Despite the Juvenile Justice System Act 2018 (JJSA) being in practice, minors in recent times faced discrimination, and were subjected to violence at police stations, and behind prisons across Pakistan. The recent death of a 14 year old child aroused strong condemnation. He was found dead in the police station of West Cantt-Peshawar and as excepted, policemen termed the incidence a suicide, while the relatives stated that their child was tortured to death.
Section 176 of the Criminal Code of Procedure (CRPC) of 1898 empowers the concerned Ilaqa Magistrate to hold judicial inquiries to find out the actual cause of death in custody of the police. Judicial inquiries for determination of actual cause of death in custody of police had been taken place on numerous occasions, however rarely do those inquiries hold police officials guilty of custodial death, due to the reason that they managed concealment of incriminating evidence against them or settled with the relatives of the deceased by pressurization and/or harassing them, making the judicial inquiry irrelevant and inappropriate.
Generally, judicial inquiries into custodial deaths had never been fruitful across Pakistan. For example, a case of a child named Muhammad Rizwan, was extra judicially murdered in Lahore in the area of Sabzazar in 2017- while on physical custody with police. Those who were found guilty of his murder in the judicial inquiry were later acquitted of a murder charge by the trial court of Lahore. Moreover, there was an incident that happened near Sahiwal toll plaza, a couple of years ago- where the Counter Terrorism Department (CTD) gunned down a father, mother, and sister in front their children as always, the officials labelled them as terrorists. Those officials had also been acquitted of cold-blooded murders by the trial courts due to the lack of evidence.
The recent incidence of a custodial death of a child in Peshawar should be considered in light of section 176 of CRPC 1898 for attribution of roles, and determination of actual cause of death of that 14-year-old child who was arrested and housed in the police station. It is arguable that the burden of proof in judicial inquiries into the custodial deaths must lie upon the officials i.e. the police. Preferably, a new provision should be introduced in the Qanoon-e-Shahadat Order 1984, reversing the burden of proof regarding human rights offences. Additionally, a senior judge, if not a high court judge, should conduct the inquiry. It is too big a matter for the poor magistracy. The burden of proof should lie on the police. It should reveal the causes of death immediately.
Apart police custodial deaths, some other pertinent questions have also risen by virtue of JJSA 2018. JJSA 2018 provided that the arrest of a child in conflict with the law or found having committed an offence, should be detained in an observation home instead of a police station. The parents or guardians of that child, as well as the concerned probation officer, should be informed about the arrest of the child by the police.
In the prevailing case: were the parents/relatives of that child informed about the arrest? Why was he not detained in an observation home? Whether the probation officer was informed about the arrest of that child under section 5 of JJSA 2018 or not is irrelevant. Whether the case was dealt with by an officer of the police not below the rank of Sub-Inspector or not. is also irrelevant. The child was arrested and detained in the police station of West Cantt and placed in the custody of police officials received no legal assistance at the State expense and the concerned probation officer, parents and or guardians had no clue of the child’s arrest. Prima facie, these legal requirements had not been met and the investigation officer (I.O) violated all statutory requirements that are to be fulfilled in all circumstances by the police/law enforcing agencies’ where a child was arrested or found in conflict with the law.
Since the time of promulgation of JJSA 2018, not a single observation home or rehabilitation center was established under the provisions of the JJSA 2018. In the writer’s opinion piece “Munda Khana,” a child barrack could not be considered as a rehabilitation center for the reason that they exist on the premises of ordinary prisons and are administered under the Pakistan Jail Manual of 1978.
Children in conflict with law or having committed an offence are generally detained in police stations and dispatched to judicial lockups after physical remand to ordinary prisons, those administered and controlled under the Pakistan Jail Manual of 1978.
The JJSA 2018 provides a criminal justice system for juveniles in order to re-integrate and rehabilitate them through non-penal social engineering schemes. In the writer’s view, if that child had committed a penal offence, he would have been dealt under the provisions of the JJSA 2018 by the I.O.
Furthermore, it is submitted that where the police finds a child in conflict with the law must obey and follow provisions of the JJSA 2018 from the beginning. No doubt, it is the government that has to establish observation homes across Pakistan but until the time of the establishment of such homes, children might be detained in detention centers or centers run by non-governmental organizations or Dar-ul-Eman.
Therefore, it is submitted that had the child been dealt with under the JJSA 2018, he would not have been tortured to death. The child’s parents/guardians and the concerned probation officers must have been informed about arrest with a view of facilitating him if involved in a penal offence.
*The writer is a lawyer and the Executive Director of Legal Awareness Watch Pakistan.
April 4, 2021
The viewpoints expressed by the authors do not necessarily reflect the opinions, viewpoints and editorial policies of Aequitas Review.
