Constitution of Pakistan, 1973
The Constitution of Pakistan offers a sturdy foundation for the special protection of children. Article 9 provides that “no person shall be deprived of life or liberty save in accordance with law. Similarly, Article 10 entrenches special safeguards on arrest and detention whereby “no person shall be detained in custody, without being informed of the grounds of arrest, nor shall be denied the right to consult or be defended by a legal practitioner of his choice”. Article 10 (2) expressly states that every person who is arrested and taken in custody shall be produced before a magistrate within 24 hours. Article 10 A entitles a person accused of a criminal act with the right to fair trial and due process.Articles 9 to 13 protects against Retrospective, Double Punishment and Self Incrimination. Article 14 entrenches the dignity of a man as an inviolable right. Article 25(3), which establishes the fundamental right of equality for all citizens, states that nothing shall prevent the State from providing special protection to women and children. Similarly, Article 35 obliges the state to protect the child.
Pakistan Penal Code 1860
Section 82 of the Pakistan Penal Code, 1860 sets the minimum age of criminal liability to under 10 years.
Section 83 provides that nothing is an offence which is done by a child aged between 10 to 14 if he has not attained sufficient maturity to understand the nature and consequences of his conduct on that occasion.
Section 299 makes a distinction between a minor and an adult. Sub-section (a) of Section 299 defines an adult as a person who has attained the age of eighteen whereas subsection (i) of Section 299 defines a minor as a person who is not an adult.
Section 306 (b) provides immunity against death sentence where the minor has committed a murder. Instead, Section 307 provides that the punishment shall be diyat (compensation) when the offender is a minor which shall be payable either from his property or the person determined by the court.
Section 377M provides that the offence of hurt shall be liable to qisas where the offender is a minor.
Code of Criminal Procedure, 1898
Section 29B provides jurisdiction in case of juvenile offenders. It states that an offence other than that punishable by death or life imprisonment, which is committed by a person who is under fifteen years, may be tried by any Judicial Magistrate.
Section 399 provides that when any person under the age fifteen is sentenced for imprisonment, the court may direct that such person shall be confined in any reformatory established by the Provincial Government as a fit place for confinement.
Section 497 provides that any person under the age of sixteen may be released on bail in non-bailable offences.
Qanoon-e-Shahadat Order, 1984 (Law of Evidence)
With reference to the testimony of a minor, Article 3 of the QSO 1984 expressly provides that if a person is not able to understand the question put to them or give rational answers, due to tender age, he/she shall not be treated as a competent witness.
The Police Order 2002
The Police Order 2002 aims to reform the police in a way that it could function according to the “Constitution, Law and Democratic Aspirations of people of Pakistan”. While Chapter II details the responsibilities and duties of the police, Article 4 imposes a duty on the police to ensure that the rights and privileged, under the law, if a person taken in custody are protected. Likewise, Article 4 (k) obliges police to ensure that the information of a person arrest is promptly communicated to a person of his choice. Article 156 imposes penalty on an officer who inflicts torture or violence upon a person in his custody.
Rules & Orders of the Lahore High Court, Lahore, Vol. III (Instructions to Criminal Courts)
Part G states that the court shall record a careful finding as to probate the age of an accused and comment on any discrepancies in the evidence on the point, especially where the age is likely to affect the sentence. It expressly states that a careful statement on the probate age of the accused is especially necessary in murder cases in which person charges is a youth.
Juvenile Justice System Act, 2018
The Juvenile Justice System Act, 2018 is a law governs the treatment of children who come into contact with the criminal justice system. The Act is designed to protect the rights of children and to ensure that their needs are taken into account when they are dealt with by the legal system. The Act applies to all children under the age of 18 and stipulates that children shall be treated differently from adults in the criminal justice system, recognizing their age, maturity, and vulnerability. The Act provides for special procedures for the arrest, detention, trial and punishment of children, and also provides for the establishment of Juvenile Justice Systems institutions, such as juvenile courts and rehabilitation centers, where children will be held. The Act also includes provisions for the protection of children’s rights, including the right to legal representation, the right to be informed of their rights, the right to be heard in court and the right to be protected from abuse, torture and other forms of ill-treatment.
The Act classifies criminal offences into three categories. First, minor criminal offences, for which the maximum punishment under the Pakistan Penal Code of 1860 is imprisonment for a term of up to three years, with or without a fine. A juvenile is entitled to bail in the case of minor offences, with or without surety bonds issued by a Juvenile Court. Second, major criminal offences, which are subject to punishment under the Penal Code of more than three years and up to seven years, with or without fine. Bail can also be granted in the case of major offences, with or without surety bonds issued by a Juvenile Court. Third, heinous criminal offences are serious, brutal, or shocking to public morality. Under the Penal Code, these offences are punishable by death, life imprisonment, or imprisonment for more than seven years, with or without fine. A juvenile under the age of 16 is entitled to bail for heinous criminal offences. Bail is granted at the discretion of a court if a juvenile is over the age of 16.
More salient features of the JJSA 2018 include provision of free legal assistance. The law provides every juvenile with the right of legal assistance at the expense of the State. A juvenile shall be informed about his right of legal assistance within 24 hours of taking him into custody. Moreover, the law provides for he establishment of juvenile courts. JJSA makes it compulsory upon the investigation officer, to make an enquiry to determine the age of the offender, who physically appears or claims to be a juvenile. Age shall be determined on basis of accused person’s birth certificate, educational certificates or any other pertinent documents. In absence of such documents, age of such accused person may be determined on the basis of a medical examination report by a medical officer.
Diversion is an alternative process of determining the responsibility and treatment of a juvenile on the basis of his social, cultural, economic, psychological and educational background, without resorting to formal judicial proceedings. The complaint against a juvenile shall be referred to the Juvenile Justice Committee for disposal through diversion.
