November 23, 2011
An article from Society for the Protection of the Rights of the Child (SPARC) forwarded by the Asian Human Rights
Commission
By Abdullah Khoso
This article (the text) has been published with SPARC’s annual report on the State of Pakistan’s Children 2010 in its
chapter “The JJSO: Caught in the Quagmire of Non-implementation” written by Abdullah Khoso, National Programme Manager
with Society for the Protection of the Rights of the Child (SPARC). abdullahkhoso@hotmail.com.
Pakistan shares its borders with Afghanistan, China, Iran and India. These shared borders are porous as on both sides of
the border live communities that share language and culture and visit each other due to a lack of security bars at many
sections of the border. The border security agencies arrest adults and children mainly on charges of absence of travel
documents and crossing borders; some of them are alleged in terrorism and smuggling activities. In Sindh, in the Arabian
Sea, along with adult fishermen, children are arrested by the Pakistan Maritime Security Shipyard Karachi and tried
under the Foreigners Act 1946 and the Fisheries Ordinance 1980. Similarly, the Indian Maritime Security Agencies do the
same with children and fishermen.
On June 9th 2010, SPARC’s team visited the Juvenile Ward in Quetta. There were four Afghani juveniles below 17 years of
age: Liaqat son of Ahmed Ali, Akhtar Mohad, Zahir son of Ramzan and Dolat Shah son of Qurban Ali. The only wrong they
had done was that they were in Pakistan for safety and security which they do not have in Afghanistan. They should have
been deported to their Country immediately or the Judicial Officer may have asked the Government to do so, but nobody
has concern for these foreigners and there is no mechanism to deal with foreigner juveniles whereas under the
Constitution of Pakistan, foreigners may enjoy rights as human being. After six months, on December14th 2010, a SPARC
representative met with 80 Afghan juveniles in the same jail. These children claimed that they and their parents had
been living in Pakistan for several years and were arrested under the Foreigners Act. In February 2010, the Government
of Sindh released 106 Afghani nationals from Central Prison–I Sukkur, a great number among them were minors. They were
arrested from Larkana and Sukkur regions and sentenced for 8 months. (1)
Pakistani jails each year receive scores of Afghani children caught and sentenced under the Foreigners Act but it is
unknown how many Pakistani children (young people who were children at the time of their arrest) are detained in jails
in Afghanistan. There is a high probability that young children from the tribal areas of Pakistan who went to fight
against the NATO forces in Afghanistan and Tribal Areas of Pakistan are detained either in Afghanistan or somewhere
else. In 2008, the Islamabad High Court had directed the Ministry of Foreign Affairs and the Interior Minister to submit
a report about the 150 children allegedly imprisoned in Afghanistan. Barrister Mohammad Javed Iqbal Jafree had filed a
petition for the recovery of 150 children from Afghanistan who were taken by the US Government with the help of the
Pakistani secret agencies. (2) Two of them were Saji-Ur-Rehman and Mohammad Omer. (3)
Saji was born in 1984 and belonged to the Province of Punjab and Omer was born in 1986 and belonged to Sindh Province.
They had spent three months in a jail in the heart of Afghanistan and then were given into American custody. At the time
of their arrest they were minors.(4) Some other names of minors arrested by the Afghan and American forces include
Khalil Rehman Hafeez, Sultan Ahmed and Zafar Iqbal. It is reported that after spending many years at Guantanamo Bay in
Cuba, they were repatriated to Pakistan but it is unknown where they are right now.
Although China and Pakistan share very good terms, nevertheless, a 17 year old Pakistani boy Noor-ul-Islam son of Sher
Baz was not spared and handed the sentence of life-time imprisonment till death. Noor is detained in Shisen Prison in
Urmuqi, China. (5) Noor was sentenced by an Urumqi Xinjian Aksi City Court in China after his arrest by the Police at
Urumqi’s Nanmen market on 27th July on account of his alleged participation in the demonstrations in the XUAR on 5th
July. The Police informed the family that Noor was suspected of having thrown stones at people on that day in which a
person was reported to have died. The account reveals that from the time of arrest till awarding a sentence to Noor, no
provisions of the United Nations Conventions on the Rights of the Child (CRC) and the Covenant on the Civil and
Political Rights were respected in any way.
On 4th May 2010, SPARC wrote a letter to the Chinese Ambassador, Luo Zhaohui, in Pakistan about the violation of the
rights of Noor son of Sher Baz in China and requested for his intervention to release Noor from the sentence of
life-time imprisonment till death. On 26th May 2010, the Chinese Ambassadorial staff in Islamabad sent a letter to SPARC
enclosed with a press release title ‘The Truth of the Case of Noor-ul-Islam Sherbaz’ by the spokesman of the Chinese
Embassy in Islamabad. From a thorough review of the press release, it was ascertained that the Chinese Court had not
awarded the death sentence because of his age below 18 years and claimed that Noor was provided legal aid whereas
Sherbaz claimed that Noor’s trial was not according to the spirit of justice. However, in purview of Article 37 of the
UNCRC, the death sentence and life imprisonment without the possibility of release are prohibited for offences committed
by a person below 18 years.
