Law In Pakistan

Section 1: Minority Age

According to the Convention on the Rights of the Child ^[1], 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:

1. Article 25-A – the State shall provide free and compulsory education for children from the ages of 5 to 16 years.
2. Article 25 – All citizens (men, women, child, adult) are equal before law and are entitled to equal protection of law
3. Article 11 – no child under the age of 14 years shall be allowed to work in any factory or mine or other hazardous condition.

 

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:

• Child: those under 14 years of age;
• Adolescent: those between 14 and 17 years of age
• Adult: those over 17 years of age.

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:

• Child-15 years less a day;
• Adolescent-18 years less a day;

 

Thus, showing variances between the definitions embedded in domestic laws.

Learning Outcomes

1. Understand that confusion on legal age of minority renders the law ineffective and difficult to implement.
2. Appreciate why the law needs to be internally consistent and free of contradictions in order to be respected and implementable.

Section 2: Protections in the Criminal Justice System

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[2]

 

Juvenile Justice Ordinance, 2000[3]

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..

• Capital punishment will not be given to any child; no use of fetters, handcuff, labour or corporal punishment is allowed either. Provided that where there is reasonable apprehension of the escape of the child from custody, he may be handcuffed. s12
• Trials are faster than adult trials and must be completed within 4 months. s4(6)
• No joint trials of juveniles and adults. s5
• Hearings are not public and there can’t be any publication of cases dealing with a juvenile without the Judge’s consent.s8
• If a juvenile’s’ presence is not required then the Judge will exempt him/her from appearing;s6(5)
• Section 2(a) defines borstal institutions where child offenders may be detained and given education and training for their mental, moral and psychological development.
• If a child is suffering a physical and mental illness then he/she must refer to hospital, state will bear all the expenditures. s(6)(5).
• If a child is found guilty by a Juvenile Court, they have a right to appeal within 30 days.

 

Legal Assistance under the Ordinance:

 

• Under Section 3 every child who is accused of the commission of an offence or is a victim of an offence shall have the right of legal assistance at the expense of the State of a lawyer with at least 5 years of experience.

 

Juvenile courts:

• Under s4(1) The Provincial Government shall establish one or more juvenile courts for any local area within its jurisdiction.
• S(4)(2)The High Court may confer powers of Juvenile courts on; Courts of Sessions; Judicial Magistrate of the First Class; and appoint, from amongst practicing advocates having at least seven years standing at the bar, Presiding officers of Juvenile Courts with powers of a judicial Magistrate of the First Class for the purpose of this Ordinance.
• Under s4(3) The juvenile court shall have the exclusive jurisdiction to try cases in which a child is accused of commission of an offence.
• In relation to the above section, commencement of this Ordinance will result in all pending cases in trial courts being transferred to juvenile courts.

 

Arrest and Bail:

• s10(1) – Where a child is arrested for commission of an offence, the officer in charge of the police station shall inform the guardian of the child, if he can be found, of such arrest and inform him of the details of the Juvenile Court before which the child shall be produced and the concerned Probation Officer (if available) to enable him to obtain such information about the child and other material circumstances which may be of assistance to the Juvenile Court for inquiry purposes.
• Probation Officer according to s(2)(g) means a person appointed under the Probation of Offenders Ordinance, 1960 or such person as the Provincial Government may appoint to perform the functions of Probation Officer under this Ordinance
• 10(2) Where a child accused of non-bail able offence is arrested, he shall, in no case later than twenty-four hours from such arrest, be produced before the Juvenile Court.
• 10(5) Where a child under the age of fifteen years is arrested or detained for an offence which is punishable with imprisonment of less than ten years, shall be treated as if he was accused of commission of a bailable offence.
• If a child is not released on bail, he should not be put in jail or lockup ever but put in the custody of a Probation officer or a suitable person or institution dealing with the welfare of the children if parents or guardian of the child is not present. s10(3)

 

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)^[4]

In 1990 Pakistan signed and ratified the Convention on the Rights of the Child, 1990.

Pakistan Signed^[5] 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.^[6]

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[7] 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.^[8]

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 National Commission on Rights of Children (NCRC)

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”.

The Sindh Child Protection Authority Act, 2011

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”.

Section 3: Right to Education

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).

Responsible Bodies/Individuals:
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))

Regulatory procedures:

• All schools other than government schools must get a certificate of registration from the prescribed authority (need to check what that is) (Section 14(1))
  • School Management Committee must be established to assist with regulation/management of the school (Section 16(1) and (3)) and shall be a mix of government, school management, faculty and parents.

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))

Enforcement Procedures:
•           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.

Learning Outcomes

• There are many important lessons here. Participants should reflect on government and private schools in their localities.
• Do government schools charge fees?
• Do private schools provide free education to at least 10% of their students?
• Are all private schools operating pursuant to a certificate of registration issued by the state?
• Are the teachers meeting requirements of quality?

 

Section 4: Right to be free from labour including begging

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)

Child Beggars

Sindh Children Act of 1955, s.49states;  whoever employs or causes a child to beg, is to be punished with a year of imprisonment, or a fine of Rs.300, or both.

