2006 PLP 1805 (SCMR)

IFTIKHAR MUHAMMAD CFIAUDHRY, C.J.

This criminal miscellaneous has arisen out of suo motu action taken on 17th April, 2006.

2. Brief facts of the case are that on 17th April, 2006, a news was flashed on GEO TV at 11-30 p.m. indicating that three minor children, including one aged about 6 years have been detained by the police. One amongst them was tied up with handcuffs and fetters. Having found the manner of detention illegal, the Secretary and the Additional Registrar of the Court were directed to convey to District and Sessions Judge, Hyderabad to release the boys forthwith against their personal surety bonds. The order was complied with vide report No.DJ/78612006, dated 18th April, 2006 and No. UTB(A&R)/7196/97 dated 18th April, 2006. Matter was registered as Criminal Miscellaneous Application No.189 of 2006 and was fixed in Court. Meanwhile copy of the order, dated 18th April, 2006 was sent to Chief Justice, High Court of Sindh, Karachi for inquiry and submitting report. The I.-G.P., Sindh was also directed to probe into the matter and furnish report. In pursuance of said order following reports have been received: First Enquiry Report. The inquiry was conducted by a team of the Police Officers in which following findings have been recorded:-- (1) During the enquiry Points Nos.1 and 2 were answered in positive as both the accused boys were caught red handed by the complainants and were brought to police station by themselves. The complainants and other persons discussed above insisted on registration of the case against them. (2) Point No.3 is also replied positively. From the examination of the record available as well as the statements discussed above it is beyond any shadow of doubt that the two boys namely Asad and Saeed were handed over to police and arrested on 15-4-2006 at 1630 hours and were kept in lock-up till 17-4-2006, for two days. One of the accused namely Saeed was released by S.P. (Investigation) Hyderabad on 17-4-2006 at 0730 hours as being minor and younger of the two. Whereas the other accused boy was taken to Judicial Magistrate-I for Police remand. The Magistrate remanded the accused and placed him under Judicial custody. The copies are enclosed as Annexure. (3) It is also correct that the 3rd accused boy namely Muzamil was arrested on 17-4-2006 at 1630 hours and was brought on Police Station Qasimabad by and was handed over to Investigating Officer, A.S.-I. Khalil Rehman Shah. The Investigating Officer in turn handed over the custody of the boy to W.H.C/1957 Abdul Majeed. The W.H.C. tied the feet of the boy with Iron Chain fearing that the nominated accused boy might escape from the police station which is not safe custody of any accused. From the above discussion it is proved beyond any doubt that 2 boys were kept for 2 days in police lock-up. A.S.-I. Khalil Rehman Shah being Investigating Officer of the case as well as being incharge of Investigation (S.I.O), Police Station Qasimabad is responsible for detaining boys. Regarding chaining of this boy WHC/1957 Abdul Majeed is responsible as he has tied the feet of the accused with iron chain after the accused was handed over to him by the said Investigating Officer, again due to unfavourable circumstances at the police station. TIO/Insp. Hamid Theheem is also found negligent in supervising the police station staff. The departmental proceeding for above misconduct on the part of officers/officials is being initiated under Removal from Service Ordinance, 2000.