SPARC in another letter written on 31st May 2010 to the Chinese Ambassador showed serious concerns about the life
imprisonment till death to Noor without the possibility of release or minimum detention along measures to rehabilitate
him into society. But no response was received from the Embassy.
During the year, only one case of a Pakistani juvenile, Mohammad Asif son of Abdul Rasheed Brohi was reported detained
in an Iranian prison. Asif’s mother told a news reporter that her son has been detained for the last eight months on
charges of involvement in narcotics and Asif’s case had not concluded. She also shared that her three brothers had
requested for her to take Asif to Iran for business purposes but they involved him in the narcotics trade. She had
travelled to Iran to meet with her son but the authorities did not allow her to meet with Asif.(6) In Pakistan there are
a number of Persian(7) children found in jails but they do not belong to Iran.
The case of Pakistan and India is very sensitive because they are termed two rival countries from the very first day of
separation in 1947. They have fought three wars and are still not on good terms. As a result of their unending and
unreasonable rivalries, people, mainly children suffer a lot if they mistakenly enter into the other country, or when
they are captured from the Arabian Sea by the Maritime and Coast Guard agencies.
On 3rd November 2009, during an Indus Television programme in the YOIS Karachi on the ‘life of juveniles in jails’,
SPARC learnt about nine Indian fisher boys who had completed their sentences and were seeking their repatriation to
India for two months. In November, SPARC wrote a letter to the Chief Justice of the High Court of Sindh for releasing
and repatriating nine Indian boys. The Chief Justice Sarmad Jala Osmani took suo moto notice of the extra judicial
detention of nine Indian fisher boys in the YOIS Karachi. The CJ converted the letter into a Constitutional Petition
(D-2468) and summoned hearings (SPARC 2009). At the end of December 2009, the Government of Pakistan released 100
fishermen including the nine boys. When even the nine boys were not released, on December 2nd 2009, the two fisher boys
(Jenety son of Dewa and Mahesh son of Meg Jee) were arrested along with 14 adult fishermen by the Pakistan Maritime
Security Shipyard Karachi (8) and tried under Section 3/4 of the Foreigners Act 1946 and Section 3/9 of the Fisheries
Ordinance 1980.
On April 13th 2010, SPARC representatives requested to the Chief Justice Sarmad Jala Osmani during the hearing of the
case that:
-foreigner children immediately be released and repatriated to their country (India);
-children arrested in the Sea or elsewhere in minor cases like border crossing and fishing in Pakistani waters upon
arrest be sent back to their countries (violation of border crossing and poaching in Pakistani areas carries a few
months sentence); and
-those children who have been awarded sentences, two months before the completion of their sentence, children may be
provided counsellor access so that they may be repatriated to their country upon completing their sentence;
It was implored that the deprivation of liberty should be a last resort for every child irrespective of the nationality;
it is unfortunate that a foreigner juvenile is not provided legal assistance and legal protection; he is deprived of the
right to be considered innocent; his arrest is the final proof of his criminal status; and he cannot be granted bail and
released on probation.
SPARC representatives urged the CJ to take all the available legal steps for the release and repatriation of the two
foreigner juveniles, Jetey and Mahesh, being detained at the YOIS Karachi or in other prisons of the Province.
On April 13th, the CJ SHC ordered the Civil Judge and Judicial Magistrate West Karachi to dispose of the cases against
the two Indian boys within two weeks and report back to the Court on April 22nd.(9) On April 21st 2010, the SPARC
representative appeared in the Court and pleaded for the withdrawal of the cases against both the children and for their
immediate release.
The Court said that both juveniles had confessed that they were fishing in Pakistani waters; therefore, it directed the
Home Department of the Government of Sindh to repatriate both the boys to their home country since they had completed
the four month sentence given under Section 243 (10) of the Criminal Procedure Code with the benefit of Section 382 (11)
of the CrPC.
The CJ High Court of Sindh also endorsed the decision of the Lower Court and directed the Home Office Sindh to take
measures for the repatriation of both the boys. (12) Unfortunately, the Provincial and Federal Governments did not take
an interest in the repatriation of both the boys and provided counsellor access to them after a month, shared by the
administration of the YOIS Karachi where the children were detained. In light of the given indifferent attitude of both
the authorities, SPARC and DCI (Defence for Children International) released a couple of press statements and wrote
letters to the authorities in Pakistan and at Geneva in which DCI and SPARC termed the extra-confinement of the children
as against Article 9 of the Constitution of Pakistan and the spirit of the United Nations Convention of the Rights of
the Child (CRC), and requested the Indian and Pakistani Government to take reciprocal measures and release and
repatriate the children languishing in jails on both sides. At the same time, SPARC urged the Government to amend the
Foreigners Act, Fisheries Acts and Passport Acts to exempt children under 18 years of age from being tried under these
laws.
