7.3 Domestic Law and Jurisprudence

Domestic Law and Jurisprudence

 

1. Domestic Law

 

The right to proper administration of justice at trial to a juvenile is a fundamental right which has been protected under international law. International standards in this regard require that a person is to get a free birth certificate whenever he/she needs to prove their birth.^[1] Lack of proof of juvenility persists as one of the most significant causes of injustice in the Pakistani legal system.

 

Only 27 per cent of births are registered in Pakistan, and in rural areas this number is at a low 23 per cent.^[2] This leads to injustice in many cases as the prosecution seeks to benefit from doubt as to the age of the accused and place the burden of proof of proving juvenility on the accused. An unsympathetic application of this rule is illustrated by the Supreme Court dicta in the case of Shafqat Hussain where the Court refused to overturn the accused’s death sentence after refusing to consider a government issued birth certificate showing him to be a juvenile.^[3]

 

Moreover, in the case of Ansar Iqbal where the trial Court refused to admit a certified Form-B National Registration Document issued by NADRA, on the grounds that no record-holder had been called as a witness to verify its authenticity.^[4] Age remains a key factor in numerous instances in the criminal justice system of Pakistan and for this reason the following aims to provide an overview of the issues that arise in relation to the age of a child under Pakistani criminal law as well as various child protective laws currently in force.

 

• The Age of a Child in Pakistani Criminal law

 

The Pakistan Penal Code 1860, in Sec. 82 and 83, creates general exceptions to criminal liability for children. Under Sec. 82 of the PPC, ‘nothing is an offence which is done by a child under ten years of age’ whereas under Sec. 83, ‘nothing is an offence which is done by child above ten years of age and under fourteen, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion’.

 

The Juvenile Justice System Act 2018 on the other hand, defines a child as a person under the age of eighteen years for the purposes of the Act. There also remain procedural problems in the Pakistani legal system relating to how a child’s age may be determined upon arrest, how children are to be treated and what sentences children are awarded.

 

Moreover, age discrepancies also exist in case of different offences committed against a child. The minimum age for marriage according to the Child Marriage Restraint Act 1929 is sixteen for females and eighteen for males. While this was adopted by the provinces, only Sindh amended the Federal Act to make the legal age of majority eighteen for both men and women.

 

In addition to this, the Prevention of Trafficking in Persons Act 2018 defines a child as a person under eighteen years of age. However, there are numerous offences in the Pakistan Penal Code committed against children which outline different ages of the victim for the offences to be applicable. For instance, the offence of kidnapping from lawful guardianship outlined in Sec. 361 of the Pakistan Penal Code 1860 (PPC) is applicable for males under fourteen years of age and females under sixteen years of age. Sec. 364-A prohibits the kidnapping of a child under fourteen if the child was abducted for murder, or to inflict torture/grievous hurt, for slavery, or to satisfy the ‘lust’ of any person. For offences affecting the human body defined in the PPC, an adult refers to a person above the age of eighteen years. For the offence of abandonment of a child or cruelty towards the child, the child must be under twelve years of age according to Sec. 328 and 328-A of the PPC.

 

Other than this, the age of a child in laws on child labour is also not consistent with international standards. For instance, Sec. 2 of the Employment of Children Act 1991 defines a child as a person below fifteen years of age and an adolescent as a person below eighteen years of age, which is inconsistent with ILO’s definition. Similar child labour laws in KPK and Punjab also define a child as a person below fifteen years of age.

 

• Juvenile Justice System Act 2018

 

The 2018 Act has been promulgated to deal with cases of juvenile offenders. The Juvenile Justice System Ordinance 2000 which was the primary legislation dealing with the juvenile justice system now stands repealed. The 2018 legislation aims to counter a problem that persisted within the JJSO 2000 by declaring that the Act has the effect of overriding other laws.^[5] It is important to note that Article 2(b) of the Act defines a child as any person under the age of eighteen years. The Act provides for the establishment of juvenile courts by the High Courts.^[6] Thus, the exclusive jurisdiction of the Juvenile Courts created under the Act now extends to juveniles tried under laws with special courts, including the Anti-Terrorism Act, 1997.

 

While this provides for greater protection of child rights in the justice system through the availability of specialized courts to deal with juvenile offenders, a report states that the provincial High Courts have given the power of dealing with juvenile cases to the District and Session Judges, which is especially problematic as juveniles continue to be tried with adults in the same courts which defeats the purpose of establishing juvenile courts.^[7]

 

There are a number of changes which were brought about by the promulgation of the JJSA 2018. Under the JJSO 2000, Sec. 7 laid out the guidelines for the determination of age of the offender, which was based on an inquiry which “shall include a medical report for determination of the age of the child.” However, the JJSA 2018 widens the scope of the law and states that an investigating officer shall make an inquiry on the basis of the offender’s birth or educational certifications or any other pertinent document for the determination of his/ her age. In the absence of these documents, a medical examination report by a medical officer may be relied upon.^[8] Moreover, when the juvenile is brought before the Court, the Court, before granting further detention, must record its findings regarding age on the basis of available record including the report submitted by the police or medical examination report by a medical officer.^[9]

 

The JJSA 2018 also provides safeguards against arrest to juveniles in Sec. 5(1). It states that the juvenile must be kept in an observation room and the police officer shall inform the guardian of the juvenile as soon as possible of his arrest, while informing him of the date, time and name of Juvenile Court before which the juvenile shall be produced. Moreover, the police officer is also required to inform the concerned probation officer so he can obtain information about the juvenile and other material circumstances of assistance to the Court for making an inquiry.

 

The JJSA 2018, in Article 5(2), also states that a juvenile cannot be arrested under laws dealing with preventive detention or provisions under Chapter VIII of the Code of Criminal Procedure 1898 relating to security, keeping the peace, and good behaviour. Furthermore, it requires that the report of the police-officer under Sec. 173 of the Code of Criminal Procedure 1898 must also contain steps taken by the police officer to refer the matter to the Juvenile Justice Committee for disposal of the case through diversion where required.

