Criminal cases in which children appear as defendants are generally adjudicated in the same manner and by the same courts as those involving adult offenders. Children consequently suffer from the vagaries of an overstressed and inefficient criminal justice system, with frequent and prolonged delays in their trials and appeals. The limited application of Pakistan's juvenile laws and the lack of familiarity with them on the part of many judicial authorities also leads to the frequent imposition of harsh and sometimes unlawful sentences-a situation that is exacerbated where tribal or anti-terrorism courts hold sway.
Defects in the Criminal Justice System
The massive overcrowding in Pakistan's prisons, and the preponderance of inmates who are under trial, stems from a number of fundamental flaws in the criminal justice system. These include the failure of police to complete investigations within the time periods prescribed by law, the restrictive application of bail laws, the frequent adjournment of hearings, understaffed and underutilized parole and probation departments, and a dearth of free legal representation.
Delayed Investigation Reports
Police routinely fail to submit criminal investigation reports, or challans, to magistrates within fourteen days of registering a First Information Report, as prescribed by law. If the police are unable to complete an investigation within this time, they are allowed a further three days in which to file an interim report, pending submission of the complete report.16 But according to Abdul Majeed Ahmed Auolakh, principal of the Central Jail Staff Training Institute, the complete investigation report "usually doesn't come within a year [of the arrest]."17 This practice, and the resulting delay in the adjudication of children's cases, infringes on the right of detained children to a prompt hearing under Convention on the Rights of the Child.18
In a 1997 report on the criminal justice system, the Pakistan Law Commission identified several reasons for the delays in submitting challans. These included "inefficiency, lack of integrity on the part of the investigating staff, [an] inadequate number of investigating officers..., delay in obtaining expert opinion, particularly of the medical/forensic experts, [and] lack of proper supervision by the superior police officials...."19 M.A.K. Chaudhry, a former Interior Secretary, pointed out a more insidious practice implicating higher-ranking police officials as well as investigating staff. "There are scores of cases in which `challans' have been withdrawn and cases reinvestigated in order to obtain desired results," he said, during a 1991 seminar organized by the Human Rights Commission of Pakistan.20
Restrictive Application of Bail Laws
Children face several obstacles in securing release on bail, including restrictions in the bail laws themselves, the reluctance of judges to grant bail, and the setting of bail amounts well beyond the reach of most of their families.
Pakistani law divides criminal offenses into two broad categories: bailable and non-bailable. However, the Criminal Procedure Code gives the court discretion to release on bail children under the age of sixteen years, or women, who are charged with the commission of a non-bailable offense. In addition, criminal defendants have a right to bail if they are charged with an offense that is not punishable by death and have spent over one year in custody without a conclusion to their trial, or if they are charged with a capital offense and have spent more than two years in custody without their trial concluding.21
During March 1998, there were ten children in the Bahawalpur borstal who remained under trial despite the passage of more than two years since their arrest.22 Under the Criminal Procedure Code, they were entitled to release on bail. But according to Bahawalpur legal aid lawyer Rana Muhammad Athar Jamal, the bail amounts set by judges presents a great obstacle to the release of most children. "Ninety percent of the children [in the borstal] belong to the very poor, and have no one to post surety bonds," he said.23 Section 498 of the Criminal Procedure Code states that bail "shall be fixed with due regard for the circumstances of the case, and shall not be excessive." However, that discretion is rarely exercised in favor of accused children. "Judges don't cooperate with us in bail," said Jamal. "They regard the accused as habitual offenders, and usually won't reduce surety."24
The experience of Sher Ali, a nine-year-old boy in Rawalpindi Central Prison, illustrates both the difficulty in securing release on bail and the setting of bail bonds that poor families cannot afford. Ali and his brother, who was about thirty years old, were stopped in January 1998 at a checkpoint at Margalla Pass, near the northern border of Punjab, while traveling from Peshawar to visit relatives. "My elder brother is an addict of hash," Ali said. "He put some in my hands. I was holding it, but didn't know what it was." Both brothers were arrested and charged with drug possession. A magistrate in Taxila denied Ali bail, and sent him to the Central Prison pending his trial. About three months after his arrest, a chance encounter in the jail resulted in a second, impromptu hearing.
