ASIF SAEED KHAN KHOSA, J.--- Sages down the ages have generally perceived an accused person, before establishing of his guilt beyond reasonable doubt, as the darling of a criminal court and if such an accused person happens to be a child then the romance about him usually receives a further sympathetic boost. The raison d'etre for such sympathy may not be difficult to discern as by and large a child is considered to be deserving of special treatment because of his innocence and lack of proper understanding of the nature or consequences of his conduct. However, a young person who has already lost his childhood virtue, innocence and incorruptibility and who understands the nature or the normal consequences of his conduct, no matter what his age, may cease to qualify for such special handling as a child. It is the quandary posed by such a mature pubescent or a ripe juvenile, who may be of a relatively young age but has already attained sufficient maturity of understanding, that is the subject of the present petition. It is mainly in this context that we have been called upon through this petition to examine the vires of the Juvenile Justice System Ordinance, 2000 introduced in our legal system on July 1, 2000 through Federal Ordinance No, XXII of 2000. The petitioner bringing up this challenge happens to be the complainant of a case of murder in which an accused person is claiming to be a 'childwithin the purview of the Juvenile Justice System Ordinance. 2000 and,- thus, entitled to concessionary treatment in the matters of bail, trial and sentence, if any.
2. For facility of reference the Juvenile Justice System Ordinance, 2000 may be reproduced here in its entirety (as published in PLD 2000 Central Statutes 385): "ORDINANCE XXII OF 2000 - -JUVENILE JUSTICE SYSTEM ORDINANCE, 2000 An Ordinance to provide for protection of the rights of children involved in criminal litigation [Gazette of Pakistan, Ext raordinary, Part I, Ist July, 2000] No, F .2(1)/2000-Pub . , dated 1.7 .2000 . --- The following Ordinance made by the President is hereby published for general information:-- 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 Pakistan.
(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 institutionmeans a place where child offenders may be detained and given education and training for their mental, moral and psychological development;
(b) 'childmeans a person who at the time of commission of an offence has not attained the age of eighteen years;
(c) 'Codemeans the Code of Criminal Procedure, 1898 (Act V of 1898);
(d) 'guardianmeans a parent or a person who has actual care of the child and includes such relative who is willing to bear the responsibility of the child;
(e) 'Juvenile Courtmeans a Court established under section 4;
(f) 'offencemeans an offence punishable under any law for the time being in force; and
(g) 'Probation Officermeans 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.
3. Legal assistance.-- (1) 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.-- (1) 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 Session; 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 Officer 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.
6. Procedure of Juvenile Courts.-- (1) Juvenile Court shall, unless provided otherwise in this Ordinance, follow the procedure provided for in the Code.
(2) 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.
(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.
8. Prohibition to publish proceedings of cases.-- (1) 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.-- (1) 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, if it so thinks, communicate the substance of the report to the 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, 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 of 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."
3. Due to the importance of the matter and the far-reaching consequences of any conclusion that we, may arrive at while deciding this petition we had issued notice to the learned Attorney-General for Pakistan and the learned Advocate-General, Punjab and had also requested Mr. Abid Hassan Minto, Mrs. Asma Jahangir and Mr.. Manzoor Ahmad Malik, Advocates to assist us as amici curiae.
We have heard the learned counsel for the petitioner, the learned Deputy Attorney-General appearing for the Federation of Pakistan, the learned Assistant Advocate-General representing the Province of the Punjab and two of the learned amici curiae at some length and have gone through the material referred to by each of them.
4. It has been argued by the learned counsel for the petitioner that the matter of treatment of a child accused of committing a crime has already been adequately and satisfactorily taken care of by sections 82, 83 and 299 (a) & (i) of the Pakistan Penal Code, 1860 as well as by section 399 of the Code of Criminal Procedure, 1898 and that introduction of the Juvenile Justice System Ordinance, 2000 (hereinafter referred to as the impugned Ordinance) has created unnecessary confusion in this field. He has maintained that most of the provisions of the impugned Ordinance are unreasonable, absurd and downright impracticable. He has added that the matter of sentencing of a young offender always receives a careful and generally sympathetic consideration by our courts keeping in view the special features of a particular case and, thus, there was no occasion for the impugned Ordinance to categorically forbid passing of a sentence of death against an offender below the age of eighteen years. He has gone on to maintain that the provisions of Articles 25(3) and 26(2) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) do not envisage extending protection to children in a manner that leaves others unprotected at the hands of such children. Accordingto the learned counsel for the petitioner the protection afforded to young offenders .Through the impugned Ordinance against the sentence of death has encouraged the adults in our society to settle their murder feuds by prompting their young ones to kill their enemies and to get away with lesser sentences. This abuse or misuse of the provisions of the impugned Ordinance, according to him, has promoted murders and has gone a long way in denying the victims their right to life guaranteed by Article 9 of theConstitution. It has also forcefully been maintained by the learned counsel for the petitioner that the impugned Ordinance has encouraged and promoted corruption in the society inasmuch as fake School Leaving Certificates are being obtained, incorrect medical opinions about age are being procured, forgeries and interpolations are being committed in the Registers of Births maintained at the Union Councils and false Nikahnamas of parents of accused persons are being prepared with a view to show the age of an offender to be less than B eighteen years at the time of occurrence so that a possible sentence of death may be avoided against him in cases of terrorism, murder, gang-rape or trafficking in narcotics, etc. It has, thus, been canvassed by the learned counsel for the petitioner that a law which corrupts the society at large in the name of protection to children is not worth retaining on the statute book. It has been added by him in this context that the impugned Ordinance had been introduced without prior public debate and in the absence of any discussion in the Parliament which was non-existent at that time. It has lastly been argued by him that the impugned Ordinance had been promulgated by an unrepresentative government under the pressure of the Western governments and donor agencies without appreciating that in view of the peculiar social, economic, climatic and dietary factors a child in our part of the world attains maturity of understanding relatively sooner than in the West. Thus, according to him, the Western standards in this regard could not blindly or slavishly be applied in our country. He has referred to the case of Emperor v. Paras Ram Dube [AIR 1915 Allahabad 134] wherein it had been held that in our part of the world a boy aged less than fourteen years may have sufficient maturity of understanding, the case of Tehal Singh and others v. State of Punjab [1985 PSC 1407] wherein it had been observed that a thirteen years old witness may not necessarily be termed as a child witness and the case of Sheikh Hassan v. Bashir Ahmad and another [PLD 1966 (W.P.) Peshawar 97](FB) wherein it had been laid down that in a case of murder mere youth of an offender may not by itself be a mitigating factor in the matter of sentence to be passed against him. With these submissions the learned counsel for the petitioner has prayed that the impugned Ordinance may be struck down by this Court on account of its unreasonableness as well as on account of its provisions being violative of the Fundamental Rights contained in Articles 9 and 25 of the Constitution.
5. At the time of admission of this petition to regular hearing on 28.11.2002 we had issued a notice of this petition to the learned Attorney-General for Pakistan and on 18.12.2002 Mr. Makhdoom Ali Khan, Attorney-General for Pakistan personally appeared before this Court in connection with this petition alongwith Mr. Muhammad Nawaz Bhatti, Deputy Attorney-General for Pakistan. It, however, appears that thereafter Mr. Muhammad Nawaz Bhatti, Deputy Attorney-General had been entrusted by the learned Attorney-General the task of representing not only the Federation of Pakistan but also the learned Attorney-General. Mr. Muhammad Nawaz Bhatti, Deputy Attorney- General has wholeheartedly supported the impugned Ordinance before us and has argued that by .Virtue of the provisions of Articles 25(3) and 26(2) of the Constitution laws can be enacted and special provisions can be made for the protection of children and, therefore, despite a number of impracticalities in the impugned Ordinance the same may not be interfered with by this Court as the precedent law requires this Court to be extremely slow in striking down a law duly enacted or promulgated by the legislature. In this connection he has referred to the cases of Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others [PLD 1999 SC 504], Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others [PLD 1997 SC 11], Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and six others [PLD 1997 SC 582], Mehram Ali and others v. Federation of Pakistan and others [PLD 1998 SC 1445] and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar [PLD 1989 SC 26]. We have found the said precedent cases to be quite illuminating and instructive but, with profound respect, hardly relevant to the issues involved in the present petition.
6. On 28.11.2002, at the time of admission of this petition to regular hearing, we had also issued a notice of this petition to the learned Advocate-General, Punjab but the learned Advocate-General has never appeared before this Court in connection with this petition and instead Mrs. Yasmin Sehgal, Assistant Advocate-General has been appearing for the Province of the Punjab. She has, while assisting this Court honestly and candidly, expressed reservations about the validity and propriety of the impugned Ordinance and has maintained that the law existing prior to introduction of the impugned Ordinance adequately catered for the interests of a young or minor accused person. In this connection she has referred to the provisions of sections 306 and 308 of the Pakistan Penal Code, 1860 and to the case of Muhammad Afzal alias Seema v. The State [1999 SCM R 2652].
In the said case it had been held that the question of maturity of a young offender is to be gone into by the court before proceeding to convict and sentence him She has gone on to maintain that the impugned Ordinance has created unnecessary coafusion in our criminal justice system and also that the impugned Ordinance is replete with practical difficulties.