In August 2010, on the orders of Supreme Court of Pakistan, the Federal Government decided to repatriate 442 Indians
including two juveniles. (13) Pakistan Fisherfolk Forum and Pakistan Institute of Labour Education and Research (PILER)
had filed a petition in the Supreme Court against extra judicial confinement of 442 Indian fishermen including the two
boys. As a result of the petition, the Supreme Court asked the Government to repatriate the fishermen who had completed
their sentence. In September, all 442 including the two boys were released via the Wagha border. (14)
An Indian boy, Rajat Kumar, not unlucky like the fisher boys, was handed over by the Pakistan Rangers to the Indian
authorities. The boy had inadvertently crossed the border. (15)
There are also a number of Pakistani children reported as detained in Indian jails e.g. on January 12th 2010, 13 year
old Attique Ahmad s/o Malik Iftikhar boarded on a train to escape punishment from his father on the account of flying a
kite. The train took him to the Lahore Railway Station from where he boarded another train without knowing that it was
the Samjhota Express, and he reached India. The boy was produced before the Principal Magistrate for Juvenile Justice at
the Amritsar District Courts on February 19th. Attique was a student of class seven. (16) Attique mistakenly entered
India without valid papers and was arrested at the Attari Railway Station and charged under the Foreigners Act of India
1946.
The Human Rights Commission of Pakistan took the matter seriously and pursued the case in India. At the same time, human
and child rights organizations, including SPARC, in both countries requested the Indian Government to release
Attique.(17) On 11th March, Attique was released by the Court in India and reunited with his family in Lahore through
the Wagha border. (18)
By the end of 2010, 16 year old Bilawal, Rashid, 13 year old Babar Naseem, Adnan and Rafaqat were reported detained in
the Indian Juvenile Jail Hoshiarpur; 17 year old Tayyab Tahir Jamil in Sri Krishna Ganga Nagar Jail; 18 year old
Mubashir Ali, was reported imprisoned at Central Jail, Kot Balwal; 15 year old Nuaman Arshad in Amritsar Central Jail;
and Sunil Khan in Faridkot’s Jail (Bhatia 2010) (19) . These children inadvertently crossed the borders and were
arrested by the border security forces and Rangers or caught by the Maritime Agencies in the Arabian Sea while fishing
along with adult fishermen. Tayyab had mistakenly crossed into Indian Territory through Cholistan border, after
developing a dispute with his family.(20) Nauman out of curiosity had boarded a bus from Lahore to the Wagha border. In
the Indian Territory wondering around, he was arrested by the Border Security Force. He was interrogated and subjected
to third degree torture by the Police and considered to be suicide bomber. (21) Bilawal hails from Karachi and was the
only breadwinner of his family. He along with four other fishermen was arrested by the Indian BSF from the open sea in
April 2010. (22)
Babar Naseem is reported to be in Bhalwal prison in the Indian part of Kashmir. He belongs to Lower Dir; and in 2009,
Babar was kidnapped by two armed men in a car from Tamirgarh Bazar where he used to work as an apprentice with a welder.
After many months, the family received a letter from Babar from Bhalwal prison. His family has made efforts but he has
still not returned. (23)
In the history, there are accounts of various grave violations of human and child rights by both sides’ authorities. In
the 1970s, a 15 year old boy Lakhapna was arrested by the Indian authorities at his sixteenth unlucky attempt of
watching a movie in a theatre on the Indian side. He used to travel by the Samjhota Express and slipped through the tall
wheat and bushes along the dividing borderline. He spent 16 years of his youth in an Indian Jail (Bhatia 2010) (24).