A High Court judge ordered my release. He visited the jail and granted me bail there and then. I was ordered to be released on April 20, but I don't have any bail bonds; my bail was set at Rs. 5,000 ($98). My family is trying hard to arrange surety, but have not yet been able to do so.25
Frequent Adjournment of Hearings
Trials in Pakistan often seem interminable, with adjournments frequently requested by counsel or ordered by magistrates. One boy in Lahore District Jail told us that in the fifteen months since his arrest for dacoity, he had been summoned to sixteen or seventeen hearings, most of which were promptly adjourned.26 Another boy, held on murder charges in Rawalpindi Central Prison, told us that there had been several hearing dates in his case since his arrest nine months earlier, but that "nothing had happened on them."27
There are two major reasons for the adjournment of hearings. A veteran magistrate in Lahore identified one of them. "Circumstances now are so much deteriorated that no one comes to depose as witnesses," he said.28 In its report on the criminal justice system, the Pakistan Law Commission examined the factors deterring witnesses from appearing in court. These included "[witnesses] waiting for long hours outside the court, non-provision of adequate travel allowance and diet money, no proper arrangements for their seating, [and] lack of courtesy being shown to them."29 The report also cited a lack of security arrangements for witnesses as a deterring factor. According to the Human Rights Commission of Pakistan, police officers themselves are the "worst culprits" with regard to ignoring summons. "Courts have been constrained to issue warrants of arrest for such police officers and to penalize them, but to no avail," the commission noted.30
A second common reason for the adjournment of hearings is the failure of jail officials to produce the defendants themselves. According to Rana Muhammad Athar Jamal, there have been many cases in which children in the borstal have not been brought to court on the date of their hearing. The reasons given in such cases, he said, include the alleged ill health of the child in question or the unavailability of police personnel to guard the child during transit. "Jail authorities have failed to produce children even when directed to by magistrates," he said, noting that there were no punishments imposed for their refusal to complywith court orders.31 The Pakistan Law Commission offered a similar assessment, noting the "non-provision of security arrangements for bringing the prisoners from jails to courts" and the "non-availability of transport."32
Administrative incompetence in scheduling hearings also appears to play a significant role in adjournments. Human Rights Watch encountered two children in Bahawalpur, and two in Lahore, whose hearing dates had coincided with public holidays. In one case, a boy's hearing was scheduled during Ashura, a holiday that commemorates the martyrdom of the Prophet Muhammad's grandson Hussain.
Limited Use of Probation and Parole
Both the Sindh Children Act and the Punjab Youthful Offenders Ordinance authorize courts to release children on probation, as an alternative to placement in a juvenile institution.33 The laws mandate the immediate notification of a probation officer following a child's arrest, so that the officer can obtain information about the child's "family history and other material circumstances,"34 and require courts to take probation officers' reports into consideration when passing orders.35 Both laws also establish a liberal parole system. A child who has spent six months in a certified or industrial school is eligible for release, either on recommendation by visitors or managers of the school, or on application by a family member or guardian, supported by "local inquiries made by the probation officer."36 In areas where neither of these laws are in force, convicted children may be granted release under Pakistan's general laws governing probation and parole. The Probation of Offenders Ordinance, 1960, provides for the probational release of first time offenders who have been convicted of an offense punishable by nomore than two years of imprisonment.37 The Good Conduct Prisoners Probational Release Act, 1926, authorizes the release on parole of prisoners who have already served a portion of their sentence, if it appears from their conduct in prison that they are "likely to abstain from crime and lead useful and industrious" lives. In such cases, the parolee is to be placed under the supervision or authority of a state officer or private citizen for the duration of their sentence.38
The U.N. Standard Minimum Rules for the Administration of Juvenile Justice call for the preparation of social inquiry reports, prior to sentencing that detail the "background and circumstances in which the juvenile is living or the conditions under which the offense has been committed."39 The Standard Minimum Rules further state that "[t]he placement of a juvenile in an institution shall always be a disposition of last resort and for the minimum necessary period," and recommend the use of alternative sentencing measures, including release on probation.40
All of these laws contemplate the existence of functioning reclamation and probation departments-something that Pakistan presently lacks. "We don't have social welfare workers who can visit families and prepare information about social conditions," said Captain Sarfraz Mufti, deputy inspector-general of prisons for Punjab. "We don't have the resources."41
