According to the Convention on the Rights of the Child , the term “child ” means “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” The United Nations adopted the convention in 1989 and Pakistan ratified it a year later. However, in Pakistan there is no standard/consistent definition of a “child”.
The Constitution of Pakistan covers children’s’ rights/protections in three provisions:
Local domestic labour laws present different schemes for who constitutes as a child, adolescent and an adult.
The Employment of Children Act, 1991 and the West Pakistan Shops and Establishment Ordinance 1969 (SAEO) define:
Whereas, the Factories Act, 1934 deals with the definition differently and not necessarily in accordance with the constitution because it defines a child in the following manner:
Thus, showing variances between the definitions embedded in domestic laws.
Here we discuss the various safeguards for children who are arrested, detained or accused of crimes.
Under Article 10(2) of Pakistan’s Constitution, every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest.
Sections 61 and 167 of the Criminal Procedure Code (CrPC) . Section 61 states that: “No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.”
Section 167 provides for judicial remand in situations. If the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded. It allows the nearest judicial magistrate to authorize continued detention for a term of up to fifteen days upon production of the accused, and a copy of the diary entries relating to the case, by the officer in charge of the police station or the investigating officer.
In addition, the following statutes give additional protections to children:
Age of Criminal Capacity
Nothing done by a child under 7 can be an offence.s.82This includes children above 10 years and under 12 who have not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. s.83 of the Pakistan Penal Code (PPC).
There has been a change in the ages from 7 and 12 respectively to 10 and 14.s.83
Pakistan deals with juvenile offenders separately under the Juvenile Justice Ordinance, 2000 (JJO). Under this law, there are separate courts and magistrates which are set up specifically to deal with child offenders or juveniles. In this case the definition of a juvenile is any child under the age of 18 years. This Ordinance extends to the whole of Pakistan..
Legal Assistance under the Ordinance:
Arrest and Bail:
Convention on the Rights of the Child
States must ensure:
Children under 18 are protected from torture, cruel, inhuman or degrading, capital punishment, life imprisonment without the possibility of release. Article 37(a)
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances. Article 37(c)
Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. Article 37(d)
In 1990 Pakistan signed and ratified the Convention on the Rights of the Child, 1990.
Pakistan Signed Optional Protocol to the CRC on the Involvement of Children in Armed Conflict on 26th September, 2001 and Ratified it on 17th November, 2016.
U.N. Rules for the Protection of Juveniles
Rule 32 children should be provided a physical environment designed with the aim of rehabilitation and with regard to their need for privacy, sensory stimuli, opportunities for association with peers and participation in sports, physical exercise and leisure time activities.
Rule 33, 37 states that every juvenile should be provided with separate and clean bedding, and a sufficient quantity of nutritious and hygienically-prepared food. Juveniles of compulsory school age have the right to an education suited to their needs and abilities, and designed to prepare them for their return to society.
Rule 38: Every juvenile of compulsory school age has the right to education suited to his or her needs and abilities and designed to prepare him or her for return to society. Such education should be provided outside the detention facility in community schools wherever possible and, in any case, by qualified teachers through programmes integrated with the education system of the country so that, after release, juveniles may continue their education without difficulty. Special attention should be given by the administration of the detention facilities to the education of juveniles of foreign origin or with particular cultural or ethnic needs. Juveniles who are illiterate or have cognitive or learning difficulties should have the right to special education.
Rule 42 states that all juveniles have the right to vocational training likely to prepare them for future employment.
Pakistan Prisons Rules (Punjab) 1978:
Below are Pakistan Prisons Rules governing the prisons in Punjab:
Chapter 12 of the Rules, governing juvenile and youthful offenders, mandate the separation of children and adults, the engagement of children in sustained work, and the provision of recreational facilities.
Rule 280.(i) “Juvenile” in the case of male means a prisoner who at the time of conviction was under eighteen years of age and includes “youthful offender”. (ii) “Youthful offender” means a male juvenile who, when convicted was fifteen years of age.
Rule 231(2).Prisoners shall be kept separate as under: “juveniles shall be kept separate from all other prisoners.”
Rule 236(a). Juveniles shall in preference to any other class of prisoners be confined in cells both by day and night.