7. Mrs. Asma Jahangir, Advocate had appeared as an amicus curiae on a couple of dates of hearing and had partially addressed her arguments on one of such dates. Thereafter she never entered appearance in connection with this petition despite the fact that her name kept on appearing in the cause-list regularly. She had, as was expected of her as she is a renowned human rights activist, supported the impugned Ordinance and had explained the conceptual background in which the said Ordinance had been introduced. According to her the impugned Ordinance is an outcome of a growing awareness in the world about the `rightsof a child which awareness was epitomized by the United Nations Declaration of the Rights of the Child (1959) and then the United Nations Convention on the Rights of the Child (1989). Pakistan is said to have voted in favour of the Declaration of 1959 and the Convention of 1989 is stated to have been ratified by Pakistan. She had read out different parts of the said Declaration and Convention to show that the impugned Ordinance is completely in accord with that Declaration and Convention. According to Mrs. Jahangir Pakistan was under an international moral and legal obligation to legislate in that regard and, thus, the Federal Government was quite justified in promulgating the impugned Ordinance.
She had, however, agreed. That due to lack of any public or parliamentary debate before enactment of the impugned Ordinance various factors highlighted by the learned counsel for the petitioner had remained unattended to at the time of promulgation of the said Ordinance. She too had referred to Articles 25(3) and 26(2) of the Constitution which permit enactment of laws and making of special provisions for the protection of children.
8. Mr. Abid Hassan Minto, Advocate appeared before this Court as an amicus curiae on a couple of dates of hearing but he could not get an opportunity to address the Court on those dates.
Thereafter he too did not show any interest in assisting this Court and failed to appear before the Court in connection with this petition despite his name regularly appearing in the cause-list issued for each and every date of hearing. We have, thus, been deprived of his assistance which, we are sure, would have been valuable.
9. Mr. Manzoor Ahmad Malik, Advocate appearing as an amicus curiae has addressed elaborate arguments before us and has seriously criticised the impugned Ordinance. He has submitted that the title of the impugned Ordinance contains the word 'juvenilebut the said word has not been defined in the Ordinance but instead a 'childhas been defined by section 2(b) of the said Ordinance to be "a person who at the time of occurrence of an offence has not attained the age of eighteen years". Mr. Malik has pointed out that by virtue of section 29-B of the Code of Criminal Procedure, 1898 a 'juvenilealready stood defined as a person "under the age of fifteen years" and section 29(1)(a) of the Punjab Youthful Offenders Ordinance, 1983 already defined a 'childas a person who "has not attained the age of fifteen years" and, thus, the definition of a 'childcontained in section 2(b) of the impugned Ordinance fixing the age as below eighteen years is in direct conflict with the above mentioned existing laws. He has brought the entire Ordinance under scathing criticism but has taken particularly strong exception to the provisions of section 5 thereof which requires separate trial of a 'childand section 12 thereof which contains a prohibition against the punishment of death for a 'childoffender. According to him in cases where a 'childcommits an offence jointly with an adult section 5 of the impugned Ordinance ensures duplicity of, effort by Ale prosecution and also contains an inherent risk of conflicting judgments being rendered by a Juvenile Court and an ordinary court. Being a busy trial lawyer, and very able too, he has categorically stated on the basis of his personal experience that the spirit of the provisions of the said section is invariably being ignored by the trial courts as the same Sessions Judges and Additional Sessions Judges are functioning both as the ordinary courts as well as the Juvenile Courts and more often than not a 'childaccused is tried by the same Judge Who tries the adult accused and the evidence recorded in the adult's trial is usually transferred and adopted by such courts for the purposes of the child's trial. He has, also maintained that because of the prohibition against the punishment of death for a 'childcontained in section 12 of the impugned Ordinance more and more cases are now coming up for trial in which accused persons below the ,age of eighteen years are alleged to have committed serious offences like murder and gang-rape or alleged to have indulged in terrorism or dealing in narcotics. He has further argued that the law existing prior to introduction of the impugned Ordinance took adequate care of a minor offender and that the impugned Ordinance is idealistic and divorced from the local ground realities.
10. After hearing the learned counsel for the petitioner, the, learned law officers and the learned amici curiae at some length and after going through the material referred to by each of them we are constrained to observe at the outset that the impugned Ordinance has not appeared to us to be the finest example of legislative draftsmanship inasmuch as its language as well its contents have been found by us to be defective and unthoughtful in many ways. A defect in the form or language of a legislative instrument can be swallowed with a pinch of salt or overlooked with disappointment but a defect in its substance or content cannot remain without being followed by the requisite or necessary legal consequences. There is no denying the fact that on account of his tender age a child deserves special handling and treatment and even before the introduction of the impugned Ordinance different laws in our country already provided for sympathetic and concessionary treatment of minor accused persons and offenders in the matters of capacity to commit a crime, bail and custody as is evident from the provisions of sections 82 and 83 of the Pakistan Penal Code and sections 29-B, 497 and 399 of the Code of Criminal Procedure. The concept of Borstal Institutions and Reformatory Schools for young prisoners already stood recognized and put into practice by various legislative enactments even prior to promulgation of the impugned Ordinance. Even in the matter of sentencing the courts have all along been particular in attending to the factor regarding age of the offender before passing a sentence against him. All these measures had blended well with the remaining body of laws and the progress and direction of the law relating to children was by and large steady and positive. The injection of the impugned Ordinance into our legal system has, however, been found by us to be rather abrupt and not very well thought of besides the dose being heavier than required at such a stage of development of our laws and social behaviour. Apart from that we are constrained to observe that we have found the impugned Ordinance to be inconsistent with and violative of Articles 4, 9 and 25 of the Constitution besides being replete with incompatibilities with other laws, glaring impracticalities, some downright absurdities and a number of obscurities rendering the same unfit and unsafe for retention in our criminal justice system. Definition of a 'child', provisions relating to separate trial of a child, a part of the provisions concerning bail during trial and abolition of the sentence of death vis-a-vis a child are some of the areas which require special attention in this context.
11. The age fixed by the impugned Ordinance for determining whether an accused person is a 'childor not has been found by us to have been fixed arbitrarily and randomly. Section 2(b) of the impugned Ordinance defines a 'Childas "a person who at the time of commission of an offence has not attained the age of eighteen years". This definition of a 'childmakes no distinction between a male and a female and no other yardstick has been provided by this definition except age in terms of years. In England, according to section 50 of the Children and Young Persons Act, 1933 as amended by section 16 of the Children and Young Persons Act, 1963, there is a conclusive presumption that no child under the age of ten years can be guilty of any offence and an infant between the ages of ten and fourteen years is presumed to be doli incapax incapable of possessing the requisite mens rea for committing a crime. Thus, in England the age limit for a child stands fixed at fourteen years. In India section 2(h) of the Juvenile Justice Act, 1986 provides that " `juvenilemeans a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years". This shows that in Pakistan, England and India different ages have been specified for declaring an accused person a 'childor a 'juvenilefor the purposes of special treatment as such. In Pakistan itself different measures have been provided in this regard by different statutory provisions. Section 3 of the Majority Act, 1875 fixes the age of majority as eighteen years and in one particular situation twenty-one years. Section 82 of the Pakistan Penal Code provides that "Nothing is an offence which is done by a child under seven years of age" and section 83 of the same Code provides that "Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion." As already mentioned above the impugned Ordinance fixes the age of a 'childas less than eighteen years. As against that according to the definition of an 'adultcontained in section 2(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 " 'adultmeans a person who has attained, being a male, the age of eighteen years or, being a female, the age of sixteen years, or has attained puberty". This definition of an 'adultcontained in the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 not only recognizes the distinction between different ages at which males and females attain adulthood but it also recognizes that adulthood may be attained by both males and females even before the specified ages if it is established that they have attained puberty. Even section 2(a) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and Article 2(a) of the Prohibition (Enforcement of Hadd) Order, 1979 define an 'adultas "a person who has attained the age of eighteen years or puberty". In the case of Farrukh Ikram v. The State [PLD 1987 SC 5] the Hon'ble Shariat Appellate Bench of the Supreme Court of Pakistan had decided that a female attains puberty when she starts menstruating and in the case of Abdul Jabbar v. The State [PLD 1991 SC 172] the same Court had laid down that a male attains puberty when he starts secreting semen. Section 29-B of the Code of Criminal Procedure, 1898 refers to a `juvenileas a person "under the age of fifteen years" and according to section 29(1)(a) of the Punjab Youthful Offenders Ordinance, 1983 a `childis as a person who "has not attained the age of fifteen years" The law officers appearing before us on behalf of the Federation and the Province have failed to point out as to on what basis, .Material or criterion the impugned Ordinance has fixed the age of a 'childas less than eighteen years. They have also failed to refer to any meaningful or detailed study of our social patterns or criminal trends or any statistical data in that regard supporting such fixation of age of a 'childby the impugned Ordinance. All this shows that while fixing the age of a `childin the impugned Ordinance the criterion adopted was nothing but arbitrary and whimsical. Such an arbitrary or random exercise in legislation can hardly be accepted by a court of law as reasonable or based upon any intelligible differentia so as to save it from a challenge based upon unreasonable classification and discrimination.
