Juvenile Justice System Ordinance 2000

Judgments of Apex Courts

in Pakistan
Ashraf Ali1
Abstract:
The subject of Juvenile Justice System Ordinance is not a new thought but in
Pakistan it was a vague law until the Parliament passed Juvenile Justice System
Ordinance 2000. As per reports of UN committees on Juvenile, Amnesty
International, NGOs and other institutions, violations of Juvenile Rights are widely
reported in Pakistan. It is interesting to note that even the laws on Juvenile has not
been fully interpreted by the legal experts in Pakistan and that is why an effort is
made to search and get together all the decision of apex courts in Pakistan so as to
analyses that how much sensitive this issue is? Since there is no mass awareness in
Pakistan, therefore, the Juvenile Rights have not been recognized by the general
public; however, with the passage of time, it would be a debatable issue.

Key Words
Juvenile, Justice, supreme Court, Pakistan Legal Decision, Yearly Law Reporter,
National Law Reporter, appellate, jurisdiction.

INTRODUCTION
With the passage of time the idea of children is changing. Initially a child was
considered/ recognized as a person, mere as source of pleasure and joy. At the
be ginning of the 17th century another idea emerged regarding childhood, and was
consider as miniature adult with all the inclinations towards evils and potential for
fallen human nature.
In each and every statute book when a question of child offenders comes there will be
special treatment to the persons of tender age. Technically, they are called "minors".
Minor is a person whose age is below a certain level and has been determined by the
law of the land. In criminal law, they are called "juveniles". In some of the statute
books they are called juveniles while in other "child". Hence, the terms "juvenile" and
"child" are used interchangeably. The Pakistan Penal Code, the Criminal Procedure Code,
the Juvenile Justice System Ordinance and' the Probation of Offenders Ordinance are
relevant laws that deal with the matters of juveniles.
1

Ashraf Ali LLM is Assistant Professor Abdul Wali Khan University Mardan. He was a Magistrate in Khyber
Pakhtunkhwa Pakistan since 2001-2010. His area of interest is criminal law. For contact please mail to
lathoon@hotmail.com

Definition
An area of the law that deals with the actions and well-being of persons who
are not yet adults.2
In the law a juvenile is defined as a person who is not old enough to be held responsible
for criminal acts. In most states and on the federal level, this age threshold is set at 18
years. In Wyoming a juvenile is a person under the age of
19. In some states a juvenile is a person under the age of 17, and in Connecticut, New
York, and North Carolina, a juvenile is a person under the age of 163.

In Pakistan a person whose age is less than 18 years is considered juvenile. These
age definitions are significant because they determine whether a young person accused
of criminal conduct will be charged with a crime in adult court or will be required to
appear in juvenile court.4

H i s t o r ic a l O ve r vi e w o f J u ve n i l e J us t ic e

Laws and legal procedures relating to juvenile offenders have a long history,
dating back thou-sands of years. The Code of Hammurabi some 4,000 years ago (2270
B.C.) included reference to runaways, children who disobeyed their parents, and sons who
cursed their fathers. Roman civil law and canon (church) law 2,000 years ago
distinguished between juveniles and adults based upon the idea of age of
responsibility.5
In early Jewish law, the Talmud set forth conditions under which immaturity was
to be considered in imposing punishment. Moslem law also called for leniency in
punishing youthful offenders, and children under the age of 17 were to be exempt from
2

http://legal-dictionary.thefreedictionary.com/Juvenile+Law

https://www.ncjrs.gov/html/ojjdp/195420/page3.html

http://law.jrank.org/pages/7961/Juvenile-Law.html. (Juvenile Justice System Ordinance,2000)

History and Development of the Juvenile Courts and Justice Process.( http://www.sagepub.com/upmdata/19434_Section_I.pdf)

the death penalty (Bernard, 1992)6.