Given the volume of cases that pass through the criminal justice system each year, the level of staffing in the provincial reclamation and probation departments is far from adequate. The Sindh Reclamation and Probation Department is staffed by a director, three assistant directors, eleven probation officers, and three parole officers.42 The entire city of Karachi is served by justone probation officer.43 In Punjab, the situation is somewhat better, though still insufficient in light of the courts' caseload. Each division of the province has an assistant director of Reclamation and Probation, with two or three officers serving under him. In addition, one probation officer is assigned to each district court. These figures, which were provided to the Karachi daily Dawn by Anjum Parvez, the assistant director of Reclamation and Probation for Punjab's Lahore division, yield a province-wide total of between fifty and fifty-eight probation officers.44 Staffing of the reclamation and probation departments appears to be inadequate not only with regard to numbers, but in terms of specialization and commitment as well. According to Anees Jillani, an Islamabad-based lawyer and children's rights activist, probation officers are "mainly low-ranking civil servants" performing several functions, of which probation work is generally accorded low priority.45 Rana Muhammad Athar Jamal, who has represented children in the Bahawalpur borstal for several years, said he had never encountered a probation officer during that time.46
During a period in which the prison population has grown exponentially, there has been an absolute decline in the number of persons on parole or probation. According to Abdul Majeed Ahmed Auolakh, principal of the Central Jail Staff Training Institute, there were some 3,500 people on parole throughout Pakistan in 1977.47 Twenty years later, the Pakistan Law Commission found a total of just 239 persons on parole nationwide.48 Similarly, until 1985, Auolakh said there wasan average of 15,000 people on probation at any given time, but by 1998 that number had shrunk to about 4,000.49
Lack of Counsel
In his survey of 200 children in Karachi's industrial school, Amin Gadit found that 108 were represented by lawyers whom their families had engaged. Of the remainder, six had been provided with lawyers by nonprofit organizations, while eighty-six lacked counsel.50 There are very few sources of free legal assistance to juvenile prisoners. Among them are AGHS, which represents indigent children in Lahore and Bahawalpur, and Lawyers for Human Rights and Legal Aid, which does the same in Karachi. According to AGHS, the state only provides counsel to persons who are appealing sentences to death, life imprisonment, or hadd punishments.51
The judicial magistrate is the court of first instance in cases where the offense is punishable by no more than three years of imprisonment. Judicial magistrates are divided into three classes, based on the maximum sentence that they are authorized to impose. A magistrate of the first class may impose a prison term of up to three years, and fines of up to Rs. 15,000 ($294). Second and third class magistrates can impose sentences of up to one year and Rs. 5,000 ($98), and one month and Rs. 1,000 ($20) respectively.52 Appeals against decisions by magistrates are heard by the Sessions Courts.
Sessions Courts are the courts of first instance whenever a defendant is charged with an offense punishable by more than three years of imprisonment. Appeals against decisions by the Sessions Courts are filed with the provincial High Court,53 unless they involve a conviction and sentence under one of the Hudood Ordinances. In the latter case, appeals are lodged with the Federal Shariat Court.54
The U.N. Convention on the Rights of the Child unequivocally prohibits the imposition of the death penalty for "offenses committed by persons below the age of eighteen years."55 But according to Punjab prison department statistics, there were fifty-five children in the province's prisons during February 1998 who had been sentenced to death.56 With one exception-identified by AGHS as Wali Badshah, a sixteen-year-old sentenced to death for drug trafficking-all had been convicted of murder.57 Although death sentences imposed on children are usually commuted on appeal, they have been upheld in rare cases and Pakistan is one of six countries known to have executed juvenile offenders during the 1990s.58 The most recent case involved Shamun Masih, who was hanged in Hyderabad Central Prison on September 30, 1997. Masih had been sentenced to death in August 1991 for an armed robbery and triple murder committed in 1988, when he was fourteen years old.59
The Convention on the Rights of the Child states that the imprisonment of a child "shall only be used as a measure of last resort and for the shortest appropriate period of time,"60 and prohibits the imposition of "life imprisonment without possibility of release."61 However, the prison terms imposed on children in Pakistan are remarkably consistent in their severity. Eighty-seven percent of the convicted children held in the Bahawalpur borstal during March 1998 were serving sentences of ten years or more, with the most frequent sentence imposed being twenty-five years.62 In addition, two of the nineteen convicts housed in Karachi'sYouthful Offenders Industrial School during December 1997 were serving life terms.63
Prison terms are usually accompanied by fines that range from Rs. 1,000 ($20) to about Rs. 200,000 ($3,922). Nearly half of the convicted children in Bahawalpur had fines of Rs. 20,000 ($392) or more imposed on them.64 That amount should be viewed against the economic background of children in Pakistani prisons. In his survey of children in Karachi's Youthful Offenders Industrial School, Amin Gadit noted that the average family income of the children was about Rs. 4,350 ($85) per month, a sum that usually represented the aggregate of three family members' earnings and supported an average of eight persons.65 The imposition of such fines contravenes the requirement in the Sindh Children Act and the Punjab Youthful Offenders Ordinance that courts take into account the "circumstances in which the child is living" when passing orders.66
The largest fines imposed on children in the Bahawalpur borstal entail payment of diyat, a form of cash compensation to a murder victim's heirs. Diyat was first proposed in the early 1980s as part of General Zia's Islamization campaign, but was not actually incorporated into Pakistan's Penal Code until the promulgation of the Criminal Law (Second Amendment) Ordinance, in 1990.67 The ordinance replaced the Penal Code's sections governing murder with provisions derived from Islamic law. These provisions made murder (qatl-i-amd) punishable by retribution (qisas) or compensation (diyat), of which only the latter could be imposed on minors.68 In awarding diyat, courts are to take into accountthe financial position of the convict and the victim's heirs, but the amount fixed must not be less than the value of 30,630 grams of silver-a value that the federal government must declare at the start of each fiscal year.69 For the fiscal year 1994-1995, that value was set at Rs. 202,923.75 ($3,979).70