12. We have also found a lot of substance in the argument of the learned counsel for the petitioner that the stages and standards pertaining to attaining of maturity by young persons in different parts of the world are different and the stages and standards in that regard acceptable in one part of the world may not be strictly relevant to other parts of the world. Such attainment of maturity of understanding is dependent upon social, economic, climatic and dietary factors and we have every reason to D understand that a child in our part of the world starts understanding the nature and consequences of his conduct sooner than a child in the West. Growing up in close proximity and interaction with adults due to social and economic conditions, doing odd jobs and getting employed at a relatively young age due to general poverty, hot climate and exotic and spicy food all contribute towards a speedy physical growth and an accelerated maturity of understanding of a child in our society. Criminal liability of an infant in the Indo-Pak sub-continent was commented upon by Piggott, J. In the case of Emperor v. Paras ram Dube [AIR 1915 Allahabad 134] in the following words: "The presumption of English Law against the possibility of the commission of the offence of rape by a boy under the age of 14 years has no application in this country. The law on the subject of infancy in connection with criminal liability is laid down in Ss. 82 and 83 of the Indian Penal Code and nowhere else."
It is relevant and significant to mention here that the British Parliament which had enacted sections 82 and 83 of the Pakistan Penal Code (at that time the Indian Penal Code, 1860) had subsequently fixed a different yardstick in terms of age regarding attainment of maturity of understanding of the nature and consequences of conduct in respect of young offenders in England. As already observed above, according to section 50 of the Children and Young Persons Act, 1933 as amended by section 16 of the Children and Young Persons Act, 1963 there is a conclusive presumption that no child under the age of ten years can be guilty of any offence and an infant between the ages of ten and fourteen years was presumed to be doli incapax but this presumption was rebuttable by evidence of "mischievous discretion" or guilty knowledge that he was doing something which was wrong. This aspect of the matter has been commented upon by Smith and Hogan (`Criminal Law', Tenth Edition, Butterworths 2002) at pages 211 and 212 in the following words: "Infants or, in more modern terminology, minors, are persons under eighteen years of age. As such, they are (with some exceptions) incapable of making contracts or wills but the law imposes no such limitations on their ability to commit crimes, for, as Kenny put it, `a child knows right from wrong long before he knows how to make a prudent speculation or a wise will'.
Ten is a comparatively low age for the beginning of criminal responsibility; but as Ingleby Committee pointed out: `In many countries the "age of criminal responsibility" is used to signify the age at which a person becomes liable to the "ordinary" or "full" penalties of the law. In this sense, the age of criminal responsibility in England is difficult to state:, it is certainly much higher than eight.'
At common law there was a rebuttable presumption that a child aged not less than 10 but under 14 years was doli incapax, incapable of committing crime. The presumption was rebutted only if the prosecution proved beyond reasonable doubt, not only that the child caused an actus reas with mens rea, but also that he knew that the particular act was not merely naughty or mischievous, but 'seriously wrong'. If there was no evidence of such knowledge, other than that implicit in the act itself, the child had no case to answer. In C v. DPP ([19961 AC 1) the Divisional Court held that this ancient rule of the common law was outdated and no longer law; but the House of Lords ruled ([19951 2 All ER 43) that it was not open to the courts so to hold. That decision was followed by a series of acquittals which caused disquiet. Parliament responded by abolishing the rebuttable presumption (Crime and Disorder Act, 1998, section. 34). This was probably intended to put children aged ten and above on an equal footing with adults, so far as liability to conviction is concerned."
Such different treatment of young delinquents in different parts of the world by the same legislative source goes a long way in fortifying our observations made above that no universal yardstick can be fixed in that regard. Speedy attainment of maturity of understanding by children in rural areas of the Indo-Pak sub-continent was also commented upon by the Supreme Court of India in the case of Tehal Singh and others v. State of Punjab [1985 PSC 1407] and while discussing the statement of a thirteen years old witness in a case of murder it had been observed as follows: "6. Hardip Singh is a lad of 13 years. In our country and particularly in the rural areas it is difficult to think of a lad of thirteen years as a child. A vast majority of boys round about that age go to the fields and do men's work. They are certainly capable of understanding the significance of the oath and the necessity to speak the truth. The learned Sessions Judge who had the opportunity of seeing the witness Hardip Singh in the witness-box did not consider it necessary to treat him as a child witness. A perusal of his evidence also shows that he has certainly attained a measure of mature understanding. We do not think we can accept Dr. Chitale's argument and on the ba'sis that Hardip Singh is a child witness."
Even in England in the case of B. v. R. [(1960), 44 Cr. App. Rep. 1] evidence that a boy, aged just under nine years, came from a respectable family, had been properly brought up and was generally well behaved was held sufficient to prove that he knew that house-breaking and theft were wrong. That case was, of course, decided when the minimum age of criminal responsibility was eight years. In the case of F. v. Padwick [(1959) Crim. L. R. 439] the Divisional Court in England went further by emphasising the general desirability of admitting evidence of the child's home background "and all his circumstances", even at the risk of disclosing information highly prejudicial to him, so as to assess his maturity of understanding. In England a boy under the age of 14 cannot be found guilty of committing rape or of assault with intent to commit rape or of offences involving carnal knowledge. This rule primarily rests upon the principle of physical impossibility and, therefore, no evidence is admissible to prove that the particular boy had attained puberty before the age of 14. The law in this regard is, however, different in Pakistan. It has already been observed by us above that according to the definition of an 'adultcontained in section 2(a) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 " 'adultmeans a person who has attained, being a male, the age of eighteen years or, being a female, the age of sixteen years, or has attained puberty" and even section 2(a) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 and Article 2(a) of the Prohibition (Enforcement of Hadd) Order, 1979 define an 'adultas "a person who has attained the age of eighteen years or puberty". As mentioned above, the Hon'ble Shariat Appellate Bench of the Supreme Court of Pakistan has already decided that a female attains puberty when she starts menstruating and that a male attains puberty when he starts secreting semen. This difference in the laws of Pakistan and England in this regard may have a direct nexus with G the-local social, economic, climatic and dietary factors and the same goes a long way in highlighting that questions of adulthood may receive different responses in different parts of the world. Even in the Indo-Pak sub-continent itself the standard of adulthood in the context of juvenility has been fixed differently. We have already noticed that according to section 2(b) of the impugned Ordinance a 'childis "a person who at the time of commission of an offence has not attained the age of eighteen years" whereas in India section 2(h) of the Juvenile 'Justice Act, 1986 provides that " 'juvenilemeans a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years". This again highlights the importance of undertaking an in-depth study of the local social and other conditions before promulgating a law like the impugned Ordinance but, alas, no such exercise is shown to have been undertaken in this regard in our country before introduction of the impugned Ordinance. This has made the unreasonableness in this regard worst confounded.
13. The impugned Ordinance has also been found by us to be marred by various impracticalities of diverse nature. For instance subsection (3) of section 4 of the impugned Ordinance provides that "The Juvenile Court shall have the exclusive jurisdiction to try cases in which a child is accused of commission of an offence". This shows that all offences allegedly committed by a child are triable exclusively by a Juvenile Court. This provision is, however, directly in conflict with many other laws which make certain specified offences triable exclusively by Special Courts, i,e, Anti-Terrorism Courts, Narcotics Courts, Drug Courts, Banking Courts, etc. It is interesting to notice that a Juvenile Court has been conferred the exclusive jurisdiction to try an offender whereas the Special Courts mentioned above have the exclusive jurisdiction to try the relevant offences. An offender cannot be tried by a court having no jurisdiction to try the relevant offence and conversely an offence cannot be tried by a court having no jurisdiction over the offender! Section 14 of the impugned Ordinance providing that "The provisions of this Ordinance shall be in addition to and not in derogation of, any other law for the time being in force" has compounded the confusion in this regard as instead of resolving the conflict it has provided feed to the same.
14. Likewise, the provisions of section 5 of the impugned Ordinance present a nightmare of impracticality by mandating that "no child shall be charged with or tried for an offence together with an adult" and in a case involving adult as well as child accused persons separate trials are to be conducted of the adult accused by the ordinary court and of the child accused by the Juvenile Court. Such separate trials of different accused persons in the same ,case by different courts not only raise questions of undue inconvenience and hardship for the complainant party involving issues pertaining to equality before law and equal protection of law under Article 25 of the Constitution but they also present a real prospect of conflicting judgments being rendered by different courts trying the same case. Interestingly section 5 of the impugned Ordinance excludes the application of section 239 of the Code of Criminal Procedure in this regard but at the same time section 14 of the impugned Ordinance provides that "The provisions of this Ordinance shall be in addition to and not in derogation of, any other law for the time being in force". We may, therefore, not be unjustified in observing that the impugned Ordinance has appeared to us to be unthoughtful and not a fine example of legal draftsmanship. It may not be out of place to mention here that in England section 6 of the Children and Young Persons Act, 1969 permits a joint trial of a juvenile and an adult where the offence charged is an indictable one. Even section 46 of the Children and Young Persons Act, 1933 recognized a few exceptions to the rule that the criminal jurisdiction over juvenile offenders was to be exercised by a juvenile court and not by any other court of summary jurisdiction. One of such exceptions enabling an adult court to hear the charge was where the juvenile was involved with an adult in the same or allied offence. This was meant to avoid separate trials and a possibility of conflicting judgments being handed down by different courts hearing the same case. In India section 24 of the Juvenile Justice Act, 1986 requires that "no juvenile shall be charged with or tried for any offence 'together with a person who is not a juvenile".
