Daily Times

A man is likely to be released by the Indian Supreme Court after remaining on death row for two decades. He had been convicted in 1998 of the gruesome murder of seven people. The release is likely to be ordered on account of his being a juvenile at the time of murder. Under law, a minor cannot be handed down the extreme penalty. On February 19, 1998, a Pune trial court had handed down the death penalty for the macabre murder of five women and two toddlers at a flat in Kothrud in suburban Pune on August 24, 1994. A year later, the Bombay High Court had upheld the conviction and the sentence. On September 5, 2000, the Supreme Court had dismissed his appeal.

On September 24, 2014, the Supreme Court of India decided to give one last opportunity to all death row convicts to argue their cases in open court before not less than three judges. The court ruled that all petitions seeking review of judgments upholding the death penalty should be heard in open court. Grabbing the opportunity, the above-mentioned condemned prisoner filed a petition for review of judgement in the Supreme Court. Meanwhile, his petition for clemency was rejected by then president Parnab Mukherjee in August 2015.

In 2016, the death row convict filed the review petition. The apex court promptly decided to hear it in open court. Thereafter, the convict submitted an application claiming to be a juvenile at the commission of the crime. The apex court forwarded his application to the trial court of Pune to inquire whether the convict was a juvenile in August 1994 and submit a report in six weeks. Some days ago, the trial court in a startling twist, sent a report corroborating that the convict was indeed a juvenile, possibly a 12-and-a-half years old, at the time of the crime. The report prepared and submitted by the trial court of Pune to the apex court could have assured that the convict would not be sent to gallows, a hope he had harboured for more than two decades.

The Supreme Court of India earlier released the convict on a seven days parole to attend last rituals of his father. The approach adopted by the apex court is clearly humanistic and sets an example for other countries in Asia. In recent years, juveniles have been sent to gallows in Iran and Saudi Arabia. In a few instances, Pakistan has executed convicts who were believed to be juveniles at the time of the commission of the crime. In Pakistan, a number of death row convicts have been languishing in prisons for decades.

In a few instances, Pakistan executed convicts who were believed to be juveniles at the time of the commission of the crime. A number of death row convicts have been languishing in prisons for decades

The Juvenile Justice System Act of 2018 has replaced the Juvenile Justice System Ordinance of 2000. The Juvenile Justice System Ordinance of 2000 was meant to advance justice to juveniles across Pakistan. However, it failed to sort out juveniles-related legal issues comprehensively and effectively.

The 2018 Act is a complete code covering necessary legal angles to protect privacy, and legal rights of juveniles arrested by the police and then brought to courts on suspicion of committing a criminal offence. It is fair to suggest the JJSA 2018 and Ordinance of 2000 were introduced to bring laws in conformity with the UN Convention on Child Rights, which Pakistan has signed. The 2018 Act and the UNCRC have similarities; for instance, Article 37 of UN Convention prohibits the practice of the death penalty upon juveniles and the same principle is embodied in the Act in Section 16. However, the JJSA 2018 does not prohibit life imprisonment for juveniles. Under international law, death penalty and life imprisonment are both prohibited in cases involving juveniles.

Sections 7 and 8 of the law place the burden of establishing whether a suspect is juvenile or not upon the investigation officer. The investigation officer is required to place on record documents pertaining to the age of the arrested person. If an investigation officer finds documents and material evidence establishing the juvenility of an arrested person he must hand him/her over for investigation under the law.

The problematic point is: what happens when no material evidence is available to establish the juvenility of the arrested person? The law provides that the investigation officer may seek physical remand first under Section 167 of the CrPC and at the same time seek permission from the court for an ‘ossification test’ of the arrested person. Once the findings are available for the medical test, the investigation officer must proceed in accordance with the law. If an investigation officer pays no attention to the age of the arrested person, he/she will be treated as an adult in the court until his/her counsel argues for assessment of his/her age. The law provides that juveniles, whether under trial or convicted, are to be detained in Borstals and always away from adults.

A serious problem in the criminal justice system of Pakistan is the flawed investigation system. Investigation agencies frequently fail to report evidence regarding the age of the arrested person. The courts in Pakistan should follow the approach of the Indian apex court with regard to juvenile justice. Also, the age of an arrested person should always be determined during the investigation.

The writer is a Lahore-based advocate