 

On provisions relating to bail, JJSA 2018 outlines that a juvenile accused of a bailable offence must be released by the Juvenile Court on bail without surety unless it appears that the bail may bring him in association with criminals or expose him to any danger, in which case he must be placed under the custody of a suitable person or Juvenile Rehabilitation Centre under supervision of a probation officer, but not in any circumstances be kept in a police station or under police custody or jail.^[10] Furthermore, if the juvenile is not so released, the Court must direct the police to trace his guardian to hand over his custody to him. However, in case of heinous offences by juveniles older than 16 years, he may not be released on bail.^[11]

 

Moreover, unlike the JJSO 2000 which was silent on these distinctions, Sec. 7 of the JJSA 2018 provides a direct investigation procedure for a juvenile offender, according to which investigation must be carried out by a police officer above or at the same rank as that of a sub-inspector, under the supervision of the superintendent of police or the SDPO. The investigating officer must also be assisted by the probation officer or social welfare officer, as notified by the Government, to prepare a social investigation report to be annexed with the report prepared under Sec. 173 of Criminal Procedure Code, 1898.^[12]

 

Furthermore, the Act provides for the right of legal assistance,^[13] observation home,^[14] juvenile rehabilitation centres^[15] and the Juvenile Justice Committee^[16] that may alternatively dispose of cases through the process of diversion to avoid undergoing the formal judicial proceedings, a novel concept introduced in this Act which was not discussed under the JJSO 2000.^[17] This channel of diversion would be used to determine his responsibility, and treatment on the basis of his social, cultural, economic, psychological, and educational background.^[18] Possible modes of diversion as specified in the Act include restitution of movable property, reparation of the damage caused, written or oral apology, participation in community service, payments of fine and costs of the proceedings, placement in the Juvenile Rehabilitation Center, and written or oral reprimand. The Act states that diversion shall be exercised in minor cases, and in major cases if the age of the juvenile is not more than 16 years.^[19]

 

The Act also requires that a separate challan^[20] and trial of juvenile offenders must be carried out.^[21] It also has a specific safeguard for female juveniles regarding their arrest and interrogation,^[22] which did not exist in JJSO 2000. These include the prohibition of their apprehension or investigation by a male officer, or release on probation under the supervision of a male officer. It also provides for exclusive juvenile rehabilitation centres established for female inmates.

 

Other than this, the JJSA 2018 has played a significant role in protecting the sanctity of a child’s privacy. The Act provides that the trials of a juvenile shall not be made public and only a specified number of individuals may be part of the trial.^[23] Moreover, publishing the details of the trial in any form disclosing the name, address, or any form of identifications of the child, constitutes an offence, punishable by imprisonment or a fine.^[24] The Act also requires that any report made by the Probation Officer regarding the child’s character, education, social and moral background be treated as confidential to protect the child’s privacy.^[25]

 

All these changes introduced in the new law enables Pakistan to be more compliant with its international human rights obligations.

 

In Raja Amanullah and another v. the State,^[26] the Sindh High Court held that as the JJSO has to be interpreted liberally, a margin of error, if any, should be given to the accused. While the Court stated this about the Ordinance, it may still be relevant as a principle for the Act as well.

 

• Pakistan Penal Code 1860

 

There are a number of offences specifically against children defined in the Pakistan Penal Code 1860. In 2016, the Criminal Law (Second Amendment) Act 2016 was promulgated, which amended the Pakistan Penal Code 1860 to increase the minimum age for criminal culpability, and introduce offences relating to children including child seduction, pornography, human trafficking, sexual abuse and cruelty to a child.

 

In Sec. 82 of the PPC, the minimum age of criminal culpability has been increased from 7 to 10 years of age. Under Sec. 83, ‘nothing is an offence which is done by child above ten years of age and under fourteen, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion’. These age specifications have been changed from 7 and 12 to 10 and 14 respectively through the aforementioned amendment.

 

Under illustration (a) to Sec. 6 of the PPC, although none of the offences defined in the PPC specifically mention or exclude a child, they are to be understood subject to the general exception contained in Sec. 82. However, the onus of proof is on the person invoking the plea.^[27]

 

Other than this, with the promulgation of the amendment, Sec. 377-A and 377-B were also inserted in the PPC, which criminalize sexual abuse of children “with or without consent where age of person is less than eighteen years” and state that offenders shall punished with imprisonment of up to seven years and shall also be liable to fine of up to five hundred thousand rupees, or both.

 

Moreover, Sec. 292A, 292B and 292C were also inserted in the PPC, which relate to exposure to seduction, child pornography and the punishment for it respectively. Sec. 292A states that whoever seduces a child with intent to involve him in any sexual activity or exposes him to sexually explicit material would be punished for imprisonment of up to seven years or fine of up to five hundred thousand rupees or both. Sec. 292B defines child pornography and states that it would be an offence “with or without the consent of the child” or his/her guardian, while Sec. 292C prescribes its punishment as imprisonment of up to seven years or fine of up to seven hundred thousand rupees or both.

 

Cruelty to a child also became an offence through the insertion of Sec. 328A to the PPC through the aforementioned amendment of 2016. Sec. 328 criminalizes the abandonment of a child under 12 years by his/her parent with an imprisonment of up to ten years, while 328A criminalizes willful assault, ill­treatment, neglect, abandonment, or any act that has the potential to harm a child by causing physical or psychological injury to him, and states that the offender would be punished with imprisonment of up to three years, or a fine of up to fifty thousand rupees or both.

 

Furthermore, corporal punishment is allowed in the home under Sec. 89 of the Pakistan Penal Code as a means to correct the behavior of children if done in ‘good faith’ under 12 years of age by or by consent of the guardian. However, this exception does not apply if the act is done with the intention to cause death, or with the knowledge that it would likely cause death, or to voluntarily cause grievous hurt.

 

It is important to note that Sec. 90 of the PPC outlines that the consent of a child is not a consent if given by a child under 12 years of age, unless specified otherwise in the Code.

