Bar.1
It provides legal assistance not only to a child
who is a victim of an offence but also to a child who is accused. This
provision ensures state-funded legal assistance for juveniles, both victims
and accused, informing them of their legal rights within twenty-four hours
of custody. It requires appointed lawyers to have at least seven years of
experience, aiming to protect rights, ensure justice, comply with
international standards, prevent wrongful convictions, and uphold a fair,
child-sensitive legal process.
Constitution of Juvenile Courts
8.
Under Section 4 of The Juvenile Act the Prime Minister, in
consultation with the concerned High Court, shall establish or designate
Juvenile Courts within three months of the commencement of this Act, as
notified in the official Gazette. These courts may serve one or more
Sessions Divisions, and trials may be held at locations specified by the High
Court. Judges appointed to Juvenile Courts must be Sessions Judges,
Additional Sessions Judges, Judicial Magistrates with the powers of
Section 30 of the Code or practicing advocates with at least ten years at the
1 Section 3 of The Juvenile Act
Writ Petition No.40169/2024
Bar, appointed under the terms set by the Prime Minister in consultation
with the High Court. Juvenile Courts have exclusive jurisdiction over cases
where a juvenile is accused of an offence. All such pending cases at other
trial courts will be transferred to the appropriate Juvenile Court upon the
commencement of The Juvenile Act. Changes in the court’s composition
or case transfers will not necessitate recalling or re-hearing witnesses;
existing evidence remains valid.
9.
The Juvenile Court is mandated to decide cases within six
months of taking cognizance. If unable to meet this deadline, the court must
seek an extension from the High Court, explaining the delay. Failing this,
the complainant or juvenile may apply to the High Court for an extension.
Additionally, the Juvenile Court may hold sittings at locations different
from those used by ordinary courts for other trials. The purpose of holding
Juvenile Court sittings at different locations from ordinary courts is to
create a less intimidating environment for juveniles. This reduces the stress
and anxiety of court proceedings, fostering a setting conducive to
rehabilitation and fair treatment. It ensures sensitivity to the unique needs
of juveniles, promoting a justice system that prioritizes their well-being and
reintegration into society.
The Process of the Arrest of a Juvenile
10.
Under Section 5 of The Juvenile Act upon the arrest of a
juvenile, he must be kept in an observation home. The officer-in-charge of
the police station is required to promptly inform the juvenile’s guardian, if
available, of the arrest, including the time, date, and name of the Juvenile
Court where the juvenile will be presented. Additionally, the officer must
notify the concerned probation officer to gather information about the
juvenile and relevant circumstances to assist the Juvenile Court in its
inquiry. No juvenile shall be arrested under preventive detention laws or
the provisions of Chapter VIII of the Code. Furthermore, the report under
Section 173 of the Code must detail the steps taken by the officer-in-charge
to refer the case to the Juvenile Justice Committee for diversion, as
envisaged by Section 9 of The Juvenile Act.
Writ Petition No.40169/2024
11.
The purpose of this provision is to ensure that juvenile
offenders are kept and treated separately from the ordinary criminal justice
system and offenders. This separation aims to protect the unique needs and
vulnerabilities of the juveniles, providing them with an environment and
processes that focus on rehabilitation rather than punishment. It seeks to
prevent juveniles from being exposed to the potentially harmful influences
of adult offenders and to promote their reintegration into society as
responsible individuals. This approach emphasizes a justice system that is
tailored to the developmental and psychological needs of young offenders,
fostering their growth and positive transformation.
Special Investigation Mechanism
12.
As per Section 7 of The Juvenile Act, a juvenile must be
interrogated by a police officer of at least the rank of Sub Inspector, under
the supervision of a Superintendent of Police or an SDPO. The
investigation officer shall be assisted by a probation officer or a
government-designated social welfare officer. Together, they will prepare a
social investigation report, which will be attached to the report prepared
under Section 173 of the Code. The purpose of this arrangement is to ensure
that the investigation of juvenile is conducted with appropriate oversight
and support. By involving higher-ranking police officers and having the
assistance of probation or social welfare officers, the process aims to be
thorough, fair, and sensitive to the juvenile’s circumstances. The social
investigation report helps to provide a comprehensive understanding of the
juvenile’s background, which is essential for informed decision-making
and promoting the juvenile’s rehabilitation.
Arrest and Probation of Female Juvenile Offenders
13.