Rule 298. All such convicts shall be brought under a course of instruction, in reading, writing, and arithmetic for two hours daily, and the standard of education will be up to the Matric standard as laid down for schools by the Education Department. Prison superintendents are furthermore authorized to raise the standard and to increase the subjects taught, in the case of promising boys.
Both Punjab and Sindh also have laws governing borstal institutions. Borstals are defined under these laws as places where juveniles may be detained and provided with industrial training and other instructions as well as disciplinary and moral influences that will encourage their reformation.
Rule294. In every prison which is provided with a separate juvenile ward, such ward should be cellular for the purpose of separation of prisoners at night. If a suitable ward doesnot exist, juvenile prisoners should be confined in cell by night
Rule 295.All juveniles shall receive careful individual attention. The features of their treatment will be (1) sustained work: (2) physical, mental arid moral training with a view to teach them self-discipline; and (3) careful arrangement for their future after discharge. The aim of prison treatment shall be to give the young offenders whose mind and character are still pliable, such training as is likely to create in them a high standard of social behavior.
Rule 301. If a child is in custody and has an exam; application must be filed to relevant authorities to seek permission for necessary procedure.
The commission will have the powers to hold inquiry into “violation of child rights and recommend to the relevant agency or department initiation of proceedings in such cases”. The NCRC will also be responsible for examining “all factors that inhibit enjoyment of rights of child, for example, violence, abuse and exploitation, trafficking, torture, pornography and prostitution and recommend appropriate remedial measures”.
This act sets up the Sindh Child Protection Authority. Its purpose is to improve institutions, services and review laws to better protect children. “Child in need of special protection measures” includes a child who- (i) is victim of violence, abuse and exploitations; (ii) is subjected to physical and psychological violence, sexual abuse or commercial sexual exploitation; (iii)is forced into the worst forms of the child labour, exploitative labour, or beggary; (iv)is subject to human trafficking within and outside Pakistan; (v) is being misused for drug trafficking or is subjected to abuse of substances like glue drugs, spirit; and through this statute s.10(n): “to initiate through relevant authorities, prosecution of the offenders when children are victim of the offence”.
In addition to the Constitution Article 25-A which mandates free and compulsory education for children from the ages of 5 to 16 years, there is a provincial statute to guarantee that all children receive quality education.
The Sindh Right of Child to Free and Compulsory Education Act 2013 covers the fundamental right to education.
s3(1) Every child of the age of five to sixteen years regardless to sex and race shall have a fundamental right to free and compulsory education in a school.
s3(2) No child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the school education. Right of Child to Free and Compulsory Education.
s3(3) Privately owned or managed schools shall also provide free education to such students of the age of five to sixteen years at least ten percent of their actual strength of students.
S4Where a child above five years of age has not been admitted in any school or though admitted could not complete his or her secondary education, then, he or she shall be admitted in a class appropriate to his or her age; Provided that where a child is directly admitted in a class appropriate to his or her age, then, he or she shall, in order to be at par with others, have a right to receive special training, in such manner, and within such time limits, as may be prescribed; Provided further that a child so admitted to secondary education shall be entitled to free education till completion of secondary education even after sixteen years.
These enrolled students should be admitted in a school at the beginning of the academic year and may not be expelled till they’ve completed their secondary education.s13(1) and (2).
Government and Local Authorities: It is the responsibility of government and local authorities to ensure implementation of the act. This includes financing any implementation measure required by the act (Section 7(1)), establishing schools in areas where schools were not previously established (Section 6(1) provides that this must have been done within 2 years of the commencement of the act). A further list of the government’s responsibilities is provided under Section 7(4) of the act.
Private Schools: Onus on private schools to provide free education to at least 10% of their students in the 5 to 16-year age bracket (Section 3(3)). In admitting them there must be no fees at all and no screening other than academic merit (Section 11(1)). Violation of this requirement results in a fine and a failure to pay the fine results in imprisonment (Section 11(2)).
