Missing Children’s Cases and Reporting & Investigation by Police:
Relevant Laws and Practices in Pakistan and other Countries
in collaboration with SZABIST Legal and Research Clinic, Qaaf se Qanoon
The recovery of missing children in Pakistan would be more effective if police change their customary practice of filing reports of such kids in the Roznamcha and instead file FIR and immediately commence investigation on the presumption that one of the cognizable offences listed in the PPC has been committed against the child. The “window of intervention” in these cases is small and any delay in investigation reduces the chances of a child’s recovery. The range of cognizable offences that necessitate investigation are kidnapping of a child under 14 (S.364A), procuring a minor girl (S.366-A), kidnapping to commit grievous harm (S.367), kidnapping of a child under 10 (S.369), and trafficking (369A).
In the BBA case, the Supreme Court of India makes it mandatory for police stations across the country to compulsorily register missing complaints of any minor and appoint a special police officer to handle complaints of juveniles.
We recommend that the following two changes to the Pakistan Penal Code 1860 (PPC) would make these sections of kidnapping of children compatible and apply to all children under 18 as per the Convention on the Rights of the Child. Moreover, police officers must be directed to presume that one or more of these offences have been committed when a parent reports that their child is missing. These are cognizable and mandate the filing of an FIR.
According to Roshni, a Karachi based NGO, 2200 children went missing in Karachi in 2015 alone. Kidnapping/abduction and trafficking of children are serious crimes and police officers should investigate accordingly. The biggest problem is in the reporting of such a case to the police who do not file an FIR 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 or being harmed in any other way. Roshni, with the aid of Mr. Naveed Ahmed, Advocate High Court filed a petition for missing children in Sindh High Court in which he has identified the issue that police report missing children a non-cognizable offense and hence record these cases as a Kachi Report (Register 3 or Roznamcha). In a kachi report, the missing child’s name is noted on official paper, but there is no practical effort made to retrieve her.
This is against the law as kidnapping and trafficking children are cognizable offences according to Schedule II of the Pakistan Penal Code (PPC) which requires that police officers start investigation right away. In fact, a police officer must immediately file an FIR in a case of a missing child on the presumption of an offence of kidnapping or trafficking. There are several sections in the PPC that can be written into the complaint. Most of these are cognizable offences which require that the police start investigation promptly. In cases where the offence is non-cognizable, police can begin investigation soon after receiving an order from a Magistrate.
III. Constitutional protections for children:
The Constitution of Pakistan provides for certain protections for children which are relevant to the issue of kidnapping. In particular, Article 25(3) of the Constitution allows the State to take special measures for the protection of children and in doing so, recognises the need to protect children as a vulnerable group. Further Article 35 requires the State to protect children as a specific unit in a family. In addition, the Constitution prohibits any child (under the age of 14 years) from working in a factory, mine or other hazardous condition (Article 11).
The goal of this paper is to highlight the importance of a directive to the police to file FIRs and immediately commence investigation of a missing child. Karachi is a vast city with readily available transport networks to all parts of Pakistan and children can be taken to distant cities and villages in a matter of hours for malicious ends such as begging, sex work, and hard labor. An immediate investigation is critical to ensure the child is not trafficked out of their native town and therefore a matter of public importance for the National Assembly.
We will examine the following three areas:
Two anti-trafficking laws have been enacted, one in 2002 and the other in 2016.
The Prevention and Control of Human Trafficking Ordinance (PACHTO) (2002). This statute criminalizes whoever “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…”. This is a cognizable offence – which means that police must lodge an FIR and begin investigation of the case.
The Criminal Law (Second Amendment) Act of 2016 creates a new section 369A in the Pakistan Penal Code titled “Trafficking of Human Beings”. This law sentences people convicted of human trafficking with imprisonment of up to 7 years or a fine of up to Rs. 7 lacs. Ostensibly, this section aims to criminalize not just transnational trafficking but also internal trafficking within Pakistan. Unfortunately however, it fails to do this since it gives human trafficking the same definition as the 2002 act thus ruling out trafficking within Pakistan. This is:
“human trafficking” means obtaining, securing, selling, purchasing, recruiting, detaining, harbouring or receiving a person, notwithstanding his implicit or explicit consent, by the use of coercion, kidnapping, abduction, or by giving or receiving any payment or benefit, or sharing or receiving a share for such person’s subsequent transportation out of or into Pakistan…”
In addition, it also introduces new crimes namely, sexual abuse of a child, child cruelty, child pornography as well as child seduction.