 

Other offences relating to children in the PPC include Sec. 361 which prohibits the kidnapping of a child (under 14 years of age if a boy and under 16 years if a girl) from their legal guardian. Moreover, Sec. 364-A prohibits the kidnapping of a child under 14 if the child was abducted to murder them, subject them to torture/grievous hurt or slavery, or to satisfy the ‘lust of any person.’ The provision allows for such an individual to be punished with death or imprisonment for up to 14 years and not less than 7 years.

 

It is important to note that parental consent in handing over a child for employment is not sufficient to negate the charge of kidnapping under this provision, as held by the Court in the case of Azam Watto and others v. The State. In this case, the parents of an 8/9 year old girl demanded her return after she was sent to work in the house of a couple in Lahore who contended that they had obtained her with her parents’ consent.^[28] The Court rejected an appeal for bail before arrest of the couple who had obtained the child for employment while stating that parental consent does not provide an exception to the offence.

 

Sec. 498B of the Code prohibits forced marriages of females under the age prescribed under the Child Marriage Restraint Act, 1929, which is sixteen years, and prescribes imprisonment of up to seven years for the individual coercing a child into marriage. Accordingly, in the provision on rape, the PPC states that a man is said to commit rape if he has sexual intercourse with a woman under sixteen years of age “with or without her consent”,^[29] and states that the offender shall be punished with death or imprisonment of not less than ten years or more than twenty­five years, and shall also be liable to fine.

 

Moreover, Sec. 329 criminalizes the concealment of the birth of a child by a secret disposal of his/her dead body with imprisonment of up to two years or fine or both. Other than this, kidnapping a child with intent to steal movable property from him is punishable under Sec. 369 with imprisonment of up to seven years and fine.

 

• Prevention of Trafficking in Persons Act 2018

 

This Act was introduced by the Parliament in 2018, hence repealing the previous law on human trafficking, namely the Prevention and Control of Human Trafficking Ordinance, 2002. The Ordinance had a number of shortcomings, including a limited definition of trafficking, no distinction between human trafficking and human smuggling, victims often being charged with the crimes themselves, and restricted punishments that did not take aggravating circumstances into account. The Ordinance also did not deal with internal trafficking within Pakistan, and did not focus on preventive mechanisms or victim safety and protection, but only on offence creation.

 

The new Act, on the other hand, provides for a broader definition of trafficking by including ‘psychological pressure’ as a means of coercion under Sec. 3(3)(a) of the Act. Moreover, it omits the Ordinance’s requirement of “transportation out of or into Pakistan”, hence bringing internal trafficking within its ambit. It also imposes harsher penalties for aggravating circumstances including serious injury, death, confiscation/destruction of travel documents, repetition of offence, or acting in an organized criminal group, which carries a maximum term of fourteen years in prison and a fine which may extend to two million rupees according to Sec. 4 of the Act.

 

With regard to children, it is important to note that if the offence of trafficking is committed against children under the age of 18 years, the punishment is enhanced from a maximum of 7-year imprisonment to a 10-year imprisonment and a fine of up to one million rupees. Moreover, an important provision introduced in the new law is the presumption in case of child victims specified in Sec. 7. According to this provision, a child need not prove the actual use of force, fraud or coercion and the Court may not consider the consent of the victim, his parent or guardian as a defence.

 

More improvements in the new law include no criminal liability of the victim for an offence under the Act, while allowing the victims of trafficking to become witnesses in the case according to Sec. 6. Special procedures introduced for the protection of victims and witnesses include relocation and non-disclosure of identity provided in Sec. 11, and in-camera proceedings, sealed court records and witness obscuring via screen/video-link.

 

• Employment of Children Act 1991

 

The legislation regulating child labour includes the Employment of Children Act (1991) which prohibits the employment of children in certain occupations and regulates the conditions of work or children. Sec. 2 of the Act, however, defines a child as a person below 15 years of age and an adolescent as a person below 18 years of age. The Act punishes anyone who employs a child in a forbidden occupation with imprisonment for up to 1 year or a fine.

 

Other similar laws relating to protection against child labour by the provinces include the Punjab Prohibition of Child Labor at Brick Kilns Ordinance, 2016, the Punjab Restriction on the Employment of Children Act, 2016, Khyber Pakhtunkhwa Prohibition of Employment and Children Act, 2015, and the Children (Pledging of Labour) Act, 1933.

 

• Zainab Alert, Response and Recovery Act 2020

 

The Zainab Alert, Response and Recovery Act, 2020 is a recent legislation passed by the National Assembly on 10^th January 2020, and the Senate on 4^th March 2020.^[30] It is important to note that the Act only extends to the Islamabad Capital Territory and the provinces have not yet adopted the Act through the provincial assemblies.

 

The preamble of the Act establishes the need for the Act to be passed. It states that it is necessary to make provisions for the protection of missing and abducted children under the age of 18 years, and to ensure their right to life and protection from exploitation, violence, abuse, neglect, as envisaged under various national and international laws, conventions and other instruments relating to the rights of children. It further recognizes that such children, if abducted, are at a high risk of such violence and abuse, due to which it is essential to provide an institutional response, which entails a system raising alerts, and a response and recovery mechanism for such children, so that offences like the abduction, rape and murder of a 7-year old Zainab from Kasur in January 2018 are not repeated.

 

The Act provides for a Zainab Alert, Response and Recovery Agency (ZARRA) to be set up. Its functions would include maintaining an online database of missing or abducted children,^[31] while working closely with the Legal Advice on Human Rights Violation Helpline 1099 created by the Ministry of Human Rights, which will forward all the reported cases to the Agency. Upon a child being missing, the Agency will send alerts across the federal capital and law enforcement agencies regarding the child’s information, including their physical characteristics, habits, clothes etc.^[32] through the Pakistan Telecommunication Authority and PEMRA.^[33] The Act provides for the establishment of a cellular app linked to the database, and also for administrative arrangements to be made for the safe return of the child, as well as the facilitation of the provision of legal aid and coordination with concerned authorities if it is a transnational offence.

