HUSNAIN RAZA alias JANI and another vs THE STATE
This is an application for the suspension of sentences and grant of bail pending appeal filed by the applicants, who were convicted under Section 377 of the Pakistan Penal Code 1860 and sentenced to rigorous imprisonment. The core legal question raised was whether juvenile offenders could be awarded rigorous imprisonment in light of the prohibitory provisions of the Juvenile Justice System Ordinance, 2000. The court held that under Section 12(a) of the Juvenile Justice System Ordinance, 2000, a child cannot be ordered to labour or awarded certain punishments, and given that the applicants were about 16 years old at the time of the occurrence, the imposition of rigorous imprisonment was patently in violation of the law. Furthermore, considering that the sentences were short and the applicants had already served a substantial portion thereof, the court suspended the operation of the impugned judgment and granted bail to the applicants. The key principle laid down is that juvenile offenders are protected from rigorous imprisonment and labour under the Juvenile Justice System Ordinance, 2000, and bail may be granted when sentences are short and a substantial portion has already been served with no likelihood of an early hearing.
- Whether a child can be awarded the punishment of rigorous imprisonment under the Juvenile Justice System Ordinance, 2000?
- Can the sentence of a juvenile offender be suspended and bail granted when a substantial portion of a short sentence has already been undergone?
- Whether section 12(a) of the Juvenile Justice System Ordinance, 2000 prohibits ordering a child to labour while in custody?
- Section 377, Pakistan Penal Code 1860
- Section 2(b), Juvenile Justice System Ordinance 2000
- Section 12, Juvenile Justice System Ordinance 2000
- Section 12(a), Juvenile Justice System Ordinance 2000
ORDER
' This is an application for suspension of sentences and grant of bail to the applicants. The appellants, in the instant case, were convicted under section 377, P.P.C. And sentenced to undergo rigorous imprisonment for two and a half years each alongwith a fine of Rs,5,000 each or in default thereof to further undergo S.I. For three months each by the learned Additional Sessions Judge, Gujranwala vide judgment, dated 15-10-2003.
2. The learned counsel for the applicants has stated that both the applicants, at the time of occurrence, were about 16 years old thus they being "children" within the purview of section 2(b) of the Juvenile Justice System Ordinance, 2000 (hereinafter referred to as "the Ordinance") could not have been sentenced to undergo rigorous imprisonment in view of the bar contained in section 12(a) thereof. It is further his case that the sentences of imprisonment inflicted on the applicants being short and they having been already undergone substantial portions thereof i,e, about nine months imprisonment each deserve to be released on bail as there is no likelihood of the appeal being heard in near future.
3. Raja Abdur Rehman, Assistant Advocate-General, Punjab assisted by Raja Akhtar Nawaz, Advocate for the State has candidly conceded that in view of the restriction put by section 12(a) of "the Ordinance", the applicants, in fact, could not have been sentenced to undergo sentences of rigorous imprisonment, by the leaned trial Judge.
4. As is evident from its preamble, the Juvenile Justice System Ordinance, 2000 has been promulgated primarily for protection of children and also for their rehabilitation in society. Since the purpose is to treat and reform delinquents and to keep them away from the destructive impact of prison which otherwise, has to tell its toll therefore, the Juveniles are normally incarcerated as a last resort. In the wake thereof section 12(a) of "the Ordinance" provides that no child while in custody, put in Borstal or any other institution can be ordered to labour or given corporal punishment. Here, it would be beneficial to have a glance at section 12 of "the Ordinance" which reads as follows:- "12. Orders that shall not be passed with respect to a child.---Notwithstanding anything to the contrary in any law for the time being in force no child shall be-
(a) awarded punishment of death, or ordered to labour during the time spent in any Borstal or such other institution; and
(b) handcuffed, put in fetters or given any corporal punishment at any time while in custody: Provided that where there is reasonable apprehension of the escape of the child from-custody, he may be handcuffed."
5. Since infliction of the sentences of rigorous imprisonment, in the instant case, appears to be patently in violation of the above provision of law, the sentences inflicted on the applicants are short i,e, only two and a half years each and they have already undergone substantial portions thereof i,e, about nine months each therefore, in my view, ex facie, a case for suspension of the sentences of the applicants is made out. Operation of the impugned judgment, therefore, is suspended and both applicants, namely, Husnain Raza alias Jani son of Subtain Shah and Abu Bakar son of Muhammad Ashraf alias Lal are released on bail on their furnishing bail Bonds in the sum of Rs,one lac each with two sureties each and P.R. Bonds each in the like amount to the satisfaction of the learned trial Judge.