Age of Criminal Responsibility: The above-mentioned law also changes the age of criminal responsibility from seven to ten years by amending Section 82 of the Pakistan Penal Code. Nothing done by a child under age ten can be a criminal offence. (http://www.na.gov.pk/uploads/documents/1467011388_916.pdf)
Pursuant to Section 364A of the Pakistan Penal Code, “Whoever kidnaps or abducts any person under the age 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 maybe 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 (cognizable offence).”
Sections 366A and 369 both pertain to minors and can easily be put on the FIR in case of a missing child. Both are cognizable offences that trigger immediate police action to recover the missing child (now presumed kidnapped).
S.369: Kidnapping or abducting child under ten years with intent to steal from its person: Whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
PPC sections 359 to 374 deal with various forms of kidnapping.
The procedure for reporting and investigating into the alleged offence varies for cognizable and non-cognizable offences. From the aforementioned list of offences, S.364A, S.366-A, S. 369, S.365, S.365-A, S.366-B, S.367, S.368, S.371, S.373, S.374 are cognizable offences while S.366 and S.370 are non-cognizable offences [Schedule II (Tabular Statement of Offences) of PPC].
Cognizable Offences: The procedure of lodging an FIR is prescribed in Section 154 of the Code of Criminal Procedure, 1898 (CrPC). Police officers should be aware that it is as follows:
When information about the commission of a cognizable offence is given orally, the police officer must write it down. It is the complainant’s right as a person giving information that police officers make note and then read the complaint verbatim as to strike out any errors. The police must also record which section of the Pakistan Penal Code this offense falls under. Once the police have recorded the information in the FIR Register, the police should ensure that the complainant has been given a chance to read their statement and then sign it to be accurate; People who cannot read or write must put their left thumb impression on document after being satisfied that it is a correct record, this practice should be ensured by the police officers in charge. The police should ask the complainant to verify the report before signing it. The Police should always provide a copy of the FIR – even if the complainant does not ask for it, it is their right to get a copy of FIR free of cost.
Investigation of Cognizable offences: Under CrPC Section 156. Investigation into cognizable cases:
Non-cognizable Offences: Under CrPC Section 155. Information in non-cognizable cases:
This Act establishes an authority in Sindh, the Sindh Child Protection Authority (SCPA) to protect the rights of children in need of special protection. SCPA is also obliged to make necessary efforts to enhance and strengthen the existing services to different children welfare institution, set minimum standards for social rehabilitative and reformatory institutions and services, and supervise the functions of all such institutions established by the government or the private sector for the special protection measures of the children. The Act provides for a Child Protection Institution for the admission, care, protection and rehabilitation of child requiring special protection measures;
Section 2(c) of the Act refers to child in need of special protection measures. Where a child:
SCPA sets up Child Protection Units at the district level and Child Protection Officer at these units to carry out the purposes of this Act. Some provisions relating to such officers:
The Social Welfare Department in Sindh is responsible for facilitating abandoned and/or abused children through CPUs by providing them with social case workers, legal representation and support services. Currently there are 11 CPUs in 23 districts of Sindh. The authority was notified after a delay of a few years but and has not been able to accomplish many goals. Committees, advisors and child protection officers were to be appointed under it; that too has not been done. CPUs operations could also be vastly improved for the protection of children.
On August 30, 2016 Rules of Sindh Child Protection Authority were approved.
III. The Khyber Pakhtunkhwa Child Protection and Welfare Act 2010
This act defines a “child at risk” as including:
(i) .. an orphan, child with disabilities, child of migrant workers, child working and or living on the street, child in conflict with the law and child living in extreme poverty;
(ii) is found begging;
(iii) is found without having any home or settled place of abode or without any ostensible means of subsistence ….
