Whether Section 6(5) of the Act is applicable to a case where the juvenile, including a juvenile over sixteen years of age, is involved in a “heinous offence.”
Under the Act, offences have been categorized into (i) minor offences,(ii) major offences and (iii) heinous offences. The offence of Qatl-i-amd involved in the present case, being serious in character and punishable with death or imprisonment for life under Section 302 PPC, is admittedly a “heinous offence” as defined in Section 2(g) of the Act.
Section 6 of the Act deals with the release of a juvenile on bail falling under different categories of offences. Section 6(3) provides for treating the “minor offences” and “major offences” as bailable, while the provisions for release on bail of a juvenile accused of bailable offences are contained in subsection (1) thereof. These provisions though provide for placing a juvenile accused of a bailable offence under the custody of a suitable person or Juvenile Rehabilitation Centre under the supervision of probation officer if there are reasonable grounds for believing that the release of such juvenile may bring him in association with criminals or expose him to any other danger, but categorically prohibit his detention in a police station under police custody or in a jail. Therefore, a juvenile cannot be detained in a police station or a jail in bailable offences, which include minor offences and major offences as defined under the Act.
Section 6(4) of the Act provides that where a juvenile is more than sixteen years of age and is arrested or detained for a heinous offence, he may not be released on bail if the Juvenile Court is of the opinion that there are reasonable grounds to believe that such juvenile is involved in commission of a heinous offence. While Section 6(4) deals with the bail of juveniles under a heinous offence on merits, a separate provision provides for bail to the same juveniles where they have been detained for a continuous period exceeding six months and whose trial has not been completed. Under the Act, only in a case involving “heinous offence” can a juvenile be detained in a police station or a jail. Thus, it can safely be concluded that Section 6(5) of the Act does apply, rather solely applies, to a case involving a “heinous offence”, irrespective of the age of the juvenile. Section 6(5) in effect works as a proviso to Section 6(4) and appears to have no other purpose under the scheme of the Act. The approach of the trial court, in the present case, to decline benefit of Section 6(5) of the Act to the petitioner merely by observing that the offence is “heinous” is not legally correct; this subsection is meant for, and only applies to, a case involving “heinous offence”. To hold otherwise will render Section 6(5) redundant and unnecessary.
It is important to keep in mind the conceptual framework of juvenile justice system which has been carved out of the general criminal justice system. Juvenile justice system is not retributive in character, it is primarily rehabilitative and restorative. Restorative justice is “a theory of justice that emphasizes repairing the harm caused by criminal behavior.” It rests on the “best interest of the child”and ensures fulfillment of his basic rights and needs, identity, social well-being, physical, emotional and pschological development. This therapeutic underpinning is the central theme of Juvenile Justice System. Juvenile courts, by their very nature, were designed to be more therapeutic than the adult criminal justice system as juveniles differ from adults in their development and their needs.
The juvenile justice system also finds its ideological roots in the Constitution of the Islamic Republic of Pakistan 1973 (“Constitution”). Article 25(3) empowers the State to make special provisions for the protection of children even if such protection discriminates against the adults (reverse discrimination10). Article 35 of the Constitution provides that the State shall protect the child. Furthermore, the State of Pakistan is a signatory to the United Nations Convention on the Rights of the Child (“UNCRC”) and is thus under an international obligation to take special measures for the protection and rehabilitation of the juveniles who come in conflict with law. It was for the compliance of this constitutional mandate and for the fulfilment of this international obligation that the Act was enacted by the legislature of Pakistan. The main object of the enactment of the Act is to modify and amend the law relating to criminal justice system for juveniles by providing special focus on disposal of their cases through diversion and social integration for their rehabilitation.
Article 37 (b) of the UNCRC provides that the process of arrest, detention or imprisonment of a juvenile is to be used only as a measure of last resort and for the shortest appropriate period of time, while para 28 of the General Comments of the Committee on the Rights of the Child (CRC)12, which interprets Article 37(b), says that the use of deprivation of liberty, and in particular pre-trial detention, is to be strictly limited. Section 6 of the Act that deals with release of juvenile on bail pending his trial actualizes Article 37 (b) of the UNCRC.
Bail After Arrest
Crl.P.345/2022
Khawar Kayani v. The State through Advocate General Islamabad and another
Mr. Justice Syed Mansoor Ali Shah
20-06-2022
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