Under no circumstances can a female juvenile be apprehended
or investigated by a male police officer, nor shall she be released on
probation under the supervision of a male officer. Furthermore, a female
juvenile shall only be housed in a Juvenile Rehabilitation Centre that is
established or certified exclusively for female inmates.2 The purpose of
2 Section 17 of The Juvenile Act
Writ Petition No.40169/2024
these provisions is to ensure the safety, dignity, and well-being of female
juveniles within the criminal justice system. By prohibiting male officers
from apprehending, investigating, or supervising female juveniles, it aims
to prevent any potential abuse, harassment, or discomfort that might arise
from interactions with male officers. Additionally, by mandating that
female juveniles be kept in rehabilitation centers exclusively for female
inmates, it seeks to provide a more secure and supportive environment
tailored to their specific needs.
Constitution of Juvenile Justice Committee
14.
Under Section 10 of The Juvenile Act, upon the
commencement of this Act, and not later than three months thereafter, the
Law and Justice Division, in consultation with the concerned Sessions
Judge, shall establish a Juvenile Justice Committee for each Sessions
Division. This committee will be comprised of four members: a serving
Judicial Magistrate with powers under Section 30 of the Code, who will
head the committee; the district Public Prosecutor; a member of the local
Bar with at least seven years of standing, appointed by the Sessions Judge
for a term of two years; and a serving probation officer or social welfare
officer not below the rank of BPS-17. This composition aims to ensure a
balanced and just approach to juvenile justice system. The purpose of the
Juvenile Justice Committee is to oversee and ensure the fair treatment and
rehabilitation of juvenile offenders. By bringing together a Judicial
Magistrate, District Public Prosecutor, an experienced Bar member, and a
probation or social welfare officer, the committee aims to provide a
comprehensive and balanced approach to juvenile justice system.
This multidisciplinary team works to ensure that juvenile cases are handled
with the necessary legal oversight, prosecutorial guidance, legal advocacy,
and social support, ultimately developing an environment conducive to the
rehabilitation and reintegration of juvenile offenders into society.
15.
The Juvenile Justice Committee, ideally located within the
same premises as the Juvenile Court, plays a vital role in the juvenile justice
system. It handles case diversions referred by the police, prosecution, or
Juvenile Court, aiming to resolve them within a month. The committee also
Writ Petition No.40169/2024
inspects observation homes and Juvenile Rehabilitation Centres, issuing
directives to enhance the welfare and social reintegration of juveniles.
Additionally, it performs other prescribed functions, with the Sessions
Judge of each District providing the necessary staff for its effective
administration and functioning. This setup ensures a balanced and
rehabilitative approach to juvenile justice system.
Disposal of Cases through Diversion
16.
Diversion measures are innovative approaches designed to
resolve legal cases without formal judicial proceedings, steering offenders
away from traditional criminal justice system towards rehabilitation and
reintegration programs. These measures aim to tackle the root causes of
criminal behaviour, offering supportive interventions to prevent future
offenses. Key elements include counselling and therapy to address
behavioural issues, mental health problems, and substance abuse.
Community service allows offenders to give back to society, fostering a
sense of positive contribution. Educational programs provide valuable
skills and knowledge, enhancing employability and lawful conduct.
Restorative justice programs promote accountability and amends through
mediation between offenders and victims. Probation or supervised release
provides an alternative to incarceration, ensuring compliance with specific
conditions. Youth diversion programs focus on mentorship, family support,
and education, guiding juveniles away from criminal behaviour towards
personal growth and societal harmony.
17.
According to Section 9 of The Juvenile Act disposal of cases
through diversion allows for certain juvenile cases to be resolved outside
the traditional judicial process with the consent of the juveniles or their
guardians. Diversion is applicable for all the juveniles accused of minor
offenses or in cases involving major offenses, if they are under sixteen at
the time of the offense. For diversion cases can be referred to the Juvenile
Justice Committee, which handles the case through diversionary methods.
Diversion can occur at any stage of police investigation or trial. When the
police refer a case to the Juvenile Justice Committee, the required police
report under Section 173 of the Code is postponed until the Committee
Writ Petition No.40169/2024
issues its final order. The Committee, with the victim’s consent, may use
various diversion methods, including restitution of movable property,
reparation of damages, written or oral apologies, community service, fines,
costs of proceedings, placement in a Juvenile Rehabilitation Centre, or
written and oral reprimands. If the complainant is a state functionary and
the offense does not involve a private individual, the case can still be
diverted with the consent of the public prosecutor. All offenses, whether
minor or major, are deemed compoundable for diversion purposes.