(vi) is being or is likely to be abused or exploited for immoral or illegal purposes or gain; or
(x) is victim of an offence punishable under this Act or any other law for the time being in force and his parent or guardian is convicted or accused for the commission of such offence;
It establishes the Child Protection Commission, Child Protections Institutions (to provide children at risk with accommodation, treatment, education, etc.) Child Protection Units and Child Protection Officers.
Some of the functions of the Child Protection Unit include:
The Child Protection Officer has powers and responsibilities under the Act. One of them is their right to:
The Act also allows for Sessions Courts to be designated as special Child Protection Courts. S16 and s17. In addition, this Act sets forth various offences against children which include:
This Act describes the child in need of protection under s5:
A child in need of protection shall include any child is subject to, or is under serious threat of being subjected to:
(a) physical violence or injury;
(b) mental violence;
(c) neglect or negligent treatment;
(e) exploitation; and
(f) sexual abuse or sexual exploitation
The Act establishes a Child Protection Commission. The Social Welfare Department is mandated to provide services to this commission. These include maintaining data on child abusers and a helpline for direct complaints, as well as regulating all providers of child protection services in the province. s10.
Child Protection Units at the district level, headed by qualified Child Protection Officers, are required under the Act. The functions of the CPUS include:
(a)receive and register report(s) of alleged child abuse in the Child Protection Referral MIS;
(b)based on a report of alleged child abuse, assess whether the child requires protection under the provisions of this Act;
(c) pursuant to a formal determination that a child requires protection under this Act, develop and maintain a child protection plan;
(d)in accordance with the child protection plan, refer the child to relevant departments/agencies at the district level (obligatory to comply with requests) for provision of applicable child protective services;
(e) manage reported cases of child abuse, including maintaining a record of reports, monitoring cases and following-up until case closure;
(f) collect, maintain and update child protection case management data;
(g) monitor the application of child protection regulations at the district level
This act’s protections are aimed at anyone who may be a destitute and neglected child” which means a child who–
(i) is found begging; or
(ii) is found without having any home or settled place of abode and without any ostensible means of subsistence; or
(iii) has a parent or guardian who is unfit or incapacitated to exercise control over the child; or
(iv) lives in brothel or with a prostitute or frequently visits any place being used for the purpose of prostitution or is found to associate with any prostitute or any other person who leads an immoral or depraved life; or
(v) is being or is likely to be abused or exploited for immoral or illegal purpose or unconscionable gain; or
(vi) is beyond the parental control; or
(vii) has lost his parents or one of the parents and has no adequate source of income; or
(viii) is victim of an offence punishable under this Act or any other law for the time being in force and his parent or guardian is convicted or accused for the commission of such offence;
This is an Act for the development and protection of children in the province of Sindh. These are a few of its salient features:
VII. National Commission for Child Welfare and Development
Also, a local body in Pakistan was established in 1991 under the mandate of the Ministry of Health and Social Welfare as an advisory body to the Government of Pakistan on matters related to Children. It’s called National Commission for Child Welfare and Development (NCCWD). In 2011, the mandate fell under the Ministry of Human Rights. NCCWD is responsible to coordinate, monitor & facilitate implementation of the United Nations’ Convention on the Rights of the Child (UNCRC) and other national/ international obligations. The NCCWD also submits mandatory Periodic Reports on implementation of the UNCRC to the UN Committee on the Rights of the Child, Geneva & other quarters. Their objectives include: To formulate a National Policy for Child Welfare and Development in the Country; suggest amendments and additions to the Constitution and national laws, where feasible so as to bring them into harmony with the United Nations Convention on the Rights of the Child; and assess the impact of the constitutional, legal and administrative provisions having bearing on welfare and development of children and suggest measures to provide full opportunities for their complete growth.
Overview: India had the same problem as Pakistan regarding the failure of police to lodge FIRs in cases of missing children and to begin investigations. In a landmark decision from 2013, the Supreme Court emphatically directed the police to file FIRs and investigate cases, and placed multiple safeguards to recover missing children including dedicated police officers for juveniles. Another noteworthy practice in India is the coordination efforts encouraged between NGOs, police and child protection units at every level of government from block to village, city, district and state.