Convicts whose sentences include diyat will only be released upon its payment, even if they have otherwise completed their prison term.71 Although courts have infrequently imposed diyat, the sums involved and the limited resources of much of the prison population ensure that many remain incarcerated well beyond their provisional date of release. During 1998, there were at least fifty-eight prisoners in Pakistan, of all ages, who had completed their prison terms and were being held solely because of their inability to pay the diyat amount imposed on them.72
The Abolition of the Punishment of Whipping Act, passed in 1996, specifically exempts from its provisions the imposition of whipping as a hadd punishment.73 Ten of the children in Bahawalpur who were convicted under the Zina Ordinance, which criminalizes sexual acts outside of marriage, received sentences that included whipping-fifteen lashes in one case, and thirty in each of the others.74 In practice, whipping and other hadd punishments have consistently been overturned on appeal by the Federal Shariat Court or the Shariat bench of the Supreme Court.75 The availability of lashes as a form of punishment, and its imposition in sentencing by sessions courts, nevertheless violates article 37 of the Convention on the Rights of the Child, which states that "[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment."76 Having withdrawn a reservation made at the time of ratification, which allowed it to interpret the convention's provisions "in light of the principlesof Islamic laws and values," Pakistan has no legal basis to derogate from its obligations in this regard.77
Nearly a third of the North-West Frontier Province consists of areas that are not administered by the provincial government, but are instead ruled indirectly by federally-appointed political agents.78 Encompassing seven administrative units, or "agencies," that span the border with Afghanistan,79 the Federally Administered Tribal Areas (FATA) bear one of the more onerous legacies of colonial rule in the subcontinent. Criminal law and procedure for the areas are defined by the Frontier Crimes Regulation (FCR), a draconian law introduced by British authorities in 1901 with the aim of securing a restive region on the empire's margins. Accused parties under the FCR are denied due process of law, including the right to counsel, to present evidence, and to examine and cross-examine witnesses.80 Their cases are presided over by a tribal council, known as a jirga, whose members are appointed by the political agent for that Agency. Decisions are countersigned by the political agent, and are not subject to appeal to the provincial High Court or the Supreme Court of Pakistan.81
Prior to conviction, prisoners are held in judicial lockups located in their respective agencies. The lockups are maintained by political agents, and staffed byirregular forces under the agents' command, known as "levy forces." Upon conviction, prisoners are transferred to districts jails or central prisons within the provincial prison system.82
Ruman Ali was thirteen years old at the time of his arrest on murder charges, in December 1993. A resident of the town of Jamrud, in the Khyber Agency, he was tried and convicted by a jirga, and sentenced on February 14, 1994, to forty-three years in prison. After learning of the case, the Human Rights Commission of Pakistan filed a writ petition with the Peshawar High Court under Article 199 of the Constitution.83 The High Court, however, dismissed the case on the grounds that it did not have appellate jurisdiction.84
According to Afrasiab Khattak, then vice-chairperson of the commission and presently its chairperson, jirga trials do not impinge solely on the civil rights of persons living in the Tribal Areas. "People are sent to FATA [from other parts of the North-West Frontier Province] when there is no evidence to convict them," Khattak told Human Rights Watch. "This happens especially with Afghan refugees."85
The federal government's attempts to control ethnic, sectarian, and factional strife have on several occasions entailed the establishment of parallel judiciaries. The enabling laws, whether introduced by executive ordinance or act of parliament, have often derogated from fundamental due process rights under Pakistan's constitution as well as special protections afforded children by international and domestic law. Among the most recent and expansive attempts in this regard is the Anti-Terrorism Act, which was passed by the parliament on August 16, 1997 and amended by an ordinance of the federal government on April 29, 1999.
The act provides for the establishment of anti-terrorism courts to try persons charged with committing terrorist acts, and stipulates special procedures for the conduct of their trials. As defined in the amended law, terrorist acts include crimes such as using lethal weapons or committing rape to "strike terror or create a sense of fear and insecurity in the people, or any section of the people,"86 as well as causing "civil commotion"-a term defined so broadly as to violate fundamental rights of free expression and assembly. 87
Section 32 of the act states that it overrides all other laws currently in force. As a result, children may be charged and tried under the act without regard to the substantive laws and procedures governing the trial of children under domestic law. The Sindh Children Act, for example, states that children may only be tried by juvenile courts and ordinary criminal courts exercising juvenile court powers;88 the overriding clause of the Anti-Terrorism Act, however, would allow children to be tried by anti-terrorism courts.