Similar provisions were also incorporated in the earlier statutes like the Children Act, 1960, the West Bengal Children Act, 1959, the Bombay Children Act, 1948 and the Madras Children Act, 1920. In the case of Robin Bapari and another v. State [1986 Cri.L.J. 381] the Calcutta High Court and in the case of State v. Bansilal Chhotelal and another [AIR 1957 Bombay 13] the Bombay High Court were of the view that a juvenile could be tried only by a Juvenile Court and hence when the trials of an adult and a juvenile were separated by virtue of the Children Act, the trial of the adult was to proceed under the Code of Criminal Procedure while that of the child would be by the children's court under the Children Act. However, in the case of Sessions Judge, Tirunelveli v. Perumal [1947 Cr.L.J. 261] a Full Bench of the Madras High Court had rendered the same opinion as was expressed in the case of in re Keralin [(1972) Mad.L.W. (Cri) 195] by Maharanjan, J. In the following words: "Where a plurality of persons jointly take part in an offence and some of them happen to be adult and others happen to be juveniles,_it is eminently desirable and certainly permissible that the same forum tries all the accused, adult and juveniles, not jointly but separately, trying the adult accused in accordance with the provisions of the Cr.P.C. And the juvenile accused in accordance with the provisions of the Madras Children Act and the rules framed thereunder. Such a procedure will, besides avoiding conflict of decisions in respect of the same occurrence, instil in the minds of the accused that even handed justice is rendered to them at least in the matter of appreciation of evidence, without any discrimination being shown merely on the ground of age."
In her book titled 'Treatise on The Juvenile Justice Act(published by The Indian Law Institute, New Delhi in 1993) Ved Kumari has observed at page 189 that: "One finds that during the debates in Parliament on a similar provision in the Children Bill, 1953 and the Children Bill, 1959 the apprehension was raised that separation of trials of the juvenile and the adult accused of the same offence will require duplication of work. It may result in different decision by the two forums. Also, findings of one court may prejudice that of the other. On the other hand, the provision was welcomed as separation of trial would mean that the child was not kept waiting while the case of the non-juvenile accused dragged on, in the criminal court. The provision was made to ensure protection of the interest of the child by the Juvenile Court rather than to consider the magistrate's difficulties and other things."
We may, however, observe here with respect that it is not just the difficulties of a Magistrate or the delay in the child's trial which are of primary or paramount importance but what is at stake is the interests of justice in the larger context. After all such serious questions of justice pertaining to adults cannot be lightly or conveniently sacrificed at the altar of interests of children or juveniles.
Left to us we would prefer the English approach in respect of joint or separate trials of adults and children rather than the Indian approach towards the issue. Such differences of approach and the merits or demerits of each such approach could have been thrashed and ironed out if a public or parliamentary debate had preceded the promulgation of the impugned Ordinance but unfortunately that was not the case. Apart from that it has been agreed before us by all concerned that, as pointed out by Mr. Malik, the spirit of the provisions of section 5 of the impugned Ordinance is invariably being ignored by the trial Courts as the same Sessions Judges and Additional Sessions Judges are functioning both as the ordinary courts as well as the Juvenile Courts and more often than not a 'childaccused is tried by the same Judge who tries the adult accused and the evidence recorded in the adult's trial is usually transferred and adopted by such courts for the purposes of the child's trial. Such a practice is highly objectionable besides being clearly illegal and the same appears to us to be counterproductive to the interests of the child accused as he is not even present before the ordinary court at the time of recording of the evidence in the adult's trial. It is better not to have a law rather than to have a law which is universally disregarded or flouted with impunity.
15. Section 6 of the impugned Ordinance is yet another example of impracticability. According to sub-section (2) of section 6 of the impugned Ordinance "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".
The word "ordinarily" has not been explained by the impugned Ordinance nor any exception has been specified and, thus, a discretion has been conferred without spelling out or indicating the parameters of its exercise. It has, therefore, not surprised us to learn that this provision is being completely ignored by the Juvenile Courts while conducting cases. Apart from that the same Sessions Judges and Additional Sessions Judges are functioning both as the ordinary courts as well as the Juvenile Courts and it is not practically possible for such courts to abstain from taking up any other case on a day when the case of a child accused is fixed for evidence on such day.
Such a manner of protection for a child at the cost of complete paralysis or breakdown of the judicial system at the plenary level vis-a-vis the adult citizenry has appeared to us to be too big a price to be even seriously contemplated, considered or mulled over.
16. While adverting to section 7 of the impugned Ordinance we may unhesitatingly observe that this provision has created nothing but havoc in our criminal justice system in particular and in the society in general. According to section 7 "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". We take judicial notice of the fact that because of this provision a large number of criminal cases witness a mini- trial regarding the age of an accused person before or during, and sometimes even at the far end of, the main trial of the accused person and during this exercise evidence, both oral and documentary, is received. A decision of the trial Court in that regard is then assailed through a revision petition before this Court and then the matter is taken to the Hon'ble Supreme Court.
Sometimes such issues are also raised for the first time in appeals before this Court and in appeals or petitions before the Hon'ble Supreme Court without this matter having been agitated before the trial Court at all. A lot of time is consumed in this process and more often than not such an exercise is undertaken with intentions and purposes which are other than bona fide. In the case of Ziaullah v. Najeebullah and others PLD 2003 SC 656 the Hon'ble Supreme Court of Pakistan had not only taken notice of but had also deprecated a growing trend that convicts already sentenced to death were trying to prove themselves to be children for the first time after the matters of their convictions and sentences had attained finality through the judgments rendered by the apex court itself. According to its annual report published by the Human Rights Commission of Pakistan on the State of Human Rights i1 2003in July, 2003 over 300 cases were pending in the Province of the Punjab alone wherein the ages of convicts on death row were being contested and after exhausting all the judicial remedies against their conviction and sentence the convicts were trying to establish that they were less than eighteen years of age on the day of occurrence and, thus, they could not be sentenced to death.
17. With our experience in this sphere we are constrained to observe that the impugned Ordinance is encouraging and promoting corruption in the society at a scale which is not only large but is also extremely alarming. Almost every day cases are coming up before us wherein fake School Leaving Certificates are obtained, incorrect medical opinions about age are procured, forgeries and interpolations are committed in the Registers of Births maintained at Union Councils and false Nikahnamas of parents of accused persons are prepared with a view to show the age of an accused person to be less than eighteen years at the time of occurrence so that a possible sentence of death may be avoided against him in cases of terrorism, murder, gang-rape or trafficking in narcotics, etc. We are, therefore, inclined to agree with the learned counsel for the petitioner that the impugned Ordinance is promoting falsehood, lies, forgeries and corruption in the society at a large scale and a law which corrupts the society at large in the name of protection for children is not worth retaining on the statute book. Destruction of the moral fibre of the society as a whole is once again too big a price to be paid for protection of children. Such a protection of a child in one criminal case at the micro level is surely not protection at all in the larger context or in the real sense if the society which such child is about to enter as an adult is allowed to be polluted and corrupted at the macro level. Even otherwise a law which contains such incentives for and has tendencies to corrupt the society in such a manner is counterproductive, paradoxical and at odds with the "protection of law" contemplated by the provisions of Articles 4 and 25 of the Constitution.
18. Section 10 of the impugned Ordinance provides for bail for a child accused but sub-section (3) of section 10 contemplates a situation where a child accused of even a bailable offence may not be released on bail. This is clearly a negation of the 'rightof bail in such cases provided for by section 496 of the Code-of Criminal Procedure. Such a denial of the right of bail by the impugned Ordinance is nothing but incongruous and impracticable in the absence of an appropriate amendment of section 496 of the Code of Criminal Procedure. Apart from that the concession of bail for a child accused contemplated by subsection (7) of section 10 of the impugned Ordinance has been whittled down by the proviso to that sub-section with reference to the nature and gravity of the offence allegedly committed or previous conviction of the accused. If such considerations are acceptable or relevant for refusing even bail to a child accused then there does not appear to be any justification for not allowing passage of the normal sentence against such accused person for such an offence committed by him. This inaptness in the impugned Ordinance exposes its lack of profundity and soundness.
19. All these infirmities in the impugned Ordinance have convinced us that the same is an impracticable piece of legislation which has been enacted without proper deliberation, thoughtfulness, care and attention to detail. In our considered view allowing such a law to continue to hold the field is risky and unsafe besides being perilous and hazardous to our criminal justice system.