 

Sec. 7 of the Act provides for coordination between ZARRA and the local police stations, and requires that the police shall inform ZARRA of the missing child within two hours of the filing of the complaint, following which ZARRA shall immediately launch the investigation, rescue, recovery and rehabilitation operations with the help of the police. Similarly, ZARRA would, upon receiving a direct complaint of a missing or abducted child, coordinate with the police to launch such actions, including the registration of the complaint at the police station on behalf of the complainant.

 

Another notable feature of the Act is that it also prescribes the punishment of kidnapping or abduction of a child under the age of 18 years for murder, rape, grievous hurt or slavery to an imprisonment for life, or rigorous imprisonment of up to 14 years and not less than 10 years.^[34] Moreover, it also states that kidnapping or abducting a child under 18 years of age to steal movable property from him/her would be punishable with imprisonment of up to 14 years and a fine of one million rupees.^[35] This is different from the offence in Pakistan Penal Code in that the age specification has been increased to eighteen.

 

• Child Marriage Restraint Act 1929

 

Since the Convention on the Rights of Child, 1989 does not mention marriage per se, no minimum age for the right to marry has been provided under international law. Nevertheless, the CRC itself recognizes that a child is any individual below the age of 18 years.

 

The child marriage law in Pakistan is primarily the Child Marriage Restraint Act 1929, which sets the age for marriage for girls at the age of 16 years and for men at the age of 18 years. While each province has enacted their own version of the Federal Act, only Sindh has increased the minimum age of marriage for females to 18 years.^[36]

 

Through the Punjab Marriage Restraint (Amendment) Act, 2015, the punishment for child marriage was increased from a one-month imprisonment to a six-month imprisonment and the fine was increased from one thousand rupees to fifteen thousand rupees. While the Punjab Assembly was lauded for doing so, a comparative analysis with the Sindh Assembly’s enactment demonstrates that Punjab still has a long way to go. The Sindh Child Marriages Act, 2013 places a punishment of a minimum of two years and a maximum of three years and a fine, for any person not a minor that has contracted the child marriage.^[37] The legislation also creates criminal liability for any parent or guardian that does any act to promote a child marriage or negligently fails to prevent such marriage from being solemnized,^[38] and for the person solemnizing and performing the marriage.^[39]

 

It is important to note that through Sec. 2(3) of the Criminal Law (Amendment) Act, 2017, the Pakistan Penal Code was amended to increase the punishment against a female child marriage to serve a minimum of five years and up to ten years in prison and a fine of one million rupees.

 

• Code of Criminal Procedure 1898 and Reformatory Schools Act 1897^[40]

 

In relation to juveniles, Sec. 29-B of the Cr.P.C. 1898 allows for children under fifteen, who have committed an offence other than one which is punishable with death or transportation for life, to be tried by a Magistrate specifically provided for by the Provincial Government in accordance with the Reformatory Schools Act 1897. However, in light of the Juvenile Justice System Act 2018, the age under C.r.P.C must be interpreted in accordance with the 2018 Act which prescribes the age of a child to be eighteen years. Moreover, the reference made to the Reformatory Schools Act 1897 in Sec. 29 of the C.r.P.C should be interpreted to now replace it with Sec. 4 of the Juvenile Justice System Act 2018 which establishes Juvenile Courts.

 

Sec. 399 provides that youthful offenders can be confined in reformatories under the Reformatory Schools Act 1897 established by the provincial governments where they can receive suitable education and vocational training rather than in a criminal jail. Moreover, Sec. 497 prescribes leniency in bail for juveniles.

 

• Prisons Act 1894 and Pakistan Prison Rules 1978

 

Sec. 27 of the Prisons Act 1894^[41] and Rule 231 of the Pakistan Prison Rules 1978^[42] requires the mandatory separation of convicted prisoners, under-trial detainees, male and female prisoners, and juveniles and adults.

 

Moreover, under Rule 289 of the Prison Rules, 1978, “before passing an order of detention under any Act pertaining to detention of juvenile delinquents the Sessions judge or Court, as the case may be, shall enquire or cause an enquiry to be made into the question of the age of the offender and after taking such evidence (if any) as may be deemed necessary or proper shall record the evidence thereon.”

 

The Jail Manual also stipulates that women and juvenile prisoners are to be kept separate from the other prisoners. Rule 154 of the Prison Rules 1978 provides that all male prisoners under 18 years old with sentences of three months or more shall be transferred to a borstal institution and juvenile prison. However, this has not been implemented and Pakistan only has seven juvenile detention facilities in total. Two of these are located in Punjab, four in Sindh, and one is in KP which has not been made functional yet.

 

Due to lack of juvenile detention centres and prisons in Pakistan, it is reported that adult prisoners and juvenile prisoners are kept together, whereby consequently they suffer from physical and sexual abuse. In 2015, a child abused in the Peshawar Central Prison complained to the concerned judicial authority to remedy his situation. The victim stated that other juvenile inmates had not been raising their voice out of fear of torture by the prison officials as well as adult prisoners. Many a times these adults are hardened criminals or already convicted ones. In Khyber Pakhtunkhwa prisons, there are approximately four to five hundred minors and often convicted prisoners are detained with under-trial prisoners.^[43]

 

2. Domestic bodies:

 

• National Commission for Child Welfare and Development (NCCWD) and Provincial Commissions for Child Welfare and Development (PCCWD)

 

The National Commission for Child Welfare and Development (NCCWD) was established on 16th December 1979, and is currently under the ambit of the Ministry of Human Rights. It ensures compliance with the UNCRC and submits mandatory Periodic Reports on the implementation of the CRC to the Committee on the Rights of the Child. It seeks to bolster the implementation and consideration of the CRC in every legislation and enactment by the Government. A part of its core objectives is to “formulate legislation to deter the child abuse in all its forms, including physical violence, child mutilation, exposure to drugs, child labor and protection to children who are handicapped (mentally or physically) or otherwise in need of social protection and services.”^[44] The Commission can also recommend amendments to existing legislation to ensure they take into consideration the welfare of children in accordance with the CRC and other international obligations. UNICEF has supported the NCCWD in drafting of the Child Protection Law and the Child Protection Policy and initiated the establishment of Child Protection Monitoring and Data Collecting System.