Parents/Guardians: Onus on parents/guardian of child to ensure that child goes to the school in the area of their residence (Section 8(1)). The only exceptions for not attending school include: (i) school management committee satisfied that child cannot be a part of the school due to some infirmity and (ii) there is no school in a reasonable distance from their home (Section 8(2))
Teachers and Curriculum:
• The statute does not want to compromise on the quality of education so stipulates that only qualified teachers must be hired (Section 17(1)) who will uphold their responsibilities in a diligent and regular manner (Section 18(1)). In particular, students may not be subjected to any corporal punishment (Section 13(3))
• A comprehensive curriculum must be developed by an academic authority which will be specified by the government through a notification.s20
• An Education Advisory Council shall be established to oversee the implementation of the act and advise the government accordingly (Section 22(1))
• Individuals who are unhappy with the implementation of the act are empowered to write a complaint to the government stating their grievance(Section 22(2))
• Prosecution of offenses under the act may not take place without the government’s sanction and all offenses are Bailable and Compoundable. (Section 26)
The Workers Children Education Ordinance 1972provides that the Provincial Government has a duty to provide education free of cost up to Matric to one child of every worker employed in a non-government establishment where 10 or more workers are employed at any time of the year. So in practical terms this should be applying to almost all companies, businesses and factories in Pakistan.
The Employment of Children Act, 1991 – this act takes the approach of setting parameters to children working, rather than applying a blanket ban on them. The protections available to children are as follows.
Hours: Children (under 14 and 14 to 18) may work a maximum of 7 hours a day. After a continuous period of 3 hours work, children must get a prescribed rest interval of one hour. Children cannot work overtime or between the hours of 7.00 p.m. to 8.00 a.m. s7.
Monitoring by Labour Inspector: Every establishment which permits a child to work must within 30 days of the child’s employment send information to the Labour Inspector. This information includes name and location of establishment, manager, its mailing address, and the type of work done there – s9. They must also have a register to be made available for the Inspector containing name and date of birth of children working there, hours and periods of work of any such child and the intervals of rest to which he is entitled, the nature of work of any such child; and such other particulars as may be prescribed. s11
Health & Safety: There are clear health and safety regulations and requirements for children. These include drinking water for them, no exposure to dust and fumes, fencing of machinery, no closeness to self-acting and machinery in motion, instruction and training for children working on dangerous machines, maintenance of machinery, cleanliness and protective clothing and protection for eyes, safety of building, stairs and means of access, and no carrying of excessive weight. s13
Prohibited Jobs: The act includes a list of the types of factories and work processes in which children (under 14 years of age) cannot be employed as well as penalties if the ban is breached. The list includes jobs and processes that are considered strenuous or harmful for children, such as transport of passengers, goods or mails by railway; cinder picking, cleaning of an ash pit or building operation in the railway premises; work in a catering establishment at a railway station, involving the movement of a vendor or any other employee of the establishment from one platform to another or into or out of a moving train; work relating to the construction of a railway station or with any other work where such work is done in close proximity to or between the railway lines; a port authority within the limits of any port; and work relating to selling of crackers and fireworks in shops with temporary licenses. Schedule 1.
These work processes are prohibited for children: Bidi-making, Carpet-weaving, Cement manufacture, including bagging of cement, Cloth printing, dyeing and weaving, Manufacture of matches, explosives and fire-works, Mica-cutting and sploting, Shell as manufacture ,Soap manufacture, Training, Wool-cleaning, Building and construction industry, Manufacture of slate pencils (including packing)Manufacture of products from agate, Manufacturing processes using toxic metals and substances such as lead, mercury, manganese, chromium, cadmium; benzene, pesticides and asbestos. Schedule 2.
Penalties: There is a strict penalty for business owners who violate the boundaries set on employing children which is one year imprisonment or 20,000 rupee fine or both. s.14
The Factories Act 1934 applies to those industries that are in the manufacturing sector. It sets a ban on those child workers under 14 years of age.s.50. Other child workers cannot work more than five hours a day between 6 a.m until 7 p.m. s.54. A certifying surgeon must provide certificate of fitness before a child works in a factory.s.52 These child workers have to be registered under a register maintained by the factory manager. s.56. To supervise this task, there are government appointed Inspectors (or any other authority in that capacity), whose job is to ensure that all the necessary laws and regulations are being followed. Violations (false certificate, obstructing a labour inspector, inaccurate registering of child’s age) result in penalties and the police need to be aware that these are offences that will be tried before a Magistrate of the first class. s74(2)
How all laws are ultimately connected:
Sindh Child Marriage Restraint Act 2013
Schedule of Criminal Procedure Code is also amended which further explain all the new sections inserted in Pakistan Penal Code. It is a crime for either a male or female child to be married under the age of 18 (Sections 2(a) and (b)). The severity of the crime is proved through the breadth of people who are culpable if a child under the age of 18 years is married – a male older than 18 years (if he is marrying the child), the person solemnizing the marriage (like the maulvi) and, the parents of the child (Sections 3,4 and 5).