20. By virtue of section 12 of the impugned Ordinance "Notwithstanding anything to the contrary contained in any law for the time being in force no child shall be--(a) awarded punishment of death". In England the Children Act, 1908 made an immunity from the sentence of death available to an offender who is less than sixteen years of age and in India such an immunity is available under the Juvenile Justice Act, 1986 to a boy less than sixteen years of age and a girl less than eighteen years of age. No reasonable or rational basis has been disclosed or made available before us to show as to why the age of eighteen years has been fixed in that regard in Pakistan through the impugned Ordinance. Such an exercise of legislative authority is clearly unreasonable and discriminatory as the relevant classification is not based upon any intelligible differentia.
21. Apart from an immunity from the sentence of death provided by section 12 of the impugned Ordinance the provisions of section 10 of the impugned Ordinance contemplate a lenient and liberal approach towards bail for such accused persons and after their conviction section 11 of the said Ordinance provides for their release on probation. We have found a lot of substance in the argument of the learned counsel for the petitioner that such immunity from the sentence of death, lenience in the matter of bail after arrest and prospects of release on probation after conviction provided for in the impugned Ordinance contain incentives for and have the tendency of not only encouraging persons below the age of eighteen P years to commit heinous crimes like murder, gang-rape, terrorism and trafficking in narcotics, etc. But the same may also embolden the older people in our society to prompt their young ones to commit such crimes with an understanding and assurance that they would get away with lesser sentences apart from availing of concessions in the matters of bail and release on probation. It has, thus, not surprised us to learn that incidents involving such crimes have significantly increased after introduction of the impugned Ordinance and a substantial number of cases being tried at present by the Juvenile Courts involve such heinous offences. According to its annual report published by the Human Rights Commission of Pakistan on the 'State of Human Rights in 2003over 12,000 children of less than 18 years of age were arrested in the Province of the Punjab from July 01, 2002 to March 01, 2003. The Amnesty International had reported that in June, 2003 around 4,500 juveniles were in detention across Pakistan and in July, 2003 over 300 cases were pending in the Province of the Punjab alone wherein the ages of convicts on death row were being contested and after exhausting all the judicial remedies against their conviction and sentence the convicts were trying to establish that they were less than eighteen years of age on the day of occurrence and, thus, they could not be sentenced to death. The extent of involvement of young persons in cases involving a sentence of death can well be gauged from the said report. The statistics published in the Daily Jang, Lahore on 15.11.2003 reveal the following picture as far as the Province of the Punjab is concerned: Penal provision(section)Offence Under-trial (boys)Under- Trial (girls)Convicted (boys)Convicted (girls)
302, PPC Murder 432 4 147 2 324, PPC attempted murder 197 25 392/395, PPC robbery/ dacoity 159 10 452/379/382/411, PPC trespass/theft/ handling stolen property161 1 8 365/366, PPC kidnapping/ abduction 12 3/4, PEHO Narcotics 158 73 2 10/11, OZEHO zina/ abduction 135 8 20 1 12, OZEHO sodomy/ abduction 122 33 other crimes 49 1 Total 1425 13 317 5 Total juvenile prisoners 1992 total boys 1974 total iris 18 total boys and iris sentenced to death 13 convicted boys 357 convicted girls 5 Under-trial boys 1604 Under-trial girls 13 number of jails 30 jails for juveniles 2 These figures clearly manifest that the apprehensions expressed by the learned counsel for the petitioner in this regard are not merely hypothetical or conjectural but the same find support from hard facts and conscious and deliberate misuse of the impugned Ordinance is more of a stark reality than merely a possibility.
22. The Preamble to the impugned Ordinance has also received our careful consideration.
According to the Preamble the impugned Ordinance is "An Ordinance to provide for protection of the rights of children involved in criminal litigation". This Preamble is remarkably different from the Preamble to the Indian Juvenile Justice Act, 1986 which reads as follows: "An Act to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to, and disposition of, delinquent juveniles".
According to section 2(e) of the Q Indian Act a 'delinquent juvenileis "a juvenile who has been found to have committed an offence" and according to section 2(1) a 'neglected juvenileis a juvenile who is found begging or who is homeless and without any ostensible means of subsistence and is a destitute or whose parent or guardian is unfit or incapacitated or who lives in or frequently visits a brothel or who is being or is likely to be abused or exploited for immoral or illegal purposes or unconscionable gain. Thus, the emphasis in India appears to be on a juvenile already found guilty of committing a crime or a helpless and neglected juvenile whereas in Pakistan the focus is only on protection of the "rights of children" "involved in criminal litigation". These so-called 'rightsof children have been debated before us by the learned counsel for the parties as well as the learned amici curiae at some length. The learned Deputy Attorney-General and one of the learned amici curiae namely Mrs. Jahangir have tried to defend the impugned Ordinance on the premise that the same is meant to protect the `rightsof children but they have, however, failed to refer to any such `rightrecognized by our Constitution. All that they could allude to in this respect are Articles 25 and 26 of the Constitution which provide as follows: "25. Equality of citizens.--(1) All citizens are equal before the law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children."
"26. Non-discrimination in respect of access to public places. (1) In respect of access to places of public entertainment or resort, not intended for religious purposes only, there shall be no discrimination against any citizen on the ground only of race, religion, caste, sex, residence or place of birth.
(2) Nothing in clause (1) shall prevent the State from making any special provision for women and children."
They could not dispute the fact that "special provisions" for the protection of women and children contemplated by these provisions of the Constitution are meant to be additional advantages for women and children in certain respects and such "special provisions" cannot be allowed to have the effect of denying others their own rights under the said or other provisions of the Constitution.
The case of Shirin Munir and others v. Government of Punjab through Secretary Health and another (PLD 1990 SC 295) has already settled this issue. As regards the generality of citizens the right to life guaranteed by Article 9 of the Constitution is to be read in conjunction with Article 4(1) of the Constitution which provides that "To enjoy the protection of law" is an inalienable right of every citizen and with Article 25(1) which mandates that all citizens "are entitled to equal protection of law". It has already been observed by us above that different provisions of the impugned Ordinance contain incentives for and have the tendency of encouraging young persons to commit serious crimes and for older people in our society to prompt their young ones to commit such crimes with an understanding and assurance that they would get away with lesser sentences apart from availing of concessions in the matters of bail and release on probation. Such a plausible and serious potential for misuse of the impugned Ordinance surely poses a grave threat to and creates a grim peril for the lives of citizens at large and we cannot close our eyes, disregard, overlook or ignore the same. In this view of the matter we have felt confident that the constitutionally guaranteed right to life enjoyed by generality of citizens has become vulnerable and the constitutional assurance regarding their enjoying the protection of law has either been taken away or seriously abridged by the impugned Ordinance. We are sanguine that through providing protection for the benefit of one relatively small section of the society the impugned legislation has rendered the other and larger sections of the society unprotected. Possibility of an equal or proportionate reprisal or punishment has always been accepted as the surest deterrence against aggression. The Maker of human body, mind and soul surely knows how the same can function or adjust best in their interaction with others. It has been ordained by Almighty Allah in respect of Qisas (retaliation) that:- "0 believers! Retaliation is prescribed for you in the cases of murder; a free man for a free man, a slave for a slave, and a female for a female. But if anyone is pardoned by his aggrieved brother, then bloodwit should be decided according to the common law and payment should be made with gratitude. This is a concession and a mercy from your Lord. Now, whoever exceeds the limits after this, shall have a painful punishment.
O men of understanding! There is security of life for you in the law of retaliation, so that you may learn self-restraint."
(Al-Qur'an: Sura 2, Verses 178 & 179)
An attempt by a creation to become wiser than its Creator would hardly commend itself for appreciation or approval. The recent movement in some parts of the. Western world in favour of S abolishing the penalty of death may just be a passing or a temporary phase in the sociological development of human race and we are not surprised that in many of such parts of the world the penalty of death is staging a comeback and is being reintroduced, not for the love of such a punishment but purely for its utility and efficacy as the most suitable deterrence.
23. An exercise in legislation which, while affording protection to the life of one, exposes another's life to danger or which, while extending a benefit to one, exposes another to a serious disadvantage may militate against Articles 4, 9 and 25 of the Constitution and the same cannot be termed or accepted as reasonable. An analogy in this regard may be found in the law relating to civil servants which provides for relaxation of rules by the competent authority for the benefit of a civil servant whose case may be one of hardship, inequity or injustice. It had been held by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab through the Secretary to Government of the Punjab, Lahore and 2 others [PLD 1991 SC 35] that: "The dispensation under section 22 of the Punjab Civil Servants Act is individual and is limited and controlled by a proviso which establishes the supremacy of the Act and the Rules. The relaxation can be beneficial to the civil servant without being prejudicial to anyone else even to the civil servant who is granted relaxation or exemption." (per Shafiur Rahman, J.)
(Emphasis has been supplied) It was further held that: "This section is primarily a saving section, basically intended to correct serious cases, where unusual factors place a civil servant in serious disability, which requires correction on the basis of equity and justice by the Governor himself, sitting at the apex of the executive hierarchy.