Trial by anti-terrorism courts, in turn, entails expedited proceedings: courts established under the act are to conduct trials within seven days.89 Convicted persons have only seven days in which to file appeals, and these too must be heard and decided within a seven-day period.90 These provisions contravene article 14(3)(b) of the International Covenant on Civil and Political Rights, which entitles any person charged with committing criminal offenses "to have adequate time and facilities for the preparation of his defence." And while both the Convention on the Rights of the Child and the Sindh Children Act prohibit the imposition of the death penalty on children,91 the Anti-Terrorism Act makes capital punishment mandatory for persons found to have committed a terrorist act that resulted in one or more deaths.92
The Anti-Terrorism Act's amendment was prompted in part by a landmark Supreme Court ruling on the constitutionality of the Armed Forces (Acting in Aidof the Civil Power) Ordinance, 1998, under which military courts had been set up in Karachi and Hyderabad to try civilian offenders. The Supreme Court held on February 17, 1999 that the use of military courts to try civilians was unconstitutional, and struck down sections of the ordinance providing for the courts' establishment. The court directed the transfer of all cases that had been tried by the military courts, and whose sentences had not yet been executed, to courts constituted under the Anti-Terrorism Act.93 Section 39A of the amended Anti-Terrorism Act provides for the transfer to anti-terrorism courts of cases that were pending before the military courts, and stipulates that their trials are to continue "from the stage which the cases had reached." Among the cases transferred to the anti-terrorism courts was that of Taha, a Karachi teenager who was being held with adults in the city's Central Prison.
Taha, son of Naeem Ahmed Khan, was arrested on August 6, 1998, in the Liaquatabad area of Karachi. On December 16, 1998, he and four other detainees were charged with murder, attempt to commit murder, and assault on a public servant. In addition, all five were charged with committing a terrorist act under the Anti-Terrorism Act.94 The charges stemmed from a July 2, 1998 incident in which a group of alleged party activists from the opposition Muttahida Qaumi Movement (MQM) fired on a paramilitary rangers patrol in Liaquatabad.95 One member of the patrol, sepoy Dildar Hussein, died of injuries sustained in the attack, while another, Mumtaz Ali, was wounded. Taha himself was not named as a suspect in the First Information Report.96
Upon commencement of the defendants' joint trial by Military Trial Court No. 6, on January 12, 1999, the defense counsel, Mahmood Qureishi, submitted a school-leaving certificate attesting to Taha's minority. The court promptly ordered the constitution of a medical board to examine him, with a view to determining his age. The board's report, prepared by the medicolegal officer of Karachi's Civil Hospital and submitted to the court on January 14, 1999, stated that he wasbetween the ages of fifteen and sixteen when the attack took place, and therefore a child for the purposes of the Sindh Children Act. Despite this finding, the president of the court, Lt. Col. Syed Mehmood Gilani, invoked section 13 of the Armed Forces Ordinance-an overriding clause similar to that contained in the Anti-Terrorism Act-and ordered Taha's trial together with the other defendants in the case. The proceedings continued for a further twelve days, concluding on January 24, 1999.97
The Supreme Court decision on the constitutionality of the military courts preempted the issuance of a verdict in Taha's case. Following the federal law ministry's designation of eleven anti-terrorism judges for Sindh, his case was transferred to Anti-Terrorism Court No. 2, presided over by Judge Hussain Bukhsh Khoso.98 At a May 19 sentencing hearing, Khoso imposed the death penalty on the four adults who had been tried with Taha, but ordered the preparation of a separate charge sheet for him and his retrial in accordance with the Sindh Children Act. Khoso himself was to preside over Taha's trial, as a sessions court judge exercising juvenile court powers.99
A similar standard was applied by an Anti-Terrorism Court in the case of Mohammad Saleem, a carpet weaver who claimed to have been thirteen years old at the time of his arrest, although with a dramatically different outcome. Saleem was sentenced to death by Military Trial Court No. 2 on December 19, 1998, after having been convicted along with three adult men of murdering three police officers from Karachi's Ibrahim Hyderi police station. A military appellate court acquitted Saleem on January 6, 1999, after failing to establish a motive or find substantial evidence linking him to the crime.100 However, police again arrested Saleem on May 13, 1999, and brought him before Anti-Terrorism Court No. 1 to face a second trial on the same charges. At an initial hearing on May 14, presiding judge Rehmat Hussain Jafri held that if Saleem could be shown to be a child for the purposes of the Sindh Children Act, he would be tried separately in accordance with that act.101 After a court-ordered medical examination found Saleem to be between the ages of twenty and twenty-one, and after his birth certificate wasdeclared to be false by the issuing agency, Jafri ordered Saleem to be shifted from Karachi's Youthful Offenders Industrial School to the city's Central Prison.102 On June 11, 1999, Saleem was convicted and sentenced to death.