The Supreme Court Case, Bachpan Bachao Andolan
In the Bachpan Bachao Andolan (BBA) v. Union of India & Ors., (2013), the Supreme Court of India underscored the importance of filing timely FIRs in cases of missing children. The court cited to an Office Memorandum of 2012 issued by the Ministry of Home Affairs which defined a missing child as:
“a person below eighteen years of age, whose whereabouts are not known to the parents, legal guardians and any other person, who may be legally entrusted with the custody of the child, whatever may be the circumstances/causes of disappearance. The child will be considered missing and in need of care and protection within the meaning of the later part of the Juvenile Act, until located and/or his/her safety/well being is established.”
In the BBA case, the Supreme Court of India makes it mandatory for police stations across the country to compulsorily register missing complaints of any minor and appoint a special police officer to handle complaints of juveniles. It noted that in 3000 cases of missing children in year 2011, only 500 FIRs were filed while the others remained untraced and “mere slips of paper in police stations.”
These are the highlights of the case:
In a later order from October 2013, the court directed further safeguards for missing children and these include:
See full case at: http://www.bba.org.in/sites/default/files/MissingChildrenJudgement.pdf
Further protections for missing children are in the Constitution of India 1949. These include prohibition of traffic in human beings and forced labour (art 23); prohibition of employment of children in factories, mines or engagement in any hazardous employment (art 24) and obtaining remedies for enforcement of fundamental rights including the right to move the Supreme Court by appropriate proceedings for enforcement of the rights (art 32). The Indian Penal Code 1860, contains sections similar to their counterpart provisions in Pakistan. s340 (wrongful confinement), s345 (Wrongful confinement of person for whose liberation writ has been issued), s362 (abduction), s366B (Importation of girl from foreign country), s368 (wrongfully concealing or keeping in confinement, kidnapped or abducted person), s369. Kidnapping or abducting child under ten years with intent to steal from its person.
Juvenile Justice (Care and Protection of Children) Act 2000 is a statute that provides further safeguards for missing children. It defines a child in need of care and protection and it includes a missing or a runaway child. It also sets forth the procedure for such children.
National Commission for Protection of Child Rights (NCPCR) is an Indian governmental commission, established by an Act of Parliament, thus making it a statutory body. The commission works under the ambit of Ministry of Women and Child Development, a branch of the Government of India. The Commission considers that its mandate is “to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and the UN Convention on the Rights of the Child.
Overview: An achievement in Bangladesh is the SAARC, Plan International and SAIEVAC led effort to prevent and protect children from losing their contact with safe environment. This project aims to use technology to trace missing and trafficked children in three countries – Bangladesh, India, and Nepal. This is definitely something Pakistani government and academia must research and explore for the safety of our very own children. Kidnapping laws here are similar to those in Pakistan.
In other instances, non-governmental organizations have also produced some positive results in regards to reporting missing children. One of the initiatives is a collaboration with a NGO and government bodies. Missing Child Alert (MCA) is a project in coalition with the SAARC Apex body on child protection that is database programme to record the victim’s data, including their name, photo and place of origin with the aim of sharing that data between South Asian nations. It aims to respond to the grave issue of child trafficking and missing children in South Asia. The project is led by Plan International and SAIEVAC (South Asia Initiative to End Violence against Children) with financial support from Post-Code Loterij of the Netherlands. The pilot phase of the project has commenced in July 2012. The project is implemented in Bangladesh, India and Nepal.
Dnet is the regional partner of the MCA and the primary objective of Dnet is to design a technology blueprint for the Missing Child Alert and Response system in Bangladesh and Nepal linked with India that focuses on tracing, rescue, repatriation, rehabilitation and re-integration of missing children. Dnet focuses on Project collaboration with all regional partners including India and Nepal. They have also developed an advanced case management system for rescued victims which allows to expedite cases of repatriation and have designed a blueprint for Missing Child Alert and Response system.
Additional DIG (Organised Crime) of Criminal Investigation Department Shah Alam, urged for a system that can notify the seven police control rooms, based in the six divisional districts and the capital, and also 600 police stations across the country. MCA would integrate the Police response with their case management system making this process efficient. This would also help curb trafficking outside Bangladesh as there will always be a constant track of missing persons. At this time there is no local legislation on following a special procedure for finding missing persons but as advised by the DIG, they should at least file a missing persons report at the local police station and follow up on their investigation.