Special Procedure of Juvenile Court
18.
Section 11 lays down that the Juvenile Court shall adhere to
the procedures outlined in the Code unless otherwise specified by The
Juvenile Act. Only specific individuals may be present at court sessions:
the court staff and officers, parties to the case and those directly involved,
the juvenile’s guardian, and others as directed by the court. The court may
order individuals to withdraw to protect the juvenile’s decency or morality.
If the court determines that the juvenile’s presence is not essential at any
point, it may proceed without the juvenile. Should a juvenile be found
suffering from a serious illness, the court will ensure he receives necessary
treatment at a hospital or medical institution, with the costs covered by the
State. The purpose of these provisions is to ensure that the proceedings of
the Juvenile Court are conducted in a manner that prioritizes the well-being
and dignity of the juvenile. By restricting attendance to essential personnel
and individuals directly involved in the case, the law aims to create a more
private and less intimidating environment. This helps to protect the
juvenile’s privacy and fosters a sense of security.
19.
Notwithstanding the provisions of Section 239 of the Code or
any other prevailing law, a juvenile shall not be charged or tried for an
offense alongside an adult. However, the Juvenile Court may permit a joint
trial if it deems such an arrangement to be in the interests of justice. In case
of joint trial, the court may waive the juvenile’s physical presence, allowing
participation through audio-visual technology. The purpose of these
provisions is to protect juveniles from the potentially negative influences
and pressures of being tried alongside adults. By generally prohibiting joint
Writ Petition No.40169/2024
trials with adults, the law aims to ensure that juveniles receive special
consideration and treatment appropriate to their age and developmental
stage.
20.
It must be kept in mind that the general rule under the law
mandates separate trials for juveniles and adult offenders. However, the law
provides an exception that if the court is satisfied that a joint trial serves the
interest of justice, it may proceed accordingly. ‘If the court is satisfied’
connotes that the court has reviewed the circumstances and facts and has
determined that a joint trial is appropriate and justifiable. It indicates that
the court has exercised its judgment and discretion to reach a decision based
on the interest of justice and fairness. When a court orders a joint trial,
deviating from the general rule of separate trial for juvenile and adult, it
must provide compelling reasons that demonstrate the careful application
of judicial discretion.
The Anonymity of Name and Identity
21.
Under Section 13 of The Juvenile Act, subject to the
exceptions as provided in this Section, any person who prints or publishes
the name or any information that could reveal the identity of a juvenile shall
be subject to imprisonment for a term of up to three years and shall also be
liable to a fine. Furthermore, anyone who prints or publishes any
information regarding proceedings before a Juvenile Court, about a
juvenile, without prior permission from the Juvenile Court, shall be
punished with imprisonment for a term of up to two years and shall also be
liable to a fine. The law aims to prevent potential harm, stigma, or undue
attention that could negatively impact the juvenile’s future. This protection
ensures that juveniles can navigate the legal process without fear of public
exposure, fostering a rehabilitative rather than punitive approach to juvenile
justice system.
The Report of Probation Officer
22.
Section 14 of The Juvenile Act mandates that the probation
officer, upon the direction of the Juvenile Court, shall assist and prepare a
report within the specified time regarding the juvenile’s character,
Writ Petition No.40169/2024
educational, social, and moral background; any voluntary admission of
committing an offense; evidence of the juvenile’s involvement in the
offense; the legal assistance provided to the juvenile and their family; steps
taken towards mediation or compromise with the complainant or victim;
and the possibility of sending the juveniles to a Juvenile Rehabilitation
Centre or releasing them on probation. The report of the probation officer
is to be treated as confidential, except where the Juvenile Court deems it
appropriate to communicate its substance to the juvenile’s guardian. If the
guardians dispute the contents of the report, the juvenile court may allow
them an opportunity to present relevant evidence.
23.
The purpose of such a report is to provide the Juvenile Court
with a comprehensive understanding of the juvenile’s background and
circumstances. This information aids the juvenile court in making
informed, fair, and just decisions that prioritize the juvenile’s rehabilitation
and reintegration into society, rather than mere punishment. It ensures that
the court considers the juvenile’s overall well-being, potential for reform,
and the best interests of both the juvenile and society.