Saleem's rearrest violates his fundamental right under Pakistan's constitution to be protected from double jeopardy.103 Nevertheless, the decisions by judges Khoso and Jafri to uphold the Sindh Children Act establish important precedents regarding the adjudication of terrorism cases that involve juveniles. But because the Anti-Terrorism Act's overriding clause remains in place, the decision to try such cases in accordance with the Sindh Children Act or Punjab Youthful Offenders Ordinance remains subject to judicial discretion. And in areas of the country where no juvenile law is in force, children charged with the commission of terrorist acts will continue to face the prospect of expedited proceedings and capital punishment.
16 Criminal Procedure Code, Sec. 173(b).
17 Human Rights Watch interview with Abdul Majeed Ahmed Auolakh, Principal, Central Jail Staff Training Institute, Lahore, May 16, 1998.
18 "Every child alleged as or accused of having infringed the penal law has ... [the right to] have the matter determined without delay by a competent, independent, impartial authority or judicial body in a fair hearing according to law...." Convention on the Rightsof the Child, Art. 40(2)(b)(iii).
19 Pakistan Law Commission, "Report on the Criminal Justice System, 1997," Government of Pakistan, Islamabad, 1997, pp. 22-23. As a remedial measure, the commission proposed the initiation of contempt proceedings against "the investigating officer who deliberately or negligently causes delays in submitting [a] challan or deliberately distorts [the] investigation with a view to favor or disfavour someone." Ibid.
20 M.A.K. Chaudhry, former Secretary, Interior Division, Government of Pakistan, "Procedure in Criminal Cases," paper presented at HRCP seminar on Delays in Courts, 1991, reprinted in Human Rights Commission of Pakistan, "A Penal System Long Overdue for Change," p. 61.
21 Code of Criminal Procedure, Sec. 497. Where the Sindh Children Act and the Punjab Youthful Offenders Ordinance are in force, officers-in-charge of police stations may (and in Punjab, must) release children accused of a non-bailable offense when "they cannot be brought forthwith before a Court competent to try the case." Sindh Children Act, Sec. 64, Punjab Youthful Offenders Ordinance, Sec. 41.
22 Figure obtained from "Up to [Date] Statement of Undertrial Prisoners in Respect of B.I. & J.J. Jail, Bahawalpur," signed by the Superintendent on March 16, 1998.
23 Human Rights Watch interview with Rana Muhammad Athar Jamal, Bahawalpur, May 17, 1998.
25 Human Rights Watch interview with Sher Ali, Central Prison, Rawalpindi, May 15, 1998.
26 Human Rights Watch interview with Imtiaz Ahmad, District Jail, Lahore, May 21, 1998.
27 Human Rights Watch interview with Amir Khan, Central Prison, Rawalpindi, May 15, 1998.
28 Human Rights Watch interview with Mohammed Aslam, Judicial Magistrate, Lahore, May 5, 1998.
29 Pakistan Law Commission, "Report on the Criminal Justice System, 1997," p. 24.
30 Human Rights Commission of Pakistan, "A Penal System Long Overdue for Change," p. 55.
31 Human Rights Watch interview with Rana Muhammad Athar Jamal, Bahawalpur, May 17, 1998.
32 Human Rights Commission of Pakistan, "A Penal System Long Overdue for Change," p. 24.
33 In cases of probational release, the parent or guardian of the child must provide a personal bond to be responsible for the child's "good behavior and well-being" for a period of up to three years, and if required by the court, must provide surety as well. Sindh Children Act, Sec. 72(ii), Punjab Youthful Offenders Ordinance, Sec. 49(ii).
34 Sindh Children Act, Sec. 66, Punjab Youthful Offenders Ordinance Sec. 43
35 Sindh Children Act, Sec. 21(c), Punjab Youthful Offenders Ordinance, Sec. 18(c).
36 Sindh Children Act Sec. 92(1), Punjab Youthful Offenders Ordinance, Sec. 57(1).
37 In determining eligibility for release, the court is to consider the offender's age and character, among other factors. If probation is granted, the offender enters into a bond, with or without sureties, to commit no offense for one year. Maisoon Hussein, "Benign law may reduce overcrowding in jails," Dawn, July 25, 1998.
38 Good Conduct Prisoners' Probational Release Act, 1926, Sec. 2.
39 U.N. Standard Minimum Rules for the Administration of Juvenile Justice, G.A. Res. 40/33, 40 U.N. GAOR Supp. (No. 53) p. 207, U.N. Doc. A/40/53 (1985), Sec. 16.1.
40 Ibid., Secs. 18.1, 19.1.
41 Human Rights Watch interview with Captain Sarfraz Mufti, Deputy Inspector-General of Prisons, Government of Punjab, Lahore, May 8, 1998.