 

The Provincial Commissions for Child Welfare & Development (PCCWD) also liaise and coordinate with the NCCWD for child rights.^[45]

 

• Punjab Child Protection and Wellness Bureau (CPWB)

 

The Bureau, established under the Punjab Destitute and Neglected Children Act 2004, sees to the care, rehabilitation, education and training of destitute and neglected children. The initiative was started with the primary goal of protecting children from falling victim to criminals and seeks to provide children with the education, healthcare and psychological counseling necessary to ensure their transition into productive members of society.^[46] Currently, the Child Protection & Welfare Bureau is functioning in seven major cities of Punjab including Lahore, Gujranwala, Faisalabad, Multan, Rawalpindi, Sialkot and Bahawalpur.

 

UNICEF supported the CPWB to develop rehabilitation and reintegration services for beggar, street and handicapped children. UNICEF has also collaborated with the CPWB to provide support to more than 600 camel jockey children repatriated from the U.A.E.

 

• Vigilance Committees Against Bonded Labor (Provincial and District).

 

The Bonded Labour Systems (Abolition) Act 1992 mandated the creation of “Vigilance Committees,” a requirement that was reiterated by the Supreme Court in Darshan Masih v. The State.^[47]

 

The purpose of these Committees is to ensure the enforcement of the Bonded Labour Systems (Abolition) Act, to oversee the rehabilitation of any such persons who have or are suffering under bonded labour and to aid District and Provincial administration in implementing the Act properly. A report by the ILO states that in accordance with Sec. 15 of the Act, Vigilance Committees have been formed in almost all the districts of Punjab, that the Act mainly envisages an advisory and supervisory role for the Vigilance Committees, and that “it is a matter of general observation that aggrieved persons do not approach the vigilance committees but instead they prefer to invoke the jurisdiction of the High Court for prompt relief”.^[48] In addition, it was noted that so far the Vigilance Committees have been less than vigilant in providing the necessary support to ensure the elimination of bonded labor and rehabilitation of individuals who suffer under it.

 

• The Sindh Child Protection Authority

 

In Sindh, under the Sindh Child Protection Authority Act, an 11- member Sindh Child Protection Authority (SCPA) has been set up to coordinate and monitor child protection issues at provincial and district levels. The Authority is working for establishing an institutional mechanism for child protection and setting minimum protection and standards for all institutions relating to children, including educational institutions, orphanages, shelter homes, child parks and hospitals, and ensure implementation.

 

• KP Child Protection and Welfare Commission

 

Under the KP Child Protection and Welfare Commission Act 2010, a Child Protection and Welfare Commission has been established which reviews provincial laws and regulations affecting the status and rights of children and proposes new laws; implements policies for protection, rehabilitation and reintegration of children at risk; monitors implementation and violation of laws.

 

• Federal Child Protection Advisory Board and Child Protection Institute

 

Under the Islamabad Capital Territory Child Protection Act 2018, a Child Protection Institute  and a Child Protection Advisory Board was set up to provide for protection and care of children in Islamabad Capital Territory from all forms of physical or mental violence, injury, neglect, maltreatment, exploitation and abuse. The functions of the Board included advising the Government on matters relating to policy, legislation and implementation of the rights of child, while the powers of the Child Protection Institute include receiving reports of children who are in need of protection and care, maintaining a record of case management reports of children in need of care, maintaining and updating data on child abusers and persons convicted of offences against children.

 

• Balochistan Child Welfare Commission and District Child Protection Units

 

The Balochistan Child Protection Act, 2016 provides for the establishment of a Child Welfare Commission, within the Social Welfare, Special Education, Literacy, Non-formal Education and Human Rights Department for providing vision, policy guidelines, and appropriate strategies for child protection, analysis of trends and adjusting policies and measures for the protection of children. District Child Protection Units are also formed under the Act, holding full and comprehensive responsibility for case management and referral of all reported cases of child abuse in the district.

 

• Federal and Provincial Ombudsmen and Child Complaint Offices

 

The institution of the Federal Ombudsman is an independent statuary body with a mandate to provide relief to complainants and redress their grievances against government departments. Under the offices of the Ombudsmen at federal and provincial levels, Child Complaint Offices have been established at Federal and Provincial levels. They address concerns and complaints regarding child protection in schools, residential institutions and public services. It is notable that the CCO in Punjab has placed complaint boxes at public and private schools in Lahore, Sargodha, Multan, Rawalpindi, Faisalabad, Gujranwala, Mianwali, Kasur, Muzzafargrah, Chakwal, Shakar Garh (Ikhlaspur), Katas Raj, Essa Khel, Bhalwal and Khushaab for children to put their complaints against teachers, parents and others. In May 2013, the Federal Ombudsman also appointed a Commissioner for Children, who focuses on individual complaints, suo moto cases to address child rights violation, carries out advocacy and awareness raising on child rights with the public, civil society and media.^[49]

 

• Child Protection Court

 

The first child court in Pakistan was established in Lahore in December 2017, the second one in Peshawar in March 2019, and the third and fourth one in October 2019 in Mardan and Abbottabad respectively. Establishment of child courts is in process in Karachi, Quetta, Islamabad and the district Mohmand.

 

Provision of care, protection, maintenance, welfare, rescue, training, education, rehabilitation, reintegration of homeless and neglected children, and other such matters regarding a child are adjudicated upon by these Courts. These Courts are also empowered through the Juvenile Justice System Act 2018. The Juvenile Justice System Act 2018 requires that juvenile courts be established at the level of districts or divisions. Sec. 4 (1) states: “The Government in consultation with the concerned High Court shall (by notification in the official Gazette) establish or designate one or more Juvenile Courts, within a period of three months of the commencement of this Act.”