Establishment and Certification of Observation Homes and Juvenile
Rehabilitation Centres
24.
Under Section 20 of The Juvenile Act the Interior Division, in
consultation with the concerned Division, may establish and maintain
observation homes and Juvenile Rehabilitation Centres for the reception of
juveniles, including separate facilities for female juveniles. Additionally,
the Interior Division may certify observation homes or Juvenile
Rehabilitation Centres managed by non-governmental organizations for
juvenile reception. Furthermore, the Interior Division may certify
established associations or societies within local areas for the social
reintegration or rehabilitation of juvenile offenders released on parole or
discharged from a Juvenile Rehabilitation Centre. The Division is also
empowered to regulate the activities and functions of such released or
discharged juveniles in the prescribed manner. According to Section 22 of
The Juvenile Act, in order to report to the juvenile court or Juvenile Justice
Committee on measures for social reintegration, health, education, and
Writ Petition No.40169/2024
other conditions of the inmates, a member of the Juvenile Justice
Committee along with a medical officer may inspect an observation home
or a Juvenile Rehabilitation Centre. This inspection requires prior approval
from the head of the Committee, or an officer authorized by the relevant
Provincial Government department.
25.
Unfortunately, The Juvenile Act has not been implemented in
its true letter and spirit. This landmark legislation, designed to bring justice
to a child victims and rehabilitation of juvenile offenders, remains more a
promise than a reality. Its vision of Specialized Juvenile Courts,
compassionate legal assistance, and rehabilitative measures have been
dimmed by inadequate execution. The Juvenile Justice Committees,
envisioned to protect the welfare and facilitate the social reintegration of
young offenders, have unfortunately failed to become operational and
fulfill the commendable objectives for which The Juvenile Act was enacted.
The goals of protecting juveniles from harsh penalties and ensuring their
dignified treatment have been undermined by systemic inefficiencies and a
persistent gap between policy and practice. The failure of implementation
of The Juvenile Act to be fully realized leaves many young lives still
ensnared in the criminal justice system that struggles to provide the care
and opportunity they deserve.
26.
Law is not merely a formality; it is an obligation, a compulsion
that ensures order and justice within society. The written statutes and
regulations are more than ink on paper. The enforcement of a statute is not
optional, but a mandatory duty entrusted to every state functionary, a
responsibility that comes with the authority and power vested in their
positions. This duty is not just about compliance rather it is about upholding
the rule of law. The failure to implement the law results in a grave violation
of the fundamental rights of those subject to it. However, when these laws
are not enforced, the vulnerable are left unshielded, and their rights
trampled upon. When laws are not implemented, resulting in the violation
of the rights of those whom the law seeks to protect, the state functionaries
responsible for this negligence must be held accountable. To turn a blind
eye to the breach of these laws is to let the very foundation of justice
crumble beneath our feet. Accountability must be the order of the day,
Writ Petition No.40169/2024
ensuring that those entrusted with the power to enforce the law do not shirk
their responsibilities. Justice delayed is justice denied, and every state
functionary who fails to implement the law is complicit in this denial.
27.
The reports submitted by the concerned state functionaries
reveal a disheartening situation. No serious effort whatsoever was made to
implement The Juvenile Act. Such inaction on the part of state functionaries
suggests that the Government is dragging its feet on a beneficial piece of
legislation. The Juvenile Act, like many other laws, remained merely a
paper law, with its noble intentions never translating into meaningful
action.
28.
Both executive agencies and Courts in Pakistan are
constitutionally and legally bound to uphold the rule of law within their
respective domains.3 This obligation is critical to maintaining justice,
ensuring fairness, and protecting the rights of individuals. When a law is
not implemented, the duty of the Constitutional Court encompasses several
key actions. It undertakes judicial scrutiny, issues enforcement orders,
protects Constitutional rights, holds government officials accountable, and
prescribes remedial measures. Through these actions, the Court ensures that
laws are not merely words on paper but are actively upheld and enforced,
preserving the integrity of the legal system. In the above-discussed
circumstances, this Court is compelled to issue the following directions to
ensure the prompt implementation of The Juvenile Act:-
I. The respective Government must take immediate and decisive
steps to implement The Juvenile Act to the fullest extent and
meaning without further delay. It is imperative that no further
time is wasted in bringing the protections and reforms of this
vital legislation to fruition. For the greater good of our youth,
we must ensure that the commitments of this law are swiftly
and fully realized.
