' Through these two petitions the detention of two minor girls Shamim daughter of Bashir and Samreen daughter of Younis both aged about 13 years, detained in the Women Jail, Karachi have been called in question. Though the detenues have been described as petitioners in the cause title of both the petitions it appears that first C.P. No,827 of 1999 has been filed by one Abida Bano Kazi a volunteer of an Organization called Lawyer for Human Rights and Legal Aid, and C.P. No,828 of 1999 by Mst. Perveen mother of the detenue. However, since a petition under Article 199(1)(d)(i) of the Constitution calling in question any unlawful detention can be filed by any person, we would not attach much weight to the misdescription in the cause title, but only require learned counsels to make deletion of the names of the detenues as petitioners,
2. Coming to the facts of the two petitions it may be mentioned that detenue Shamim, the detenue in C.P. No,827 of 1999 was charged with and offence under sections 381/454 of the Penal Code pursuant to F.I.R. No,45 of 1999 of Police Station North Nazimabad wherein it was alleged that she had stolen an amount of Rs,10,000 and some gold ornaments from the house of the Nadir Mazhar in whose house she was working as a domestic servant. She was arrested by the police and subsequently committed to jail custody. The bail application moved on her behalf in the Court of Vth Judicial Magistrate, Karachi South was granted and she was directed to be released on bail in the sum of Rs,40,000 and P.R. Bond in the like amount. However, on account of poverty of the detenue and the fact that her family does not reside in Karachi, the bail could not be furnished and she continues to remain in custody since 25-2-1999.
3. Mst. Samreen the detenue in C.P. No,828 of 1999 was also working as a domestic servant in the house of one Arif Jamshed who lodged F.I.R. No,65 of 1999, dated 6-2-1999 at Police Station Gulshan-e-Iqbal alleging that she had stolen one chain, two lockets and one ring from his house and committed an offence under section 381/454, P.P.C. She was arrested by the police and apparently recovery was also made from her possession. Thereafter, she was remanded to judicial custody and continues to remain in jail. By an order, dated 10-3-1999 she was directed to be released upon furnishing surety in the amount of Rs,20,000 but again according to the petitioner on account of extreme poverty of the family, bail could not be furnished and she continues to remain in jail.
4. It has been alleged that the detenues who qualify as children under the Sindh Children Act, 1955 cannot be detained in jails at all under the provisions of the aforesaid Act, and therefore, they are being held in unlawful custody. Notices were issued to the respondents Nos. 2 to 4 i,e, Home Secretary, Government of Sindh, Inspector-General Prisons and Superintendent, Women Prison, Karachi but parawise comments have been offered only by the respondent No,4 in the two petitions i,e, Superintendent, Women Prison. It has been stated that the detenues have been legally detained under the provisions of the Pakistan Prison Rules and the detenues are kept segregated from adult female prisoners,
5. Mr. Zia Ahmed Awan learned counsel appearing in both the petitions urged that the Sindh Children Act, prohibited imprisonment of children accused of penal offences and such children could only be dealt with in terms of section 45 of the Act which provided that a child could either be committed to a certified school or to the care of a relative or fit person who could be called upon to execute a bond and assume responsibility for good behaviour and, well being of the child.
Additionally he contended that the order of the Judicial Magistrate requiring heavy bails to be furnished for the release of the detenues amounted to denial of protection guaranteed to them by the Sindh Children Act.
6. Mr. Iqbal Raad learned Advocate-General on the other hand contended that section 45 was attracted only to a child covered by the provisions of section 40 and was only applicable to destitute children. With respect to a boy or girl under the age of 16 years who were arrested and not released under section 64 or otherwise, section 65(2) was attracted providing for detention in a prescribed manner which meant a manner prescribed by Rules. In this context he referred to Chapter 13 of the Pakistan Prison Rules relating to women prisoners and children and pointed out that under Rule 308 women prisoners were classified into three categories, i,e, juveniles who were less than 16 years of the age; adolescents falling within the age group of 16 years to 20 years and the adults who were more than 20 years of age. Therefore, according to learned Advocate-General the Prison Rules did provide for detention of girls below the age of 16 years and as such detention could not be considered unlawful per se. As regards the merits of the two petitions learned Advocate-General candidly agreed that keeping in view the ages of the detenues, the fact that the offences, were not heinous and considerations of poverty the bail amount could be substantially reduced. Mr. Zia Ahmed Awan nevertheless submitted that the law also needs to be authoritatively settled as several other children were languishing in jails and unable to secure their legal rights because of inability to approach Courts and the petitions be treated as those filed in public interest. We must record our appreciation of the spirit shown by both learned counsel in their attempt to secure justice and fairness though displayed through different points of view.