 

• National Commission on the Rights of Child

 

Pakistan enacted the National Commission on the Rights of the Child Act 2017, in September 2017, for establishment of the commission having multiple functions. Although, all four provincial governments as well as Islamabad Capital Territory have separate child protection laws, this act is applicable to the entire country.

 

Even though the law was passed in 2017, the State has only recently, in March 2020, notified the establishment of the Commission. The functions of the commission, as set out in Article 15, include examining existing or proposed legislations and making recommendations, liaising with provincial commissions set up under provincial laws, recommending measures for effective implementation of laws and policies, inquiring into the violation of child rights and recommending the initiation of proceedings, as well as examining international instruments and recommending actions for compliance.

 

• Punjab Human Rights and Minorities Affairs Department

 

The Department was established in July 2008 to uplift minorities and promote human rights in Punjab. Amongst their other functions, they also inspect prisons and juvenile institutions for potential human rights violations.^[50]

 

3. Jurisprudence

 

The Zainab Amin Rape Case

 

In January 2018, a six-year-old girl Zainab Amin, was found in a heap of waste, raped and murdered in Kasur, Punjab, Pakistan. The crime sparked outrage across the country and created an uproar for speedy justice in the country.

 

During the investigation period, each detail was heavily scrutinized by the media and the public, due to which the law enforcers faced immense pressure in dealing with the situation. Two weeks after the incident, the investigation team’s inability to establish a legitimate headway into the search for clues was considered as a failure by the Lahore High Court, following which the Supreme Court took suo moto jurisdiction over the matter and chastised the team for not leading to any tangible leads in the investigation. The general public, in its outrage, demanded capital punishment for the culprit, while the provincial governments blamed each other for not being competent enough to prevent or handle such situations efficiently.^[51]

 

After a few weeks of investigation, the suspect Imran Ali was arrested and was tried in the Anti-Terrorism Court. He was a 24-year-old mechanic residing in the same neighbourhood as Zainab, and had even attended the protests for Zainab’s justice. The Polygraph test and the DNA of the suspect matched the samples of Zainab and eight other minor girls who were also raped and murdered in the same neighbourhood.^[52] He confessed to the crimes and the Court handed him four counts of the death penalty, one life term, a seven-year jail term and Rs. 3.2 million in fine. He was found guilty of rape and murder of Zainab and twelve other underage girls.^[53]

 

This was a landmark case in the recent history of Pakistan relating to child rights, and DNA testing played a key role in the arrest of the suspect in this case. The Punjab Forensic Science Agency went door to door to collect oral swabs for six consecutive days, and collected 1,187 samples of men between the ages of 20 and 45 years to match tissue samples found from the crime scene. Imran Ali was the 814^th suspect of the tissue samples found at the crime scene. This was one of the largest DNA Tracing exercises done in the history of Pakistan.^[54]

 

The Zainab case had a considerable impact, and far-reaching implications, as can be seen from the fact that it led to the recent promulgation of the Zainab Alert, Response and Recovery Act 2020, which has been discussed in the section on domestic laws.

 

Kasur Child Pornography Ring

 

Child abuse had remained a prevalent issue in Kasur since many years. The Zainab case took place two years after the huge scandal of Kasur’s pornography ring was exposed by private investigators.

 

In 2015, the child pornography ring was discovered in Hussain Khanwala village in Kasur, whereby more than 280-300 children (boys under the age of 14) had become victims of sexual abuse and were being filmed. Hundreds of video tapes were found whereby children were made to perform forced sexual acts. These films were being sold as child pornography to porn sites and were being used to blackmail and extort money from the families of the victims.^[55]

 

When this sparked national outrage, the State faced public pressure, following which arrests of men between the ages of 20s and 30s were made. The alleged patron of the ring, Malik Ahmed Saeed Khan, was a Member of the Parliament belonging from the then ruling political party Pakistan Muslim League-Nawaz. He was accused of protecting the gang and financing their bail.^[56] The then Chief Minister of Punjab, Shehbaz Sharif requested Chief Justice of the Lahore High Court to constitute a judicial inquiry into the case. However, the request was rejected, observing that the Punjab police was already investigating the case therefore there was no need of a separate judicial commission.^[57]

 

The case was being tried in the Lahore Anti-Terrorism Court. However, in 2018, 12 men accused of being involved in the case were acquitted.^[58] ATC Judge Chaudhry Ilyas acquitted the men citing lack of evidence. During the hearing, the prosecution had brought forward 16 witnesses, but after the arguments concluded, the court ruled in favour of the 12 accused. A report released by the Federal Ombudsman in 2019 revealed the failure of authorities, while stating that the families of the rape victim children had been forced to withdraw their cases by the influential accused.^[59] The document highlighted the authorities’ failure in controlling such incidents and tracing culprits of the mafia involved in child pornography. The report added that only a few of the accused were sentenced in more than 272 registered cases, the investigation was put on the back-burner by the influential by paying bribes to the police.

 

Tajammul Abbas v. the State^[60]

 

This case in the Lahore High Court expounded upon the determination of the age of the accused, according to the Juvenile Justice System Act 2018, and the procedure when investigation cannot be completed within twenty-four hours. It highlights that Sec. 2(b) of the 2018 Act defines a child as a person who at the time of commission of offence has not attained the age of 18 years, and states that the Juvenile Court is established under Sec. 4 of the Act to deal with such cases. It highlights that certain privileges are granted to the “child” accused through the Act, some of which pertain to arrest, bail, release on probation and prohibition of inflicting capital sentence, etc. The Court states that Sec. 8 the Act obligates the Officer Incharge of Police Station or the Investigating Officer to determine the acclaimed age of juvenile from his birth certificate, educational certificates or any other relevant document from the very inception of investigation. It further held that the juvenile is to be medically examined only if there is no other trustworthy documentary proof in support of his age plea. The Court further elaborates on the procedure by stating that the findings of the age of an accused who physically appears to be a juvenile is to be given by the court before whom he is brought under Sec. 167, Cr.P.C. and that too before granting his further detention. The Court stated that such findings must be based on the record made available before the court including report prepared by the police officer or the medical examination report, if any.