42 Human Rights Watch interviews with Kamran Dost, Deputy Secretary (General), Home Department, Government of Sindh, Karachi, September 21, 1999, and Abdul Majeed Ahmed Auolakh, Principal, Central Jail Staff Training Institute, Lahore, May 16, 1998.
43 Human Rights Watch interviews with Zia Awan, President, Lawyers for Human Rights and Legal Aid, Karachi, May 22, 1998, and Neelofar Shahnawaz, Judicial Magistrate, Juvenile Court (Karachi Division), Karachi, May 23, 1998.
44 Hussein, "Benign law," quoting Anjum Parvez, Assistant Director of Reclamation and Probation, Lahore, Government of Punjab. A similar figure was provided to Human Rights Watch by Abdul Majeed Ahmed Auolakh of the Central Jail Staff Training Institute, who estimated a total of sixty probation officers for the province. Human Rights Watch interview with Abdul Majeed Ahmed Auolakh, Principal, Central Jail Staff Training Institute, Lahore, May 16, 1998.
45 Human Rights Watch interview with Anees Jillani, Society for the Protection of the Rights of the Child (SPARC), Islamabad, May 14, 1998.
46 Human Rights Watch interview with Rana Muhammad Athar Jamal, Bahawalpur, May 17, 1998.
47 Human Rights Watch interview with Abdul Majeed Ahmed Auolakh, Principal, Central Jail Staff Training Institute, Lahore, May 16, 1998.
48 The breakdown of parole cases by province was as follows: 225 in Punjab, 7 in Sindh, 5 in the North-West Frontier Province, and 2 in Baluchistan. Pakistan Law Commission, Report on Jail Reform, 1997, p. 17.
49 Human Rights Watch interview with Abdul Majeed Ahmed Auolakh, Principal, Central Jail Staff Training Institute, Lahore, May 16, 1998.
50 Gadit et. al., "Children of the Corn," p. 9.
51 Jahangir and Doucet, Child Prisoners of Pakistan, p. 26.
52 Criminal Procedure Code, Sec. 32.
53 Ibid., Sec. 410.
54 The Federal Shariat Court has the authority to review any conviction under "any law relating to the enforcement of Hudood." Constitution of the Islamic Republic of Pakistan, Article 203DD(1).
55 U.N. Convention on the Rights of the Child, Art. 37(a).
56 Prisons Department, Government of Punjab, "Crime-Wise/Section-Wise Monthly Population Statement for the Month of February 1998, as stood on 28-02-98."
57 AGHS Child Rights Cell, "Children in Prisons: Punjab Report," December 1997, pp. 7-8 and Annex VI. See also Prisons Department, Government of Punjab, "Crime-Wise/Section-Wise Monthly Population Statement...."
58 The other five countries are Iran, Nigeria, Saudi Arabia, the United States, and Yemen. Human Rights Watch, Human Rights Watch World Report 1999 (New York: Human Rights Watch, 1998), p. 419.
59 "Pakistan: Juvenile Offender Executed," Death Penalty News, December 1997, Amnesty International, AI Index: ACT 53/01/98.
60 U.N. Convention on the Rights of the Child, Art. 39(b).
61 Ibid., Art. 37(a).
62 Figures cited from an official list of convicted juvenile prisoners in the Bahawalpur Borstal, signed by the Superintendent on March 3, 1998.
63 Ahmad et al., The State of Juvenile Prisoners in Pakistan 1997, p. 246.
64 Figures cited from an official list of convicted juvenile prisoners in the Bahawalpur Borstal, signed by the Superintendent on March 3, 1998.
65 Gadit et. al., "Children of the Corn," p. 9.
66 Sindh Children Act, Sec. 21(b), Punjab Youthful Offenders Ordinance, Sec. 18(b).
67 Double Jeopardy: Police Abuse of Women in Pakistan, Asia Watch and the Women's Rights Project (now the Asia and Women's Rights divisions of Human Rights Watch) (New York: 1992), p. 46. The Criminal Law (Second Amendment) Ordinance was subsequently enacted by Parliament as Act II of 1997.
68 Pakistan Penal Code, Sec. 306(a). The Criminal Law (Second Amendment) Ordinance defined an adult as "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, whichever is earlier." On the Ordinance's reintroduction in 1995, the definition was truncated to "a persons who has attained, being a male, the age of eighteen years," leaving undetermined the age of majority for females. See M. Mahmood, ed., The Major Acts (Lahore: Pakistan Law Times Publications, 1998), p. 91.
69 Pakistan Penal Code, Sec. 323.
70 Notification No. SRO 647(1)/94, dated July 1, 1994, cited in Mahmood, ed., The Major Acts, p. 107.
71 Pakistan Penal Code., Sec. 331(2).
72 Human Rights Commission of Pakistan, "State of Human Rights in 1998: Highlights," http://www.hrcp.8m.com/cgi-bin/framed/1976/highlights.htm.