3. The above report is self-explanatory however, most important aspect of the case is that minor Muzammil was arrested on 17th April, 2006 at 1630 hours and was brought at Police Station Qasimabad and was handed over to Investigating Officer A.S.-I. Khalil Rehman Shah. The Investigating Officer in turn handed over the custody of the boy to Abdul Majeed, Head Constable who tied the feet of the boy with fetters, fearing that he will escape from the police station which is not safe for custody of any accused. (a) Such state of affairs is very painful. But we appreciate that this aspect has been highlighted in the report and hopefully Police Department would initiate immediate necessary steps for making the police station safe, at least for custody of the accused persons. (b) It is also established that Asad and Saeed remained in custody from 15th April, to 17th April, 2006 for two days and out of them Saeed was released by S.P. Investigation Hyderabad on 17-4-2006 at 0730 hours being minor and younger of the two. Whereas Asad was taken to the Court of Judicial Magistrate for police remand. Primarily detention of the boys is against the provision of section 10 of the Juvenile Justice System Ordinance, 2000. However, we are satisfied that police Authorities had taken initiative and decided to proceed against the responsible Police Officers. Therefore, no further comments are required to be made in this behalf except that such proceedings be completed expeditiously and the result shall be intimated to the Registrar within a period of six weeks for our perusal in Chambers and for further proceedings if need be. Second Enquiry Report A perusal of inquiry report by District Judge, Hyderabad indicates that facts noted in the report of Police Authorities have been endorsed, particularly, that boy Muzammil was arrested on 17th April, 2006 and his legs were tied with fetters contrary to the provision of section 12 of the Juvenile Justice System Ordinance, 2000, although in the police report, it is mentioned that fetters were applied to ensure that he may not escape. But according to the learned Sessions Judge, no such apprehension has been shown in the papers about the escape of the child from the custody. Similarly Saeed, aged about 6 years, remained in police custody w.e.f. 15th April, 2006 to 17th April, 2006 and his detention with police is absolutely illegal and being a juvenile he was required to be dealt with accordingly. As far as Asad the third boy is concerned, he was remanded to Central Prison, Hyderabad as per report of the Incharge Civil Judge/Judicial Magistrate, Hyderabad, Nadeem Zafar Hashmi. It seems that the Magistrate had passed order on 17th April, 2006, contents whereof are reproduced hereinbelow: "Accused Asad son of Lukhadino by Caste Khashkheli, produced by Police Qasimabad, Hyderabad involved in an offence/crime punishable under sections 454/380, P.P.C./14 H.O. in Crimes Nos.60 of 2006 and 59 of 2006 with the request of 14 days police custody remand. Accused Asad on enquiry disclosed his age about 14/15 years, but failed to produce any documentary proof regarding his age. Even offence is non-bailable but according to Juvenile Justice System Ordinance, 2000, offence committed by Juvenile persons under the age of 15, be treated as bailable offence. Following the law laid down in Muhammad Anwar v. The State 1998 PCr.LJ 1985 (Karachi), accused who claims to be a young boy has not produced any documentary proof like testimonial or birth certificates, nor any guardian or relative is present, hence physical appearance is not a conclusive or authentic proof of age of accused nor it could be termed as an expert opinion. Further following the law laid down in 2005 PLD 15 (Lahore), the Juvenile Justice System Ordinance, 2000 abolished acid-the cases pending in Juvenile Courts were transferred to the ordinary Courts having jurisdiction. In view of the above there is very much confusing circumstances whether this Court follow Juvenile Justice System Ordinance, 2000 or not as the same has been abolished by judgment 2005 PLD 15 (Lahore). Nobody made any request to submit bond for release of accused and to get safe custody of accused. In these circumstance accused seems to be a youth/juvenile offender, hence in the interest of justice I asked about guardian of accused, but he stated that nobody from his family came in Court. I also made enquiry from Investigating Officer about guardian of accused, he failed to submit any information regarding attending of Court by guardian/any family member of accused. I directed to the Investigating Officer to drop accused at his house after collecting address of accused from the record of police station and obtain personal bond of his family members. On such accused refused to go with police again to police station with the fear that they will beat him and requested to remand him to jail. This Court also asked from accused regarding any telephone number of his relative but he failed to give the same. The undersigned also tried to collect information regarding office of Probation, but failed to collect such information regarding Probation Officer. I, therefore, remand to accused to judicial custody with the opinion as and when any person from his family members will appear and will submit bond, accused will be released and custody will be handed over to him. Investigating Officer is directed to submit Challan within stipulated time and to inform accused's relative about case."