7. Having carefully considered the contentions of the learned counsel, we are unable to persuade ourselves to agree with Mr. Zia Ahmed Awan's contention that a child accused of an offence ought to be treated in accordance with section 45 of the Sindh Children Act. In this respect we entirely agree with the contentions of learned Advocate-General that section 45 which falls under Part V of the Sindh Children Act dealing with protection of destitute and neglect children is only attracted when a child is brought before a Juvenile Court under section 40. Section 65 which falls under Part VII relating to youthful offenders would be the relevant provisions for dealing with the detenues.
Nevertheless we are unable to agree that the expression "prescribed manner" can be extended to refer to rules made under any law. Section 4(m) defines prescribed to mean prescribed by rules made under this Act (underlining ours) and obviously rules framed under the Prisons Act relied upon by the learned A.-G. Cannot be treated as prescribed rules for the aforesaid purpose. The difficulty has arisen because while section 65(2) was enacted in 1955 and the provisions of the Act were enforced throughout province by 1975, no effort was made in framing rules to deal with the manner in which children accused of offences could be dealt with during trial.
8. It needs to be highlighted that the Sindh Children Act, is statute modelled on the basis of present day consciousness in respect of treatment of children and juvenile delinquent. It completely does away with the concept of retributive punishment of children and provides a mechanism for their reform and rehabilitation as responsible and law abiding citizens for the future. Therefore, imprisonment of a child even if found guilty of an offence is absolutely prohibited by the mandate of section 68 notwithstanding anything to the contrary contained in any other law. On the other hand section 71 permits that a child so found guilty may be committed to a certified school or recognized institution till such time that he attains the age of 18 years and, in exceptional cases, for a shorter period. Section 72 further enables a juvenile Court instead of directing detention in such school or institutions to order him to be discharged after due admonition or to release him on probation of good conduct and commit him to the care of his parent, guardian or other fit person upon such persons executing a bond with or without sureties to be responsible for the good behaviour of the child. Section 69 requires that the expressions "conviction" and "sentence" shall not be caused with reference to a child dealt under the aforesaid Act.
9. With regard to certified school or recognized institutions it may be observed that Part III of the Act deals with such institutions. Section 25(1) provides that the Provincial Government may establish and maintain industrial schools for the reception of children and youthful offenders and subsection
(2) stipulates that any other industrial school or educational institution may be certified to be one for the aforesaid purpose by the Government. Section 26 enables the Government to declare any particular place as a remand home for the purpose of this Act. Sections 27 to 36 deal with management of such schools or institutions, responsibilities of managers and provisions for inspections of such institutions. It may be added that these institutions are not meant only for detention of youthful offendeRs, Under section 45 a destitute child and under section 81 a victimised child i,e, in respect of whom an offence is committed or is likely to be committed by another person, can also, be detained in such institutions upon orders from a juvenile Court. All these provisions show that these institutions are meant for rehabilitation and care of unfortunate children and are altogether different from jails. Moreover, the provisions of section 71 requiring clearly a child offender who will be detained till he reaches the age of 18 years (irrespective of the quantum of sentence prescribed under penal laws) clearly shows that detention in these institutions cannot be treated as punishment but only as an effort to protect and rehabilitate a child offender.
10. It may 'also be appropriate to mention that contemporaneously with the Sindh Children Act, the Sindh Borstal Schools Act, was also enacted by the Sindh Legislature. This Act, provides for establishment of Borstal Schools for detention of offenders between the age of 16 and 21 years where the Court considers that by reason of his criminal habits or association with persons of bad character, it is expedient that he should be detained for such time and for such instructions and discipline as appear most conducive to his reformation. Such schools obviously are established for detention of offenders possessing criminal habits and who have crossed the age of "child" under the Sindh Children Act. Section 5 of this Act, expressly provides that subject to any alteration, addition and exceptions made under the Act, or Rules made thereunder the Prisons Act, 1894 and the Prisoners Act, 1900 as well as the Rules framed thereunder shall apply to every Borstal Schools.
Such a provision being absent from the Sindh Children Act, is an additional reason for leading us to the irresistible conclusion that the institutions and schools required to be established and recognized under the Children Act, are altogether different from jails and the rigours of jail cannot be applied to children detained in such institutions.