73 Abolition of the Punishment of Whipping Act (1996), Sec. 3.
74 Official list of convicted juvenile prisoners in the Bahawalpur Borstal, March 3, 1998.
75 Human Rights Watch telephone interview with Mohammad Hamza, AGHS Child Rights Cell, Lahore, May 6, 1999.
76 U.N. Convention on the Rights of the Child, Art. 37(a).
77 Pakistan formally withdrew its reservation on July 23, 1997. The move followed the lodging of objections with the secretary-general by the governments of Denmark, on November 16, 1995, and the Netherlands, on February 6, 1995. See Convention on the Rights of the Child, Declarations and Reservations, notes 14, 19 at http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_11.html#gBC1aePatr
78 The political agents are appointed by the governor of the province, who is in turn an appointee of the Prime Minister. The duration of each political agent's term is determined by the governor. Human Rights Watch interview with Afrasiab Khattak, then Vice-Chairperson (NWFP), Human Rights Commission of Pakistan, May 12, 1998. Khattak is presently chairperson of the Commission.
79 The seven agencies are Bajour, Mohmand, Khyber, Orakzai, Kurram, and North and South Waziristan. FATA also includes tribal areas adjoining the districts of Peshawar, Kohat, Bannu, and Dera Ismail Khan. Constitution of the Islamic Republic of Pakistan, Article 246(c).
80 Shaheen Sardar Ali and Kamran Arif, "Blind justice for all-Parallel judicial systems in Pakistan: implications and consequences for human rights," Shirkat Gah, Lahore, 1994, pp. 18-19.
81 Human Rights Watch interview with Afrasiab Khattak, Vice-Chairperson (NWFP), Human Rights Commission of Pakistan, May 12, 1998.
83 A High Court, on application by an aggrieved party, may declare "that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect." Constitution of the Islamic Republic of Pakistan, Article 199(1)(a)(ii).
84 As of May 1998, the commission was awaiting a requested meeting with the governor of the province, with the intent of seeking a pardon for Ruman Ali. Human Rights Watch interview with Afrasiab Khattak, Vice-Chairperson (NWFP), Human Rights Commission of Pakistan, May 12, 1998.
86 Anti-Terrorism Act, 1997, Sec. 6, as amended by the Anti-Terrorism (Amendment) Ordinance, 1999.
87 The term "civil commotion" includes creating "internal disturbances in violation of law or intended to violate law"; engaging in illegal strikes; and "distributing, publishing, or pasting of a handbill or making graffiti or wall-chalking intended to create unrest or fear or create a threat to the security of law and order or to incite the commission of an offense...."Anti-Terrorism Act, Sec. 7A.
88 Sindh Children Act, Sec. 9.
89 Anti-Terrorism Act, Sec. 19(7).
90 Ibid., Sec. 25.
91 Convention on the Rights of the Child, Art. 37(a), Sindh Children Act, Sec. 68(1).
92 Anti-Terrorism Act, Sec. 7(I)(a).
93 "Supreme Court holds military courts unconstitutional," Business Recorder, February 18, 1999, judgment annexed.
94 Human Rights Watch telephone interview with Mahmood Qureishi, lawyer for Taha, Karachi, February 13, 1999.
95 The MQM is a political party based in Karachi and other urban areas of Sindh that draws support among Urdu-speaking immigrants from India and their Pakistani-born descendants. Its activists, many of whom have been involved in violent confrontations with law enforcement officials and breakaway MQM factions, were conspicuous targets of the military courts.
96 Human Rights Watch telephone interview with Mahmood Qureishi, lawyer for Taha, Karachi, February 13, 1999, citing FIR No. 212/98.
98 "Four Muttahida men awarded death penalty," News International, May 20, 1999.
99 Human Rights Watch telephone interview with Mahmood Qureishi, lawyer for Taha, Karachi, May 20, 1999.
100 "Pakistan: Juveniles sentenced to death," Amnesty International Report, ASA 33/08/99, May 1999. The defense counsel noted during the appeal hearing that Saleem had not been named in the First Information Report. "Military court acquits 13 year old boy," Dawn, January 7, 1999.
101 "Karachi: Boy freed by military court re-arrested," Dawn, May 16, 1999.
102 According to his lawyer, Saleem was escorted to the Civil Surgeons Services Hospital by the officers from the Ibrahim Hyderi Police station, the complainant in the case, rather than the staff of the Youthful Offenders Industrial School, as had been directed by the presiding judge. The court rejected the defense counsel's request for the establishment of a constitutional medical board to reexamine Saleem. Letter from Zia Awan, President, Lawyers for Human Rights and Legal Aid, to Human Rights Watch, dated June 18, 1999.
103 "No person shall be prosecuted or punished for the same offence more than once...." Constitution of the Islamic Republic of Pakistan, Article 13(a).