Children on death row

Letter January 16, 2012
Law reform has gone some way to prohibiting punishment for child offenders, but the law is complex and unclear.

QUETTA: Child offenders in Pakistan may, under the law, be sentenced to corporal punishment, life imprisonment and the death penalty. Law reform has gone some way to prohibiting corporal and capital punishment for child offenders, but the law is complex and unclear and these sentences remain lawful in certain circumstances.

The Juvenile Justice System Ordinance (JJSO) states in section 12: “Notwithstanding anything to the contrary contained in any law for the time being in force no child shall be (a) awarded punishment of death....” The prohibition applies to persons under 18 at the time of commission of offence. 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”.

Currently, there are five prisoners in Mach Jail in Balochistan on death row, and all of them were sentenced to death when they were children. The first is Mewal Shah. He is now 20 years old and was sentenced to death by the anti-terrorism court in Mastung. After four years in solitary confinement his sentence was commuted by the Balochistan High Court to 25 years rigorous imprisonment. He was 13 at the time he committed his offence. The second, Sarfaraz, was 16 or 17 at the time when he is said to have committed a murder. He was sentenced to death in 2009 and his appeal is pending in the Balochistan High Court.

The third is Bhai Khan, son of Shah Mohammad Chandio. He is now 18 years of age but was a minor when he was sentenced to death by the district and sessions judge of Dera Allah Yar. The fourth case involves Naseerullah who at the age of 17, is still a minor. He was sentenced to death in March 2010. The last one is a prisoner by the name Zahoor Ahmed, son of Sajawal Jakhrani. He is 17 years old and was given the death sentence in March 2010 by the district and sessions judge of Dera Allah Yar.

What is shocking is that in all five cases, when the minors were being tried in the lower courts, their lawyers did not use the argument that they were juveniles and hence, leniency should be exercised. Had their lawyers done so, perhaps most of them would not have been given the death penalty. The procedure in most cases is that if a lawyer pleads this point, then the court directs that the suspect’s age be determined medically. And if it is proved that the suspect is not an adult, then the case proceeds according to the procedures laid down in the JJSO.

At present these five prisoners, all of whom were underage when sentenced to death, are in Mach jail’s death cells. The Society for the Protection of the Rights of the Child, an Islamabad-based NGO has sent appeals regarding them, to both, the Chief Justice of Pakistan and the Chief Justice of the Balochistan High Court. I hope that the honourable chief justices will act on them and provide justice to these convicts as laid down in the country’s law for treating child offenders.

Nadir Ali Khoso Advocate

 Published in The Express Tribune, January 17th, 2012.