Procedure to report a child marriage: The new act makes the offense cognizable by a magistrate (Section 6). Anyone with knowledge of the crime, can make an application to a magistrate regarding the crime. This can be a relative, police officer, anyone who has the power to stop a marriage before it takes place s.190 of Code of Criminal Procedure.
Procedure of the case: Court of judicial magistrate of first class shall take cognizance of the offence if the court is satisfied that such a crime took or will take place, the court will pass injunction prohibiting the marriage.s.7. However, the court will not pass an injunction unless the court has given notice to such person and have afforded him the opportunity to show cause s.7(2). The court after taking cognizance shall conclude the case within ninety days s.9. If a person is found violating the injunction they would be punished by a year and fine.
Under the Criminal Law (Second Amendment) 2016, the definition of a child was amended from seven to ten years old. s.83. New offences include sexual abuse that add to the rape provisions additional safeguards for children. Also added are offences such as child pornography, and exposure to seduction of a child.
s.377A Sexual abuse — “Whoever employs, uses, forces, persuades, induces, entices, or coerces any person to engage in fondling, stroking, caressing, exhibitionism, voyeurism or any obscene or sexually explicit conduct or simulation of such conduct either independently or in conjunction with other acts, with or without consent where age of person is less than eighteen years, is said to commit the offence of sexual abuse. ”The punishment for this crime may extend to imprisonment for life and a fine not less than five hundred thousand rupees or both.s.377B
This crime in non-bailable and not compoundable. Police do not need a warrant to arrest.
Under s375, a child under the age of 16 is incapable of legal consent. Any act of intercourse, with a child under 16 (with or without her consent) is rape.
S.376. Punishment for rape– (1) Whoever commits rape shall be punished with death or imprisonment for either description for a term which shall not be less than ten years or more than twenty-five years and shall also be liable to fine.
Gang rape is treated with due seriousness. S376 (2) When rape is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death or imprisonment for life.
S.377.Unnatural offences.–Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine.
292A.Exposure to Seduction – Whosoever seduces a child with intent to involve him in any sexual activity or exposes him to any obscene or sexually explicit material, document a film, video or a computer generated image or attempts to do the aforementioned act, shall be punished with imprisonment of either description for a term which shall not be less than one year and may extend upto seven years or with fine which shall not be less than one hundred thousand rupees and may extend upto five hundred thousand rupees or with both. This crime in non bailable and not compoundable. Police do not need warrant to arrest. (Amendment)
292B.Child pornography – (1) – whosoever takes, with or without the consent of the child or the consent of the guardians/parents , any pornographic film, video, picture or representation or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, of obscene or sexual explicit conduct, where
(a) production of visuals which involves minor boy or girl engaging in sexual explicit conduct,
(b) such visual is a digital image, computer image, or computer based image engaging a minor in sexual explicit conduct,
(c) such depiction has been created to appear that an identifiable minor is engaged in sexually explicit conduct is an offence of child pornography
(2) Preparation, possession or distribution of any data stored shall be an offence under this section.
292C. Punishment for child pornography – Am offence of child pornography shall be punished with imprisonment of either description for a term which shall not be less than two years and upto seven years and a fine of two hundred thousand rupees upto seven hundred thousand rupees, or with both. (Amendment)
This crime in non bailable and not compoundable . Police do not need warrant to arrest.
328A. Cruelty to a child – whoever willfully ill treats, assault, neglects, abandons or does an omission or commission that results in or has the potential to harm or injure the child by causing physical or psychological injury to him shall be punished with imprisonment of either description for- a term which may extend to one to three years, or with fine from twenty-five thousand to fifty thousand rupees or with both. This crime is compoundable and bailable.