Amendments, additions and substitutions effected in the rules from time to time, mergers in and transfers from one service to another, etc., create a host of problems, where civil servants placed under serious disability and hardship call fora fair and equitable resolution of their difficulties. To meet these genuine cases, the Governor has been granted this special savings power to deal with such cases, so as to remove injustice and inequity which may stand in the way of a civil servant in securing hisjust rights. In short, it is a power rarely used, unless to serve justice or correct grave injustice, and perhaps never used arbitrarily to reward a person or to grant him an undue privilege over the right of another. These provisions permit the Chief Minister and the Punjab Government in individual cases of hardship to relax the rules. It is Still further, the order of the Governor relaxing the condition of 5 years service in the Department as Assistant Engineer for promotion of the said respondent No, 2 to the post of Executive Engineer out of turn, contravenes the rights of others because the respondent has been given forced seniority. The order of the learned Governor in the instant case not only violates the law declared by this Court, which strikes down retrospective regularisation, but directly contravenes Rule 8 of the 1967 and 1974 Rules and adversely affects the seniority and right of promotion of the 1974 batch of direct inductees and I would, therefore, with profound respect to the learned Governor, declare that the same deserves to be set aside." (per Rustam S. Sidhwa, J.)
(Emphasis has been supplied)
We may observe here in the context of Article 25 of the Constitution that if children have a right to be protected from the harm of adults then a corresponding right must also be implied that adults or other children T must also enjoy a right to be protected from the harm deliberately inflicted upon them by children consciously or otherwise of their privileges in the law as children.
24. The discussion made above leads us to observe that the impugned Ordinance has many incompatibilities with some other laws of the land and, therefore, the same does not fit well in our system of criminal justice. The law and the judicial pronouncements referred to above clearly highlight the fact that special treatment of a child is necessarily referable to his innocence and lack of understanding of the nature or consequences of his acts and the moment he is shown to have lost his childhood innocence he ceases to qualify for any special treatment and also that no particular or exact cut-off age limit can be prescribed in this regard except in cases of extreme tenderness of age where there cannot be any doubt about absence of proper understanding of the nature or consequences of acts. This jurisprudential concept finds a very clear and categorical expression in the provisions of sections 82 and 83 of the Pakistan Penal Code in the following words: "82 Act of a child under seven years of age.--Nothing is an offence which is done by a child under seven years of age."
"83 Act of a child above seven and under twelve of immature understanding.--Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion."
According to section 14 of the impugned Ordinance "The provisions of this Ordinance shall be in addition to and not in derogation of, any other law for the time being in force". This shows that the impugned Ordinance has not done away with or replaced the above mentioned jurisprudential concept contained in the Pakistan Penal Code in this regard and the above reproduced provisions of the Code are still the law of the land pertaining to young offenders. The provisions of sections 82 and 83 of the Pakistan Penal Code show that a child below the age of seven years is incapable of committing an offence because he is a doli incapax incapable of forming or possessing the necessary mens rea for an offence whereas a child between the ages of seven and twelve years can be capable of forming or possessing the necessary mens rea for an V offence unless it is established that he "has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct." It is interesting to notice that as regards a young delinquent above the age of twelve years the Pakistan Penal Code as well as the impugned Ordinance both treat him at par with an adult as far as his criminality or liability to conviction are concerned but the two differ mainly in respect of the mode and forum of his trial and with regard to his sentencing. Under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and the Prohibition (Enforcement of Hadd) Order, 1979 an offender who has already attained puberty is to be treated as an ordinary criminal even if he is otherwise below eighteen years of age and some of the offences under the said enactments carry a sentence of death. Even the Anti-Terrorism Act, 1997 and the Control of Narcotic Substances Act, 1997 recognize no significant distinction between a child and an adult once the offender's criminality is established on the record. It is interesting to point out that an offence of gang-rape under section 10(4) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 carries only a sentence of death and no other sentence, as already held by the Hon'ble Supreme Court of Pakistan in the cases of Shahzad alias Shaddu and others v. The. State [2002 SCM R 1009] and Bashir Ahmed and two others v. The State [PLD 2002 SC 775], and the position regarding an offence of blasphemy under section 295-C of the Pakistan Penal Code is also the same. If the Ordinance impugned through the present petition is to have its way then a 'childcommitting a heinous offence of gang-rape or perpetrating an outrageous offence of blasphemy cannot be sentenced to death. In such a situation such a child can be convicted for the offence but cannot be sentenced at all! Nothing could be more absurd and unreasonable than such a situation. There has to be something seriously wrong with a law that allows,such grave and serious offences to go unpunished. In this backdrop we are quite clear in our minds that on the jurisprudential plane what is relevant is the capacity of an accused person to understand the nature and consequences of his conduct and if an accused person is found to be of sufficient maturity of understanding then no special treatment is warranted qua him by the law in the matter of sentence which should be left to the relevant court to be decided in the light of the peculiar circumstances of a given case. Tender age of the offender can surely be one such peculiar circumstance. By making a departure in this regard through providing a cut-off age limit for special treatment the impugned Ordinance has not only become incompatible with the rest of the body of our laws but the same has also made a departure from the established jurisprudential concepts.
25. It may not be lost sight of in this context that in societies which are still struggling to get out of medieval criminal trends or tendencies a young person's criminality is, barring cases of exceptional and extraordinary circumstances, generally not visited with any special treatment or lenience only on account of his tender age. It may be argued in this context that a criminal who starts his criminal activity at a relatively young age cannot be turned loose on the society for a possible repetition of his offence or unlawful activity. To nip the evil in the bud is not just a cliche or an adage. It is based upon human experiences and accumulated wisdom and it was expressly referred to by the Hon'ble Supreme Court of Pakistan with approval in a case to be referred to shortly. The matter of sentencing of a young offender, nay an adjudged young murderer, in the Indo-Pak sub-continent had come under discussion in the case of Sheikh Hassan v. Bashir Ahmad and another [PLD 1966 (W.P.) Peshawar 97] and an Hon'ble Full Bench of the erstwhile West Pakistan High Court especially constituted to consider a question in that regard had observed in that respect as follows: "8. We had the advantage of full argument on the subject and on a careful review of the case-law on the point, we are clearly of-the view that it is almost well settled that mere youth by itself would not entitle the accused on the charge of a deliberate murder to the lesser penalty, and that, at any rate, a person aged 16 years who commits a deliberate act of murder must be assumed to act with full responsibility unless it is shown that he is mentally retarded, or that he had acted under the influence of somebody. It will be convenient here to read section 83 of the Pakistan Penal Code, which is as under: ------------
9. It will be plain from reading the language of the section reproduced above that where the accused is above seven years of age and under twelve, "sufficient maturity of understanding" is to be presumed in case of such a child unless negative be proved on defence, i,e,, the burden of proof lies on the accused above the age of seven and below twelve to show that he had not attained sufficient maturity. A person at the age of sixteen is sufficiently matured to understand the full implication of his acts, and therefore if he commits a deliberate murder, he cannot on account of mere age legitimately claim the benefit of the lesser penalty."
After making those observations the Hon'ble Full Bench adverted to the entire case-law available on the subject till then and concluded as under: "To sum up all the authorities referred to above are agreed that mere youth by itself would not earn the accused the lesser penalty in absence of any other extenuating circumstances. The overwhelming authority including the authority of the Supreme Court referred to above that youth by itself is not ground for awarding a light sentence."
Later on in the case of Shana and two others v. The State [1999 SCM R 1507] the Hon'ble Supreme Court of Pakistan had commented upon this aspect of the matter in the following words: "It is a cardinal principle of criminal law that every case is to be adjudged on the totality of its own facts and the attending circumstances. If a boy of sixteen years, forces a girl to marry him and on refusal kills her or compels a boy of lesser in age than him to make friendship with him for illicit purposes and on his denial, murders him, then on what legal or moral basis such murderer can claim the benefit of lesser penalty and on what moral value the factum of "tender age" can be pleaded as a mitigating circumstance. In such a case it would be most appropriate to award normal penalty of death so as to nip the evil in the bud. On the other hand, if an immature lad, who is entirely dependent on his father and remains under his influence, commits murder in the company of his father or independently of him but at his behest and instigation in order to take revenge of his close relation or to avenge family honour, then ends of justice would not be defeated if he is given lesser penalty of life imprisonment."
The American approach in this respect also appears to be somewhat similar as in that country mere young age of the offender is not the sole criterion for treating him as a juvenile or for extending a concession to him in the matter of sentence. We may refer in this context to the relatively recent cases of Kevin N. Stanford v. Kentucky and Heath A. Wilkins v. Missouri [106 L. Ed. 2d.
306] decided by the Hon'ble Supreme Court of the United States of America wherein the question in issue was as to whether the imposition of capital punishment on juvenile offenders constituted cruel and unusual punishment prohibited by the Federal Constitution's Eighth Amendment or not.
In one of those cases a boy aged about seventeen years had robbed a gas station, raped and sodomized a station attendant and finally shot the attendant to death so that she could not identify him. The Jefferson District Court, Kentucky determined that the boy should be tried as an adult in the Jefferson Circuit Court, Kentucky, as allowed by the state law, in the light of seriousness of the offences. The boy was ultimately .Convicted of murder, first-degree sodomy, first-degree robbery and receiving stolen property and was sentenced to death plus forty-five yearsimprisonment. The Supreme Court of Kentucky affirmed the convictions and sentences of that boy. In the, second case a boy aged about sixteen years conceived a plan to rob a convenience store and to murder whoever Would be behind the counter so as to leave no witness and, in executing that plan, stabbed the store's owner/operator and left her to die. A Missouri Juvenile Court certified the boy for trial as an adult on account of the viciousness of the crime, the boy's maturity and the failure of the juvenile justice system to rehabilitate him after previous delinquent acts. The trial Court convicted the boy and found that the death penalty was appropriate, given the fact that it was committed in the course of a robbery. The Supreme Court of Missouri affirmed the boy's convictions and sentences. In both those cases the Hon'ble Supreme Court of the United States of America affirmed the young convictssentences of death as valid and held that:
(1) The imposition of the death penalty for crimes committed at age 16 or 17 was not one of the modes or acts of punishment that was considered cruel and unusual at the time that the Constitution's Bill of Rights was adopted;
(2) there was no modern national consensus forbidding the imposition of the death penalty for crimes committed at those ages, given that (a) a majority of the states that permitted capital punishment authorized it for crimes committed at age 16 or above, (b) the number of states which did not permit capital punishment at all was irrelevant to the specific question of the propriety of the death penalty for juveniles, (c) foreign countriessentencing practices not reflecting American conceptions of decency were irrelevant to such question, (d) the provision of the Anti-Drug Abuse Act of 1988 limiting the death penalty for certain drug-related offences to offenders aged 18 and over did not embody a judgment by Congress that no murder was heinous enough to warrant the execution of younger offenders, (e) even if there were no federal statute permitting the execution of persons under age 18, that would not establish a national consensus forbidding such executions in the face of a substantial number of state statutes to the contrary, and (f) statistics indicating that the death penalty is very rarely sought or imposed for offences committed by persons under age 18 did not establish that prosecutors or juries found the imposition of the death penalty categorically unacceptable in such cases, but might mean only that they thought it should rarely be imposed;
(3) there was no relevance in statutes which set 18 or more as the legal age for engaging in such activities as driving, drinking and voting;
(4) other evidence of a national consensus, such as public opinion polls and the views of interest groups and professional associations, was not sufficient for constitutional purposes and should properly be addressed to the citizenry;
(5) the Supreme Court could not apply its own "informed judgment" as to the desirability of permitting the death penalty for crimes by 16 and 17-year-olds; and
(6) the Supreme Court had never invalidated a punishment solely on the basis of a disproportion between that punishment and the convict's blameworthiness.
Inspired by the above mentioned observations made by the Hon'ble Supreme Court of Pakistan as well as by the Hon'ble Supreme Court of the United States of America we may remark here that it may be advisable to keep the deterrence of the capital sentence intact even in cases of- young offenders while leaving the matter of sentencing in the hands of the courts so as to pass an appropriate order in that regard while keeping in view the circumstances of a given case, including the factor regarding the offender's age. It may not be out of place to mention here that although special concessions have been extended by the impugned Ordinance to a child in the matter of bail but even in respect of bail it has been provided by the proviso to subsection (7) of section 10 of the impugned Ordinance that bail may be refused to an offender by the Court "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". It, therefore, defies reason that in a case of such nature the impugned Ordinance envisages refusal of bail during trial but at the same time it provides for withholding of the normal sentence and release on probation after conviction. It, thus, appears that the impugned Ordinance has been unthoughtful in this regard as well and all these critical aspects of the matter, including the accumulated wisdom gathered through consistent judicial pronouncements, had not been adverted to or considered before its promulgation.
26. We consider it necessary to reiterate here that the law in our country existing prior to introduction of the impugned Ordinance already substantially and satisfactorily took care of the objectives and purposes of the impugned Ordinance and, thus, there was hardly any pressing requirement or need for promulgating the impugned Ordinance at this stage and thereby to add unnecessary confusion and oddities in that regard. A survey of the pre-existing laws shows that the existing laws already provided for sympathetic and concessionary treatment of minor accused persons and offenders in the matters of capacity to commit a crime, bail and custody as is evident from the provisions of sections 82 and 83 of the Pakistan Penal Code and sections 29-B, 497 and 399 of the Code of Criminal Procedure. The concept of Borstal Institutions and Reformatory Schools for young prisoners already stood recognized and put into practice by various legislative enactments. Even in the matter of sentencing the courts have generally been very particular in attending to the factor regarding age of the offender. In that backdrop introduction of the impugned Ordinance, and that too in the absence of any public debate or parliamentary discussion, has been found by us to be imprudent, to say the least, if not an exercise in superfluity at this stage.
27. On the authority of Lord'Reid in the case of Haughton v. Smith 1975 A.C. 476, 500 it is said that the law may sometimes be an ass but it cannot be so asinine as that The Hon'ble Supreme Court of Pakistan had also observed in the case of Rashad Ehsan and others v. Bashir Ahmad and another [PLD 1989 SC 146] that "The law sometimes is called an ass but the Judge should, as far as it is possible, try not to become one". Similarly in the case of Mst. Aziz Begum v. Federation of Pakistan and others PLD 1990 SC 899 the Hon'ble Supreme Court of Pakistan had reiterated "the principle" that the "law may be blind but the Judge is not". The unconstitutionalities, infirmities, impracticalities, absurdities, obscurities and unreasonableness of the impugned Ordinance found by us above have convinced us that the said law does not fit into and piece well with our Constitutional and legal system of dispensation of criminal justice and, thus, the same needs to be struck down in the larger interest of our society. In this view of the matter notwithstanding any moral or legal obligation created by any international Declaration or Convention we cannot blindly or blindfoldedly allow the impugned Ordinance to destroy the moral and legal fibre of our criminal justice system at this stage. According to the United Nations Declaration of the Rights of the Child (1959) and the United Nations Convention on the Rights of the Child (1989) a child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection. However, the said international instruments did not provide anything for a 'childwho has already attained physical and mental maturity and who is capable of intentional commission of serious and heinous crimes. Even otherwise it has not been shown before us as to how the provisions of any such international declaration or convention have a binding effect vis-a-vis the municipal law of our country. It is a settled principle of public international law that considered in themselves, and particularly in their inception, all declarations, conventions or even treaties are, formally, only a source of obligation rather than a source of law. A statute is always, from its inception, law whereas a declaration, convention or treaty may reflect or lead to law but, particularly in its inception, is not, as such, law. A source of international obligation cannot be allowed by us to, through its premature local application, become a source of our domestic social doom.
28. It ought not to be ignored or overlooked in this context that the West has reached its present state and stage of criminal law and criminology after centuries of social and behavorial developments peculiar to its own culture and history and the impact and real results of its reforms in this regard are yet to be properly assessed and examined. We, thus, cannot blindly modulate our own policies and approaches and emulate the Western standards in this regard without appropriate social advancement and behavorial development in terms of our own social patterns and outlooks. In his book titled 'The Young Offender(published by Penguin Books, Ltd., England in 1967) D. J. West had found that according to the published statistics the young offenders in England were mostly involved in crimes like petty theft, larceny, breaking and entering property, robbery, simple violence, sexual delinquency and to some extent fraud. In his words most of such reported crimes "were rather trivial". He had found that: "violence constituted no more than ten per cent of the total of offences. Among these offences of violence, no more than six per cent led to serious injury or death. The circumstances of the offences divided into three groups of roughly equal number: youngsters brawling among themselves, fights with the police in the course of arrests, and attacks made on others in the course of thefts. In addition there were a few cases of family squabbles. In the bulk of offences the violence consisted of punching or pushing aside, and the injury was trivial or technical".
He had gone on to observe that: "At the same time one must never lose sight of the fact that, though the majority of young offenders may not commit very serious crimes, a small minority are as dangerous as anyone can ever be, and are responsible for some of the most atrocious and brutal crimes on the record.
Robbery with violence is most frequent among young men in their late teens or very early twenties.
In the case of murder, it is often pointed out that the majority of offenders are over thirty years of age and that most of them are ordinarily law-abiding citizens who have attacked one of their own family under the influence of insanity or serious mental stress."
He had added that: "Most of the offences of juveniles lack the gravity and substance, or the scheming and planning, which the public associates with crime. Even when one examines the crimes of boys from approved schools, many of whom are confirmed recidivists, it appears that their range is mostly limited to minor thefts and traffic offences, and that serious violence, sexual assaults and professionally organized crimes are most uncommon A somewhat older age group, the late teens and early twenties, includes some of the most dangerously violent offenders in existence, but fortunately they are very rare, and have little in common with the general run of young thieves or sporadic hooligans. The over-all impression left behind from a cursory examination of the statistical trends is that though the numbers are enormous they mostly stand for minor offences."
If England is to be taken as a representative sample of the Western society or standards then the above analysis by D. J. West highlights the fact that the criminal trends in the West sharply differ from those in our society. It has already been observed by us above that in our society it is not uncommon for young persons to be involved in serious and heinous crimes like murder, gang- rape, terrorism and trafficking in narcotics, etc. And the impugned Ordinance, through the concessions visualised by it in the matters of bail, trial, sentence and probation, contains a serious potential for aggravating the situation in this regard besides providing incentives and impetus to older members of the society to prompt their young ones to commit such crimes. Today the youth in the West is, by and large, not involved in the serious crimes being committed by our youth and this trend in the West has evolved over a period of centuries. There were times when young persons in the West were prone to committing serious offences and they were also dealt with and sentenced appropriately and accordingly. D. J. West had observed that: "On the scale of history, methods of disposal of convicted offenders of any age other than by death, flogging or imprisonment under highly deprived conditions are quite recent developments.
The hanging of small children used to be 'by no means unusualin England. In 1816, Samuel Romilly, in pleading unsuccessfully before the House of Commons for the abolition of hanging as a penalty for shop-lifting, mentioned the case of a ten-year-old boy at that very moment in Newgate Prison under sentence of death. In fact, since crime has always been a youthful activity, most of those hanged in the days when thieves were liable to execution were youngsters. The English Solicitor general, in 1785, noted that nine out of ten offenders hanged at that time were under twenty-one. In the first part of the nineteenth century, in England as in most other countries children and young persons, both those convicted and those awaiting trial, were sent to the same appalling prisons as adults, where no doubt they were quickly depraved and brutalized by their experience. In 1817, the Second Report of the House of Commons Committee on the State of the Police in the Metropolis, reported that in the previous year the new prison at Clerkenwell had received 399 felons aged from nine to nineteen, and that young and old were mixed indiscriminately, regardless of the nature or gravity of their offences. The report went on to describe how petty street pilferers, many of whom might be boys just starting a career of crime, were 'usually committed for a short time to prison, sometimes seriously flogged, and then, without a shilling in their pockets, turned loose upon the world more hardened in character than ever'.. Sir Edmund Du Cane, writing of the same period, 1816, noted that of the 3000 prisoners in London aged under twenty a half were juveniles under seventeen."
In his book titled 'The Law Relating To Children(published by Butterworths, London in 1973) H. K.
Bevan had, in relation to orders that may be passed against juvenile offenders by criminal courts, observed as follows: "Whatever view earlier law or practice may have adopted concerning the punishment of juveniles - and there are indications of some mitigation in their favour - certainly by the 17th century the principle of equality was firmly established, with no distinction being drawn between juvenile and adult offenders in the forms of punishment that could be inflicted. Depending upon the penalties attaching to the particular offence committed, juveniles, like adults, could be hanged, transported, imprisoned, subjected to various forms of corporal punishment or fined.
In the 18th century cases of juveniles being sentenced to death were quite common and sometimes the sentence was carried out. Nevertheless, there was a distinct reluctance to execute children, save for a period at the beginning of the 19th century when there was apparently some readiness to do so in order to check the practice of parents ordering their children to steal on the assumption that the latter would escape the penalty because of their age. This stricter attitude seems to have been short lived; yet, it was only with the passing of the Children Act 1908 that sentence of death was abolished in respect of persons under the age of 16.
The steep rise in the number of juvenile offenders from 1800 onwards is, however, only partly explained by parental pressures. The main cause lay in the new social conditions created by the Industrial Revolution. Overpopulated urban areas soon became fertile breeding grounds for juvenile offenders, many of whom, especially in London, frequented the notorious "flash houses", which served as social centres for debauchery and the organisation of criminal activities. That juvenile delinquency was one of the main social problems is evidenced by the formation in quick succession of two reforming bodies both of which devoted much of their work to inquiries into the reasons for its widespread existence. These were the Society to Inquire into Causes of Juvenile Delinquency, founded in 1815, and the Society for the Improvement of Prison Discipline and for the Reformation of Juvenile Offenders, founded in 1818. But the solution to the problem would not be found merely in inquiries of this kind. Reformers recognised also the need for mitigation of the severity of the criminal law and the introduction of separate methods for dealing with juvenile offenders. The immediate response of the legislature was modest. As we have seen, its relevant contribution to the substantive law was essentially to extend summary jurisdiction over young offenders, but gradually much more began to be done with regard to the treatment of young offenders. It will be seen that some of the orders which a court may make today owe their origin to 19th century legislation."
(Emphasis has been supplied)
It was in that backdrop that, according to D. J. West and H. K. Bevan, the process of reform started and progressed in England piece by piece and through such a progression of gradual and steady historical and socio-legal developments the said process has reached its present stage. It may be said that children in the West have by now been, by and large, tamed and disciplined by centuries of social and legal guidance and instruction and it would be naive to believe that we can cover this distance of centuries through one quantum leap or to expect that our peculiar socio-legal culture would undergo a drastic metamorphosis through one stroke of pen or through introduction of one Ordinance. Was it not Sir Francis Bacon who had observed in his essay titled 'Of Innovationsthat: "As the births of living creatures at first are ill-shapen, so are all innovations, which are the births of time. Yet, notwithstanding, as those that first bring honour into their family are commonly more worthy than the most that succeed, so the first precedent (if it be good) is seldom attained by imitation. For Ill, to man's nature as it stands perverted, hath a natural motion, strongest in continuance; but Good, as a forced motion, strongest at first. Surely every medicine is an innovation and he that will apply new remedies must expect new evils. For time is the greatest innovator; and wisdom and counsel shall not alter them to the better, what shall be the end? It is true that what is settled by custom, though it be not good, yet at least it is fit; and those things which have long gone together, are, as it were, confederate within themselves; whereas new things piece not so well; but, though they help by their utility, yet they trouble by their inconformity.
Besides, they are like strangers, more admired, and less favoured. All this is true, if time stood still; which contrariwise moveth so round that a forward retention of custom is as turbulent a thing as an innovation; and they that reverence too much old times, are but a scorn to the new.
It were good, therefore, that men in their innovations, would follow the example of time itself; which indeed innovateth greatly, but quietly, and by, degrees scarce to be perceived; for otherwise, whatsoever is new is unlooked for; and ever it mends some, and pairs other; and he that is holpen takes it as a fortune, and thanks the time, and he that is hurt, for a wrong, and imputeth it to the author.
It is good also not to try experiments in States, except the necessity be urgent, or the utility evident; and well to beware, that it be the reformation that draweth on the change, and not the desire of the change that pretendeth the reformation: and lastly, that the novelty, though it be not rejected, yet be held for a suspect; and, as the Scripture saith, that 'we make a stand upon the ancient way, and then look about us, and discover what is the straight and right way, and so to walk in it'."
29. For what has been discussed above we have entertained no manner of doubt that most of the provisions of the impugned Ordinance, in the words of Bacon, "piece not so well" with the Constitutional and legal dispensation of criminal justice in our country and they also "trouble by their inconformity" because, perhaps, it was not strictly the reformation that drew on the change but just the desire for change that had pretended the reformation.. Our societal attitudes do not appear to be ripe enough at this stage for the desired change. A quantum leap may be possible in the fields of science or technology but the same is surely not achievable in social or legal trends or attitudes which take some time to evolve. It appears that the impugned Ordinance has tried to achieve through a revolution an objective which was fit for evolution and measured growth. An imported romance for a young offender should not have been allowed to stretch the legal dispensation in our country to the limits of absurdity. How can we forget in this context that the concept of avoidance of fasad-fil-arz is a cornerstone of Islamic system of dispensation of criminal justice. We are sanguine that if the impugned Ordinance had been preceded by a parliamentary or at least a public debate then the same would not have suffered from the maladies and infirmities noticed by us therein.
30. On the basis of the reasons recorded above this writ petition is allowed and the Juvenile Jpstice System Ordinance, 2000 (Federal Ordinance No, XXII of 2000) is hereby struck off the statute book on account of its being unreasonable, unconstitutional and impracticable. It, however, goes without saying that the Parliament may, if it sodesires, enact a fresh law in this regard after attending, to all the infirmities of the impugned Ordinance highlighted, by us above. As a necessary consequence of the declaration made and the order passed by us above the Juvenile Courts established under the said Ordinance shall stand abolished forthwith and all the cases pending before all such Courts shall ipso facto stand transferred to the ordinary, courts of .Competent jurisdiction. There shall be no order as to costs.
31. For the purpose of removal of a possible doubt we consider that a clarification may be necessary. From the date of promulgation of the Juvenile Justice System Ordinance, 2000 to the date of its annulment by us through the present judgment accused persons below the age of eighteen years involved in criminal cases have enjoyed immunity from the sentence of death but now through annulment of the said Ordinance that immunity from the sentence of death has disappeared. By virtue of the provisions of Article 12(1)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 an accused person who has enjoyed such immunity from the sentence of death at the time of commission of an offence cannot subsequently be sentenced to death. In view of this constitutional position it is clarified that an accused person involved in an offence committed between the date of promulgation of the Juvenile Justice System Ordnance, 2000 and the date of announcement of this judgment shall be well within his constitutional right to assert and establish that he was less than eighteen years of age at the time of commission of the alleged offence and then to claim immunity from the sentence of death.
32. Before parting with this judgment we would like to place on record our appreciation of the hard work put in by the learned counsel for the petitioner and the learned law officers and the valuable assistance rendered to us by the learned amici curiae.