11. The question that now confronts us is whether, and if so, where a child not enlarged on bail can be detained when no rules have been framed to fulfil the requirements of section 65(2). Indeed we are not unmindful of the principle laid down by the Hon'ble Supreme Court in M.U.A. Khan v. Sultan M. Rana (PLD 1974 SC 228) that absence of statutory rules would not. Render the statute itself unworkable. We are also conscious that strictly speaking section 68 only provides that a youthful offender shall not be sentenced to imprisonment and it could possibly be argued that while a child found guilty of an offence could not be sentenced to imprisonment there was no bar against his detention in jail as undertrial prisoner. Such argument however, would hold no water in view of the pronouncement of the Hon'ble Supreme Court in Province of Sindh v. Din Muhammad 1993 SCM R 1551. It may be mentioned that under the Bombay Children Act, 1924 though a Court could not sentence a child to imprisonment it could, on being satisfied that the punishment it was empowered to inflict was not sufficient or the child-offender was of so depraved or unruly character that he could not be committed to certified school, report the matter to the Provincial Government which could commit him to prison. Under the Sindh Children Act, while the power to report the matter to the Provincial Government was retained under section 68(2) no power was given to the Government to order detention in jail. Nevertheless, in certain cases when such references were made, the Government chose to direct the offender to be kept in jail and such orders were upheld inter alia in the case of Ashique Ali alias Ghulam Murtaza Soomro (1984 PCr.LJ 2000) on the ground that while the powers of the Court were restricted under section 71, of the Act, no such fetters were applicable upon the Government. This view, however, was disapproved by the Hon'ble Supreme Court in the above-cited case and it was held that the prohibition against imprisonment of a child laid down in section 68(1) was equally applicable to the Government. At best it could exercise powers of detention conferred by section 97 which includes power to transfer a boy over the age of 16 to a Borstal School.
12. Keeping in view the aforesaid pronouncement of the apex Court which is indeed binding on us, we are of the considered opinion that the power to commit a child accused of an offence to jail cannot be inferred from mere inaction on the part of the Government to frame statutory rules.
Moreover, it does not stand to reason that while not only the Court but even the Government is prohibited from committing a child to prison, despite a clear finding as to the commission of a heinous offence as well depravity of character, one merely accused of an offence should be so committed to jail. Moreover, when the Court even upon finding of guilt cannot commit a child to prison it cannot be assumed that it can do so by remanding him to jail custody by way of interim measure pending trial. Indeed it is settled law that rules framed under the rule-making power conferred by statute must be consistent with the present statute. As discussed above when section 68(1) absolutely prohibits imprisonment of a child offender even after being found guilty of an heinous offence and despite being of depraved character even if a rule were to be framed allowing detention in prison pending trial the same might be liable to be treated as ultra vires the Act itself.
We, therefore, entirely agree with Mr. Zia Ahmed Awan, though for somewhat different reasons, that during pendency of trial a child can at best be detained in a certified school established under the Children Act and detention in jail whether as undertrial prisoner or as convict is patently unlawful and liable to be declared as such.
13. Mr. Zia Ahmed Awan nevertheless pointed out that no such institution existed in the entire province, and therefore, there was no option but to commit the detenues to the care of their guardians or any other fit person. Such measure indeed can be taken even upon finding a child guilty of an offence under section 71 of the Act. Learned A.-G. Was unable to controvert this position.
We may only add that the ineptitude on the part of concerned authorities shown, in not framing rules or setting up required institutions according to the command of the Legislature cannot furnish any justification for keeping the detenues in unlawful custody or in unlawful manner in violation of their fundamental rights guaranteed by the Constitution. In the circumstances, therefore, we would direct that both the detenues be released forthwith and handed over to the two petitioners who claim to be their next friends upon execution of the petitioners bonds in the sum of Rs,20,000 each to ensure the appearance of detenues in Court and for their goods behaviour.
14. We are, indeed conscious of the fact that provisions relating to the manner of detention of juvenile as undertrial as well as convicted prisoners have been allowed to be retained in the Pakistan Prison Rules and there appears inconsistency between the provisions of those rules and the Sindh Children Act. It may be pointed out that the Pakistan Prison Rules have been framed under the provisions of the Prisons Act, 1894 and relate to the manner of the detention of those parsons who are committed to prison under different substantive laws. The Sindh Children Act on the other hand is a special law dealing with children and prohibits imprisonment of children notwithstanding any other law to the contrary. Obviously when a child cannot be committed to prison under a substantive law no question of manner of his treatment during imprisonment could conceivably arise. Therefore, all the provisions under the Prison Rules relating to children who cannot be imprisoned are void and inoperative. They only create confusions in the minds of prison and other officials dealing with children. The Government would, therefore, be well-advised to delete those provisions so as to prevent such confusion to recur and cause denial of liberty to future assets of the nation. A copy of this judgment may be forwarded to the Secretary, Home Department and Secretary, Law Department for appropriate action.