July 2, 2022
By Ahmed Saeed
LAHORE: The Supreme Court has declared that juveniles accused of heinous crimes have the right to be released on bail under Section 6(5) of the Juvenile Justice System Act 2018, provided the trial could not be concluded within a period of six months and that the delay is not attributed to the accused.
The court also held that the six-month period will start from the day of arrest.
The two-member bench of the apex court comprising Justice Mansoor Ali Shah and Justice Amin-ud-Din Khan rendered the judgment during hearing of a bail plea filed by a juvenile offender who was arrested in a murder case in March 2021 and was adjudged a juvenile in November 2021.
The accused filed bail applications before the trial court and high court on the ground of delay in the conclusion of the trial within six months under the Juvenile Justice System Act 2018. Both courts however rejected the petition.
The Supreme Court in its order said that as per the Act, a juvenile can only be detained if he/she is over 16 years of age and involved in a heinous crime.
“Under the Act, only in a case involving “heinous offence” can a juvenile be detained in a police station or a jail. Thus, it can safely be concluded that Section 6(5) of the Act does apply, rather solely applies, to a case involving a “heinous offence”, irrespective of the age of the juvenile. Section 6(5) in effect works as a proviso to Section 6(4) and appears to have no other purpose under the scheme of the Act,” the order read.
The provision states that “Where the Juvenile Court is of the opinion that the delay in the trial of a juvenile has not been occasioned by an act or omission of such juvenile or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, such juvenile shall be released on bail if he has been detained for a continues period exceeding six months and whose trial has not been completed.”
The bench observed that the approach of the trial court to deny the benefit of Section 6(5) of the Act for the reason that the offence is heinous is not legally incorrect.
“The trial court declined the relief of bail to the petitioner without discussing the fact who was at fault for the delay in completion of the trial. While the High Court noted that the delay occurred due to failure of the Investigating Officer in timely submission of the final report under Section 173 of the Code of Criminal Procedure 1898. In the latest report submitted by the trial court, dated 25.05.2022, on requisition of this Court, it has been reported that the delay has occurred due to filing of a private complaint by the complainant,” the judgment noted.
The court also observed that it is more disquieting that the high court has declined the relief under Section 6(5) of the Act by counting the period of six months from the date of determination of age and not from the date of arrest.
“We think that attention of the High Court was not invited to the judgments of this Court delivered in the cases of Nadeem Samson, and Shakeel Shah relating to 3rd proviso to Section 497(1) CrPC, which contains similar provisions, and of Saleem Khan relating to Section 6(5) of the Act; this Court has held in these cases that the period of delay in the conclusion of the trial is to be counted from the date of the detention of the accused in the case.”.
The court further said that the Juvenile Justice System is not retributive in character, rather it is primarily rehabilitative and restorative.
The bench mentioned that Pakistan is signatory to the United Nations Convention on the Rights of the Child (UNCRC) and is under international obligation to take special measures for the protection and rehabilitation of juveniles who come in conflict with the law.
“Article 37 (b) of the UNCRC provides that the process of arrest, detention or imprisonment of a juvenile is to be used only as a measure of last resort and for the shortest appropriate period of time,” the judgment said.
The apex court expressed displeasure with the trial court and high court for not allowing the accused the benefit of Section 6(5) of the 2018 Act.
“In the present case, the courts below have failed to appreciate the scheme of the Act and in particular that of Section 6(5) of the Act, which has been enacted to counter the negative effects of long term detention of juveniles.”