 

Saqlain v. the State^[61]

 

In this case, the Lahore High Court enunciated similar principles as outlined above on the determination of age of the accused person claiming himself to be minor under the Juvenile Justice System Act 2018. The application for the ossification test was dismissed by the Judicial Magistrate as well as by the Sessions Judge. The Court held that the Birth Certificate and Education Certificate were relevant material to inquire the actual age of the accused, and the absence of stipulated documents was a condition precedent for seeking a medical examination report. The Court, before authorizing further detention of an accused, must record its findings regarding his age on the basis of the available record. The Court held that Sec. 8 of the Act was suggestive of holding medical examination only when the documents stipulated in the said section were not forthcoming.

 

Mir Ghulam v. the State^[62]

 

In this case, the petitioner was referred to the hospital for the assessment of his age on the basis of request of both the parties. The Medical Board assessed the age of the petitioner to be above 19 years however the petitioner himself contended that he was a minor as per his matriculation certificate. The Matriculation Certificate was not considered conclusive proof of age. Sec. 7 of the Juvenile Justice System Ordinance 2000 provided that the method of assessing the age of the accused in case a question arose, then the court would record a finding after such inquiry which would include a medical report for the determination of the age of the child. The petitioner challenged the order of the Trial Court belatedly. No application for condonation of delay was filed. The Trial Court had passed the order after due application of mind. Therefore, the revision petition was dismissed.

 

Suo Motu Case regarding detention of Three Minor Boys^[63]

 

This case expounds upon the protections granted in the Juvenile Justice System Ordinance, but may still be relevant because those protections, including against preventive detention, have also been granted in Sec. 5 of the Juvenile Justice System Act 2018.

 

In the Suo Motu Case regarding detention of Three Minor Boys, the police had kept the juveniles in custody for two days before one of them, aged 6, was released and the other, aged 14-15, was taken to the Court of Judicial Magistrate for police/physical remand. The Judicial Magistrate without taking cognizance of the child’s age through a short order remanded him to police custody for 14 days. However, the Magistrate wrote a subsequent order which was much more detailed and claimed that the he had followed the provisions of JJSO to locate the child’s guardian. The Supreme Court held that the subsequent order was written by the Judicial Magistrate to save himself, that he had failed to take notice of illegal detention of the boys, had acted illegally, and contrary to law. The apex Court recommended the concerned High Court to proceed against the Judicial Magistrate and, until the completion of the disciplinary proceedings, he be restrained from exercising judicial functions.

 

Ghulam Qadir v. The State^[64]

 

The Court held that the Juvenile Justice System Ordinance, 2000 (an older version of the current 2018 Act) is aimed at extending protection to the children involved in criminal litigation and their rehabilitation in the society. The Ordinance safeguards the human rights of a section of society who deserve reasonable concessions because of their tender age and therefore it is to be construed liberally in order to achieve the said object. ^[65]

 

Muhammad Razi alias Muhammad Khalil v. State^[66]

 

The petitioner contended that he was a juvenile and was entitled for concession of post-arrest bail under the provisions of the Juvenile Justice System Ordinance 2000. His school leaving certificate also illustrated that he was a juvenile, under the age of 16 years at the time of the occurrence. He was facing the trial and was behind the bars for the last more than one year and nine months. The prosecution had failed to conclude the trial of the petitioner therefore the petitioner was entitled for concession of bail under Sec. 10(7) of the JJSO 2000. He was admitted to bail, in circumstances.

 

Raja Amanullah v. The State^[67]

 

This case held that the Juvenile Justice System Ordinance, 2000 was promulgated to provide for protection to children involved in criminal litigation and their rehabilitation in the society. The 2000 Ordinance had to be given a liberal interpretation to achieve its objects and to create conditions and environment so that children below the age of 18 years involved in criminal litigation could be provided an opportunity to become useful and respectable members of society. A person below the age of 18 years would be entitled to benefits and privileges under JJSO 2000. No child would be charged with or tried for an offence together with an adult and every child would have the right of legal assistance at the expense of State. Any proceedings of the Juvenile Court would not be published through print media. A child in ordinary course would be released on bail or placed under custody of a Probation Officer and no punishment of death would be awarded to him and he would not be handcuffed, put in fetters or given any corporal punishment.^[68]

 

Mujahid Iqbal v. State^[69]

 

It was held that Anti-Terrorism Courts have jurisdiction over Juvenile Courts as well. It was also stated that the Courts have “exclusive” jurisdiction to hear all cases that come under the Anti-Terrorism Act 1997.^[70]

 

 

---

^[1] CRC, ‘General Comment No. 10: Children’s Rights in Criminal Justice’ UN Doc. CRC/C/GC/10 (2007) at 39

^[2] Justice Project Pakistan (JPP), Reprieve World Organisation Against Torture (OMCT), ‘Pakistan: Alternative Report to the Committee Against Torture Violations of the Convention Against Torture Arising from the Application of the Death Penalty in Pakistan 60th Session of the Committee Against Torture 18 April – 12 May 2017’ (2017).

^[3] Justice Project Pakistan, ‘Comments on Pakistan’s Replies to the List of Issues in Relation to its Fifth Periodic Report to the Committee on the Rights of the Child’.

^[4] Justice Project Pakistan, ‘Comments on Pakistan’s Replies to the List of Issues in Relation to its Fifth Periodic Report to the Committee on the Rights of the Child’.

^[5] Sec. 23 Juvenile Justice System Act 2018

^[6] Sec. 4 Juvenile Justice System Act 2018

^[7] Justice Project Pakistan, ‘Comments on Pakistan’s Replies to the List of Issues in Relation to its Fifth Periodic Report to the Committee on the Rights of the Child’.