There is simply no question of a child under that age, giving their consent to an act of violence(physical or sexual)
There is no/separate provision currently in our law that punishes incest.  However, some of the provisions discussed above on sexual exploitation of a child, including rape, fondling of the genitals, pornography, or exhibitionism when committed within a family can constitute incest.
Pakistan prohibits all forms of transnational trafficking in persons with the Prevention and Control of Human Trafficking Ordinance (PACHTO); the penalties range from seven to 14 years’ imprisonment.
Prevention and Control of Human Trafficking (2002)
S.3(3)– whoever Knowingly purchases, sells; harbours, transports, provides, detains or obtains. A child or a woman through coercion, kidnapping or abduction, or by giving or receiving any benefit for trafficking him or her into or out of Pakistan or with intention thereof, for the purpose of exploitative entertainment by any person and has received or expect to receive some benefit in lieu thereof shall be punished with imprisonment which may extend to ten years and shall also be liable to fine.
S.4: Offence committed by organized criminal groups amount to at least ten years imprisonments to each member, and may extend to 14 years where the purpose of trafficking is exploitative entertainment or there is a repetition of offence (s.5)
S.8: All offences under the ordinance are cognizable, non-bailable and non-compoundable as construed by the code
S.9: Investigations will be carried out by only such persons or agencies as the specially empowered by the government in that behalf
S.10: No court below magistrate of first class is to try an offence punishable under this ordinance
369A.Trafficking of human beings – whoever involves himself in human trafficking shall be punished with imprisonment for a term which shall not be less than five years and may extend upto seven years or fine which shall not be less than five hundred thousand rupees and may extend upto seven hundred thousand rupees or with both. (Trafficking as defined in the 2002 act above.)This crime in non bailable and not compoundable.(Amendment)
Whoever kidnaps or abducts any person under theage of fourteen:
in order that such person may be murdered or subjected to grievous hurt,
or to the lust of any person
or may be so disposed of as to be put in danger of being murdered or subjected to grievous hurt, or slavery, or to the lust of any person `
shall be punished with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years and shall not be less than seven years. s364A
PPC sections 359 to s374 deal with various forms of kidnapping.
According to a Karachi based NGO, 2200 children went missing in Karachi in 2015 alone. Kidnapping of children (known as missing children) is a serious crime and police officers should investigate accordingly, and not dismiss such cases, and be attentive to the needs of parents who may be severely distraught.
The biggest problem is in the reporting requirement in that, the police can’t file an FIR for a kidnapping case until 48 hours have passed since the child’s disappearance. These 48 hours however are crucial when it comes to saving a child, especially if the child is being taken out of the country or trafficked internally. Mr. Naveed Ahmed, Advocate High Court briefed media about a recent petition for missing children in Sindh High Court in which he has identified the issue of police reporting missing children as non-cognizable offense and hence report these cases as Kachi Report. He further said that according to law it’s very clear in Pakistan Penal Code that immediate FIR should be lodged of missing children cases.
 Definition of a child defined by the CRC: https://www.unicef-irc.org/php/Thesaurus/Glossary_Display.php?GLOSS_ID=157&PoPuP=No
 This Ordinance was annulled by the Lahore High Court in 2005 and although the law in Sindh, it is of little practical use.
 U.N. Rules for the Protection of Juveniles Deprived of their Liberty, G.A. res. 45/113, annex, 45 U.N. GAOR Supp. (No. 49A) at 205, U.N. Doc. A/45/49 (1990), Rule 32.
 Pakistan Prisons Rules 1978: http://www.prisons.punjab.gov.pk/system/files/Pakistan%20Prison%20Rules%201978%20%28Final%29.pdf
 Punjab Borstal Act, 1926, Sec. 2(1), Sindh Borstal Schools Act, 1955, Sec. 3(a).
 S. 190, Code of Criminal Procedure 1997:: https://www.oecd.org/site/adboecdanti-corruptioninitiative/39849781.pdf
Report 42, PPC 1860: http://www.commonlii.org/pk/other/PKLJC/reports/42.html