8 year old Asif Khan, the youngest inmate, was arrested nearby Wagha in July 2002 when he was even unable to recall his
village’s name. He spent four years in Faridkot Jail and with the help of a kind Deputy Commissioner was repatriated to
Pakistan. (25)
Two years ago, 14 year old Sunil Asharaf along with his friends, Yawar Daniyal and Rameez Pathan, travelled from Lahore
to India to watch the IPL cricket match. They crossed through Kasur Ghanda Singh border and were arrested by the Indian
Police. They were charged under the Passport Act 1967 and the Foreigners Act 1946. After three months, High Court Patna
had released Sunil but he has not yet been released from the Fareedkot prison in India. (26)
Four years ago, 16 year old Javed Ahmed resident of Dialpur (Punjab) was missing. After some years, Javed’s family
received a letter from Javed and learnt that he was in Amritsar Jail in India. The family of Javed did not know how he
had reached India. His family has written request letters to the concerned authorities; all was useless. (27)
Another aspect to the plight of these children is the economic status of their families. They lack resources to pursue
cases without some help from the States whereas both States are bitter enemies; therefore, no efforts are put to release
the innocent children who cross the borders inadvertently and are caught from the Arabian Sea while poaching along with
adult fishermen. (28) Some children cross borders after they get into a fight with their parents and seek to begin a new
life in India or Pakistan, without knowing that this requires a passport and a visa. Most children belong to poor
backgrounds and have no political awareness. In Jails, they overstay due to red-tapism. (29)
Most of Pakistani children currently detained in Indian jails have completed their sentences but are not released and
repatriated because they are not provided timely councillor access. The councillor access is processed through which the
embassy related to the juvenile’s country arranges documents for the juvenile
India and Pakistan should amend their respective Foreigners Acts and Fisheries Ordinances/Acts in which children should
be given exemptions so that these laws comply with the United Nations Conventions on the Rights of the Child which both
countries ratified in 1990.
Crossing the border and not having a passport may not be considered an offence or crime under these Acts when committed
by children. According to the CRC, such arrest is arbitrary which is against the essence of juvenile justice envisioned
by the CRC and their detention beyond the time of their sentence is also illegal and a violation of children’s rights.
Sentences under the Foreigners Acts (inadvertently crossing border) and Fisheries Ordinance are completely against the
best interests of children. Under these Acts of both the Countries, children of other countries have no right to legal
counsel and their sentence is a must (final) under these laws. According to Article 37, detention must be used as a last
resort but in this case detention is the final and ultimate decision and for an unknown period of time.
----
Footnotes:
1 'Illegally entered 106 Afghanis released after completing their sentences'; Daily Kawish, February 25, 2010.
2 'Foreign, interior ministries asked to respond within two weeks: Imprisoned children in Afghanistan'; November, 7,
2010; Accessed at .
3 United Stated Department of Defense, List of Individuals Detained by the Department of Defense at Guantanamo Bay, Cuba
from January 2002 through May 15, 2006,United States Department of Defense, US, viewed on 7 December 2010, at .
5 Pasha, F. K., 'Man seeks help for son's release from Chinese prison'; The News International, May, 4, 2010.
6 'For the last 8 months, a boy from Khadro is detained in Iran under narcotics case'; Daily Kawish 2010, 30 May.
7 A popular language in Iran
8 'Two Indian Fishermen released,' The News International, April 22, 2010.
9 supra note 168.
10 Conviction on admission of truth accusation.
11 Postponement of the execution of a sentence of imprisonment under Section 476 of the Criminal Procedure Code (CrPC).
12 'Calls for repatriation of Indian boys,' The News International; May 11, 2010.
13 'Over 400 jailed Indian fishermen set to be freed'; Dawn, August 29, 2010.
14 'Last batch of fishermen released'; Dawn, September 7, 2010.
15 'Pakistan hands over child to India'; Daily Times, June 16, 2010.
16 'Schoolboy's ordeal'; Dawn, May 3, 2010.
17 Siddiqui, Z. M., 'Lucky boy returns home safely from India'; Dawn, March 13, 2010.
18 Lodho, A., ‘I didn’t stowaway, I was abducted’; Daily Times, March 14, 2010.
19 Bhatia, R. K., ‘Not all who sneak across are terrorists’; The Times of India, February 7, 2010: Accessed at
20 Mehdi, A., ‘Three youths in Indian jails despite having served terms’; Dawn, April 2, 1010.
21 Jolly, A., ‘Efforts continue to help Pakistani schoolboy in Indian prison’; The News International, April 7, 2010.
22 Khaskheli, J.,‘A desperate search for a grandchild’; The News International, May 20, 2010.
23 'Woman seeks release of son from Indian jail'; The News International, May 27, 2010.
24 supra note 180.
25 Ibid.
26 Sajjad, M. Pakistani boys detained in Indian Jail’. trans. Jehd-e-Haq, Human Rights Commission of Pakistan,
September, 2010: p 23.
27 Hammad, A. H., Request to get released from India’; trans. Jehd-e-Haq, Human Rights Commission of Pakistan, June:
2010 p23.
28 Pakistan Institute of Labour Education & Research, Detained Fishermen: Trapped in a political game between Pakistan and India, www.piler.org.pk/newfisherman01.pdf.
29 supra note 180.
# # #
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia,
documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these
rights. The Hong Kong-based group was founded in 1984.
Visit our new website with more features at www.humanrights.asia.
You can make a difference. Please support our work and
make a donation
here.
-----------------------------