4. On having seen the above report we are prima facie of the opinion that above order perhaps was prepared subsequently as in the order of granting remand nothing was mentioned with regard to handing over custody of boy to his relatives etc. For sake of convenience order granting remand for judicial lock-up of minor is reproduced hereinbelow:

"Accused produced by police made no complaint of maltreatment at the hands of police. Investigating Officer requested for police custody remand to recover stolen property. Accused nominated in F.I.R. I find no cogent ground for police custody remand, as accused seems to be Juvenile. I, therefore, allow 14 days Judicial Custody Remand, with directions to submit challan within time." A perusal of above order indicates that remand was granted knowing well the age of boy who had to be dealt with according to the provision of Juvenile Justice System Ordinance, 2000. In the detailed order, dated 17-4-2006, reference of PLD 2005 Lah. 15 is incorrect, because every Judicial Officer knows that this judgment has been suspended by Supreme Court on 11-2-2005. Said order is reproduced hereinbelow:

"Civil Petitions Nos.300 and 3003 of 2005 are connected matters. In both these petitions judgment delivered by learned Lahore High Court, Lahore on 6-12-2004 in Writ Petition No.20645 of 2002 has been impugned. It is contended by Mr. Makhdoom Ali Khan, learned Attorney-General for Pakistan that the reasons assigned for holding Juvenile Justice System Ordinance, 2000 to be ultra vires to the Constitution, are not sustainable in law. Further contends that the findings of High Court, in fact, are based upon extra legal consideration, which could not be a ground for striking down said Ordinance. Learned Attorney-General also argued that learned High Court erred, while interpreting Articles 4, 9 and 25 of the Constitution and failed to consider the real spirit of these Articles. Mr. Anees Jillani, Advocate Supreme Court appearing in C.P. 303 of 2005, .adopted arguments of learned Attorney-General of Pakistan. The above points, inter alia, required consideration. Issue notices to Farooq Ahmed, respondent with a direction to submit his comments on the points raised in these petitions within three weeks. Notice be also issued to the Advocate-Generals of all the four Provinces. The operation of the impugned judgment is suspended till further orders. These petitions be fixed for regular hearing after the comments are received." Even otherwise in the normal course it had never happened that a Judicial Magistrate writes down a detailed order at the stage of granting remand to an accused produced before him by the police. However, comparing both the orders it appears that one of the orders was prepared later on, in order to save his skin. Thus, we are of the opinion that Civil Judge exceeded his jurisdiction. He should have not send the boy to the judicial lock-up noticing that police had already kept him in police station without any justification for two days, for which the police offered explanation that both these boys Asad and Saeed were arrested on 15th April, 2006, on 16th April, 2006 being the holiday, they could not produce them. In this behalf it may be noted that there are duty Magistrates available in the Court on holidays for the purpose of granting remand, therefore, police could have produced them before him on the following day. Even otherwise we have developed a system of local bodies, if the relatives of the boys 'were not coming forward, the Magistrate could have asked the Investigating Officer to summon the Nazim or Naib Nazim or Councillor of the area and may have handed over his custody to him as he has no power to send him to police or judicial lock-up at the investigation stage.

5. In the well considered judgments the High Courts have, held that person below 18 years of age would be entitled to benefits and privileges under Juvenile Justice System Ordinance, 2000 and in ordinary course would be released on bail or placed under custody of a Probation Officer and he would not be handcuffed, put in fetters or given any corporeal punishment. Reference in this behalf may be made to Raja Amanullah and others v. The State 2002 MLD 1817. High Courts had also shown inclination to release the accused on bail when the accused were below 18 years of age at the time of committing offence, when the offences were not serious, heinous or gruesome. Reference may be made to Ghulam Qadir v. The State 2006 MLD 406; Wahid Bakhsh Khoso v. The State 2006 MLD 507; Muhammad Aslam v. State 2004 PCr.LJ 406; Gul Firosh Abbasi and another v. The State 2003 PCr.LJ 964; Muhammad Iqbal v. The State 2003 PCr.LJ 1991; Rafaqat Ali and others v. The State 2003 YLR 3157.

6. The circumstances noted above that Nadeem Zafar Hashmi, Judicial Magistrate prima facie had acted illegally, contrary to law therefore, if he is allowed to exercise judicial power in future he is likely to commit same mistake therefore, he is restrained to exercise judicial powers and we recommend to the Chief Justice of Sindh High Court to proceed against him according to law and till the final result of the departmental proceedings he should not be allowed to discharge judicial functions. However, the proceedings shall be concluded against him expeditiously as far as possible within the period of six weeks and report shall be sent to the Registrar for our perusal in Chambers and for passing further orders if need be. Proceedings stand concluded accordingly. S.A.K./D-10/SC Order accordingly.