Under fifth-century Roman law, children under the age of 7 were classified as
infants and not held criminally responsible. Youth approaching the age of puberty who
knew the difference between right and wrong were held accountable. The legal age of
puberty (age 14 for boys and 12 for girls) was the age at which youth were assumed to
know the difference between right and wrong and were held criminally accountable.7

Anglo-Saxon common law that dates back to the 11th and 12th centuries in
England was influenced by Roman civil law and canon law. This has particular
significance for American juvenile justice because it has its roots in English common
law. The Chancery courts in 15th-century England were created to consider petitions of
those in need of aid or intervention, generally women and children who were in need of
assistance because of abandonment, divorce, or death of a spouse8.
Through these courts the king could exercise the right of parens patriae (parent of
the country), and the courts acted in loco parentis (in place of the parents) to
provide services in assistance to needy women and children. The principle of parens
patriae later became a basis for the juvenile court in America. The doctrine gives the
court authority over juveniles in need of guidance and protection, and the state may then
act in loco parentis (in place of the parents) to provide guidance and make decisions
concerning the best interests of the child.9

ORIGINS OF THE JUVENILE JUSTICE SYSTEM

The law has long defined a line between juvenile and adult offenders, but that
line has been drawn at different places, for different reasons. Early in United
States history, the law was heavily influenced by the common law of England, which
governed the American colonies. One of the most important English lawyers of the
time was William Blackstone. Blackstones widely read and admired by our nations

Juvenile Justice: The Essentials by Richard Lawrence, Marrio Hesse (2009) SAGE Publications.

Juvenile Justice: The Essentials by Richard Lawrence, Marrio Hesse (2009) SAGE Publications.

http://www.sagepub.com/upm-data/15994_Chapter_1___Juvenile_Justice_in_Historical_Perspective.pdf

Juvenile Justice: The Essentials by Richard Lawrence, Marrio Hesse (2009) SAGE Publications.

founders10.

Infants and Adults at Common Law

In one section of his Commentaries, Blackstone identified people who were
incapable of committing a crime. Two things were required to hold someone
accountable for a crime. First, the person had to have a vicious will (that is, the
intent to commit a crime). Second, the person had to commit an unlawful act. If either
the will or the act was lacking, no crime was committed. The first group of people
Blackstone identified as incapable of committing crime was infants. These were not
infants in the modern sense of the word, but children too young to fully understand
their actions11.
Blackstone and his contemporaries drew the line between infant and adult at the
point where one could understood ones actions. Children under the age of seven were
as a rule classified as infants who could not be guilty of a felony (a felony is a serious
crime such as bur-glary, kidnapping, or murder). Children over the age of 14 were
liable to suffer as adults if found guilty of a crime12.

Between the ages of seven and fourteen was a gray zone. A child in this age range
would be presumed incapable of crime. If, however, it appeared that the child
understood the difference between right and wrong, the child could be convicted and
suffer the full consequences of the crime. These consequences could include death in a
capital crime. (A capital crime is a crime for which one might

be

executed.

For

examples of children sentenced to death in

Blackstones time, see the sidebar Malice Supplies the Age)13.

10

History of the Juvenile Justice, American Bar Association Public education.

http://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf
11

http://h2o.law.harvard.edu/playlists/671/export

12

https://www.americanbar.org/content/dam/aba/migrated/.../DYJpart1.pdf

13

http://www.ukessays.com/essays/criminology/the-law-between-juveniles-and-offenders-criminologyessay.php

ESTABLISHMENT OF FIRST Juveniles COURTS.

Till 19th century, there were no concept of separate juvenile court; children and adults
were tried likewise in criminal courts. The 16th century educational reform movement in
England changed the idea of people that children are different than miniature adults, with
less than fully developed moral and cognitive capacities, fueled the movement for
juvenile justice reform. The Society for the Prevention of Juvenile Delinquency along
with other reform organizations were advocating for a separate court system for youth as
early as 182514.

In 1899, the first juvenile court was finally established in Cook County, Illinois,
and by 1925, all but two states had followed. Borrowing from the British thinking, the
doctrine parens patriae (the State as Parent) served as the foundation for the newly
established right for the state to intervene and to provide protection for children whose
parents did not provide adequate care or supervision, such as in the case of juvenile
delinquency. The primary motive of the juvenile court was to provide rehabilitation and
kind hearted supervision for

children15.