III. United Kingdom:
Overview: UK police have a special protocol for missing and runaway children. They require that local authority set up a Local Safeguarding Children Board and work in coordination with police, health and education. In addition, there are mechanisms to identify children who are at risk of going missing or are runaway.
Overview: It is important to note that police are prohibited from waiting before they accept a missing child’s report. Their national database stores information about all missing children.
The law prohibits law enforcement agencies from establishing or observing a waiting period before accepting a missing child report. When a child is reported missing, law enforcement may not require the reporter to wait a certain amount of time for the child to return home before taking the report (42 U.S.Code. §§ 5779 and 5780).
Requires law enforcement agencies to enter the child’s information into the FBI’s National Crime Information Center database, known as NCIC, and the state law enforcement system database within 2 hours of receiving the missing child report (42 U.S.C. §5780). The complainant may contact the National Center for Missing & Exploited Children, known as NCMEC, at 1-800-THE-LOST (1-800-843-5678) to verify information whether the information about the child has been entered into NCIC.
Each State reporting under the provisions of (42 U.S.C. §5779) shall ensure that no law enforcement agency within the State establishes or maintains any policy that requires the observance of any waiting period before accepting a missing child or unidentified person report; ensure that no law enforcement agency within the State establishes or maintains any policy that requires the removal of a missing person entry from its State law enforcement system or the National Crime Information Center computer database based solely on the age of the person; provide that each such report and all necessary and available information, which, with respect to each missing child report, shall include the name, date of birth, sex, race, height, weight, and eye and hair color of the child; a recent photograph of the child, if available; the date and location of the last known contact with the child; and the category under which the child is reported missing; is entered within 2 hours of receipt into the State law enforcement system and the National Crime Information Center computer networks and made available to the Missing Children Information Clearinghouse within the State or other agency designated within the State to receive such reports; and provide that after receiving reports as provided in paragraph (3), the law enforcement agency that entered the report into the National Crime Information Center shall no later than 30 days after the original entry of the record into the State law enforcement system and National Crime Information Center computer networks, verify and update such record with any additional information, including, where available, medical and dental records and a photograph taken during the previous 180 days; institute or assist with appropriate search and investigative procedures; notify the National Center for Missing and Exploited Children of each report received relating to a child reported missing from a foster care family home or child care institution; maintain close liaison with State and local child welfare systems and the National Center for Missing and Exploited Children for the exchange of information and technical assistance in the missing children cases; and grant permission to the National Crime Information Center Terminal Contractor for the State to update the missing person record in the National Crime Information Center computer networks with additional information learned during the investigation relating to the missing person.
The UN Convention on the Rights of the Child (CRC) defines a child as “every human being below the age of eighteen years under the law applicable to the child, majority is attained earlier.” (Article 1)
In keeping with this definition, we recommend these PPC sections apply to all children under 18. This would protect kidnapped and missing children as anyone presumed to be around or under that age will be covered by the law, and police can presume these particular cognizable offences have been committed and immediately commence investigation. It would also make Section 364A and S.369 more compatible with S.366A as all will have the exact same age for child protection in conformity with the age of juvenility in the CRC. It will also make the law more consistent and make kidnapping with various forms of ulterior intent apply to all children.
The Balochistan Child Protection Act 2016 and the Sindh Child Protection Authority Act 2011 do not include missing children in the definition of a child in need of protection. The Khyber Pakhtunkhwa Child Protection and Welfare Act 2010 similarly does not include them in their definition of a child at risk. The Punjab Destitute and Neglected Children Act 2004 suffers the same gap in definition.
We recommend that provincial governments amend the definition to include:
The relevant bodies authorized under all the above-mentioned provincial child protection acts to make rules could add a rule that empowers a child protection officer and/or special juvenile officers to ensure immediate investigation of a child reported missing to the police and monitoring and follow-up of that investigation.
III. Best Practices in Other Countries
Some of the best practices in other countries regarding missing children include:
Thus, the following measures can be evaluated and implemented: