On the morning of May 12, 1998, police in Killey De Kassi village of Hazara division arrested 13-year-old Ghulam Jilani from his home on the charge of stealing Rs2,700 from the cash box of a store near his home. Jilani, who worked as a minibus conductor, was taken to the police station in the neighboring town of Mansehra. There he was kept with 15-year-old Sajid, who was also arrested in the same case. That afternoon, police informed Ghulam Rabbani, Jilani’s father, that his son had been hospitalised. When Rabbani reached the hospital, he was told that his son had died and an autopsy was being performed on his body.

In a First Information Report filed around 4pm that day, police officer Muhammad Iqbal alleged that Jilani had attempted suicide. He said the suspect had suffered injuries that later proved fatal.

However, his cellmate, Sajid, told a totally different story. He said police took Jilani away and when he was brought back, he was bleeding from his nose and mouth. "The bleeding was so terrible that I covered my face with a piece of cloth. Soon afterwards, I was released from the police station."

The autopsy report concluded that Jilani had died from head injuries. His father filed a murder complaint against Muhammad Nawaz, the head constable of the Mansehra police station.

There was popular unrest, and on the night of May 12 the protesters reportedly set fire to the offices of the Mansehra SP. To stop the agitation from turning into rioting, Nawaz was arrested and charged with murder. Sardar Mehtab Khan, then chief minister of the North-West Frontier Province, now Khyber Pakhtunkhwa, visited Jilani’s family and gave them Rs100,000 in financial support.

In another incident on April 11, 1999, children in the juvenile ward of Sahiwal Central Prison turned violent. They were protesting against the alleged sexual abuse of juvenile inmates by prison staff and the lack of an effective complaints mechanism. The violence was triggered by some members of the prison staff brutally beating 13-year-old Aslam in the juvenile ward for alleging sexual abuse by Zulfiqar, the head warden. Press reported that the boys broke the wall of the prison cell in which they were locked and set fire to prison property, mostly furniture. The clash resulted in injuries to around 20 children. In the following days, some jail officials were suspended from service. At the same time, criminal cases were registered against 10 boys for rioting and damaging prison property.

These are just two of the countless cases that show the plight of children while in police custody or in prisons during trials and after conviction. These were mentioned in a report, Prison bound: The Denial of Juvenile Justice in Pakistan, published by the Human Rights Watch in 1999. The report, based on media reports, visits, surveys and interviews caused alarm across the globe and led to raising of voices for child-friendly laws in the country.

In July 2000 that Juvenile Justice Safety Ordinance was promulgated to prescribe relatively lenient procedures to treat and try children charged with various crimes. It was hoped that this law will save children from harsh treatment at the hands of police and exposure to hardened criminals. In December 2004, a Lahore High Court judgment revoked the law for being impractical, unreasonable and unconstitutional. The Federal government and an Islamabad-based NGO, Society for the Protection of the Rights of the Child (Sparc), got a stay order from the Supreme Court against the verdict. The law thus remained in force until it was replaced by the Juvenile Justice System Act (JJSA) in 2018.

"The major problem with such laws is that due to flaws inherent in the system their benefits often do not reach the intended beneficiaries," barring a few, says Sarmad Ali, a Lahore-based lawyer and executive director of the Legal Awareness Watch. He adds that despite the passage of almost two decades the process of age determination has not been streamlined - "Determination of age is the basis of invoking this law."

An accused under 18 years of age can only be tried under JJSA 2018, he says, but many fail to benefit from it because they cannot establish their age at the time when they are booked. Ali, who is currently contesting several cases involving juveniles, complains that in the absence of identity documents, the police challans mention the accused as adults and the courts try them as such.

Medical examination for the determination of age is often done at the trial stage. By that time the child has already gone through a lot of suffering. Sometimes, he says, "the police deliberately omit the age documents part of their record".

Why is age determination such a contentious issue? When people have to be tried under JJSA 2018, the police have to engage probation officers and provide certain facilities to the accused, including legal aid and keep track of the accused who cannot be kept in custody. Children are given the right to bail even when charged with crimes that carry capital punishment. The only exception is in terrorism cases and on account of certain conditions.

The police also have to take such accused to separate courts. This adds to their workload and is another reason why they are not keen to point out the age. The accused, says Ali, "are under pressure and often cannot press for proper age determination".

The JJSA 2018 provides that the arrested juvenile shall be kept in an observation home and the officer-in-charge of the police station shall, as soon as possible, inform the guardian of the juvenile, if he can be found. The law makes it binding on the police to determine the age at the initial stage. It also defines a ‘diversion mechanism’ under which an alternative process can be adopted to determine responsibility and treatment of a child on the basis of his social, cultural, economic, psychological and educational background without resorting to formal judicial proceedings. Restitution of stolen property, written apology, reprimand etc. are some of the modes defined under diversion mechanism.