How all laws are ultimately connected:

• Fewer out of school children if law on education is implemented.
• This will reduce child labour and child marriage.
• If labour laws on living and fair wages are given to adults, there will be less of a compulsion for parents to send children to work.
• Bonded labour laws, if implemented, will free children working on farms and bhattas.
• If women were given equal protection of the law, a right enshrined the constitution, then they would get higher wages and support their families.
• Sexual harassment laws are necessary to give protection to women at workplace.
• If VAW laws are implemented, families would have a positive environment to raise children and would allow women to achieve their potential.
• Are companies following CSR rules and investing in education, especially in rural areas?
• Public officials and officers must follow procedure. Labour inspectors must keep a check on factories who employ child labour. Police must investigate diligently, and district education committeesmust review and report on the status of enrolled children.
• Do laws on minority rights protect Hindu and Christian children? Do children face caste and religious based violence in school? Do schools provide the Study of Ethics, Scripture of Hinduism for non Muslim children?
• Is law reform needed to ensure that state schools give children a healthy and nutritious meal? If they did, would attendance and learning go up? Does the constitutional right to life and the Supreme Court’s Shehla Zia case require schools to give school children eggs, milk and apples for breakfast?
• Would you add jobs/professions/work to the list of dangerous professions inappropriate for children?
• If there is a custom that children work on farms with their mothers, do are laws covering tenancies and farm labour require a review?

Learning Outcomes

• Understand that even though the law allows children and adolescents to work 7 hours a day, it is not practical because children have a right to education.
• Be able to explain the role police could play.
• See how all laws are ultimately linked to one another.
• Be able to identify gaps and contradictions in the laws protecting children from labour, for example, how is a child allowed to work on a dangerous machine?
• Appreciate how these protections could even apply to those children working in homes as domestic labour.

 

Section 5: Child Marriage

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^[9] 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.

• Section 8: No cognizance by court taken unless complaint is filed by Council or in case no council then SHO and within one year of offence.
• Section 10: Relates to Section 250 of the CrPC. False frivolous or vexatious accusations — and requires complainant to post a bond of R.1000.
• Section 11: Court can issue injunction to stop child marriage on complaint or otherwise.
• Section 3: Two year sentence or Rs.1 lac fine or both for a male over 18 who contracts a child marriage.
• Section 4: Same punishment (but fine is 2 lac)for anyone who (solemnizes) performs, conducts, facilitates child marriage unless he proves he had reason to believe it was not a child marriage.
• Section 5: Same punishment (but fine is 2 lac)for parent guardian who does an act promotes child marriage or negligently fails to prevent it. Presumption that guardian/parent failed to negligently prevent unless proven otherwise.

 

Learning Outcomes

• To understand that child marriage is illegal and the social / cultural practice of child marriage must be stopped
• To understand the physical, mental and emotional consequences of marriage on a child
• To understand who is held liable under the law if a child is married
• To identify the penalties associated with child marriage

Section 6: Rape, sexual abuse, sexual exploitation, cruelty, incest

 

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.

(Amendment)

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)

Incest

There is no/separate provision currently in our law that punishes incest. ^[10] 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.

Learning Outcomes

• To understand the definition of a child under criminal law
• To understand that a child under the age of 16 cannot legally consent to sexual acts
• To understand the separate penalties for raping, abusing or cruelty to a child

Section 7:Child Trafficking and Kidnapping

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)

Kidnapping

Whoever kidnaps or abducts any person under theage of fourteen:

in order that such person may be murdered or subjected to grievous hurt,

or slavery,

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^[11].

Learning Outcomes

• Be able to address the range of crimes that can be constituted when a child is victimized
• Know the difference between these offences and understand that we should not minimize crimes like seduction, pornography, and fondling; each have their own impact on a child.
• Understand child rape is also not the same on the kinds of touching that are considered illegal.
• Note that the law does not recognize the consent of a child.
• Distinguish internal (within Pakistan) and external (overseas) trafficking and that the former was added to the law as a crime in 2010.
• Note that a child can seek protection under the DV statute discussed in the module containing laws protecting women

^[1] Definition of a child defined by the CRC: https://www.unicef-irc.org/php/Thesaurus/Glossary_Display.php?GLOSS_ID=157&PoPuP=No

[2]http://www.senate.gov.pk/uploads/documents/1450099224_165.pdf

[3] This Ordinance was annulled by the Lahore High Court in 2005 and although the law in Sindh, it is of little practical use.

^[4] https://www.hrw.org/sites/default/files/reports/pakcr99o.pdf

^[5] https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv-11-b&chapter=4&lang=en#EndDec

^[6]  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.

[7] Pakistan Prisons Rules 1978: http://www.prisons.punjab.gov.pk/system/files/Pakistan%20Prison%20Rules%201978%20%28Final%29.pdf

^[8] Punjab Borstal Act, 1926, Sec. 2(1), Sindh Borstal Schools Act, 1955, Sec. 3(a).

^[9] S. 190, Code of Criminal Procedure 1997:: https://www.oecd.org/site/adboecdanti-corruptioninitiative/39849781.pdf

^[10]Report 42, PPC 1860: http://www.commonlii.org/pk/other/PKLJC/reports/42.html

^[11] http://www.roshnihelpline.org/press_release_detail.php?id=56