II. The Provincial Police Officer shall ensure that a juvenile
offender shall be interrogated only by a police officer of a rank
not below that of a Sub-Inspector. Such interrogation shall be
3 Dr. Arslan Iftikhar vs. Malik Riaz Hussain and Others- PLD 2012 SC 903
Writ Petition No.40169/2024
carried out under the supervision of a Superintendent of Police
(SP) or a Sub-Divisional Police Officer (SDPO). The
investigating officer shall be assisted by a probation officer or
a social welfare officer notified by the Government.
III. The Prosecutor General Punjab, as a principal stakeholder in
the criminal justice system, must also ensure the strict
compliance of The Juvenile Act. It is incumbent upon the
concerned prosecutors to promptly identify and address any
investigation conducted in violation of this law at the earliest
possible stage. By doing so, they safeguard the integrity of the
legal process and uphold the rights and protections afforded to
juveniles under this beneficial legislation.
IV. To achieve the true purpose of The Juvenile Act, it is essential
to always opt for the disposal of cases through diversion
following Section 9 of this Act. Diversion focuses on
rehabilitation over punishment, reducing recidivism,
minimizing stigma, improving efficiency in the justice system,
and prioritizing the best interests and well-being of the juvenile
offenders. During the investigation, the investigating agency,
and during the trial, the prosecution and trial courts shall refer
cases to the Juvenile Justice Committees for disposal through
diversion in the prescribed manner.
V. To ensure strict compliance with The Juvenile Act during
investigations, the prosecution and investigating agency must
maintain a close and effective liaison. This cooperation is
essential to guarantee that juvenile offenders are treated in full
accordance with the provisions of the Act, upholding both the
spirit and letter of the law.
VI. The Law and Justice Division, in consultation with the
Sessions Judge, shall bring forth the Juvenile Justice
Committee in each Sessions Division without slightest delay to
ensure effective and meaningful implementation of The
Juvenile Act. Without these committees being operational, the
true spirit of this law cannot be fully realized.
Writ Petition No.40169/2024
VII. To meet the requirements of The Juvenile Act, arrested
juveniles shall be kept in observation homes. The Government
shall establish these observation homes to provide safe shelter
for them in every District. The physical separation of juveniles
from adult offenders in detention facilities is non-negotiable,
with separate lockups and detention centers dedicated to young
offenders.
VIII. Prosecutors and investigating officers must be thoroughly
versed in the provisions and their applications within The
Juvenile Act. It is advisable to hold training sessions for them
in collaboration with the Prosecution and Police Departments.
This proactive approach will ensure that all involved parties are
fully equipped to uphold the law and administer justice
following the mandates of the law.
29.
The effective implementation of The Juvenile Act requires a
multi-faceted approach involving all stakeholders. By adhering to the
provision of this Act, we can ensure a criminal justice system that is fair,
humane, and geared towards the rehabilitation of juvenile offenders. A copy
of this judgment shall be transmitted through the Registrar’s office of this
Court to all stakeholders, including the Sessions Judges and Juvenile Courts,
for its strict compliance. The compliance reports shall be filed by the
Government, Prosecutor General Punjab and Provincial Police Officer,
Punjab within two months to the Registrar’s office of this Court for perusal in
chambers.
30.
The detenu and his siblings, Ahmed and Shaheen Fatima, having
suffered neglect and destitution, shall be returned to the embrace of the Child
Protection Bureau. Their custody shall henceforth be regulated by the Child
Protection Court, which shall undertake all necessary measures to ensure that
these vulnerable children are safeguarded from future involvement in any
unwanted activities. It is expected that the state shall fulfill its obligation to
nurture and shield these ill-fated minors. The investigating agency is also
hereby directed to dismantle the gangs that exploit minors for their nefarious
designs, ensuring that these vulnerable youths are no longer ensnared in
Writ Petition No.40169/2024
criminal activities. A report on this matter shall be submitted by the
investigating agency through the Additional Registrar (Judicial) of this Court.
31.
In the light of the aforementioned observations, this petition
stands disposed of.
(ALI ZIA BAJWA)
JUDGE
The judgment was pronounced and written on 19.07.2024 and after
completion it was signed on the same day.
JUDGE
Approved for Reporting
JUDGE