The law also calls for the establishment of Juvenile Rehabilitation Centres that are places where a juvenile may be kept and given education, vocational or technical training for his mental, moral and psychological development, and includes certified institutions, juvenile training institutions, borstal institutions, vocational centres, darul-amaans and women crises centres established by the government or by voluntary organisations certified by the government.

There can be no doubt that these provisions are revolutionary and can go a long way to protect the rights of children, even when they are accused of some crime. But the problem at hand is that there is hardly any financial provision to set up the required facilities. Enabling policies to implement this law are also not in place.

Iftikhar Mubarik, the Search for Justice, executive director, has filed a petition with the Lahore High Court asking for implementation of JJSA 2018 in its true spirit. He is demanding that the provincial governments ensure the provision of budgetary resources for effective implementation of the law to serve the children. In the petition, he has particularly mentioned that the UN Committee on the Rights of the Child has called upon Pakistan in its Concluding Observations to guarantee that all children have the right to appropriate legal assistance and defence. This, he says, "has to be done by assigning a sufficient number of lawyers with relevant training and competence and an adequate number of probation officers to assist juvenile courts and carry out specialised training for personnel in the juvenile justice system".

Effective implementation of the JJSA is linked with provision of human and financial resources i.e. arrested juvenile shall be kept in an observation home, "so the establishment of observation home requires budgetary allocations," he adds.

Babar Ali, a deputy superintendent with Punjab Police, tells TNS that age determination is a very important issue. He says this can be used both positively and negatively. For example, he says, "the relatives of the accused in murder cases try to get the age mentioned below 18, considering juveniles cannot be awarded death sentences. They can even get bail on the grounds".

On the other hand, he says, "the opponents can contest an accused’s claim".

Ali says such anomalies can be taken care of if there is a central database carrying information of all citizens. Even the newborns can have a national number and one must not be required to get 18 years old to be brought on record. "This will end the discretionary use of powers to determine age and enable the eligible individuals to benefit from it," he adds.

Usama Malik, a lawyer associated with the AGHS, a leading law firm in Lahore, points out that quite often police book both adults and juveniles under the same law as long as they are involved in the same case. This way, he says, they are saved from the hassle of pursuing the same cases in multiple courts.

On the perception that juvenile justice system protects even the murderers, Malik says, "this is in line with the constitutional provisions".

He adds that Article 25 of the Constitution of Pakistan talks about equality of citizens but at the same time mentions "Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."

Arrest, trial and after

Ansar Iqbal was hanged in Sargodha on September 29, 2015, on the charge of murdering his neighbour in 1994. He claimed clemency on the ground that he had been 15 at the time. The Supreme Court of Pakistan upheld the sentence while hearing his appeal. The documentary evidence he provided at that time could not help him because it was submitted too late. There was also a suspicion of foul play because he had not taken the plea throughout the trial and had obtained the birth certificate in 2015.

Had he been mentioned as a juvenile in police record at the time of his arrest and in trial court, he would have been spared the death penalty.

Eleven-year-old Ahmed Ali came to Lahore from Rawalpindi in April 2019 to attend his uncle’s marriage. Once here, he reportedly got into a scuffle with one Hassan Saleem in Khokhar Town, Shafiqabad Area. The FIR against Ali states that Saleem died because of the knife wounds inflicted on him by Ali who worked as a tea boy at a hotel in Pir Wadhai, Rawalpindi.

Ali is in police custody. He was presented in court in handcuffs despite the fact that his age allows him bail and freedom from handcuffs. His lawyer Sarmad Ali argued the same in the court and got his handcuffs removed. However, he did not succeed in securing bail for him. The point he is raising in the court is that Ali be tried under JJSA 2019 as he is a juvenile.

Seventeen-year-old Muhammad Rizwan was booked on charges of molesting and killing a seven-year-old girl in the Sabzazar area. His parents were arrested for allegedly abetting the crime on October 17, 2017. Rizwan was sent on physical remand and his parents were sent on judicial remand by the judicial magistrate. Later on, he died in mysterious conditions when he was taken to his house by the police.

Police claimed that Rizwan got killed when he tried to snatch a rifle from a police constable and it went off. Ramzan’s family alleged that the investigation officer had killed him in a fake encounter. A judicial inquiry was ordered and five policemen were found guilty. However, they escaped punishment because nobody turned up to record their statements and provide evidence in response to an advertisement placed in the newspaper. The lawyer pursuing the case has called for safeguards that protect the accused’s right to fair trial and award of concessions promised under the JJSA 2019.