The Minimum Age of Criminal Responsibility in

Pakistan
SUBJECT: CRIMINAL LAW
SUBMITTED TO: MISS MUDASSARA SABREEN

Rida Mukhtar Hussain

3996/FSL/LLB/F13 | 04/12/2015
What is a Crime?
An action or omission that constitutes an offense that may be prosecuted by
the state and is punishable by law.

What is Criminal Responsibility?

The term criminal responsibility refers to a person's ability to understand his
or her conduct at the time a crime is committed. In other words, what a person is
thinking when he commits a crime, or what result is anticipated or expected when a
crime is committed. Laws define crimes in terms of an act or omission (actus reas)
and a mental state (mens reas). Criminal responsibility relates to the mental
state element of a crime.
A culpable (guilty) mental state is a necessary element of every crime. In order
to be convicted of a particular crime, there must be proof that the actor (the person
engaged in the alleged criminal conduct) possessed the requisite state of mind when
the crime was committed.
The mental states may include the following behaviours: intentional, knowing,
wanton (or reckless), and negligent.
An intentional mental state means that the actor consciously engages in the
conduct, or that the actor's conscious objective is to bring about a particular result. For
example, if someone uses a hammer to break the window of Victim's home so that he
can enter and take victim’s valuables, that person has acted intentionally with respect
to burglary. Intentional crimes are usually punished more severely than other crimes.
A knowing mental state means that the actor is aware that his or her conduct
is criminal, or is aware that his or her conduct will bring about a particular result. So,
if a criminal is aware that the tools he bought from some thief were stolen from the
hardware store, criminal has acted knowingly in respect to receiving stolen property.
A wanton or reckless mental state means that the actor consciously
disregards a substantial risk that his or her conduct will bring about a particular result.
For example, if a criminal, in a rush of excitement after his favourite football team
kicks a winning field goal, fires a gun into a crowd of people and injures or kills
someone, he has acted wantonly.
A negligent mental state means that the actor is unaware that his or her
conduct is risky or dangerous, but a reasonable person in the same situation would
appreciate the risk. An example of a negligent mental state is when a criminal, in a
hurry to get to work, drives his car through the red light at a busy intersection and
strikes another car he certainly didn't mean to hurt anyone; in fact, he didn't even see
the light change from yellow to red! But nevertheless, his conduct was dangerous, and
a reasonable person would have been aware of the risk.
Pakistani Law and Age of Criminal Responsibility:

 According to PPC
Section 82.
Act of a child under seven years of age: Nothing is an offence, which is done by a
child under seven years of age.
Explanation: Under the age of seven years no infant can be guilty of a crime; for
under that age an infant is by presumption of law, doli incapax, and cannot be
endowed with any discretion.
Doli incapax refers to a presumption that a child is "incapable of crime" under
legislation or common law. Or rather, the presumption that a child cannot form mens
rea as they do not yet have a sufficient understanding between "right and wrong".

Section 83.
Act of a child above seven and under twelve of immature understanding: Nothing is
an offence which is done by a child above seven years of age and under twelve, who
has not attained sufficient maturity of understanding to judge of the nature and
consequences of his conduct on that occasion.
Explanation: This section deals with children above the age of seven years, but less
than the age of twelve years and qualifies their exemption with the condition that they
would be exempted if they have not attained sufficient maturity of understanding to
judge the nature and consequences of their of their conduct at the time they committed
the crim, because if the child of this age has attained the maturity of understanding of
an adult person, then the legal presumption that a person intends the natural
consequences of his action would arise against him.

Other laws:
Child offenders in Pakistan may lawfully be sentenced to corporal
punishment, life imprisonment and the death penalty. Law reform has gone some way
to prohibiting corporal and capital punishment for child offenders, but the law is
complex and unclear and these sentences remain lawful in certain circumstances.
  The Juvenile Justice System in Pakistan:

Juvenile justice is primarily governed by the Juvenile Justice System Ordinance

(JJSO), promulgated in 2000 but still not fully implemented throughout the country.
The JJSO does not repeal other laws but is in addition to them.
1-Where there is conflict, the JJSO overrides other laws except in relation to hadd
offences and cases in special courts dealing with drug and terrorism offences.
2-It defines the child in line with international standards as a person below 18
years of age.
3-It provides for the establishment of special juvenile courts exclusively to try
juveniles under special procedures suitable for children;
4-It regulates the arrest of children by police as well as bail and probation;
5-It provides the child has the right to free legal representation
6-It prohibits the death penalty and the use of fetters and handcuffs for children.

