Death sentences to children in Pakistan

In December 2011, Abdur ur Rehman, 66, kept imploring the police officials of the Railway police station Rawalpindi to release his sixth grade, 12 year old son but no one paid attention on his helplessness. An FIR (164/2011) was lodged against his son under Section 127 of the Railways Act 1890; his son ended up in Adiala Jail and now facing the trail, if proved guilty, his son will be given death sentence or life imprisonment under the same Section of the law whether his stone throwing act has resulted anything wrong or not.

In Pakistan like Rehman’s son, child offenders may lawfully be sentenced to corporal punishment, life imprisonment and the death penalty. To some extent law reform has gone to prohibiting corporal and capital punishment for child offenders, but the law is complex and unclear and these sentences remain lawful in certain circumstances. Juvenile justice is primarily governed by the Juvenile Justice System Ordinance (JJSO), 2000 but hardly implemented in the country particularly in FATA region which remains out of the limbo of the JJSO, though the JJSO was extended to that region in 2004.

The JJSO does not repeal other laws but is in addition to them. The JJSO Section 12 states: “Notwithstanding anything to the contrary contained in any law for the time being in force no child [below 18 years] shall be (a) awarded punishment of death....” However, the provisions in the JJSO are “in addition to and not in derogation of, any other law for the time in force”, and children are liable to the death penalty under other laws. The main laws that could result children for death sentence are the Anti-Terrorism Act (ATA) 1997, the Control of Narcotic Substances Act (CNSA) 1997, the Hudood Ordinances 1979 and the Railways Act 1890.

The FCR, which is applicable in FATA, does not provide for capital punishment but under the under Section 17 of the Actions (in Aid of Civil Power) Regulations (AACPR), 2011, a child will be punished with death or imprisonment. This new regulation for FATA was signed by president in 2011.

On the next year of the JJSO’s promulgation, the President issued a Presidential Commutation Order (17 December 2001) which commuted the death sentences of juvenile offenders to life imprisonment, though it excluded juvenile offenders sentenced for qisas or hadd crimes. In July 2002, Punjab’s Law Minister affirmed that the death sentences of 74 juvenile delinquents had been converted to life imprisonment. According to the Human Rights Commission of Pakistan, in July 2003 there were 300 cases pending in Punjab in which the ages of children sentenced to death were contested. In May 2004, the federal minister of the Interior stated that there were 13 juveniles under sentence of death – four held in Punjab, seven in NWFP, two in Balochistan, and none in Sindh province. By 2005, most death sentences imposed before 2000 had been commuted.

In May 2005, the District & Session Judge Ghokti inflicted the death penalty upon Ateeq Ahmed for allegedly committing murder in February 1999. The Court failed to investigate the defendant’s plea of juvenility by referring to a medical board. On appeal, the Sindh High Court referred the matter to a medical board in April 2006, and it was deduced that Ateeq was aged only 12 or 13 at the time of the offence. At this moment, Ateeq is in the Central Prison Sukkar-I and the case is still pending in the High Court.

According to Human Rights Watch, some death sentences of child offenders in Pakistan were carried out, including one in 2001 (aged 13 at the time of the offence), one in 2006 (aged 16 at the time of the offence) and one in 2007 (aged about 15 at the time of the offence). It reported that death penalty appeals by child offenders have been dismissed by the Supreme Court of Pakistan when age was not recorded at the time of original trial.

On 4 August 2010, the Supreme Court confirmed the death penalty in a case of murder committed at the age of 17 on the grounds that the issue of age was not raised at the original trial or before the High Court. In addition, the Supreme Court remarked that the “Learned Advocate on behalf of the appellant has laid much stress on the factum of ‘tender age’ in oblivion of the fact that the tender age itself would not mean that an accused should not be awarded the death penalty.”

In June 2010, I met with two juvenile prisoners (Mewal Shah and Sarfarz) in Mach Jail, Balochistan, who were sentenced to death. Mewal Shah, at the time of meeting was, was sentenced to death by the Anti-Terrorism Court in Mastung. After four years in solitary confinement his sentence was commuted by the High Court in Balochistan to 25 years rigorous imprisonment. He was just 13 at the time of the offence. Sarfaraz was 16 or 17 at the time of a commission of the offence for which he was sentenced to death in 2009. His appeal is still pending in Balochistan High Court.

In January 2011, meetings were held three more juveniles in Mach Jail under sentence of death for murder. Bhai Khan son of Shah Mohammad Chandio (at the time of interview 18 years old) was sentenced to death by District & Sessions Judge Dera Allah Yar. Naseerullah son of Rehan Longov (at the time of interview 17 years old) was sentenced to death in March 2010. Zahoor Ahmed son of Sajawal Jakhrani (at the time of interview 17 years old) was sentenced to death in March 2010 by the District & Sessions Judge Dera Allah Yar. Their appeals are also pending in Balochistan High Court. The main problem in the cases of Bhai, Naseerullah, Zahoor and Sarfaraz is the age determination at the beginning of the trail which neither their lawyers nor judges considered important in the case.

There may be many children in jails in Pakistan who are given death sentences and languishing in death cells but not known to us. The fundamental problem lies with our birth registration records, which does not exist, therefore children, their families and their lawyers do not know about ages of children at the time of commission of an offence. Secondly, judges of the respective courts do not put any efforts to determine their ages so that the trial of the cases could have been carried out as prescribed in the JJSO. Pakistan is party to the United Nations Convention on the rights of the child and Convention against torture (CAT) which prohibit awarding death sentences to children and adults.

As law reform is need of the hour so is required training and sensitization of judicial and police officials and lawyers who could play their role in determining the age of the accused. In addition to it, the government must place a system of birth registration so that children if for any reason come in conflict with law their ages could be verified by the system so that they should be treated according to the law.