^[8] Sec. 8 Juvenile Justice System Act 2018

^[9] Sec. 8(2), Juvenile Justice System Act 2018

^[10] Sec. 6, Juvenile Justice System Act 2018

^[11] Sec. 6(2), 6(3), Juvenile Justice System Act 2018

^[12] Kashif Iftikhar, “Does a Juvenile Get a Better Law this Time? A Comparative Review of the New & Old Juvenile Laws of Pakistan” LUMS Law Journal Volume 6, Legislative Reviews

^[13] Sec. 3 Juvenile Justice System Act 2018

^[14] Sec. 20(1) Juvenile Justice System Act 2018

^[15] Sec. 20 Juvenile Justice System Act 2018

^[16] Sec. 10 Juvenile Justice System Act 2018

^[17] Sec. 9 Juvenile Justice System Act 2018

^[18] Kashif Iftikhar, “Does a Juvenile Get a Better Law this Time? A Comparative Review of the New & Old Juvenile Laws of Pakistan” LUMS Law Journal Volume 6, Legislative Reviews

^[19] Sec. 9, Juvenile Justice System Act 2018

^[20] Sec. 7(2) Juvenile Justice System Act 2018

^[21] Sec. 4 Juvenile Justice System Act 2018

^[22] Sec. 17 Juvenile Justice System Act 2018

^[23] Sec. 12 Juvenile Justice System Act 2018

^[24] Sec. 13 Juvenile Justice System Act 2018

^[25] Sec. 14 Juvenile Justice System Act 2018

^[26] Raja Amanullah and another v. the State, 2002 MLD 1817

^[27] Kishor Kumar v. the State 1993 P.Cr.L.J 55

^[28] Azam Watto and others v. The State 2002 YLR 136

^[29] Sec. 375(v) Pakistan Penal Code 1860

^[30] Alvi, M. 2020. ‘Senate adopts Zainab Alert, Response and Recovery Act 2020’ The News.

^[31] Sec. 5 The Zainab Alert, Response and Recovery Act 2020

^[32] Sadiq, N., 2020. The Zainab Alert Bill. The Express Tribune.

^[33] Sec. 5 The Zainab Alert, Response and Recovery Act 2020

^[34] Sec. 13 The Zainab Alert, Response and Recovery Act 2020

^[35] Sec. 14 The Zainab Alert, Response and Recovery Act 2020

^[36] Sec. 2(a) Sindh Child Marriages Restraint Act 2013 (Act No. XV of 2014)

^[37] Sec. 3 Sindh Child Marriages Restraint Act 2013 (Act No. XV of 2014)

^[38] Sec. 4 Sindh Child Marriages Restraint Act 2013 (Act No. XV of 2014)

^[39] Sec. 5 Sindh Child Marriages Restraint Act 2013 (Act No. XV of 2014)

^[40] Reformatory Schools Act 1897 (Act VIII of 1897)

^[41] Prisons Act 1894 (Act IX of 1894)

^[42] Pakistan Prison Rules 1978

^[43] Human Rights Commission of Pakistan (HRCP), World Organisation against Torture (OMCT), Society for the Protection of the Rights of the Child (SPARC), ‘Shadow Report to The Committee Against Torture on the Occasion of the Examination of the Initial Report of Pakistan at its 60th Session’ (2017).

^[44] National Commission for Child Welfare and Development, (Mohr.gov.pk, 2020) available at: http://www.mohr.gov.pk/Detail/MzFjMTM5ODctODkwYS00NTUyLTk2NjQtMmNjZjEwNzJlN2Fk

^[45] Committee on the Rights of the Child “Consideration of reports submitted by States parties under article 44 of the Convention: Fifth periodic report of States parties due in 2012 – Pakistan” (7 January 2015) CRC/C/PAK/5

^[46] Overview | Child Protection & Welfare Bureau’ (Cpwb.punjab.gov.pk, 2020) available at: https://cpwb.punjab.gov.pk/overview

^[47] Darshan Masih v. the State (PLD 1990 SC 513)

^[48] Comments Forced Labour Convention’ (Ilo.org, 1996) available at: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:2130979

^[49] Committee on the Rights of the Child “Consideration of reports submitted by States parties under article 44 of the Convention: Fifth periodic report of States parties due in 2012 – Pakistan” (7 January 2015) CRC/C/PAK/5

^[50] ‘About Us | Human Rights & Minorities Affairs Department’ (Hrma.punjab.gov.pk, 2018) available at: https://hrma.punjab.gov.pk/about_us

^[51] 2018. Zainab’s Murder: Heinous Crimes, Speedy Trial And The Challenge Of Procedural Rights. Ali Chughtai.

^[52] Mahmood, A., 2018. DNA Helps Police Catch Suspect In Zainab Case. Dawn News.

^[53] 2019. What Is The ‘Zainab Alert Bill’?. Girls.pk.

^[54] Yasif, R., 2018. Zainab Murder Case: Imran Ali To Be Executed On Oct 17. The Express Tribune.

^[55] 2018. Hussain Khanwala: Village Scarred By Child Abuse Scandal. Al Jazeera.

^[56] Jalil, X., 2018. Is Something Wrong With Kasur? Dawn News.

^[57] 2015. LHC Rejects Govt’s Application To Form Judicial Commission Over Kasur Child Porn Case. The Express Tribune.

^[58] 2018. 12 men acquitted by ATC in 2015 Kasur child pornography case. The Express Tribune.

^[59] 2019. Report over Kasur pornography scandal reveals authorities’ failure. The Nation.

^[60] 2020 P.Cr.L.J 627 Lah

^[61] 2020 P.Cr.L.J 374 Lah

^[62] 2019 MLD 348

^[63] 2006 SCMR 1805

^[64] 2006 MLD Lahore 406

^[65] 2006 MLD Lahore 406

^[66] 2002 YLR Gilgit-Baltistan Chief Court

^[67] 2002 MLD Kar. 1817

^[68] Raja Amanullah v. The State 2002 MLD KAR 1817

^[69] P.Cr.L.J 2019 PHC 1432

^[70] Mujahid Iqbal v. State P.Cr.L.J 2019 PHC 1432