The death penalty

The Juvenile Justice System Ordinance states in section 12: “Notwithstanding
anything to the contrary contained in any law for the time being in force no child shall
be (a) awarded punishment of death....” The prohibition applies to persons under 18 at
the time of commission of offence. But children are liable to the death penalty under
other laws. Child offenders may be tried in special
 
Corporal punishment
The Juvenile Justice System Ordinance states that no child may be given corporal
punishment while in custody. The Abolition of the Punishment of Whipping Act
enacted in 1996 prohibits whipping as a sentence under any law except with regard to
hadd offences.
For example, the Offence of Qazf (Enforcement of Hadd) Ordinance punishes
qazf (false accusation of zina) with 80 “stripes”16 and the Offence of Zina
(Enforcement of Hudood) Ordinance punishes zina with whipping, at a public place,
of 100 stripes.17 Children in FATA may be sentenced to whipping under the Frontier
Crimes Regulation.

Life imprisonment
 The Juvenile Justice System Ordinance does not prohibit life imprisonment. It
allows for a child to be sent to a borstal institution until the age of 18 or for the period
of imprisonment to be reduced, but these are optional alternatives to the penalties
specified in the Penal Code and the court may still impose life imprisonment. The
Penal Code punishes a number of crimes with life imprisonment; it is reckoned as
equivalent to imprisonment for 25 years. The sentence may be commuted to:
Imprisonment for a term up to 14 years. Children may also be sentenced to life
imprisonment under the Control of Narcotic Substances Act and, presumably, the
Anti-Terrorism Act. There is no provision for life imprisonment in the Frontier
Crimes Regulation in force in FATA.

 Sindh’s Children Act of 1995

According to Sindh’s Children Act of 1995 an offender is a person who at the
time of commission of crime is below 16 years of age. Such person may not be
sentenced to death, transportation or imprisonment.

 Punjab Youthful Offenders Ordinance 1983

Punjab Youthful Offenders Ordinance 1983 is largely derived from Sindh children
with a few significant exceptions. According to its Section 5 person shall be deemed
to be a child if at the time of institution of any proceedings, such person has not
attained the age of 15 years. Section 5 provides that a person is deemed to be a child,
if at the time of initiation of any proceedings or at the time of arrest the person is
under the age of 16. The ordinance only covers the children who are under 15 years of
age and Act applies to only those below 16 years of age.

 The Hudood Law Ordinanace 1979

The Hudood Law Ordinanace 1979 provides that under Islamic Law the punishments
meted out give special consideration to children. According to this Ordinance the
hudood punishments are not to be imposed on individuals who were children at the
time they committed the crime.
The hudood Laws Define Children Differently From the other Laws in Pakistan.
Under the HUDOOD laws, a child is a person who has not attained puberty. The
HUDOOD law relating to fornication differentiates between the genders of the
offenders:
 According to section 2 (a) ‘Adult’ means a person who has attained, being a male,
the age of eighteen years or , being a female, the age of sixteen years, or has attained
puberty’

Brief over view of minimum age limit of criminal responsibility in

Pakistani Law sources:

 The minimum age of criminal responsibility is seven under the Penal Code.
 Under the Hudood Ordinances, children are liable for punishments on
reaching puberty.
 Other laws do not specify a minimum age.
 The JJSO defines a child as a person under 18 at the time of committing an
offence. 5-Despite its promulgation, the JJSO is not widely implemented:
there are no juvenile courts and children are tried alongside adults with no
appropriate juvenile justice protection.

Other laws relevant to sentencing of child offenders include the Criminal

Procedure Code 1898, the Abolition of the Punishment of Whipping Act 1996, the
Anti- Terrorism Act 1997, the Control of Narcotic Substances Act 1997 the
Reformatory Schools Act 1897 and the Railways Act 1890.

Islamic Point of view:

In Islam, the liability of crime and its punishment comes upon a child of 15 years in
the opinion of majority of jurists, while in Imam Abu Hanfia’s (R.A) opinion the age
of child for being responsible for a crime is 17 years for girl and 18 years for boys.
Islam gives the concept of, sabi ghair mumayyaz, sabi mumaiyyaz and baligh
wa aaqil.
1. Sabi Ghair-Mumayyaz
Crimes and their punishment don’t affect sabi ghair mumayyaz since he is a
child with no understanding of deeds. He can’t distinguish between right and wrong.
This period starts from his birth till seven years of age. He will not be held liable for
any of his actions.

2. Sabi mumayyaz
 Sabi mumayyaz is a child who still has not reached the age of puberty but he
starts getting sense and understanding of things and deeds. He can distinguish
between right and wrong to some extent. This is the time of weak understanding. This
time period starts from 7 years of his age till he reaches the age of puberty or 15
years. Weak understanding is not directly responsible or punishable in Islam.

3. Baligh wa Aaqil
While in case of baligh wa aaqil, they become effective provided the baligh
person is sane and intellectual of such degree that he can distinguish between right
and wrong. At this age individuals are liable for punishment, whether Hudood, qisas
or tazeer.
As far as responsibility of a child under criminal law is concerned, children
are exempted from liability for their acts according to the following Hadith of
the Prophet:

“Three persons are not accountable: a child until he or she reaches the age of
puberty, a person in sleep until he awakes and an insane person until he becomes
normal’’

The second Caliph Umar bin al-khatab and fourth Caliph Ali bin Abu Talib
were of the opinion; that if a minor is accused of intent to murder, his crime
will be consider as a mistake

The Review of Pakistan by the members of the Human Rights

Council:

In light of the clear international human rights consensus against the

imposition of capital punishment, life imprisonment and corporal punishment
on child offenders, and the specific recommendations to Pakistan made by the
Committee on the Rights of the Child, we hope that the members of the
Human Rights Council will urge the government of Pakistan to:

- Explicitly prohibit sentences of death, corporal punishment and life

imprisonment in all areas of Pakistan, under all systems of justice, and
without exception to ensure full compliance with international standards.
This could be achieved through strengthening the restrictions on
sentencing in the JJSO, and clarifying that this overrides all laws to the
contrary and applies to all cases involving child offenders. Laws contrary
to the prohibition should be amended or repealed, including the Hudood
Ordinances, the Anti-Terrorism Act, the Control of Narcotic Substances
 Act and the Frontier Crimes Regulation.

- Raise the minimum age of criminal responsibility. - Provide

disaggregated data about sentences handed down to children - including
those who have been sentenced to death

- by offence committed and date, as well as data about the children in

detention, including gender, age, length of time spent in pre-trial detention
in each case.

Opinion:
Children represent one of the most vulnerable groups in any society. The
case of Pakistan is no exception. Some specific measures have been taken in recent
years to try and address the numerous problems confronting vulnerable children
within our country, including those in trouble with the law. However, these
measures still leave much to be desired.
By international standards, Pakistan still has one of the lowest age thresholds
for criminal responsibility. A child can be held responsible for crime according to
our national laws at the mere age of seven years. A Juvenile Justice System
Ordinance (JJSO) was promulgated in 2000 but the JJSO is not a very
comprehensive law and it remains silent on several important issues, including the
minimum age of criminal responsibility. Moreover this law is not accepted in the
regions of FATA and PATA.
The Protection of Children Bill was also formulated in 2006 which proposed
that the age of criminal responsibility be set at 12 years of age. This Bill, however,
has not yet been able to secure Cabinet approval. Legal action can thus be taken
against much younger children on the basis of the Pakistan Penal Code (PPC),
which was put in place by the colonial government in 1860 and still remains in
effect.
Pakistan ratified the United Nations Convention on the Rights of the Child in 1990
which requires it to ensure that children who have infringed the penal code of
conduct must be treated in a manner which prevents their abuse in detention, and
minimises their chances of becoming hardened criminals by taking proactive steps
to ensure their reintegration into society. Yet, instead of making more concerted
efforts to ensure that children in trouble with the law are provided the special
attention that they need, our authorities seem adamant to maintain their strict
attitude towards punishing children involved in crime, even if they are evidently
being exploited by others to engage in varied forms of criminal activities
While it is debatable if adolescents can be held responsible for different
types of antisocial behaviour on the basis of their individual discernment and
understanding, it is hard to argue that a seven-year-old child has this capacity.
Pakistani law-enforcement agencies, however, have argued that lowering the age of
criminal responsibility will have an adverse impact on a range of crimes, including
terrorist activities, as this will encourage using children to carry out more illegal
activities due to the absence of the threat of punishment. This, too, is a very weak
argument. If a child under the age of 12 commits a crime like theft or becomes
embroiled in even more destructive activities such as suicide bombing, it is not the
fear of legal prosecution which can prevent such occurrences. More stringent
prosecution and punishment of those who are responsible for exploiting children in
such a manner can, however, prove a much more effective deterrent.

Conclusion

The juvenile justice system in Pakistan is still underdeveloped, and needs

to address several key areas under International standards

Specifically the International Convention on the Rights of the Child to which

Pakistan is a signatory and other relevant International standards
Further the definition of a child under HUDOOD laws needs more clarity and
consistency

The most pressing problem with puberty being used as a determinative criterion for
criminal responsibility, is

That it is too subjective and also promotes discrimination against girls

who most often attain puberty at an earlier age than boys.

It fails to take into account the degree of mental and emotional maturity of
children
Implementation of the JJSO is not uniform and its proper implementation is
needed

Recommendations:

Since Pakistan has been founded in the name of Islam and promises had been
made at that time that the governing body will lie own its rules and regulations in
accordance with the Islamic Principles, So such Laws should be promoted and given
due attention to flourish which can convert present semi-Islamic situation to a
complete one.
Secondly, the principles laid by Islam always have a deep wisdom hidden
inside which may not be apparently seen by everyone yet it holds importance more
than anything. Criminal age should be set in accordance with the Islamic Principles.
Increasing the age of criminal responsibility to internationally acceptable level
that ensures that children below the age of 18 years are accorded adequate protection

There should be uniform and consistent implementation of the JJSO and

other relevant laws for better protection of children’s rights throughout Pakistan