There were now significant differences in the juvenile and criminal court
systems. The focus of the juvenile court was on the offender, not on the offense.
Additionally, the focus was on rehabilitation rather than punishment. All crimes by
individuals under the age of eighteen were adjudicated in a juvenile court, with rare
exceptions (decided upon a case by case basis) when a waiver could transfer a youth to
adult court16.

The juvenile court, with its rehabilitative mission, could be much more
flexible and informal than the criminal court. A range of dispositional options related to
the childs situation, and not only to the crime, was now available to a judge. In the
1950s and 60s public concern grew about the effectiveness of the juvenile justice
system, not because of the rehabilitative philosophy, but because of its perceived lack of
14

God Vs The Gavel, Religion and the Rule of Law by Marci A. Hamilton

15

http://www.studymode.com/subjects/illinois-juvenile-court-act-of-1899-page2.html

16

Criminal Law-A s all step for ard i Ju e ile se te ci g.by Brian J. Fuller Wyoming Law Review Vol 13

effectiveness and the number of juveniles who were detained indefinitely17.

In the 1960s, the Supreme Court made a series of decisions that formalized
the juvenile courts and made them more like criminal courts. Formal hearings were
required in situations where juveniles were waived to adult courts, juveniles facing
confinement were required to be given the right to receive notice of charges held against
them, and the right to have an attorney, represent them. Proof beyond a reasonable
doubt had to be established, instead of just a preponderance of evidence for
adjudication. In the 1980s the public perceived that juvenile crime was on the rise and
that the system was too lenient. Many states passed punitive laws, including mandatory
sentences and automatic

waivers to adult court for certain crimes.18

In the 1990s this tough on crime trend accelerated. Transfer provisions made it easier
to transfer juvenile offenders to the criminal justice system. In the court process and in
detention, a greater emphasis moved from rehabilitation to punishment.19

RELEVENT LAWS DEALS WITH JUVENILES.

Juvenile Justice System Ordinance 2000

Child means a person who at time of commission of an offence, has not
attained the age of 18 years20.

Pakistan Penal Code 1860

Nothing is an offence which has been done by a child under seven years

17

https://www.ncjrs.gov/html/ojjdp/nationalreport99/chapter4.pdf

18

http://www.ukessays.com/essays/criminology/the-development-of-the-juvenile-justice-systemcriminology-essay.php
19

http://www.studymode.com/subjects/the-various-punishment-philosophies-within-the-juvenile-courtand-its-process-page2.html
20

Section 2(b) Juvenile Justice System Ordinance 2000

of age21.
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.22

Offence of Zina (enforcement of ) Hadd Ordinance 1979

Adult means a person who has attained, being a male, the age of 18 years or
being a female, the age of 16 years, or has attained puberty23

Code of Criminal Procedure 1898

According to Pakistan Criminal Procedure,

Juvenile as a person under the age of 1524
Punjab Youthful offender ordinance 1983
Child is a person not attained the age of 15 years25.
Juvenile Justice Act 1986
In Indian law Juvenile means a boy who has not attained the age of 16 years or a
girl who has not attained the age of 18 years.26

21

Section 82 Pakistan Penal Code 1860

22

Section 83 Pakistan Penal code 1860

23

Section 2(a) of Offences Against Zina Hadd Ordinance 1979

24

Section 29(b) of Criminal Procedure Code 1898

25

Section 2(1)(a) of Punjab Youthful Offender Act 1983

26

Section 2(h) of Juvenile Justice Act 1986

Juvenile Justice Ordinance 2000

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 on such terms and conditions as the high court may determine.27

Court Decisions in respect of Juveniles in Pakistan

Separate Trial of Juvenile shall be conducted

Accused on the basis of a School Leaving Certificate had sought his trial by the Juvenile
Court on the ground of being a child. People while admitting the children in Schools
usually get entered the age less than the actual date of birth even otherwise School
Leaving Certificate could be easily obtained particularly in villages according to the wish
of the applicant and it was not safe to rely upon the same. Onus to prove that boy
was less than 18 years of age was upon the accused which he had failed to discharge.
Accused was 20 years of age according to the report of Medical Board which was
based on expert opinion of Radiologist to which authenticity was attached.
Observation made by the Sessions Court in the bail granting order could not be given
preference over the aforesaid medical report. Impugned order of the Sessions Judge
sending the case of accused to the Court of Additional Sessions Judge for trial, therefore,
did not suffer from any illegality. Revision petition was dismissed in limine accordingly.28

Determination of Age of Juvenile

Juvenile Justice System Ordinance, 2000 was a special law and same would
take precedent over the general law. Ordinance did not give any discretion to Trial
Court to ignore its mandatory p r o v i s i o n s . Purpose of the Ordinance was
to provide protection to children in criminal litigation, their rehabilitation in society,
reorganization of Juvenile Courts and matters connected therewith. Under the
Juvenile Justice Rules, 2001, it was necessary for Provincial Government to
establish and maintain borstal institution to keep and accommodate the juvenile
with all arrangements to impart education and training for their mental,
physical, moral and psychological development within the borstal institution. In
order to properly implement the Juvenile Justice System Ordinance, 2000 and
the Rules made thereunder, it was obligatory for all courts of law to ensure the
proper process for determination of age, which was most crucial point before
27

Article 4 of JJSO 2000

28

Mohammad Akhtar Vs Muhammad Riaz case citation 2001 YLR Page 276

commencement of trial. Under the Ordinance Juvenile Courts had been specially set
up with exclusive jurisdiction to try cases in which a child was accused.Moving of
application by a juvenile under trial was not a condition precedent for conferring
jurisdiction upon the court to take cognizance of the element of age under said
law.29
Arrest and bail and Bail of Juvenile
(1) when a child is arrested for commission of an offence, the officer Incharge
of the police station shall, as soon as inform the guardian of such arrest and
inform him of the time, date and name of the Juvenile Court before which
the child shall be produced; the concerned Probation Officer to enable him
to obtain such information about the child and other material.
(2) If he is accused of non-bail able be produced within 24 hours to
concern juvenile court.
(3) When a child is accused of bail able offence is released on bail with or without
surety if it appears that he will be in danger, be given in the custody of probation
officer, or welfare institution.
(4) If an offence has been committed by a child having punishment less than 10
years, he is under the age of 15 years will be consider for him bail able
offence.
(5) Delay in trail.
If an offence punishable with death, detained and trail not concluded within
one year be released on bail.
If an offence punishable with life imprisonment, detained and trail not
concluded within 6 months be released on bail.
If an offence not punishable with death or life imprisonment, detained and
trail not concluded within 4 months be released on bail.30

Interpretation of Juvenile Laws in Pakistan

Juvenile Justice System Ordinance, 2000 being a special law enforced in order to
safeguard the rights of children/minors involved in criminal cases, who deserved
reasonable concession because of their tender age, was to be liberally interpreted in
29

Ghulam Rasool Vs State case citation PLD 2010 Karachi Page 384

30

Ghulam Rasool Vs State case citation PLD 2010 Karachi Page 384

favour of accused and if the age of such an accused would be one day less than 18
years, he would come within definition of "child" as contained in section 2(b) of Juvenile
Justice System Ordinance, 2000 and would be entitled to grant of bail even if involved in
case punishable with death---Said concession, however, was subject to limitations
contained in clause (c) of subsection (7) of section 10 of Juvenile Justice System
Ordinance, 2000, under which, if the Court would come to the conclusion that reasonable
grounds were available to believe that such child was involved in an offence which in its
opinion, was serious, heinous, gruesome, brutal, sensational in character or shocking to
public morality or he was a previous convict of offence punishable with death or
imprisonment for life, then he would not be entitled to that concession.31
Purpose of Juvenile Justice System Ordinance 2000

As is evident from its preamble, the Juvenile Justice System Ordinance, 2000
has been promulgated primarily for protection of children and also for their
rehabilitation in society. Since the purpose is to treat and reform delinquents and to keep
them away from the destructive impact of prison which otherwise, has to tell its toll
therefore, the Juveniles are normally incarcerated as a last resort. In the wake of section
12(a) of "the Ordinance" it is provided that no child while in custody, put in Borstal or
any other institution can be ordered to labour or given corporal punishment.32
Appeal in conviction cases of Juvenile

When a child has been convicted, will file appeal within 30 days from the date of
such order. The provincial government can also appeal under section 417 of Code of
Criminal Procedure 1898.33

Implementation of the JJSO

The JJSO provides important protection for children and should be permanently
reinstated and strengthened. However, its implementation requires attention. In
particular, the geographical coverage of the JJSO and the establishment and jurisdiction
of juvenile courts need to be addressed. Despite the JJSO stipulating otherwise, Amnesty
International continues to receive reports of children receiving very long prison
sentences, high fines and the death penalty.
31

Naeem Khan Vs State case citation PLD 2004 Peshawar Page 70

32

Husnain Khan Vs State case citation PCrLJ ( Federal Shariat Court) Page-426

33

Ibid

In April 2004, the Adviser to the Prime Minister on Women Development, Nilofar
Bakhtiar reportedly announced that a plan had been prepared to implement the JJSO "in
letter and spirit this year". She admitted that "unfortunately" this could not be done
earlier, without giving any reason for the failure. She added that from then on nobody
below the age of 18 would be sentenced to death despite a legal ban on the death
penalty for juveniles having been in place for almost four years and commitments in that
regard having been made when the CRC was ratified 10 years earlier. She also
announced that a survey of all the prisons would be undertaken to prepare a list of
juveniles in detention.34
The non-governmental Human Rights Commission of Pakistan (HRCP) has
pointed out in successive annual reports that the JJSO remains "extremely poorly
implemented".35
Amnesty International agrees with this assessment. Most provisions of the JJSO
are at best partially implemented. The death penalty continues to be imposed on
children; the mandatory separation of trials of juveniles from those of adults is
routinely ignored and the JJSO has not been extended to large areas of the country where
children are tried and held under laws that entirely ignore the specific rights and needs of
children.36
The UN Committee on the Rights of the Child discussing Pakistans second
periodic report on the CRC at its 34th session in October 2003 expressed its concern at
the:
"poor implementation [of the JJSO] and that many of the authorities in
charge of its implementation, particularly within provincial governments and tribal
areas, are unaware of its existence. The Committee is also deeply concerned at the
high number of children in prisons who are detained in poor conditions, often
together with adult offenders and thus vulnerable to abuse and ill-treatment. The very
low minimum age of criminal responsibility (7 years) is also of concern. Further, the
Committee is deeply concerned about reports of juvenile offenders being sentenced to
death and executed, which have occurred even after the promulgation of the
Ordinance."37

34

http://www.amnesty.org/es/library/asset/ASA33/021/2005/es/286707de-d4b6-11dd-8a23d58a49c0d652/asa330212005en.html
35

http://www.hrcp-web.org/hrcpweb/report14/AR2013.pdf

36

http://www.amnesty.org/en/library/asset/ASA33/021/2005/en/24a9ffb0-d4b6-11dd-8a23d58a49c0d652/asa330212005en.pd
37

http://www.amnesty.org/es/library/asset/ASA33/021/2005/es/286707de-d4b6-11dd-8a23d58a49c0d652/asa330212005en.html

Conclusion

It recommended a range of measures to improve Pakistans child rights record,

including the setting up of an independent and effective mechanism to monitor the
implementation of the CRC and receive and address complaints from children in a
child-friendly and expeditious manner; scrutiny of existing laws including the
Hudood Ordinance with a view to bringing them in conformity with the CRC; and the
implementation of child rights protection in the Northern and tribal areas. It also
expressed concern about persistent discriminatory social attitudes towards children which
are evident even in the criminal justice system. The Committee also noted that a very
significant number of children are not registered at birth which has negative
consequences on the full enjoyment of fundamental rights and freedoms of children.